Abstract
This chapter synthesizes and discusses the findings of the preceding analysis. It identifies broader patterns in the way different international development organizations are dealing with fragile states, illustrating how state-building emerges as a new development paradigm and regulatory theme. The chapter considers the potentials and perils of endeavours to formalize a differentiated approach to fragile states, and concludes with a number of recommendations in this regard.
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Notes
- 1.
See supra Sects. 1 and 2.2 in Chap. 2.
- 2.
The complex challenges that international development organizations face when seeking to engage in state-building have been aptly described by the Independent Evaluation Group when assessing the World Bank’s LICUS initiative in 2006, which remains equally relevant today. Independent Evaluation Group, The World Bank, ‘Engaging with Fragile States. An IEG Review of World Bank Support to Low-Income Countries under Stress’ (2006). See also Todd Moss, et al., ‘An Aid-Institutions Paradox? A Review Essay on Aid Dependency and State Building in Sub-Saharan Africa’ Center for Global Development Working Paper 74 (January 2006), highlighting the potentially negative effects of aid dependence on state institutions; or Daron Acemoglu & James Robinson, Why Nations Fail. The Origins of Power, Prosperity, and Poverty (Crown Business, 2012), criticizing the ignorance hypothesis with which development agencies approach local actors, assuming they do not know what good institutions should look like; and on for a critical assessment of the state-building in general, see the references in supra note 30.
- 3.
Zaum, The Sovereignty Paradox: The Norms and Politics of International State-Building, 4–5.
- 4.
Supra Sect. 2 in Chap. 3.
- 5.
For example, The World Bank & African Development Bank, ‘Providing Budget Aid in Situations of Fragility: A World Bank – African Development Bank Common Approach Paper’, 10, stating that “There is broad consensus among the three institutions that core conditionality in fragile states should be limited in number” (the three institutions being the World Bank, the AfDB and the EU). To what extent international development organizations have actually been using more or less stringent obligations in their contractual agreements with fragile states, exceeds the scope of the present study. It requires analysing and comparing a large number of different kinds of financing agreements and project-level contracts concluded with fragile and non-fragile countries.
- 6.
Supra Sect. 2 in Chap. 5 on the World Bank’s use of country-specific or thematic trust funds; and supra Sect. 2 in Chap. 6 on the AfDB’s Fragile States Facility. On the legal specificities of trust funds in general, see Ilias Bantekas, Trust Funds under International Law. Trustee Obligations of the United Nations and International Development Banks (TMC Asser Press, 2009).
- 7.
Supra Sect. 2 in Chap. 6. Most development organizations have emergency policies that once triggered, permit reducing or postponing certain (mostly procedural) requirements to respond swiftly to emergencies.
- 8.
See supra Sect. 2.3 in Chap. 6, where I also show how the general principle is further concretized in a number of provisions that provide a basis for differential treatment.
- 9.
This is the case, for instance, for budget assistance to fragile states provided by the World Bank, the AfDB, and the EU. See The World Bank, ‘Good Practice Note for Development Policy Lending. Development Policy Operations and Program Conditionality in Fragile States’, paras. 47–50; and The World Bank & African Development Bank, ‘Providing Budget Aid in Situations of Fragility: A World Bank – African Development Bank Common Approach Paper’, p. 11.
- 10.
OECD, ‘The Challenge of Capacity Development. Working Towards Good Practice’ (2006).
- 11.
For instance, World Bank operations in fragile states often include a capacity-building component, mostly with a focus on public expenditure management, procurement, civil service, or revenue collection reforms. See Independent Evaluation Group, ‘World Bank Assistance to Low-Income Fragile- and Conflict Affected States’, p. 37.
- 12.
This approach underscores the World Bank’s Program-for-Results Financing instrument. Government programs are assessed against a condensed version of the Bank’s safeguards. Where shortcomings are identified, they do not automatically lead to the exclusion from financing, but are addressed during the implementation stages, with the Bank providing support through capacity-building. See supra Sect. 3.3 Chap. 5.
- 13.
For a comprehensive treatment of the concept and forms of differential treatment in international law, see Cullet, Differential Treatment in International Environmental Law. Cullet defines differential treatment as “situations where the principle of reciprocity of obligations gives way to differentiated commitments, for the purpose of fostering substantially more equal results than what is achieved through the principle of formal equality, in situations where actors are not equal” (p. 1). According to Cullet, the concept is “intrinsically linked to the search for substantive equality” (p. 19).
- 14.
Ibid., 16.
- 15.
With regard to differential treatment in the field of environmental law where it is most common, Rajamani already makes out a trend whereby more flexible rules for all countries are increasingly preferred over differentiated obligations for specific groups of countries. Lavanya Rajamani, ‘The Changing Fortunes of Differential Treatment in the Evolution of International Environmental Law’, 88 International Affairs, 605 (2012).
- 16.
See Leroy, ‘The Bank’s Engagement in the Criminal Justice Sector and the Role of Lawyers in the Solutions Bank: An Essay’; and supra Sect. 1.1 in Chap. 5.
- 17.
See Philipp Dann & Jochen von Bernstorff, Gesellschaft für Internationale Zusammenarbeit (GIZ) ‘Reforming the World Bank’s Safeguards. A Comparative Legal Analysis’ (July 2013), pp. 17–24 on the use of a principled and outcome-based approach, together with a greater use of country systems and capacity support.
- 18.
ADB’s Operational Plan also emphasizes the importance of flexibility in project processing and implementation in fragile states. Asian Development Bank, ‘Operational Plan for Enhancing ADB’s Effectiveness in Fragile and Conflict-Affected Situations’, para. 18,
- 19.
- 20.
The relationship between a state’s performance in providing basic services to the population and its legitimacy, however, is not necessarily linear. See Claire Mcloughlin, ‘When Does Service Delivery Improve the Legitimacy of a Fragile or Conflict-Affected State?’, Forthcoming in Governance (2014).
- 21.
African Development Fund, ‘Strategy for Enhanced Engagement in Fragile States’, 2.
- 22.
See supra Sect. 1 in Chap. 6 on the principle of participation in the EU’s legal framework; and supra Sect. 2.2 in Chap. 6 on the Thematic Program on Non-State actors and local authorities in development cooperation and other instruments for providing support to non-state actors, e.g. humanitarian assistance.
- 23.
I unfold this argument in von Engelhardt, ‘Reflections on the Role of the State in the Legal Regimes of International Aid’.
- 24.
Supra Sect. 2.1 in Chap. 5. In the absence of a formal government in power, the World Bank has also entered into legal agreements with entities other than the government, e.g. UNTAET in East Timor and UNMIK in Kosovo.
- 25.
Supra Sect. 2.1 in Chap. 6.
- 26.
The responsibility to rebuild refers specifically to the responsibility of international actors to assist in post-conflict reconstruction following an intervention. On the international community’s responsibility to rebuild institutional structures and social cohesion in fragile states, see Bernd Ladwig & Beate Rudolf, ‘International Legal and Moral Standards of Good Governance in Fragile States’, in Thomas Risse (ed) Governance Without a State: Policies and Politics in Areas of Limited Statehood (Columbia University Press, 2011).
- 27.
Complementarity exists, for instance, in the Statute of the International Criminal Court, the regime for the protection of Internally Displaced Persons, and in the law on the use of force, to determine the lawful scope of extra-territorial self-defence vis-à-vis non-state actors. At what point a state is found unable or unwilling is generally ill-defined and varies from one legal regime to another, depending on the state’s respective obligations.
- 28.
On this paradox, see supra Sect. 2.1 in Chap. 3.
- 29.
For instance, in supra Sect. 2.1 in Chap. 6, I show that all MDBs have prepared guidelines for dealing with de facto governments, but each has chosen a different form.
- 30.
It would first of all require an assessment of how development organizations apply and implement the relevant rules in practice, based on empirical information that not even the organizations themselves necessarily have or publicise.
- 31.
More than one decade after fragile states started becoming a key concern for the international development community, this question remains relevant and controversial. See, for instance, Woolcock, ‘Engaging with Fragile and Conflict-affected States. An Alternative Approach to Theory, Measurement and Practice’; Chandy, ‘Ten Years of Fragile States. What Have We Learned?’; or Simone Bertoli & Elisa Ticci, ‘A Fragile Guideline to Development Assistance’, 30 Development Policy Review, 211 (2012); and with a more positive perspective on the results of differentiated approaches in fragile states, Joel Hellman, Surprising Results from Fragile States, World Bank Blog (15 October 2013), at http://blogs.worldbank.org/futuredevelopment/surprising-results-fragile-states.
- 32.
On the legal nature of the rules that govern the conduct of international development organizations, see supra Sect. 1 in Chap. 4. In this chapter, I focus on rules that are contained in the statutes or in other international legal treaties (namely, the Cotonou Agreement), as well as on secondary rules, including internal rules that are relatively formalized and considered binding on the organizations’ staff. As noted in supra Sect. 1 in Chap. 4, however, non-binding rules can also be effective at steering an organization’s conduct.
- 33.
For example, an organization with a legal framework that prima facie poses fewer barriers to engaging with fragile states may not have to change existing rules, but still needs to decide whether or not to adopt specific rules to guide operations in fragile states.
- 34.
For a general discussion of the challenge of ensuring international law’s flexibility in light of evolving societal preferences or realities, see Isabel Feichtner, The Law and Politics of the WTO Waiver. Stability and Flexibility in Public International Law (Cambridge University Press, 2012), Part I, Chapter 2; and on the stability versus change debate in the law of treaties, Christina Binder, ‘Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited’, 25 Leiden Journal of International Law, 909 (2012).
- 35.
On the concept of differential treatment, see supra section 1 of this chapter.
- 36.
Bradlow, ‘The Reform of Governance of the IFIs: A Critical Assessment’, at 47. The use of differential treatment for LDCs, and increasingly for conflict-affected countries, in the EU’s legal framework for development cooperation provides an example. See supra Sect. 3.3 in Chap. 6.
- 37.
See Abram Chayes & Antonia Handler Chayes, The New Sovereignty. Compliance with International Regulatory Agreements (Harvard University Press, 1998) on the managerial (as opposed to enforcement) model of treaty compliance. To some extent, this model is already reflected in the World Bank’s new Program-for-Results Financing instrument, and the AfDB’s and the ADB’s reformed system of environmental and social safeguards.
- 38.
The legal framework governing the EU’s development cooperation is mostly set out in more recent, legal sources and not just the founding treaties. It is thus easier to adapt to changing circumstances than those of the MDBs.
- 39.
In supra Sect. 1 in Chap. 2, I argue that the growing concern with fragile states in the international community is equally the product of changing circumstances and changing perceptions.
- 40.
Supra Sect. 2 in Chap. 5. In contrast, for AfDB and ADB, available guidance is scattered throughout several, mostly non-binding rules.
- 41.
I elaborate the role of internal rules in adapting the legal frameworks of development organizations in supra Sect. 1 in Chap. 4.
- 42.
In supra Sect. 2.3 in Chap. 5, I argue that World Bank engagement at the request of the international community instead of the government in power would have required an amendment of the Articles of Agreement, rather than an internal rule in combination with an implied interpretation of the Executive Directors.
- 43.
Feichtner, The Law and Politics of the WTO Waiver. Stability and Flexibility in Public International Law, 325.
- 44.
See von Bernstorff, ‘Procedures of Decision-Making and the Role of Law in International Organizations’, 797.
- 45.
See, for instance, Sia Spiliopoulou Akermark, ‘Soft Law and International Financial Institutions—Issues of Hard and Soft Law from a Lawyer’s Perspective’, in Ulrika Mörth (ed) Soft Law in Governance and Regulation. An Interdisciplinary Analysis (Edward Elgar, 2004), pp. 68–70; or Göhran Ahrne & Nils Brunsson, ‘Soft Regulation from an Organizational Perspective’ in ibid.; and as a voice from within, Leroy, ‘The Bank’s Engagement in the Criminal Justice Sector and the Role of Lawyers in the Solutions Bank: An Essay’.
- 46.
- 47.
On procedural fairness as a source of legitimacy, see Hunter, ‘International Law and Public Participation in Policy-making at the International Financial Institutions’, pp. 211–212.
- 48.
Internal rule-making can in fact open up avenues for judicial or quasi-judicial review and thus enhance an organization’s accountability. See Bradlow & Naudé Fourie, ‘The Operational Policies of the World Bank and the International Finance Corporation. Creating Law-Making and Law-Governed Institutions?’; or Hunter, ‘International Law and Public Participation in Policy-making at the International Financial Institutions’, p. 236.
- 49.
On the still rudimentary and often insufficient mechanisms of accountability in the law of development cooperation, particularly the World Bank and EU, see Dann, The Law of Development Cooperation. A Comparative Analysis of the World Bank, the EU and Germany, Chapter 9.
- 50.
For example, the Bank Policy on PfoR is the result of extensive internal deliberations, as well as broad consultations with governments, parliamentarians, international partners and civil-society organizations.
- 51.
On analytical shortcomings and problems of measurement regarding the notion of fragile states, see supra Sects. 1 and 2.2 in Chap. 2.
- 52.
For example, the World Bank’s regulatory framework for budget assistance allows certain social, environmental, and fiduciary considerations to be side-lined if there is not sufficient time or country capacity to address them. Supra Sect. 3.2 in Chap. 5.
- 53.
Koskenniemi refers to this tendency as the politics of re-definition. Martti Koskenniemi, ‘The Politics of International Law – 20 Years Later’, 20 European Journal of International Law, 7 (2009), 10; and supra Sect. 1 in Chap. 2.
- 54.
Einhorn, ‘The World Bank’s Mission Creep’.
- 55.
For a detailed discussion of the pros and cons of maintaining the political prohibition clause, see Cissé, ‘Should the Political Prohibition in Charters of International Financial Institutions be Revisited? The Case of the World Bank’.
- 56.
Supra Sect. 2.2 in Chap. 2.
- 57.
For example, Marc, et al., Societal Dynamics and Fragility. Engaging Societies in Responsing to Fragile Situations, 147–148, arguing that fragile and conflict-affected countries require “more flexible approaches, judgment calls, no rigid, risk-averse planning and sequencing, since institutional change is no linear process”; or Woolcock, ‘Engaging with Fragile and Conflict-affected States. An Alternative Approach to Theory, Measurement and Practice’.
- 58.
Nesbitt, ‘The World Bank and De Facto Governments. A Call for Transparency in the Bank’s Operational Policy’, 646.
- 59.
Dann argues that the World Bank is accountable to its richer member states through various mechanisms, but member states that depend on the Bank’s loans and grants are in a weak position to challenge its decisions and hold the organization accountable. The EU presents an entirely different case, in that it is generally subject to much more formal forms of judicial review. However, the means for recipients of EU aid to hold the organization accountable are minor compared to those of EU member states. Dann, The Law of Development Cooperation. A Comparative Analysis of the World Bank, the EU and Germany, pp. 459, 462 and 471.
- 60.
For an analysis of OP 2.30, see supra Sect. 2 in Chap. 5.
- 61.
See supra Sect. 3.1 in Chap. 6 on Article 96 of the Cotonou Agreement, which regulates the use of sanctions in response to alleged violations of human rights, democratic principles, or the rule of law. Still, the decisions of the EU Commission are public.
- 62.
- 63.
Though the World Bank’s process of internal rule-making has become more open and participatory in recent years, particularly older OPs were adopted without broader consultations.
- 64.
See supra Sect. 1 in Chap. 6 on the different legal nature of the rules that govern EU development cooperation.
- 65.
The accountability of international organizations is widely researched and subject of an ongoing discourse. See, for instance, August Reinisch, ‘Securing the Accountability of International Organizations’, 7 Global Governance, 131 (2001); and International Law Association, ‘Final Report on the Accountability of International Organizations’ (2004).
- 66.
On the legitimacy problem of development cooperation in general and rule-making processes in particular, see Dann, The Law of Development Cooperation. A Comparative Analysis of the World Bank, the EU and Germany, pp. 510–513; and with proposals to enhance the accountability of international development organizations, Mac Darrow & Amparo Tomas, ‘Power, Capture, and Conflict. A Call for Human Rights Accountability in Development Cooperation’, 27 Human Rights Quarterly, 471 (2005).
- 67.
Kingsbury, ‘Global Administrative Law in the Institutional Practice of Global Regulatory Governance’, 13, arguing with regards to the internal rule-making activities of the World Bank and others that “the drawing, nudging, and redrawing of the lines are themselves a significant form of governance”.
- 68.
See also Matthew Saul, ‘From Haiti to Somalia: The Assistance Model and the Paradox of State Reconstruction in International Law’, 11 International Community Law Review, 119 (2009), 147, who criticizes the sole reliance of external actors on state consent to legitimize interventions in states with barely effective governments, arguing that “there is an inherent need for flexibility in relation to who is given a voice”, and “this flexibility appears largely unregulated by international law.”
- 69.
After all, processes of rule-making essentially constitute processes of decision-making. See von Bernstorff, ‘Procedures of Decision-Making and the Role of Law in International Organizations’, pp. 792, 795.
- 70.
For an overview of legal approaches that have grappled with activities of international organizations that reach beyond traditional sources of public international law, see supra Sect. 1 in Chap. 4. I focus here on the GAL approach, since it is particularly problem-oriented, while focusing mostly on enhancing procedures of decision-making. Other proposals are more concerned with the international rule of law and internal constitutionalization of international organizations at large.
- 71.
Benedict Kingsbury, et al., ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems, 15 (2005), pp. 37–42.
- 72.
See ibid., pp. 37–51; Daniel C. Esty, ‘Good Governance at the Supranational Scale. Globalizing Administrative Law’, 115 The Yale Law Journal, 1493 (2006); or Bradlow, ‘The Reform of Governance of the IFIs: A Critical Assessment’, pp. 49–50.
- 73.
International Law Association, ‘Final Report on the Accountability of International Organizations’, p. 14.
- 74.
See Kingsbury, et al., ‘The Emergence of Global Administrative Law’, 9; or von Bernstorff, ‘Procedures of Decision-Making and the Role of Law in International Organizations’, 797–798, who shows how international organizations already relay on procedural requirements imported from a domestic rule of law tradition.
- 75.
World Bank Policy on Access to Information, paras. 6 and 16.
- 76.
Supra note 59. The World Bank’s Inspection Panel offers a quasi-judicial review of staff compliance with mandatory internal rules, but is of limited importance concerning the effects of the Bank’s decision-making on specific member states, as its focus is on the infringement of individual beneficiary rights.
- 77.
The requirement to ensure the impartial application of internal rules could be translated into certain procedural requirements such as procedural regularity and due diligence.
- 78.
See also Bradlow & Naudé Fourie, ‘The Operational Policies of the World Bank and the International Finance Corporation. Creating Law-Making and Law-Governed Institutions?’, p. 59; and Hunter, ‘International Law and Public Participation in Policy-making at the International Financial Institutions’, pp. 235–237.
- 79.
Cissé, ‘Should the Political Prohibition in Charters of International Financial Institutions be Revisited? The Case of the World Bank’, p. 86. Cissé also points out that through interpretation rather than formal amendment, “small shareholders stand to be deprived of ‘protection of their interests guaranteed by high majority required for formal amendment.’”
- 80.
More concrete proposals concerning the design of rules, procedural requirements for decision-making, or the rule-making process, can only be formulated with regards to specific organizations and the issues they face. As a matter of principle, though, administrative decision-making with effects that are in fact predominantly internal should be subject to different requirements—e.g. in terms of effectiveness and efficiency—than decision-making with clearly external effects, where standards like participation and review are more important. See also Christian Tietje, ‘Comment on the Contributions by Jochen von Bernstorff and by Maja Smrkolj’, in Armin von Bogdandy, et al. (eds), The Exercise of Public Authority by International Institutions (Springer, 2010), pp. 817–818.
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von Engelhardt, M. (2018). Formalizing Fragile States? Of Emerging Patterns and the Potentials and Perils of Regulation. In: International Development Organizations and Fragile States. Governance and Limited Statehood. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-62695-6_7
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