Band 10, Heft 2 - Special Issue (2017): Law and Development: The Global South Perspective

This article introduces a series of papers prepared for the “2016 Law and Development Conference: From the Global South Perspectives,” held in Buenos Aires, Argentina and co-sponsored by Universidad Austral, the Law and Development Institute and the Inter-American Development Bank’s Institute for the Integration of Latin America and the Caribbean (INTAL). The introduction aims to show one of the major contributions from the law and development field of study: scholars reveal the frequent disconnection between law and development; then, by uncovering contextual factors and proposing innovative solutions, they reconnect law with development. This provides an important support for the adoption of national development policies and the implementation of international development projects. Over forty years after the seminal paper by Trubek and Galanter, D.M. Trubek, M. Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States , 4 Wisconsin Law Review (1974), 1062–1102. scholars are no longer in self-estrangement. The papers presented in the Special Issue illustrate this point.

This article will first describe the problem of Sexual and Gender-based Violence (SGBV) in Liberia, its history to views of its current status, and the debate about its cause. It will discuss the problems that result through trying to address the problem of SGBV through both formal and informal rule of law development strategies, including both traditional and customary dispute resolution processes within the Liberian setting. It will also describe the reasoning behind The Carter Center (TCC’s) support of traditional and community-based projects, including its use of NGO social science research in helping it monitor the progress being made in fighting SGBV. It will be a tale of discouragement as assessment showed the continuing prevalence of SGBV. Next the paper will discuss what led TCC to develop its Community Justice Advisor (CJA) Project. It will describe the project and its implementation. Finally it will look at the research attempts to measure CJA’s success and predict whether funding of additional CJAs will likely be effective in combating SGBV. It will conclude by making some modest observations about whether CJAs might work elsewhere in Africa, or in the developing world, and the promise and dangers of using individual paralegals as a major tool in combating SGBV.

The 2030 Agenda for Sustainable Development contains a very ambitious poverty reduction schedule: According to Sustainable Development Goal 1 extreme poverty shall be completely eradicated within the next 15 years (SDG 1.1), and also other forms of poverty shall be reduced within the same period at least by half the proportion of men, women and children of all ages (SDG 1.2). Governments are requested to “(i)mplement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable” (SDG 1.3). The authors of the Agenda refer to the concept of so-called social protection floors which has been identified as an important instrument in the fight against extreme poverty and therefore has attracted much attention in recent development policy debates. In June 2012 the General Conference of the International Labour Organization (ILO) had adopted the Social Protection Floors Recommendation. In this document ILO members are urged, as a first step, to establish basic social security guarantees, including access to essential health care and basic income security for all residents of their countries and, as a second step, to systematically extend these basic social security guarantees into more comprehensive strategies. If we look for legal answers to the global challenge of extreme poverty, then social protection law – and in particular the human right to social security – deserves special attention. Based on the research framework which has been presented by Haglund and Stryker in their book Closing the Rights Gap. From Human Rights to Social Transformation (2015) this article will try to analyze which role the legal systems in the Global South will play in implementing SDG 1 at the national level and in closing the “right to social security-gap”. Haglund and Stryker describe, inter alia, two models for social rights realization which represent alternative approaches to the MDG/SDG concept: (a) the so-called multistage spiral model whose main focus lies on the different phases which new norms have to go through when they are implemented in a state’s society, and (b) the “policy legalization model” which highlights the role of litigation in ensuring social rights compliance. Furthermore the article will deal with the responsibility of the international community in this area of development policy.

This article proposes that there are three types of individual interest perception that explain adherence to the rule of law. The first level, “profit,” refers to tangible individual gain, whether in the form of economic enrichment or the accumulation of political power. The second layer of interest, “persuasion,” involves social norms and reputation. In this second level, individuals adhere to a rule not because of the threat of government sanction or reward, but rather because of intangible concerns for reputation and social status. Finally, the third layer of interest involves individuals forgoing tangible benefit for the sake of fidelity to a constitutional order or a shared set of beliefs. A potential advantage of the three-interest view is that it provides for an accessible descriptive framework that captures the broad nature of the rule of law, moving from the small bribe for a local official to the question of whether a constitution will constrain the powerful. The three-interest view also aligns well with modern developments in experimental and behavioural economics and suggests future lines of research into how individuals and groups navigate from self-interest toward cooperation and fidelity.

Rule of Law development initiatives typically include a preference for formal or State law over informal or customary law. In dispute resolution initiatives, formal court-based adjudication is regarded as the process most likely to promote economic development and certainly as preferable to less formal mechanisms such as mediation. This article compares formal and informal methods of dispute resolution with specific reference to the trajectories of adjudication in the United States and mediation in China. Whereas adjudication seeks generally to resolve disputes in accordance with justice, understood in classical Western thought as the rendering to each what is due, informal dispute resolution is oriented more towards the common good, understood classically as the maintenance of a peaceful social order that allows people to pursue their individual and collective goals in community. These conceptions of justice and the common good are not uncontroversial but their ideologies play a significant role in dispute resolution discourse in both the US and China. This article suggests that developments in each of these jurisdictions have brought about relatively successful pluralist or “hybrid” dispute resolution systems, a suggestion that speaks against any general or fixed preference in dispute resolution initiatives for formal over informal processes.

Even though the role of courts to enforce economic, social and cultural rights through structural remedies is well established, the implementation stage of rulings following successful litigation seems to be an area of research still in the making. In the Global South, certain constitutional courts have taken on such litigation as a way to advance economic and social rights. The Judiciary Power thus became a key actor in the framing and execution of public policies. This paper examines how the Argentine Supreme Court has intervened after 2001 in public policies regarding the enforcement of social security, environmental and human rights.

This paper explores how South Africa despite having one of the most lauded constitutions and legal frameworks in the world has been unable to advance as a developmental state in economic development and institutional building endeavours. The contention of this paper is that the South African government, prioritising law and development, did so at the expense of institutional building for economic development purposes. Law and development is conceptualised in this paper as States prioritising liberal actions such as separation of powers (judiciary, executive and legislature) and human rights. Consequently, this paper is not arguing against some of the tenants characterising the law and development agenda. Rather it asks, did South Africa lose its credentials as a possible developmental state by prioritising law and development initiatives over building developmental state institutions for local economic development purposes in particular? Ultimately, this paper contends that for South Africa to become a functional developmental state it needs to reconsider its constitutional/law and development aspirations, in favour of reconfiguring government institutions to prioritise economic development.

Multilateral Development Banks (hereinafter MDBs) have evolved from avoiding non-economic considerations, as required in most of their charters, to officially supporting sustainable development. This transformation is due not only to international law, civil society pressure or internal adjustments, but in part to the emulation phenomenon between the international effort for sustainable development made by international conferences and commissions and the sustainable development effort by MDBs. The paper first examines this emulation phenomenon and its strong impact on MDB creation of substantive instruments – the environmental and social safeguards – and of procedural instruments – the accountability mechanisms – for the integration of sustainable development. Following this discussion, the second part points out that MDBs’ environmental and social safeguards still differ substantially, revealing a fragmentation in MDBs’ normative understanding of sustainable development. After presenting the arguments supporting this fragmentation, the last part of the paper argues in favor of the harmonization of MDBs’ environmental and social safeguards, resulting in the creation of a common law of sustainable development, the promotion of international law and the facilitation of investments.

The author argues that the deterioration of the natural environment in China provides a persuasive reason to reorient China’s economic growth towards a more sustainable path. Reconciling the development and environment imperatives needs to become an urgent priority for the Chinese government in order to avert the cascading implications that will arise in terms of social unrest, loss of further development opportunities as well as deepening income inequality. This paper thus examines the inter-relationship between the current ecological challenge in China and the need for economic sustainability. It evaluates the extent of environmental damage in China and focuses on the environmental impact on development and social inequality. The paper then examines the recent legislative measures that have been taken by the Chinese government to address the problem of inefficient environmental monitoring. The author suggests that further reform is needed to achieve an economically and ecologically just pathway for China’s future. The paper therefore demonstrates that the environment–development challenge in China is mainly a challenge of governance. Resolving it will contribute to better environmental justice and development.

The decolonization period was characterized by the adoption of investment protection agreements with the objective of serving the purposes of both transnational corporations and newly decolonized States. These agreements are primarily meant to protect private international investments and, incidentally, they have been presented as instruments of development: protecting international investments to foster development. Many newly decolonized States signed and ratified such treaties with the aim of attracting foreign investors – but also to maintain existing ones; what was expected in return was a contribution to their development. This article studies the legal relationship which consequently exists between international investment law and development, but at the same time, it highlights the flagrant misuse of the concept of development in practice. In this law field, both the Global North and the Global South tend to envision development in a way which is deprived of all technical and scientific grounds. The paper firstly explains how the objective of development, rooted in such investment agreements, acquired a legal function. Bilateral investment agreements were a means to forge newly decolonized States’ expectations and belief concerning the paramount necessity to protect foreign investments so as to benefit in terms of development. In the international investment legal practice, the contribution to the host State’s development by the foreign investor has been frequently used as a criterion to identify an investment: to be protected by an investment agreement any activity must necessarily be identified as an investment. As the latter knows no definition some tribunals have considered that one of the criteria to identify an investment is a contribution to the development of the host State by the potential investor. Theoretically, this seems to consider the interests of developing States in their relationship with transnational corporations. However, and this is the second point, development has itself never really been defined – and still is not in this law field. It is hence used and applied as an undefined concept. Development is in fact referred to as an image, as a symbol, but never in its technical aspects. Accordingly, such reference made to the concept of development in international investment law is far from convincing and forges skepticism on its intrinsic necessity and use. In this vein, it raises the thorny question of the jurist’s technical competence to assess what development is and how it can – technically – be used in law.

This article reflects critically on the instrumental value of law in the anti-corruption struggle in Africa. Three questions are central to this reflection: (a) Is the instrumental use of law to achieve a developmental purpose, such as anti-corruption, defensible in theory and practice? (b) Is law necessary to, and/or adequate for, the creation of an anti-corruption norm? (c) Why do the developing countries perform so poorly in the fight against corruption in comparison with their wealthier, industrialized counterparts? While the article defends the instrumentalization of law in this regard, it argues that the African normative context of corruption throws up peculiar challenges. The article suggests that these challenges must be confronted in order to liberate the full potential of law in the struggle against corruption.

The purpose of this article is, on the one hand, to explain what clientelism is through a description of its characteristics in its current Argentinean form. On the other hand, it will evaluate clientelism from a legal and political point of view. In order to achieve these purposes, we will distinguish clientelism from legitimate politics, and then offer a critical evaluation in case there were any differences. Regarding the first objective, it will be necessary to resort to some kind of canonical definition, broad enough to grasp different clientelistic phenomena. Then, it will be possible to explain its Argentinean particularities, noting that it happens to be a specially interesting kind of clientelism because of its refinement and breadth. As to the second objective, we will oppose to the reasoning that equates clientelism and legitimate types of political action. We will argue that ordinary politics is different and that, in fact, this difference turns clientelism illegitimate. Criticism against clientelism may include empirical approaches but, as these only show deficiencies of a particular public policy, they lack the ability to be extended to other cases. Alternative criticism may be more interesting, but it will necessarily be weaker as it may only reveal a model of citizens and political relations upon which clientelism is grounded.

Does copyright foster the development of creative industries in developing countries? Drawing on case studies from Nigeria, India, and China, this Article sheds some light on these questions. It argues that copyright offers distinct advantages over alternative models. Moreover, copyright law need not function as a monolithic force. Copyright norms can govern some aspects of industry operations, while remaining largely absent in other domains. However, as industries develop, the benefits of copyright become more salient and the logic of copyright formalization exerts a gravitational pull.

Existing best practices for aid delivery are well known and largely uncontroversial but often neglected by bilateral and multilateral aid agencies because of domestic political considerations and bureaucratic resistance. Developing countries should unilaterally ratify an agreement committing them, in the future, after they have experienced sustained and robust economic, social, and political development, to establish their own foreign aid programs that follow existing best practices for aid delivery. Such foreign aid reciprocity agreements would have numerous benefits, including: being an international tool to signal a developing country’s resolve to reform and a domestic tool to pressure corrupt public officials to improve; enabling developing countries to take a leadership position in international development discourses; putting pressure on developed countries to implement best practices; and encouraging other developing countries to support and eventually adopt aid reciprocity agreements, which would lead to an increase in the amount of aid in the future. Furthermore, the idea of unilateral reciprocity agreements could potentially be expanded to areas of international interaction beyond foreign aid such as finance, trade, security, technology transfer, migration, and environmental policies.

On the basis of an in-depth case study of a transnational governance scheme driven by consumers and designed to fight child labour in Southern Asia – RugMark (now GoodWeave), co-founded by Peace Nobel Prize recipient Kailash Satyarthi – we identify and describe a number of characteristics peculiar to the consumocratic system of regulation, before examining the impact of information transparency within it. A number of theoretical scenarios emerge from the identification of four critical factors in the regulation of the societal information shared with consumocrats: (1) the degree of subjective veracity and comprehensiveness of available information; (2) the more or less comforting nature of this information; (3) the culminating outcomes to which it refers; and (4) its degree of objective veracity. All societal information is not theoretically bound to convey comforting messages to consumers inclined to consider the well-being of others. This message, while accurately reflecting the results achieved by local consumocratic organisations, may as well reflect the more or less controversial choices made in the pursuit of desirable goals, such as improving the fate of working children. It could also shed light on the flaws (e. g., ethical, technical, managerial) of this system of regulation by exposing its own limits to a better informed public. By opting for the transmission of messages subject to public controversy or worth a mea-culpa, the local regulators of this information would inevitably confront some risks (e. g., judicial, economic, socio-organisational). Under which conditions could these risks be reasonably taken? Quid of their likely impact on altruistic dispositions? From a pragmatic and Global South perspective, a non-paternalist analysis of transparency as a regulatory tool, it is shown, leads to recognising the utility of repositioning consumocratic activity on original, constitutional foundations, before envisaging the development of increasingly transparent and efficient tools in this regard.