International Development Organizations and Fragile States

Law and Disorder

Marie von Engelhardt

• Publisher: Palgrave Macmillan
• Year: 2017
• ISBN:
  9783319626956
• Topic: Sozialwissenschaften
• Subtopic: Globale Entwicklungsstudien

This book addresses a conundrum for the international development community: The law of development cooperation poses major constraints on delivering aid where it is needed most. The existence of a state with an effective government is a basic condition for the transfer of aid, making development cooperation with 'fragile' nations particularly challenging. The author explores how international organizations like the World Bank have responded by adopting formal and informal rules to engage specifically with countries with weak or no governments. Von Engelhardt provides a critical analysis of the discourse on fragile states and how it has shaped the policy decision-making of international organizations. By demonstrating how perceptions of fragility can have significant consequences both in practice and in law, the work challenges conventional research that dismisses state fragility as a phenomenon beyond law. It also argues that the legal parameters for effective global policy play acrucial role, and offers a fresh approach to a topic that is central to international security and development.

© The Author(s) 2018

Marie von EngelhardtInternational Development Organizations and Fragile StatesGovernance and Limited Statehoodhttps://doi.org/10.1007/978-3-319-62695-6_1

Begin Abstract

1. Introduction

Marie von Engelhardt¹

(1)

Berlin, Germany

End Abstract

Statehood matters in development cooperation, and so does state fragility. The provision of financial aid by states or international organizations to developing countries depends on two basic conditions: a state must exist and it needs an authorized and competent government. International organizations require government counterparts with the capacity to express consent and to legally commit a country. The transfer of financial aid is contingent on national governments having the capacity to meet specific requirements and to assume responsibility in the development process. In the large number of so-called fragile states that are characterized by weak institutions and poor governance, the lack of a government with both legal and factual capacity can thus significantly complicate, delay, and even prevent development cooperation—in places with the most urgent needs.¹

When South Sudan became the world’s youngest state in July 2011, the country had some of the world’s lowest development indicators: half of the population had no access to drinking water, and chances of dying in child birth were higher than completing school for 15-year-old girls.² International development organizations like the World Bank sought to assist in building the new state from scratch.³ To ensure that its resources were used effectively and meet development objectives, however, the World Bank also had to insist that the nascent government fulfils largely the same bulk of requirements as any other state requesting financing.⁴ With few institutions actually in place and functioning, South Sudan was expected to have a reasonably effective public financial management system, a national framework for the attainment of environmental and social standards, and of course the ability to plan and implement development projects. In short: Before the World Bank could assist in building state institutions, it required a certain level of institutional capacity on the part of the state.

South Sudan is not the only example where the discrepancy between a state’s formal legal status and its actual capacity complicated development cooperation in manifold ways. Most post-conflict countries like Kosovo, East-Timor, Afghanistan, and Iraq went through a period where an official government had yet to emerge and develop the type of institutions and administrative capacity that are usually prerequisites for donors to transfer financial aid. Somalia had no functioning government for a period of 12 years—and thus no entity authorized to even request assistance from the African Development Bank, or ratify the Cotonou Agreement,⁵ the basis for aid from the European Union (EU).⁶

Looking at development cooperation with fragile states, a problem thus becomes concrete that goes to the heart of international law. Public international law knows only states and non-states and operates on the formal premise that all states have an effective government.⁷ This formal premise does not correspond to a reality in which many entities with the legal status of states are actually unable to fulfil even most basic functions. The counterfactual nature of juridical statehood and the principle of sovereign equality thus mask a fundamental challenge that state fragility can pose to the functioning and effectiveness of the international legal order. It crucially depends on the existence of states and governments with a certain level of institutional and administrative capacity necessary to exercise rights and obligations, and to partake in international cooperation.

Yet while international law has remained blind to the actual differences between equal sovereigns, international development organizations, which operate on this premise and within its confines, have not. Arguably, development cooperation has always been concerned with strengthening the effectiveness of government (and governance) in developing countries. As subjects of international law, however, development organizations also operate on the basis of rules that presuppose the existence of an effective government. The lack of a government with both legal and factual capacity can thus stand in the way of providing assisting—a problem that has attracted increasing attention since latent fragmentation and overt crises in countries deemed fragile have become a key concern for the international donor community.

In this book, I argue that international development organizations have therefore adapted rules that govern the provision of development aid, adapted to reflect the lack or severe limitation of government effectiveness in fragile states. By analysing the mostly internal rule-making activities of the World Bank and a range of other organizations in comparison, I show how a differentiated approach to dealing with fragile states has been implemented in the law of development cooperation—with significant effects on the rights and obligations accorded to fragile states in the development process.⁸ Exploring the case of international development organizations holds a broader relevance. It proves how in the actual practice of international cooperation, state fragility has triggered a legal response—with all the potentials and perils involved where international organizations address a problem that based on the principle of sovereign equality, international law deliberately neglects.

1 Objectives of the Book

This book was born out of an academic interest in international law, and practical engagement with fragile states in development cooperation. As an international legal scholar, I was struck by the observation that although fragile state is not a legal category or concept, how international development organizations address the challenges of engaging with countries they deem fragile may well be of legal significance. There seemed to be a large gap between the positivist assertion that variations of government effectiveness have no bearing under international law, and an often messy reality in which international organizations seek to respond to the practical and legal challenges of engaging with countries that have very weak or no government. The ensuing response of international development organizations should interest legal scholars, because it involves the use of formal and informal legal instruments and concerns the rights and obligations accorded to fragile states. At the same time, in the practice of development cooperation, the legal dimension of the challenges of dealing with countries that have no or very weak government is often not fully considered. A general understanding of the regulatory approaches and instruments that different organizations have used, or could use, to better address these challenges is missing.

Accordingly, this book pursues three main objectives. The first objective is to shed light on a phenomenon that has largely escaped the grasp of legal scholars, although (or because) it concerns international law’s very foundations.⁹ It is a truism that international law defines the state as a constant, not a variable. International law is concerned with the effectiveness of governments when considering the emergence and discontinuity of states, but not with the evolution of their effectiveness. Importantly, the counterfactual nature of law’s conception of statehood and sovereignty serves a crucial purpose: to prevent material inequality and factual power discrepancies from translating into law, and hence to protect national autonomy and self-determination.¹⁰ Ideas of ‘uncivilized’, ‘underdeveloped’ or ‘failed’ countries have indeed been used as part of a narrative to justify various kinds of interventions in country’s domestic affairs in the past.¹¹ Therefore, state fragility may be a political construct and, to some extent, an empirical phenomenon—but it is deliberately no legal concept.

Still, the discrepancy between the formal legal status of a state and its factual capacity—between juridical statehood and empirical statehood—undoubtedly poses a problem to the decentralized international legal order. It relies on states having the capacity to exercise rights and obligations, and to implement international law domestically. In essence, international law does not only presume, but also requires states with an effective government, which thus becomes a precondition for the functioning and effectiveness of in fact all international legal regimes.

While the ensuing challenges are widely acknowledged, international legal scholarship has generally limited itself to studying the legal consequences of a complete breakdown of government, like in Somalia.¹² In contrast, state fragility, which encompasses effectiveness deficits that fall short of a complete government breakdown, is certainly more difficult to grasp. It can, however, equally challenge the functioning and effectiveness of legal regimes, if states lack the capacity to participate in intergovernmental fora of decision-making, to comply with an increasing reach and depth of international regulation, and to give real effect to the commitments they enter into. At the same time, with some 30–50 countries considered as ‘fragile’, state fragility has far more real-world significance than rare incidents of state collapse.¹³

I aim to illustrate the concrete challenges that dealing with fragile states can pose to the subjects of a state-centric international legal order, and to the functioning of international legal regimes. By analysing the regulatory activity of international development organizations, I show that such challenges a...

Table of contents

• Cover
• Frontmatter
• 1. Introduction
• 2. Fragile States: The Discrepancy Between Empirical and Juridical Statehood
• 3. Development Cooperation with Fragile States: From Discourse to Action
• 4. The Law of Development Cooperation: Interlude on the Nature of Rules and Substance of Analysis
• 5. The World Bank’s Rules for Engaging with Fragile States
• 6. A Comparison with the African Development Bank, the Asian Development Bank and the European Union
• 7. Formalizing Fragile States? Of Emerging Patterns and the Potentials and Perils of Regulation
• 8. Conclusion
• Backmatter