Abstract
This chapter outlines the contours of international development law as a new legal discipline. The following discussion will address the parameters, parties, fundamental principles, substantive legal norms, and the institutional framework for the subject.
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Notes
- 1.
- 2.
Magraw (1990), pp. 69, 73.
- 3.
- 4.
Cao (1997), p. 553.
- 5.
Nunberg (2007).
- 6.
See, e.g., Love (2005), pp. 100, 103–105.
- 7.
Nunberg (2007), supra.
- 8.
Id.
- 9.
Id.
- 10.
UN General Assembly Res. A/Res./55/2 (Sept. 18, 2000).
- 11.
Id. at 556.
- 12.
“Demonstrations May Overshadow Seattle Trade Conference,” CNN (November 29, 1999).
- 13.
“Seattle Finds its Way to World Forum” January 29, 2000, CHI. TRI.; “It’s Not Easy Being Global,” TIME (January 28, 2000); “Protests Mar Davos Summit,” BBC News (January 30, 2001); “Anti-Gobalization Protesters Converge in Davos,” India Times (January 26, 2000).
- 14.
“Mass Arrests Mark Demonstrations,” ABC News (April 17, 2000); D. Amos, “The Agenda,” ABC News (April 16, 2000); L. Margasak, “Seattle Redux? Protesters Arrive in D.C. to Battle IMF,” ABC News (April 8, 2000); “Protests Proceed Peacefully: IMF Rallies Quiet so far, but Issues Loom Large,” ABC News (April 12, 2000); “Time for a Showdown: Thousands Assemble to Protest World Bank, IMF,” ABC News (April 16, 2000).
- 15.
A. Stanley & D. Sanger, “Italian Protester is Killed by Police at Genoa Meeting,” New York Times (July 21, 2001); A. Stanley, “Beyond Group of 8’s Meeting Walls, Italy’s Prime Minister Steps into a Storm,” New York Times (July 23, 2001).
- 16.
J. Kahn, “Gatherings of Leaders Now a Cause for Concern,” New York Times (September 12, 2001).
- 17.
Scott Neuman, “Anti-Globalization Protests Spark Violence in Hamburg for a Second Day”, NPR (July 7, 2017).
- 18.
Haque and Burdescu (2004), pp. 219, 230.
- 19.
Nikil Saval, “Globalization: the rise and fall of an idea that swept the world,” The Guardian (July 14, 2017); see also Dani Rodrik, The Globalization Paradox: Why Global Markets, States and Democracy Can’t Coexist,” The Guardian (2011).
- 20.
Nikil Saval, “Globalization: the rise and fall of an idea that swept the world,” The Guardian, supra, note 12. This is a well-written and provocative essay on the impact of globalization and the backlash thereto.
- 21.
Wade (1997), pp. 667, 668–675.
- 22.
Griesgraber and Gunter (1996), pp. 75–77.
- 23.
Id. at Chap. 5.
- 24.
Thomas Friedman, “Evolutionaries,” New York Times (July 20, 2001).
- 25.
See UN Press Release HR/CN/733 (April 12, 1996).
- 26.
See UN Press Release HR/4332 (July 25, 1997).
- 27.
See UN Press Release HR/CN/733 (April 12, 1996).
- 28.
See e.g., Articles of Agreement of the International Monetary Fund, art. IX Sec. 3, which gives the IMF immunity from judicial process unless the IMF waives its immunity, and sec. 7, which provides the IMF with the right to assert a privilege for its communications. See also Articles of Agreement of the International Bank for Reconstruction and Development, art. VII §§ 3-7, 60 Stat. 1440, 2 U.N.T.S. 134; Art. III, §§ 3-7.
- 29.
Articles of Agreement of the International Bank for Reconstruction and Development, art. V § 2(f), provides that the board of executive directors may adopt regulations, as necessary, to protect the confidentiality of the Bank’s business.
Moreover, such internal regulations are given effect through the local law of the Bank’s members. The United States, for example, under Section 11 of the Bretton Woods Agreements Act, as codified at 22 U.S.C. § 286(h) (1988), specifies that the World Bank shall have the same rights to confidentiality under U.S. law as accorded under its Articles of Agreement. See also Exec. Order No. 12,356, 3 C.F.R. Sec. 166 (1982), reprinted in 50 U.S.C. § 401 (1988). Although protecting the confidentiality of the World Bank’s operations may be necessary at times, it should not be overused in a way that masks the accountability of its officials, or clouds the legitimacy of its policies and procedures.
- 30.
Cahn (1993), p. 187.
- 31.
See Owen Barder, “Promoting the Development Power of Economic Transparency,” reprinted in The White House and the World 2016 Briefing Book (July 20, 2015).
- 32.
See generally, Henisz and Zelner (2010).
- 33.
Articles of Agreement of the International Bank for Reconstruction and Development, art. I § 1. Both the World Bank and the IMF were established pursuant to the Bretton Woods conference held in New Hampshire, June 1–22, 1944, prior to the formation of the UN. The World Bank became a specialized organ of the UN through a Relationship Agreement. See Agreement Between the United Nations and the International Bank for Reconstruction and Development, Nov. 15, 1947, 16 U.N.T.S. 346. (See also Mason and Asher (1973), pp. 54–59, for a fuller discussion of this special relationship.)
- 34.
Mason and Asher (1973), pp. 52–53, 60–61.
- 35.
Articles of Agreement of the International Bank for Reconstruction and Development, art. III § 4(ii).
- 36.
See generally, Mosley et al. (1991), p. 33. In a nutshell, the World Bank’s progressive history may be seen in the following terms: (1) a reconstruction bank (1947–1948), involved in post-war reconstruction of Europe and European balance of payments issues; (2) a conservative lender (1948–1954), when the Bank began advising Japan and making small loans to Chile, India, Mexico, Yugoslavia, and Brazil; (3) a development agency (1958–1968), when the Bank formed the Aid India Consortium , a precursor to Consultative Groups, in order to assist in India’s foreign exchange crisis; (4) an advocate for the poor (1968–1980), under the dynamic leadership of Robert McNamara where World Bank lending was viewed as a means of alleviating poverty; (5) a policy reformer (1980–1989), focusing on adjustments and reforms; (6) a development partner (1989-present), where debt forgiveness, democratization and ROL processes, developing human and social capital resource bases and development growth are seen as the trends for the bank’s lending practices in the new millennium, as further discussed in Chap. 5.
- 37.
“International Monetary Fund,” Int’l Demo. Watch (2018).
- 38.
See Jonathan Cahn, “Challenging the New Imperial Authority,” 6 Harv. Hum. Rts. at 170–171.
- 39.
World Bank loan agreements, for example, have detailed provisions for the cancellation, suspension, and acceleration of loans. The World Bank's General Conditions Applicable to Loan and Guarantee Agreements Dated January 1, 1985 (3d printing March 1995), art. VI, sec. 6.02(k) provides, in relevant part: “The right of the Borrower to make withdrawals from the Loan Account shall continue to be suspended in whole or in part, as the case may be, until the event or events which gave rise to the suspension shall have ceased to exist, unless the Bank shall have notified the Borrower that the right to make withdrawals has been restored in whole or in part, as the case may be.”
Moreover, section 6.03 states, “If the right of the Borrower to make withdrawals from the Loan Account shall have been suspended with respect to any amount of the Loan for a continuous period of thirty days,… the Bank may, by notice to the Borrower and the Guarantor, terminate the right of the Borrower to make withdrawals with respect to such amount. Upon the giving of such notice, such amount of the Loan shall be canceled.”
In addition, the Bank specifies in section 7.01 that if certain events occur and continue for specified amounts of time “the Bank, at its option, may, by notice to the Borrower and the Guarantor, declare the principal of the Loan then outstanding to be due and payable immediately together with the interest and other charges thereon and upon any such declaration such principal, together with the interest and other charges thereon, shall become due and payable immediately.”
For grant-based technical and other assistance, for instance, USAID has provisions under which such assistance may be suspended or terminated to the effect of: “Either party may terminate this Agreement in its entirety by giving the other Party 30 days written notice. USAID also may terminate this Agreement in part by giving the Grantee 30 days written notice, and suspend this Agreement in whole or in part upon giving the Grantee written notice. In addition, USAID may terminate this Agreement in whole or in part, upon giving the Grantee written notice, if (i) the Grantee fails to comply with any provision of this Agreement, (ii) an event occurs that USAID determines makes it improbable that the result or related objective of this Agreement or the assistance programme will be attained or that the Grantee will be able to perform its obligations under this Agreement, or (iii) any disbursement or use of funds in the manner herein contemplated would be in violation of the legislation governing USAID, whether now or hereafter in effect.” See USAID Automated Directives System (ADS), Chapter 350, Section M.1(a), as may be amended.
Further, USAID may also request that grant funds be refunded by the Grantee if, for example, “the failure of [the] Grantee to comply with any of its obligations under this Agreement has the result that goods or services financed or supported under this Agreement are not used effectively in accordance with this Agreement, [then] USAID may require the Grantee to refund all or any part of the amount of the disbursements under this Agreement for or in connection with such goods and services in U.S. dollars to USAID within sixty (60) days after receipt of a request therefor.” See ADS, Chapter 350, Section M.2(b), as may be amended.
- 40.
Jonathan Cahn, “Challenging the New Imperial Authority,” 6 Harv. Hum. Rts. at 171.
- 41.
See Joseph Gold, Conditionality, IMF Pamphlet Series No. 31, 1979; M. Guitian, Fund Conditionality: Evolution of Principles and Practices, IMF Pamphlet Series No. 39, 1981.
- 42.
Conditionality imposed by international financial institutions (IFIs) such as the World Bank has been described as a “conditionality game” that unfolds in three acts: (1) the initial negotiating process; (2) an implementation process; and (3) a decision by the lender/donor to further grant or to refuse additional financing to the borrower in light of the relative success of the implementation stage. See P. Mosley, J. Harrigan & J. Toye, Aid and Power, Vol. 1:67–69. Indeed, according to Mosley et al., condition-based lending was seen in the 1980s by the World Bank as a consolidated, strategic reaction to uncontrolled levels of balance-of-payments deficits, and the debt overhang of developing countries. These authors note that, “Projects manifestly provided too small and slow-disbursing a financial flow to deal with the debt and balance-of-payments problems, and the conditions attached to them did not touch those levers of economic control-exchange rates and agricultural prices, interest rates and trade policies-which, at least within the Bank, were widely seen as providing the key to project success and the relief to underdevelopment more generally. [Footnote omitted.] By providing quick-disbursing finance linked to understandings concerning the manner in which those levers of control were to be managed, the new instrument of policy-based lending held out the hope of killing two birds with one stone; more generous financial flows and more effective economic policy combined in the same package.” Id. at 65. The authors further point out, and is a point I believe is well taken, that conditionality “is neither new in international finance, nor in human relations more generally. Conditionality is simply a side condition designed to ensure the execution of a contract.” (Id., emphasis in original.)
My own experience at USAID supports the prevalence of this type of thinking, which imposes “fiscal discipline” by focusing on changing macroeconomic conditions. The quid pro quo for instituting such change by the sovereign borrower is making generous tranches of grant or loan-based financing available in exchange for such policy changes. Indeed, a specific source of grant funding appropriated for USAID's use, the Economic Support Fund, was specifically meant to be used for precisely this purpose. The use was considered to be non-projectized, fast-disbursing assistance insofar as the funding was not specifically designed to support the outcome of a project per se but to support overall fiscal or macroeconomic policy changes in the recipient country. Over time, it became clear that this became a ceaseless cycle where the policy changes (however well-intended) did not solve the debt overhang of developing countries. The aid-recipient countries often needed to borrow more, and were made to agree to more conditions being imposed on such borrowings. Thus, the IFIs and the donor community generally bargained for and expected behavioral changes in the grant recipient or the sovereign borrower (e.g., removal of tariffs, removing foreign exchange controls). However, the conditions imposed by IFIs often conflicted with each other, or were not especially well-coordinated or well-sequenced. Moreover, success was gauged in terms of the amounts disbursed by the IFIs, not by whether the policy changes were made or whether such changes were actually successful. (See e.g., “Effective Implementation: Key to Development Impact” (R92-125, November 3, 1992), a World Bank study also known as the “Wapenhans Report.”)
Most of these donor expectations may have been predicated on a “modernization” approach that supports the somewhat patronizing view that if (Tier II) developing countries could be coaxed (through generous tranches of funding) to institute certain macroeconomic changes, then development results would naturally be achieved. However, the planned policy changes either were not fully or effectively implemented or, if such changes were made, they did not have the desired development impact. Moreover, the additional loans merely entrenched the debtor status of the borrowing nations, making development progress an ever elusive goal. Thus, in the final analysis, this subtly coercive approach, which is still very much in use today, failed to meet the expectations of lender or borrower and betrayed the promise of development.
- 43.
See Jonathan Cahn, “Challenging the New Imperial Authority,” 6 Harv. Hum. Rts. at 170–171.
- 44.
Discussions with the IMF and a sovereign member may be initiated by the sovereign state based on its critical financing needs, or by IMF staff who are responsible for the general surveillance of the country’s economic condition, and who may undertake a special mission to the country in question regarding a proposed use of Fund resources. See IMF, Articles of Agreement, art. VI, § 1.
- 45.
See Jonathan Cahn, supra, “Challenging the New Imperial Authority,” at 172.
- 46.
World Bank Structural Adjustment Loans (SALs) , and Sectoral Adjustment Loans (SECALs) are medium-to-long term loans that may only be entered into if IMF approval for stand-by credit has already been obtained by the borrowing country. SALs are linked to key economic reforms, and SECALs emphasize reforms in certain sectors such as trade, agriculture, industry, public finance, energy, or education. The conditionality specified in these World Bank agreements often mirror or support that set forth in the underlying IMF financing arrangement.
- 47.
Sanford (1995), pp. 345, 359–360.
- 48.
“A Little Transparency at the I.M.F. Too,” Wash, Times (July 8, 1998). In March 1998, for example, the U.S. Senate approved US$18 billion in funding for the IMF, but this appropriation languished in the U.S. House of Representatives, where conservative Republican members clamored for some transparency and accountability on the part of the IMF. Former Speaker Newt Gingrich and former Majority Leader Dick Armey urged then President Clinton to seek the release of the IMF’s secret operating budget and its closely held staff policy reviews. Thus, these conservative critics joined the ranks of other prominent critics of the IMF, including economists Jeffrey Sachs, Milton Friedman, and Martin Feldstein, as well as George Shultz, a former U.S. Secretary of State and of the Treasury.
- 49.
For a discussion of the IMF’s emergency financing mechanism , see “Emergency Financing Mechanism, Summing up by the Chairman, Emergency Financing Mechanism,” Executive Board Meeting 95/85, September 12, 1995, reprinted in Selected Decisions and Selected Documents of the International Monetary Fund, Twenty-Second Issue (Washington, D.C., June 30, 1997) at 156–160.
- 50.
Id. at 2–3.
- 51.
See generally Articles of Agreement of the International Monetary Fund, art. V, §§ 3(b)-(e).
- 52.
IMF Executive Board Decision No. 6056-(79/38), Sec. 3, “Guidelines on Conditionality, Use of Fund’s General Resources and Stand-by Arrangements,” March 2, 1979, reprinted in Selected Decisions and Selected Documents of the International Monetary Fund, Twenty-Second Issue (Washington, D.C., June 30, 1997), excerpt on file with the author.
- 53.
Jonathan Cahn, “Challenging the New Imperial Authority,” 6 Harv. Hum. Rts. at 172.
- 54.
See e.g., Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, P.L. 104–208, 110 Stat. 3009, § 570 (imposing USG sanctions against Burma), and § 540 (imposing USG sanctions against Serbia and Montenegro).
- 55.
Heidhues and Obare (2011), p. 60.
- 56.
Id. at 61.
- 57.
See World Bank website, SDA (Social Dimensions of Adjustment).
- 58.
See Rousseau (1964), p. 173.
- 59.
H. C. Black, Black’s Law Dictionary, rev. 6th ed. (1990) (Centennial Edition 1891–1991), at 1021.
- 60.
159 U.S. 113, 210–211 (1895). See also Somportex Ltd. V. Philadelphia Chewing Corp., 318 F.Supp. 161 (E.D. Penn. 1970), aff’d 453 F2d 435 (1971), cert. den. 405 U.S. 1017 (1972).
- 61.
159 U.S. at 227–228.
- 62.
H.C. Black, Black’s Law Dictionary: “Co-operate: To act jointly or concurrently toward a common end”; “Co-operation: In patent law, unity of action to a common end or a common result, not merely joint or simultaneous action,” at 334.
- 63.
OECD, Directorate for Financial, Fiscal and Enterprise Affairs, Committee on International Investment and Multinational Enterprises, OECD Guidelines for Multinational Enterprises.
- 64.
United Nations Conference on Trade and Development (UNCTAD), World Investment Report 1994, Transnational Corporations, Employment and the Workplace, UN Doc. UNCTAD/DTCI/10 (1994).
- 65.
Corporate Governance: A Framework for Implementation (2001).
- 66.
United Nations, The Global Compact: The Nine Principles.
- 67.
Id.
- 68.
UN, Executive Summary and Conclusions of High-Level Meeting on the Global Compact, Press Release S6/2065 ECO/18 (July 17, 2000) at 1.
- 69.
UN, “United Nations Millennium Declaration,” Gen. Ass. Res. A/RES/55/2 (September 18, 2000).
- 70.
UN, “Transforming our world: the 2030 Agenda for Sustainable Development.” Gen. Ass. Res. A/RES/70/1 (October 21, 2015). In building on the foundation of the MDGs, the declaration establishing the SDGs, proclaims in its Preamble that, “All countries and all stakeholders, acting in collaborative partnership, will implement this plan. We are resolved to free the human race from the tyranny of poverty and want and to heal and secure our planet. We are determined to take the bold and transformative steps which are urgently needed to shift the world on to a sustainable and resilient path. As we embark on this collective journey, we pledge that no one will be left behind.”
- 71.
See generally , the homepage of the UN Development Programme. See also the homepage of the World Bank, Sustainable Development Goals (SDGs) and the 2030 Agenda which states in relevant part that: “2015 was a historic year with the adoption of a new approach to development finance through the Addis Ababa Action Agenda, the 2030 Agenda and the Sustainable Development Goals, a disaster risk framework in Sendai, and the Paris Climate Agreement at COP21. These efforts will guide the UN system and the UN-World Bank Group partnership through 2030. The SDGs are aligned with the World Bank Group’s twin goals of ending extreme poverty and boosting shared prosperity, and the WBG is working with client countries to deliver on the 2030 agenda through three critical areas: (i) finance, (ii) data, and (iii) implementation – supporting country-led and country-owned policies to attain the SDGs.”
- 72.
IBRD No. 93-10 and IDA 93-6, respectively, dated September 22, 1993, reprinted in The Inspection Panel: International Bank for Reconstruction and Development, International Development Association, Annual Report (August 1, 1996 to July 31, 1997) (hereinafter referred to as the “Joint Resolution”) at ¶ 23.
- 73.
Id. at ¶ 27.
- 74.
“Clarifications of Certain Aspects of the Resolution Establishing the Inspection Panel (R96-204),” dated September 30, 1996, as approved by the Board of Executive Directors on October 17, 1996, (hereinafter referred to as “Clarifications.”) For a detailed and fascinating description of the events and policy considerations leading up to and following the establishment of the Inspection Panel, see Shihata (2001), p. 7, et seq.
- 75.
See “Conclusions of the Board’s Second Review of the Inspection Panel,” (April 20, 1999).
- 76.
M. Hansungule, “Access to Panel,” at 161 n. 65.
- 77.
See Joint Resolution, supra, ¶ 12 n. 62.
- 78.
World Bank, Inspection Panel website, “About Us.”
- 79.
See generally , “Accountability at the World Bank: The Inspection Panel at 15 Years,” World Bank (2009).
- 80.
Operations Evaluation Department Precis No. 88, Learning From Narmada (World Bank, 1995) at 2, 12.
- 81.
R. E. Bissell, “Institutional and Procedural Aspects of the Inspection Panel,” reprinted in The Inspection Panel of the World Bank, at 111 n. 64.
- 82.
Id. at 2, 3. See Morse and Berger (1992).
- 83.
Operations Evaluation Department Precis No. 88, “Learning from Narmada,” at 4.
- 84.
Id.
- 85.
R. E. Bissell, “Institutional and Procedural Aspects of the Inspection Panel,” at 112–113.
- 86.
Id. at 1, 7.
- 87.
Id. at 10–11. See also Shihata (1994).
- 88.
See Gopal (1996), pp. 231, 235: “The law and development movement should recognize that laws are not socially, culturally and politically neutral. Consequently, it should reevaluate, analyze and demonstrate the underlying social, cultural and political assumptions of law that are considered for adoption by developing countries, so as to facilitate informed choice by the recipient state regarding the reception of laws. The law and development movement adopted a view that the law is a neutral instrument for the resolution of economic issues, independent of the social, cultural and religious foundations of the societies in which they develop. This view was also based in part on explanations provided by Max Weber.”
- 89.
Magraw (1990), p. 74.
- 90.
Art. 25 of the Kyoto Protocol; see also Annex B of the Kyoto Protocol.
- 91.
Shankar Vedantam, “Kyoto Treaty takes Effect Today: Impact on Global Warming May be Largely Symbolic,” Wash. Post (Feb. 16, 2005).
- 92.
Annex B of the Kyoto Protocol lists the following nations: Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, EU, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom, United States.
- 93.
Fact Sheet, “The Kyoto Protocol on Climate Change,” Bureau of Oceans & International Environmental & Scientific Affairs, U.S. Department of State (January 15, 1998).
- 94.
A. Revkin, “178 Nations Reach Climate Accord; U.S. Only Looks On,” New York Times (July 24, 2001).
- 95.
Id. See also Statement of Stuart Eizenstat, former U.S. Undersecretary of State, before the U.S. House of Representatives’ International Relations Committee (May 13, 1998) at 5–8.; State Department Fact Sheet, at 4–5 n. 96, where the U.S. State Department urges participation by all parties, including developing countries, through the Clean Development Mechanism, by lowering greenhouse gas emissions through new technologies. Without such participation by all signatory parties, the Clinton Administration was not willing to send the treaty for ratification by the U.S. Senate, and ratification was indefinitely stalled. Although the U.S. signed the Protocol on November 12, 1998, the U.S. dropped out on July 23, 2001. On December 12, 2011, Canada formally withdrew from the Kyoto Protocol although it had originally ratified the treaty. See Ian Austin, “Canada Announces Exit from Kyoto Climate Treaty, New York Times (December 12, 2011).
- 96.
See e.g., Sec. 577 of Fiscal Year 2000 Foreign Operations, Export Financing, and Related Programs Appropriations Act (P.L. 106-113) (Oct. 24, 2000), which states clearly that: “None of the funds appropriated by this Act shall be used to propose or issue rules, regulations, decrees, or orders for the purpose of implementation, or in preparation for implementation, of the Kyoto Protocol, which was adopted on December 11, 1997, in Kyoto, Japan, at the Third Conference to the Parties to the United States [Nations] Framework Convention on Climate Change, which has not been submitted for advice and consent to ratification pursuant to article II, section 2, clause 2, of the United States Constitution, and which has not entered into force pursuant to article 25 of the Protocol.”
- 97.
Todd Stern, “The Future of the Paris climate regime,” Brookings (April 11, 2018).
- 98.
Id.
- 99.
Lisa Friedman, “Syria Joins Paris Climate Accord, Leaving Only U.S. Opposed,” New York Times (November 7, 2017); although there is the possibility of the U.S. rejoining at some point. See “Climate Change: Trump says U.S.’ could conceivably’ rejoin Paris deal,” BBC News (January 11, 2018).
- 100.
- 101.
Magraw (1990), p. 76.
- 102.
- 103.
See generally, Popovic (1996), p. 487.
- 104.
See e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.
- 105.
See generally Magraw (1990), p. 69.
- 106.
See e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.
- 107.
International Covenant on Civil and Political Rights, UN G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976.
- 108.
International Covenant on Economic, Social and Cultural Rights, UN G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976.
- 109.
Aristotle’s theory of slavery is found in Book I, Chapters iii through vii of the Politics. and in Book VII of the Nicomachean Ethics, and states that, “But is there any one thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature? There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.” In contrast, in The Second Treatise of Civil Government, Locke does not believe in natural slaves or in the conventional view that all prisoners of war can be legitimately enslaved. See John Locke, Second Treatise on Government, Chap. 19.
- 110.
George Christie, Jurisprudence: Text and Readings in the Philosophy of Law at 84 states, “Two principal positions have been taken as to why natural law is binding on the human conscience. The first is the ‘voluntarist theory.’ The natural law is binding on human beings because it is the product of God’s will. The other position is the ‘intellectualist theory.’ The natural law binds men because it is rational. The advantage of the intellectualist theory is that it enables one to separate a belief in the natural law from a necessary connection with a belief in God. The trouble with the intellectualist theory; however, is that it really does not explain why the natural law is morally binding on the individual because it depends on the self-evident premise that whatever is in accordance with reason is morally binding. One might ask himself whether a belief in natural law necessarily requires a belief in God.”
- 111.
A.P. d’Entrèves, Natural Law: An Introduction to Legal Philosophy at 122, “Locke certainly accepted the view that the essence of law is not will but reason.”
- 112.
Id., at 87.
- 113.
Id. at 79.
- 114.
Id. at 122.
- 115.
George Christie, Jurisprudence: Text and Readings in the Philosophy of Law at 251.
- 116.
Id. at 292.
- 117.
Id. at 292–293. “From Hobbes to Austin and from Austin to the present-day ‘positivist’: the line seems as continuous and unbroken as it is from Cicero to the Founding Fathers.” A.P. d’Entrèves, Natural Law: An Introduction to Legal Philosophy at 123.
- 118.
See generally, Rogers (2007), p. 709.
- 119.
Harry Blair & Gary Hansen, “Weighing in on the Scales of Justice: Strategic Approaches for Donor-Supported Rule of Law Programs,” USAID Program and Operations Assessment Report No. 7 (February 1994).
- 120.
Id.
- 121.
The Articles of Agreement of the International Bank for Reconstruction and Development, art. IX(a), provides that questions regarding the interpretation of the Articles of Agreement shall be submitted to the executive directors of the World Bank. Members of the Bank may refer a decision made by the executive directors that interprets the agreement to the board of governors whose decision in the matter shall be final (See art. IX(b), and art. V, § 2[b][iv]).
The same basic institutional arrangement regarding the interpretation of the Articles of Agreement of the IMF and appeals of executive directors’ decisions to the IMF board of governors, is set forth in art. XXIX of the IMF’s Articles of Agreement. However, this arrangement is limited to decisions regarding the interpretation of the Articles of Agreement of each institution, and therefore is very narrow in scope. Here, I argue for the ability to appeal all decisions of the executive directors of the Bretton Woods institutions, without limitation with regard to content.
Further, both the World Bank and the IMF provide for an arbitration of disagreements that may arise between a member and the respective institution under two circumstances: when the member has withdrawn from the institution in question and “during the permanent suspension of the Bank” or “during the liquidation of the Fund” (See art. IX(c) of the Bank’s, and art. XXIX of the IMF’s Articles of Agreement). These articles call for the establishment of a tribunal of three arbitrators, one appointed by the member, one by the respective institution, and one by the Permanent Court of International Justice or another such authority.
Although this establishes a means for sovereign members to arbitrate disputes they may have with either institution, it still leaves a serious gap. The text addresses questions raised by current members in good standing, and not those raised by a member who has withdrawn from its membership or in a situation where either the World Bank or the IMF is dissolving.
- 122.
See Cahn (1993), p. 167. Perhaps this function can be better termed as the law-giving function of the Bretton Woods institutions, since these institutions are not responsible for actually legislating such changes into effect in the borrower country.
- 123.
See Articles of Agreement of the International Bank for Reconstruction and Development, art. I, § 10.
- 124.
- 125.
See Cahn (1993), pp. 164–165.
- 126.
See Inspection Panel, Request No. 8: Bangladesh: Jute Sector Adjustment Credit, Inspection Panel, Annual Report (August 1, 1996 to July 31, 1997) at 13.
- 127.
Indeed, the IMF’s “accountability gap” is very wide in certain circles. For example, the IMF has been disfavored by political conservatives as an institution that is the “enemy of free markets.” (See Peter Passell, “Economic Scene: The I.M.F. must go, critics say, but who will cope with crises?” New York Times (February 12, 1998). Further, political liberals have also roundly criticized the IMF for taking a “one-size-fits-all approach to financial distress,” and inflexibly insisting on debt repayments from economically struggling economies that make the IMF into little more than a “collection agency for international bankers.” (Id.) Thus, Walter B. Wriston, the former chairman of Citicorp concluded that the IMF was “ineffective, unnecessary and obsolete.” (Id.)
In light of the IMF’s failure to predict and contain the Asian currency crisis of late 1997-early 1998, it has lost part of its political credibility. Although none but the most radical of free market ideologues believe that the world monetary system can function without the watchdog function of the IMF, the secrecy that surrounds its proceedings and its, at times, authoritarian prescriptions for macroeconomic reform may have to change in response to a new political climate. Indeed, Peter Passell reports that “first among the demands of the I.M.F.’s newly empowered critics is an end to the secrecy that shrouds everything from routine country status reviews to emergency bail-out plans.” The following discussion suggests a novel approach to resolving the underlying accountability and credibility crisis being faced by the IMF now.
- 128.
Bradlow (1996), p. 247. “The [Inspection] Panel is the first forum in which private parties can seek to hold international organizations directly accountable for their actions.”
- 129.
“Professor Bradlow heralds the creation of the [Inspection] Panel as ‘the first formal acknowledgment that international organizations have a legally significant non-contractual relationship with private parties that is independent of either the organization’s or the private actor’s relationship with a member state.” Weidner (2001), pp. 193, 215.
- 130.
See Resolution No. IBRD 93–10; Resolution No. IDA 93-6, The World Bank Inspection Panel (Sept. 22, 1993) at ¶ 12.
- 131.
Id.
- 132.
Bradlow (1996), p. 292. “With regard to matters related to the Panel, the Legal Department’s advice to the Board, at least from the perspective of the requester and other outside observers, has the appearance of a conflict of interest. The conflict arises because the Legal Department is providing advice to the decision-maker about a matter in which some of the issues to be determined by the decision-maker are likely to relate to the Legal Department’s prior advice to Bank Management and staff or to decisions in which the Legal Department participated.”
- 133.
Apparently, the reason for a lack of an internal quasi-judicial function within the IMF and, “[o]ne reason why the IMF Executive Board was given the power of authoritative interpretation was because the original drafters of the Bretton Woods Agreement could not agree on the composition of the tribunal.” Pan (1997), pp. 503, 514–515.
- 134.
See Bradlow (2005), p. 409.
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Sarkar, R. (2020). International Development Law: Substantive Principles. In: International Development Law. Springer, Cham. https://doi.org/10.1007/978-3-030-40071-2_3
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