Development interventions are agreed by states and international organisations which administer public development funds of huge proportions. They have done so with debatable success, but, unlike the good governance of recipients, the rules applying to donors have hitherto received little scrutiny. This analysis of the normative structures and conceptual riddles of development co-operation argues that development co-operation is increasingly structured by legal rules and is therefore no longer merely a matter of politics, economics or ethics. By focusing on the rules of development co-operation, it puts forward a new perspective on the institutional law dealing with the process, instruments and organisation of this co-operation. Placing the law in its theoretical and political context, it provides the first comparative study on the laws of foreign aid as a central field of global public policy and asks how accountability, autonomy and human rights can be preserved while combating poverty.

The law of development cooperation : a comparative analysis of the world bank, the EU and Germany

This article analyses the World Bank’s environmental and social Safeguards against the backdrop of changing paradigms of global legal order. In January 2017, a new ‘Environmental and Social Framework’ (ESF) entered into force and replaced older ‘Safeguard Policies’ that had incrementally emerged since the 1980s in response to harmful impacts of investment projects financed by the Bank. The Safeguards reform epitomizes the changing structures and geopolitical shifts that shape international law in the twenty-first century and provides a fascinating looking glass on the evolution of global order since the end of the cold war. In this perspective, we see the first generation of Safeguards, introduced since the late 1980s, as an element of incremental legalization in the emerging global governance regime, a regime characterized by unipolar multilateralism and geopolitical dominance of ‘the West’. The 2016 reform not only reflects the increased politicization of global governance by civil society but also the emergence of a more competitive multilateralism, characterized by counter-institutionalization on the part of emerging powers like China. A comparison of the old and new Safeguards thus allows us to analyse different forms of contestation and resulting normative evolution in the key area of global governance of development and finance.

/pdf/the-world-bank-s-environmental-and-social-safeguards-and-the-4tahzak91q.pdf

The World Bank’s Environmental and Social Safeguards and the evolution of global order

This special issue explores the workings of global goals as an instrument of global governance by numbers. These goals can alter power relations, affect the distribution of resources, reorganize na...

https://www.tandfonline.com/doi/pdf/10.1080/19452829.2019.1669144

Introduction—Data, Knowledge, Politics and Localizing the SDGs

Multilateral development banks (MDBs) are accorded immunities and privileges as agents of their member states as justified by functionalist arguments. They are also operationally hybrid: they are actors in their own right in addition to being functional agents. Navigating the functionalist imagery and relying on the argument that they are delegated purely economic pursuits (i.e. financing economic development), MDBs are able to eschew accountability to rights-holders that are affected by their decisions and operations. Although administrative law approaches have succeeded in increasing transparency, instilling self-regulatory frameworks and providing for independent review, the absence of external oversight of such review mechanisms and the broad immunities to suit enjoyed by MDBs have impeded true accountability to rights-holders. This article argues that, in so far as they engage in private sector financing operations, MDBs and their constituent arms share the form, function and relationships of an economic corporation to a large extent. Consequently, their immunities should be limited to render them bound—like ordinary corporations- by the domestic norms with respect to rule of law and human rights of the home and host countries in which they operate in order to make them accountable to rights-holders and to provide recourse for wrongdoings.

https://link.springer.com/content/pdf/10.1007/s40803-020-00143-1.pdf

The Best of Both Worlds or the Worst of Both Worlds? Multilateral Development Banks, Immunities and Accountability to Rights-Holders

This Article examines the emerging field of study called "comparative international law," first generally and then by specific examination into historical comparative international law traditions. We map out historical precedents of comparative international law to find and to create patterns, which is important to render future CIL projects coherent and relevant to policymakers. Historical analysis also unlocks what is both common and distinctive to the fields of comparative and international law, respectively. This, in turn, allows us to conceptualize their interaction and to warn of several likely or unintended dimensions (pitfalls) for the emerging field of CIL: (1) "amateurism" and "legal corporeology" (Riles) involving unsophisticated sampling of traditional comparative law forms and crude comparisons of national traditions and actors; (2) failure to understand micro-mechanics of legal transplants and norm diffusion (Sacco), which in turn leads to (3) failure to appreciate micro-level local legal customs, values and interests; (4) likely failure to examine the institutional dimensions in the "home" country/institution/organization, which is often the ‘control variable’ against which foreign legal systems are assessed. This Article is divided into three parts. Section one unpacks the general trajectory of the field of comparative international law, proposing the Interwar period (1919-1939) as a critical framework for understanding the first generation of CIL, and the post-WWII Bretton Woods (and subsequent "crisis" periods) as important moments of political contestation within the respective disciplines. Section two asks whether these critical moments may imbue both internationalists and comparativists with shared theoretical assumptions or outlooks: the notion that they are involved in progressive scholarly endeavors; pervasive blindness to the distributive outcomes of their normative policy recommendations; recurring failure to take stock of failure; inability to engage creatively with the objects of their study. Section three, thus, explores the dynamic political dimensions of likely CIL projects, including potential conflicts. These conflicts may form the basis for a creative political space within the legal academy. Or, and more likely, they will continue to fractionalize the respective disciplines, significantly diffusing the emancipatory potential of both.

Comparative International Law

https://www.mpil.de/files/pdf3/mpunyb_01_Riegner_152.pdf

Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared

Since the 1990s, there has been a “global explosion of freedom of information” as new constitutions have enshrined the right to information, legislators have enacted access to information acts, and courts have enforced and expanded individual guarantees to seek information from public authorities. Activists, journalists and citizens have welcomed access to state-held information (ATI) as a leverage right that empowers the powerless and improves democracy. The burgeoning scholarly literature on ATI culminates in the claim that freedom of information is part of a fourth wave of rights, equivalent to civil, political and social rights. This overview article takes stock of the existing ATI scholarship, identifies gaps and methodological weaknesses in extant literature, and lays out an approach for future research. It argues for a methodological approach to ATI research that combines a context-sensitive comparison across the North-South divide with socio-legal methods and a multi-level perspective. This approach indicates that conceptually, ATI should be understood as a multi-level and multi-functional guarantee, shaped by an interplay of multiple levels of law and the multiple social functions it performs. Theoretically and empirically, ATI has emancipatory potential to shift power relations in individual cases but is less effective in destabilizing entrenched power structures and inequalities. Findings on ATI contribute to general debates among constitutional lawyers, international law scholars and comparatists about the globalization of law and the transformation of rights in the information society.

/pdf/access-to-information-as-a-human-right-and-constitutional-2qp5h010f7.pdf

Access to Information as a Human Right and Constitutional Guarantee. A Comparative Perspective

The paper presents a legal critique of and framework for the “Country Policy and Institutional Assessment” (CPIA), the indicator system used by the World Bank to evaluate the governance performance of its borrowers and to allocate aid to its poorest members. The CPIA is becoming increasingly legalized and raises important questions for legal research: Namely, what role does the CPIA play in the exercise of public authority by the World Bank as an international institution? Secondly, what is the existing legal framework for potentially powerful rating exercises like the CPIA, and should this framework be developed further along the lines of Global Administrative Law or “public” law thinking? And finally, what is the appropriate role of “technocratic” instruments such as indicators in the politics of global redistribution?The main argument is that the CPIA is a promising tool to make development more effective, but that it also represents a powerful exercise of international public authority which requires an appropriate public law framework. This framework already exists in part within the administrative law of development cooperation, which enables us to transform certain concerns about the CPIA’s effectiveness and legitimacy into legal arguments. However, this framework remains deficient and must be further developed, for which the paper makes some concrete suggestions.The paper proceeds in three major steps: It first develops an analytical and regulatory framework for instruments of “governance by information” used in development cooperation. It then applies this framework to the CPIA, analyzing its genealogy, contents and effects, as well as existing mechanisms of participation, reason-giving, transparency, and review. The third part evaluates the CPIA’s existing legal regime against the principles of development cooperation law, namely development-orientation and efficacy as well as collective and individual autonomy. The conclusion reflects on how this framework potentially captures the tensions between democratic politics and expert-driven, technocratic instruments like indicators.

Measuring the Good Governance State: A Legal Reconstruction of the World Bank's "Country Policy and Institutional Assessment"

How does international institutional law shape the way in which international institutions govern information and exercise cognitive authority? Drawing from the existing literature on indicators, data collection and transparency in international institutions such as the World Bank and the UN , this paper argues that existing legal norms can be reconstructed as an overarching framework that legally structures global information governance. Indicators thus do not, as is often assumed, “escape” legal regulation; law rather co-constitutes the lens through which information about the world is generated. The paper analyses the institutional architecture and the modalities of informational action as well as the sources and regulatory modus of the existing legal framework. It exemplifies rules on institutional powers, participation, review and transparency and discusses general principles that structure the field. Taken together, these rules and principles circumscribe the emerging contours of an “international institutional law of information” that normatively frames the informational relationships between international institutions, states and individuals.

Towards an International Institutional Law of Information

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