The deliberative deficit: transparency, access to information and UN sanctions

Transparency is commonly recognised as a desirable institutional value. It has been touted as a core attribute of good governance. Yet, while the benefits of transparency in institutional decision-making are clear, unqualified transparency may be less obviously desirable in the case of institutions that rely on a measure of confidentiality to achieve their aims. The UN Security Council, for example, has been described as ‘a body in which confidentiality and informality regarding the decision-taking process are part of the business’. Some have attributed the Council's effectiveness to a ‘procedure of confidentiality’, which provides a climate for free-ranging and uninhibited debates, and the achievement of consensus. Even so, this has not diminished the chorus of voices calling upon the Council to ensure greater transparency in its working methods and procedure. The call has been particularly strong in the context of decision-making on UN sanctions. With the increasing move to ‘targeted’ sanctions against particular individuals, groups and products, affected entities have a heightened interest in the reasons behind decision-making in sanctions regimes. This chapter seeks to provide an adjunct to the political debate by examining the role of legal standards in ensuring greater transparency. If the application of unmitigated transparency can be criticised on justifiable grounds by those who would otherwise recognise the merits of a principle of transparency, determining the reasonable limits of such a principle is of crucial importance.