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institutions.1 So, too, were U.S. environmentalists who protested the
weakening of American “dolphin safe” labeling rules for imported
tuna “ which, if unchanged, were likely to be challenged by the
Mexican government through the World Trade Organization™s dispute


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settlement system;2 the Ugandan activists concerned about the eco-
nomic and social risks created by the Bujagali hydroelectric project
promoted by the World Bank;3 and the Argentine policy makers pres-
sured by the International Monetary Fund to grant rate increases to
troubled utilities that had been sold to European multinationals in
the 1990s.4
In cases such as these it was common to complain that critical
decisions were being made by remote control “ and the locus of deci-
sion making often was remote, in the geographical sense: in Brussels
rather than in London; in Geneva rather than in Washington; or in
Washington rather than in Kampala or Buenos Aires. But the sense of
remoteness was aggravated by the secretiveness with which decisions
were being made in Brussels, Geneva, or Washington, and complaints
about opacity often undergirded challenges to the legitimacy of deci-
sions made in supranational forums. The critics had a point. Activists
were contending against another durable barrier to transparency in
government “ the ethos of diplomatic con¬dentiality, which has tra-
ditionally dictated that governments should be allowed to conduct
their relations with other states in strict privacy.
That there is a long-established norm of diplomatic con¬dential-
ity is beyond dispute. A rule of complete secrecy was one of the main
characteristics of the system of diplomacy constructed to manage
relations among European states after the Renaissance;5 and J. H. H.
Weiler observes that the “ethos of con¬dentiality” continues to be
a “hallmark” of modern diplomacy.6 It is “longstanding custom and
accepted practice in international relations,” the U.S. Justice Depart-
ment told a federal court in 1999, “to treat as con¬dential and not
subject to public disclosure information and documents exchanged
between governments and their of¬cials.”7 For many years, executive
prerogatives in the ¬eld of diplomacy were so ¬ercely protected that
they were said to have produced systems of “bifurcated” government “
with one part dealing with domestic policy and subject to strict rules
for popular control, and another part dealing with foreign policy and
largely exempt from those rules.8
The ethos of diplomatic con¬dentiality is typically defended on
realist grounds. To realists, the ability of diplomats to resolve dis-
putes hinges on their ability to manage the number of parties to
the con¬‚ict.9 More open discussion of interstate con¬‚icts might also
increase pressure on government leaders to articulate basic principles

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or emphasize doctrinal differences, complicating the process of con-
¬‚ict resolution.10 (Hans Morgenthau famously warned against the
“vice of publicity” in diplomacy, observing that “it takes only common
sense derived from daily experience to realize that it is impossible to
negotiate in public on anything in which parties other than the nego-
tiators are interested.”11 ) Realists also suggested that the mass public
was too shortsighted and ill informed to make sound decisions on
foreign policy.12 Furthermore, the costs of poor decision making in
the ¬eld of international relations could be extraordinary, bearing as
they traditionally did on matters of war and peace. The institutions
and conventions of diplomacy emerged at a time when the state sys-
tem was fragile and “the risk of resort to force of arms was inevitably
and always present.”13
Supranational institutions, as products of diplomacy, are imbued
with this deeply rooted ethos of con¬dentiality. And yet the expanding
role of such organizations has seemed, to many observers, to cre-
ate new reasons for challenging the ethos. In many cases, the dis-
putes being resolved through intergovernmental processes do not
relate directly to the stability of the state system. On the contrary,
they address problems of economic organization or social welfare
that might otherwise have been addressed under the more liberal
rules on popular participation that govern the “domestic” half of our
bifurcated governments. The relocation of these responsibilities into
the sphere of intergovernmental relations “ the blurring of the line
between domestic and foreign affairs “ has consequently produced
strong challenges to the restrictions on transparency and participa-
tion that have traditionally prevailed in that sphere.
Many supranational institutions have attempted to grapple with
these challenges over the past two decades. Some have claimed a
radical change in practice. The realities, however, are more com-
plex. Many institutions have confronted crises of legitimacy, but their
reactions have been varied and usually limited. Only one suprana-
tional institution “ the European Union “ has acknowledged a right
to information; new policies adopted by other institutions are much
more restrictive. In a sense, the shift of power to supranational insti-
tutions has created a predicament much like that created by the shift
of power to private actors within national borders: The struggle for
openness has broken into a series of smaller and often arcane battles
against a broader mix of institutional targets.

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Eurocrats
Policy governing access to information within the European Union
was born out of a crisis of legitimacy that confronted the project of
European integration in the late 1980s and early 1990s. Efforts to
increase the pace of economic and political integration “ through
the signing of the Single European Act (SEA) in 1986 and the Treaty
on European Union (TEU) in 1992 “ were supported among policy
elites but regarded more skeptically by electorates.14 The implemen-
tation of the SEA was delayed when Ireland™s Supreme Court ruled
in 1987 that a referendum was needed. Although Irish voters eventu-
ally endorsed the law, the ensuing debate aired public anxieties about
the shift of power to EU policy makers in Brussels. A few years later,
the TEU was repudiated in a Danish referendum, while a rati¬cation
vote in France in September 1992 almost produced a second defeat.
Opinion polls in the United Kingdom and Germany showed that ref-
erenda in those countries on the TEU would have failed as well, had
they been required.15
Popular resistance to integration was often expressed as a com-
plaint about the secretiveness of EU institutions. During negotiations
over the TEU, the Dutch government proposed to address this com-
plaint by creating a right of access to information held by EU institu-
tions, but other governments balked and the treaty promised only a
study of methods to improve access to documents.16 This tepid com-
mitment proved inadequate during the Danish referendum on the
TEU, in which complaints about EU secrecy resonated among vot-
ers. Denmark™s foreign minister conceded that the Danish referendum
defeat “taught us all a lesson” about the need for transparency, and
the Danish government reacted by promising that it would unilater-
ally declassify documents received from the EU.17 EU leaders also
responded with assurances on openness, and in a second referendum
in May 1993 Danish voters approved the TEU.18 In December 1993,
two key EU institutions “ the Council of the European Union and the
European Commission “ adopted a Code of Conduct that established
new procedures for obtaining access to documents.19
The 1993 code had severe limitations. One was the number of
specialized organizations set up by the EU that were completely
excluded from its requirements, including the European Central
Bank, the European Investment Bank, the European Police Of¬ce, the

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European Agency for the Evaluation of Medicinal Products, and the
European Environment Agency.20 (The EU™s independent ombuds-
man, Jacob Soderman, eventually prodded several of these organiza-
¨
tions to develop their own disclosure codes.21 Occupying a position
created by the TEU and appointed by the European Parliament, the
ombudsman would prove to play a critical role in promoting open-
ness. Soderman had previously served as Finland™s ombudsman.) Nor
¨
did the code apply to any document an EU institution had received
from a member state or any other organization. Information received
from other governments but contained within an EU document would
also be withheld if the other government requested con¬dentiality.22
These were severe restrictions for institutions that dealt principally
with problems of multilateral policy coordination.
The major EU institutions also insisted on strict interpretation of
the code. In 1997, the European Commission argued that the code
did not apply to its “comitology committees” “ in¬‚uential commit-
tees composed of experts appointed by member governments that
are given a formal role in guiding the implementation of Commis-
sion policy.23 The commission argued that the committees were com-
pletely independent, even though commission staff prepared minutes
for committee meetings. After two years of litigation, the commis-
sion was compelled by the European Court of Justice to abandon its
position.24
The EU Council made similar efforts to restrict the code. Its Legal
Service argued that the code did not apply to documents produced
by of¬cials in the Council secretariat that had not been distributed to
all member states, but this interpretation was eventually rejected by
the ombudsman.25 The ombudsman also rejected a claim by council
lawyers that the code did not apply to documents produced by the gov-
ernment holding the presidency of the council.26 (Member states hold
the presidency in rotation for six-month periods.) As a fallback, the
council argued that documents the presidency had authored jointly
with institutions outside the EU (such as agendas for meetings of the
EU“U.S. working groups set up to implement the 1995 New Transat-
lantic Agenda) could not be considered council records. This position
was abandoned following criticism from the ombudsman.27
The council also argued that the 1993 code did not apply to doc-
uments relating to multilateral cooperation in law enforcement, jus-
tice, and immigration “ a new ¬eld for collaboration established by

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the TEU. In 1995, the council™s refusal to provide Britain™s Guardian
newspaper with minutes and voting records of a council of justice and
interior ministers was reversed by the European Court of Justice.28
The following year, the council denied that the code applied to doc-
uments of the K4 Committee (a coordinating committee of senior
justice and interior of¬cials) but was overruled by the ombudsman.29
In 1998, two EU governments “ the United Kingdom and France “
attempted to persuade the Court of Justice that the code did not pro-
vide Swedish journalists with any enforceable right to documents
relating to Europol, the European Police Of¬ce. The court rejected
the argument.30
At the same time the council attempted to block access to doc-
uments relating to another new ¬eld of cooperation established by
the TEU: foreign and security policy. When a Finnish member of the
European Parliament, Heidi Hautala, sought an internal report on
the control of arms exports by EU countries, the council denied that
there was any enforceable right to the document; it was again over-
ruled by the Court of Justice. 31 The council responded by arguing
that it had no obligation to review the report and determine whether
parts of it could be safely released (a standard practice under national
disclosure laws), but the council was ¬nally compelled to do so by
the court.32 In 2000, the council took more drastic measures to pro-
tect information relating to defense cooperation: Quickly and without
notice, it altered the code to broaden the circumstances in which doc-
uments could be withheld in the interests of collective security.33
The EU Council made decisions on disclosure by a vote of mem-
ber states, and decisions to deny access often frustrated the Danish
and Dutch governments.34 However, the position of the dissenting
minority was strengthened as the EU negotiated over the accession
of three Nordic countries “ Sweden, Norway, and Finland “ with long-
standing commitments to open government. The potential for erosion
of transparency became a major issue during Sweden™s closely fought
referendum on accession. The EU allowed the Swedish and Finnish
governments to add caveats to their accession agreements stating that
access to documents was a matter of “fundamental importance.”35
At the same time, the position of the French and German gov-
ernments, whose representatives almost always voted against dis-
closure, was compromised by their desire for treaty reforms that
would bolster the EU™s authority. EU of¬cials conceded that there was

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lukewarm public support for more reform in many countries, and
a need for actions to “regain the commitment of citizens” so that
an agreement could be rati¬ed “ an especially dif¬cult proposi-
tion in Denmark where a referendum would again be required.36
Acknowledging the realities, France and Germany ¬nally acquiesced
to demands that a new agreement recognize a right of access to infor-
mation held by EU institutions.37 The Amsterdam Treaty of 1997
required that a new disclosure regulation be adopted by 2001.38
The new regulation provided a quali¬ed improvement in trans-
parency. In some aspects, the policy closed con¬‚icts of the preceding
eight years. For example, it clearly applies to all of the policy areas
in which the EU now works, and to the documents produced by the
commission™s expert committees. On the other hand, the new regula-
tion still contains a major restriction held over from the earlier code.
At the insistence of the French government, the Amsterdam Treaty
included an assurance that the new disclosure policy would continue
to give governments the right to request that documents given to EU
institutions not be disclosed.39
A change in procedures for adopting a new disclosure policy also
handicapped efforts to maintain secrecy. The 1993 code was adopted
by a simple majority vote of states represented in the European Coun-
cil, and had been changed in 2000 in the same way. However, the
Amsterdam Treaty required that a new policy be approved by the
EU Parliament as well as by the council. The Parliament conceived
of itself as a check against executive misconduct, and only a year
before dispatched several senior EU of¬cials who had resisted a par-
liamentary inquiry into allegations of corruption.40 When the Euro-
pean Commission unveiled a draft regulation in 2000 that included
broad restrictions on disclosure “ such as a ban on release of “texts
for internal use”41 “ the ombudsman protested in the Wall Street Jour-
nal against “a list of exemptions from access without precedent in the
modern world.”42 Bolstered as well by complaints from nongovern-
mental organizations and national legislators, the Parliament suc-
ceeded in reversing many of the commission™s proposed restrictions.43
By 2001, the European Union had acquired the distinction of
being the ¬rst system of supranational governance that was subject to
a disclosure policy that provided enforceable rights roughly compara-
ble to those in national laws. However, a combination of unusual cir-
cumstances had led to that result. Treaty and accession negotiations

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