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had made otherwise dominant states susceptible to pressure for
increased openness. The elaborate EU architecture also created coun-
terweights “ such as the European Parliament, the Ombudsman, and
the Court of Justice “ that had incentives and authority to check the
impulses of the European Council and Commission. And even the
most resistant states were not, in the end, profoundly opposed to
the principle of transparency: France, after all, had a national dis-
closure law; and while Germany had no national law, many of its
¨
Bundeslander had disclosure rules. Perversely, the acknowledgement
of a right to information also had the effect of consolidating a proposi-
tion close to the hearts of French and German policy makers “ that cit-
izens of member states were also citizens of the European Union, with
rights they could pursue on their own account against EU institutions.


Closed doors in Geneva
The drive to liberalize international trade in the 1980s and 1990s pro-
voked anxieties in many countries, as businesses and workers worried
that cheaper imports would threaten their livelihood and activists
worried about the erosion of national consumer and environmen-
tal protection rules. The World Trade Organization, established in
1995 following negotiations among over 100 countries, became the
principal target of these anxieties. The WTO was not strictly a new
organization; its successor, the inelegantly named GATT, had existed
in Geneva for decades.44 However, the WTO gained prominence as
the number of trade rules proliferated. It became a principal forum
for negotiating further liberalization. And it had an unprecedented
ability, through its Dispute Settlement Mechanism, to resolve dis-
agreements about compliance with trade rules.
The WTO quickly became a lightning rod for opponents of lib-
eralization. The process of negotiating trade agreements under the
WTO constituted a “subversion of the democratic process,” Ralph
Nader complained in 1996; important decisions on trade policy were
now made by “a group of unelected bureaucrats sitting behind closed
doors in Geneva.”45 Within a few years this view was widely held and
forcefully articulated by critics of liberalization. In November 1999,
an attempt by government leaders meeting in Seattle, WA, to begin
a new round of WTO negotiations was thwarted by massive street
protests. Many nongovernmental organizations sympathetic to the

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protestors said that the WTO™s problems lay in its failure to make
the process of negotiation more transparent. “The WTO operates in
a secretive, exclusionary manner,” said one manifesto. “People must
have the right to self-determination and the right to know and decide
on international commercial commitments. Among other things, this
requires that decision-making processes be democratic, transparent
and inclusive.”46 After Seattle, the in¬‚uential nongovernmental orga-
nization Oxfam asserted that the WTO confronted “a crisis of legit-
imacy” produced by “shadowy processes [that] are more medieval
than millennial.”47
That the WTO should be criticized for indifference to openness
was, in a sense, deeply ironic. At its ¬rst meeting of ministers in Sin-
gapore in 1996, the WTO had af¬rmed that one of its main aims was
to achieve “the maximum possible level of transparency” so far as
national trade practices were concerned.48 Much of the organization™s
work consisted of developing procedures to achieve this goal. One
of these procedures is the Trade Policy Review Mechanism, which
requires a regular review of each country™s trade policy by WTO staff
and other country representatives. The WTO says that the TPRM pro-
motes “greater transparency” in national policies;49 other observers
have called it “an instrument of enforcement” intended to promote
compliance with the “normative framework” promoted by the WTO.50
TPRM reviews often provide other governments and foreign investors
with evidence about a country™s commitment to liberalization.51
With the same goal in mind, the WTO also honed policies that
established a right to documents held by its member states. The old-
est of the WTO agreements, the 1947 General Agreement on Tariffs
and Trade, requires governments to publish laws, regulations, judicial
decisions, administrative rulings, and intergovernmental agreements
that affect international trade.52 (There are limitations: A government
may withhold information if it would impede law enforcement, prej-
udice legitimate commercial interests, or otherwise harm the public
interest.) The similarity to the U.S. Administrative Procedures Act
of 1946, which imposed comparable disclosure requirements on the
American bureaucracy and was a forerunner to the U.S. Freedom of
Information Act, is not coincidental.53
Just as the U.S. Administrative Procedures Act evolved, so too did
the disclosure rules contained in WTO agreements. The 1994 Gen-
eral Agreement on Trade in Services (GATS) added an obligation for

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countries to establish “enquiry points” to respond to requests from
other governments for “speci¬c information” about policies affect-
ing trade in services.54 Several other WTO agreements now include
the same requirement. Some agreements go even further, acknowl-
edging that foreign businesses have their own right to informa-
tion, which can be exercised without government assistance. Under
the Agreement on Government Procurement, for example, countries
must “promptly provide” foreign companies with an explanation of
their procurement practices and reasons for unfavorable decisions.55
Similarly, the 1997 Agreement on Basic Telecommunication Services
states that foreign companies have a right to information about unfa-
vorable licensing decisions.56 The Agreement on Technical Barriers
to Trade even includes rules about the price that may be charged
for information requested by foreign companies, and the language in
which it must be provided.57
All of this was aimed at promoting transparency, but only as a way
of advancing the project of liberalization. It did nothing to improve
the transparency of the WTO itself, and this was the real point of
contention for electorates in many countries “ particularly so in the
United States, the European Union, Japan, and Canada, the four
members of the WTO with the largest shares of world trade, often
known as the Quad countries.58 As Quad voters grew restless, their
governments advocated steps to open up the WTO™s own decision-
making processes, but these efforts were compromised by decision
rules that gave weaker states the capacity to block reform.
The push for reform of the WTO had many dimensions, one of
which was more liberal access to documents circulated within the
organization. At its establishment, the WTO had a strict policy: Any
document circulated among WTO members was to be treated as
“restricted” and not distributed publicly. In 1996, the WTO™s Gen-
eral Council appeared to reverse this policy entirely by establishing
a new rule that WTO documents should generally be “derestricted”
and allowed to circulate publicly.59 A few months later, it established a
website to allow public access to its library of derestricted documents.
This seemed a remarkable turnabout for a body that consisted of over
100 ambassadors who were required to reach consensus before a deci-
sion could be made.
In fact, the turnabout was not so dramatic after all. The new policy
proved to have substantial limitations. It applied only to documents

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circulated among member states; it did not apply to draft documents
prepared by the WTO™s 500-person secretariat, or any of the secre-
tariat™s other internal papers. (In other words, the WTO secretariat
had maintained the con¬dentiality that the EU Council™s secretariat
had fought unsuccessfully to preserve at roughly the same time.) Nor
did it apply to informally circulated government documents, which
are known in WTO jargon as “nonpapers.” By 1996, the practice of
relying on nonpapers in key negotiations was common.
The WTO™s “derestriction policy” was not in any way comparable
to a national disclosure law, which would have established a right to
such documents, de¬ned the limits to those rights, and described a
procedure for deciding whether the documents should be released.
On the contrary it was a “publication scheme,”60 a negotiated plan
for release of speci¬ed “of¬cial” documents. And even for these docu-
ments there were substantial limitations. Most documents were only
to be considered for derestriction “ that is, public release “ six months
after they had been circulated to member states. Material that was
essential to follow the work of the WTO (timetables for committee
meetings, agendas, and background notes) would not be publicly
available until well after meetings had been held. Minutes were also
withheld for six months.61 Nor was the “derestriction” of a WTO doc-
ument automatic, even after six months. The policy stipulated only
that these documents would be considered for derestriction by the
WTO™s General Council; because decision making in the council is
based on consensus, derestriction could be blocked if only one govern-
ment objected. In 1999, for example, Mexico blocked the derestriction
of background papers relating to liberalization of agricultural trade,
despite arguments by the WTO secretariat and many other countries
that derestriction would enhance transparency.62
Attempts to liberalize the WTO™s policy were frustrated by the need
for consensus. In 1997, a major Quad-funded nongovernmental orga-
nization suggested that the WTO should adopt a policy comparable
to that contained in national disclosure laws, in which any document
would be accessible unless nondisclosure could be shown to be essen-
tial to protect speci¬ed interests.63 The Quad countries themselves
made more modest proposals aimed at liberalizing the policy on de-
restriction of of¬cial WTO documents.64 But these proposals failed to
win support.65 Quad countries protested that a compromise reform
¬nally adopted by the General Council in 2002 had “considerably

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watered down” their proposals: Governments still retained the power
to block access to their own submissions, as well as the power to block
access to other documents for up to three months.66 “If Members
sought perfection on every point,” the council™s chairman warned,
“consultation would likely continue for another four years.”67
Countries that opposed more liberal disclosure rules may have
done so only to preserve a negotiating point known to be valued by
the Quad countries. However, there were other fears too, such as the
concern that emphasis on “external” transparency (as it is known
within the WTO) would undermine the ability of weaker national
delegations to stay abreast of debates within the organization. Even
in 1996, countries such as Mexico complained about the proliferation
of nonpapers.68 “Radical derestriction,” as the Bulgarian delegation
called it, might simply mean that the nonpaper system would ¬‚ourish,
producing little actual improvement in external transparency, and in
fact corroding the of¬cial record.69 Allied to this was a concern that
external transparency would increase the advantage of the Quad™s
better-funded interest groups.
Quad efforts to improve transparency of the WTO™s Dispute Set-
tlement Mechanism (DSM) faired worse. The DSM was an innovation
established at the same time as the WTO itself “ a system for inde-
pendent adjudication of disputes between countries about compli-
ance with WTO rules. The DSM is a hybrid of organizational forms.
Although it functions like a court, its procedures are also imbued with
the ethos of diplomatic con¬dentiality. The expert panels appointed
to resolve disputes meet in closed session. Only governments have the
right to appear before a panel or have their submissions considered
by it. All submissions are con¬dential, and so are the interim panel
reports that are distributed for comment by interested governments.
Comparable rules are followed by the Appellate Body, which may be
asked to take up complaints about a panel report.19
These rules quickly became the object of protest by American non-
governmental organizations. In 1998, environmental groups com-
plained about their inability to observe or submit briefs to a panel
appointed to consider challenges to an American law mandating the
use of turtle-exclusion devices by foreign shrimp ¬shers. (The United
States government attempted to circumvent the ban on NGO briefs
by including them in its own submission, a move that was unsuccess-
fully resisted by the four developing countries “ Thailand, Pakistan,

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Malaysia, and India “ that initiated the case.70 ) American steel pro-
ducers threatened by a European challenge to American antidump-
ing laws also called for reform of the DSM.71 By the end of the 1990s,
the Clinton administration had declared DSM transparency to be a
“priority issue” for the United States.72 The administration said that
its proposals “ open hearings, a right for nongovernmental organi-
zations to make submissions to the panel, and rapid release of draft
decisions “ were “critical . . . in ensuring the long-term credibility of
the multilateral system.”73 The Bush administration took the same
position, pressed by Republican legislators who argued that such
reforms were essential to “defuse public mistrust” of the WTO.74
Developing countries strongly resisted the American proposals. In
1998 Mexico expressed the view of several governments that prema-
ture disclosure of draft panel reports encouraged “external pressures
of a non-legal kind . . . [from] certain vested interests” in developed
countries.75 In 2002 it was reported that a group of developing coun-
tries had protested that American proposals would result in “trials by
media” that could cause “miscarriages of justice.”76 Southeast Asian
diplomats told journalists that calls to open up the DSM were a pre-
occupation of “a few western countries,” and otherwise opposed by
the entire membership of the WTO.77
The dimensions of the controversy were illustrated in 2000, when
the WTO™s Appellate Body, hearing a dispute over a French ban on
asbestos products, decided that it had the discretion to accept briefs
from nongovernmental groups.78 In a special session of the General
Council, Egypt complained that “the likely bene¬ciaries of such a
decision were those individuals and NGOs who had the capacity in
terms of resources and time . . . operating mainly in the developed
world.” India agreed that the decision would “have the implication of
putting the developing countries at an even greater disadvantage in
view of the relative unpreparedness of their NGOs,” while Brazil wor-
ried that “the dispute settlement mechanism could soon be contami-
nated by political issues that did not belong to the WTO.”79 The Appel-
late Body ¬nessed the dispute by rejecting every application to submit
a brief that it received from a nongovernmental organization.80
There was a “conceptual divide” on transparency, an Indian com-
mentator said in 2000,81 and as a result attempts to forge consensus
on DSM reform proved fruitless. In 1994, WTO members had
agreed to complete a review of the DSM policy by 1988, but this

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