An Overview of International Development Law
The definition of international development law can be rather elusive due to its many dimensions. The driving force behind the developing of international development law has been the dynamism of an integrated and highly interdependent world. In a fast-changing world, concepts, issues and questions arise in different national and non-national (international, transnational) spheres. Issues that are already part of ongoing debate at national levels, such as (Fischer et al., 2014; Bodansky, 2014; Falk et al., 1970; 2007) environmental concerns, climate change, poverty, health and economic growth, are also increasingly becoming subjects of political and legal dispute across state borders, and these issues have gradually become the subject of international law. As stated by Mr. G. Gaja, Counsel of the International Court of Justice (2006) "international law speaks the language of the moment" and has to be prepared to be applied to new areas of law and a multitude of actors. This shifting paradigm in international law, including its expanding scope, is further confirmed by the sheer number of international organizations, particularly those working on development, humanitarian issues, the environment and the economy. These international organizations regularly enter into international legal agreements that contribute to the development of international law. There are also a number of the foundations for international law developments in the field of development law, namely: Popular debates, such as those regarding the financial markets and economic interdependence, insecurity, migration and climate change have also encouraged the development of the notion of international development law . Although the global North often refers to the South with paternalistic condescension and judges its position from a more moral or ethical standpoint, the South almost unanimously believes that the jurisprudence is influenced by an underlying desire to maintain power, dominance, control and cultural superiority. The clear rational behind this thought is that the application of international development law is a tool that is being used to justify the imbalance between evident growing global interdependence and global inequality. From this bias, there are several interpretations of what the term ‘international law of development’ actually means. Some scholars argue that the lack of a comprehensive theory of the relationship between old and new rules of law gives rise to competing concepts of international law, its scope and its objectives (Abashidze et al., 2008; D’Amato, 1977). For others, the term refers specifically to the subset of public international law comprising the rules and principles governing the economic and social development process (Alderige and Artal-Tur, 2005). Other works include all forms of international law relating to development, including contemporary private international law (PIL). A comprehensive theory of the field has yet to materialize. International development law indeed continues to grow in complexity and connotes a wide variety of topics. However, what seems evident is that as the world becomes more interconnected, the demand for international law increases as well.
The Evolution of Development Law
Much of the original impetus for international development law and policy came out of the ashes of World War II. Many states sought to work together to improve opportunities for economic development. Nevertheless, the first decades of the post-war era were busy with other priorities, such as determining liability for the war, setting up the United Nations and its many agencies, and rebuilding Europe with the assistance of the Marshall Plan. Furthermore, in those days, development did not always feature on the agenda of the new world society of states, an organisation that brought with itself many challenges of a more essential nature than development.
The United Nations charter, for example, was signed on 26 June 1945 but was not enforceable until it was ratified on 24 October of that year (which is still observed as United Nations Day). The General Agreement on Tariffs and Trade (GATT) was signed on 30 October 1947 and entered into force in January 1948 (the WTO came from the GATT), and the North Atlantic Treaty establishing the NATO was signed on 4 April 1949 (the NATO remains in force today). These were some of the most important binding international treaties signed after the carnage of the Second World War. Their key stakeholders had been busy with rebuilding Europe and had little time to dedicate their efforts to development endeavours.
It was not until 1964 that UN member states adopted the Declaration on the Strengthening of International Economic Cooperation, and that was still no more than a vague call for cooperation. As the newly-emerged states in Asia (such as India and Indonesia) joined the UN, it became apparent that a large-scale movement such as this could not be based on good intentions alone. Today, we know what the outcome of their request was. The 1970 Declaration on the Establishment of a New International Economic Order envisaged the creation of the United Nations Conference on Trade and Development (UNCTAD) in 1964. Additionally, on 6 May 1971, the General Assembly adopted Resolution 2626 (XXV), which reaffirmed this fundamental development for international law.
Since then, and especially since the establishment of the United Nations Conference on Trade and Development, worldwide development policy has been dominated by international law. As mentioned, the OECD is involved in developing policies to improve the economic and social well-being of people in developing countries. Its Development Assistance Committee (DAC), established in 1961, works towards reducing aid fragmentation and increasing harmonisation and alignment. The UNDP (United Nations Development Programme) was established in 1965, but was not formalised into international law until later. The World Bank Group came to be in 1944, but its operations were not subject to international law until 1965-66.
The gradual development of international law related to development, together with the financial necessity of the indivisibility of states, has enabled the United Nations system to evolve, adapt and respond to new challenges, such as the current emphasis on development justice.
Core Principles and Goals
The principles and objectives of international development law are centered upon the belief that development is inherently a human right and that legal frameworks should aim to remove obstacles to this right. Core concepts that have come to define this body of law include sustainable development, human rights and economic equality. These concepts have evolved to create a framework that pursues enduring development solutions, recognizes and safeguards fundamental human rights, uses an inter-disciplinary approach, and promotes a fairer and more just world in which inequalities in development opportunities are reduced. As international development law has evolved to include diverse bodies of law, its effectiveness in achieving these objectives has also been supported through an expanding network of legal instruments and institutions. Its objectives permeate broader international relations and multilateral efforts to achieve global development goals such as the recently adopted 2030 Agenda for Sustainable Development and its 17 Sustainable Development Goals(SDGs).
The evolution of international development law has also facilitated the re-examination of its core principles and objectives. For example, the notion of human rights has been challenged and expanded beyond civil and political rights to encompass economic, social and cultural rights. Socio-cultural, environmental and public health considerations are now paramount in many development efforts. International development efforts are not only directed towards solving contemporary global inequities, but also addressing them in the context of historical legacies and the post-colonial power imbalance. New developments such as the increasing role of non-state actors brings about new challenges to the coherence of international development efforts. While traditional development paradigms have been critiqued for being linear, static and offering universal solutions for development across all regions and within countries, the elements of flexibility and adaptability have been incorporated to create a more sustainable development paradigm.
The Functions of International Bodies
The role of major international developmental organisations in the implementation and enforcement of development law cannot be understated. Through their various governing bodies, specialised agencies, and financial institutions, international organisations promote, enforce and implement international development law by means of technical assistance, both regionally and globally.
The United Nations International Law Commission (the "ILC"), established by the United Nations General Assembly (the "UNGA") in 1947, has a mandate to pursue the codification and progressive development of international law. Where appropriate, the ILC promotes and implements international development law through its reports and the drafts of international treaties that it carries out under its mandate. These reports and ground-breaking drafts, which are subsequently adopted by the UNGA and made part of international law, have been extremely influential in the development of numerous rules of international law. For example, the work of the ILC has provided the basis for the International Law Commission Conventions on International Civil Aviation, on Special Missions, and on the Law of Treaties among others.
The portion of the UN structured related to development is the United Nations Economic and Social Council (the "ECOSOC"). Within the UNGA, the ECOSOC plays a key role in coordinating the work of 15 UN specialized agencies and in overseeing the work of functional commissions including the Commission on Sustainable Development and the Commission on the Status of Women, of what is housed under the UN Economic and Social system.
The World Bank, founded in 1944, is made up of five institutions, the International Bank for Reconstruction and Development (the "IBRD" or the "World Bank"), and three out of the five institutions, the International Development Association (the "IDA"), the International Centre for Settlement of Investment Disputes (the "ICSID") and the Multilateral Investment Guarantee Agency (the "MIGA") provide the Bank’s borrowing members with convenient financial and technical assistance benefiting the tropics and sub-tropics. The IDA manages the lending to the least developed countries, while the MIGA provides support to these same states in promoting public and private investment in developing countries.
The International Monetary Fund (the "IMF") serves as a worldwide financial organisation through which member states collaborate to promote global economic growth and stability. The IMF has become a crucial mechanism for managing international economic crises, and as of late has become the leading provider of loans to developing economies. The IMF provides developing economies with loans, policy advice and technical assistance, offered primarily through the IMF’s "Enhanced Structural Adjustment program" (the "ESAF"). The funds, such as the ESAF, are distributed only if the state meets certain conditions, such as by undertaking to liberalise trade.
Regional development financing institutions are similar to the IMF in that they exist to provide financial support to their regional states, without any project involvement. Three of the major regional development institutions include: the African Development Bank, the Asian Development Bank, and the Caribbean Development Bank. Often times regional development financing institutions partner with the above described major international development banks to provide an even stronger source of financial assistance.
Legal Frameworks Governing Development Law
Legal instruments play a critical role in establishing the framework for international development. Conventions, treaties, pacts, and agreements set forth binding commitments and shared objectives among states and non-state actors committed to fostering economic development and social progress. Conventions are usually multilateral international treaties that function to codify widely accepted international values, standards, and frameworks into legally enforceable obligations. Examples of such conventions include the United Nations Convention Against Corruption (signed in 2003), the Inter-American Convention Against Corruption (signed in 1996), and the African Union Convention on Preventing and Combating Corruption and Related Offenses (signed in 2003). Bilateral treaties may also be used as development tools, regulating the procedures by which two states communicate, interact, and engage in economic development . As a result, these agreements may touch on various topic areas. For instance, the bilateral US-UK Social Security Agreement, signed in 1983, provides exceptions to US Social Security rules for British nationals living in the US. There are also limitations on charges for transmittal of benefits, tax exemption periods, etc. The US list of international programs administered by the US government ("U.S. Government Initiatives Globally") includes timelines, participating government agencies, and populations targeted for those projects, programs and treaties. Likewise, similar lists are available from the United Kingdom and many other member states on the www.gov.uk website, while governments of some other states have websites addressing interests in international development.
Critiques and Controversies
Despite its growing importance as a tool for influencing and shaping the global development agenda, very significant challenges remain for international development law. For one, it often runs afoul of the principle of state sovereignty. The principle holds both theoretical and practical significance; it ensures that a state can adequately control its own governance and affairs, free of foreign interference or influence. However, the enforcement mechanisms of national laws does not extend beyond the state in which those laws are enacted. Thus, international law must tread carefully to ensure it does not overtly give the impression to states that it is supplanting their national laws. This has led to significant difficulties enforcing international development law, as the mechanisms for enforcement do not exist to the same extent on the international stage as they do on a national level. Another frequently cited criticism is that, thus far, international development law has not yet stimulated the desired changes for developing states. Some argue that the legislation enacts changes that are too piecemeal; others have called it a more sophisticated method of foreign intervention and appropriation. Regarding the latter, critics recommend that developing countries remain particularly vigilant when signing onto international agreements or rules, as they may cheat them of their sovereignty in the process.
The Future Landscape of Development Law
As we examine the evolution of international development law, it is equally important to look ahead and consider future trends and directions. A major area of potential impact is the intersection of climate change policies with development law. As countries develop and implement climate-related legal frameworks, development professionals must navigate the complex world of clean energy, carbon trading, and adaptation measures. These policies will affect not only environmental law, but also trade law, investment law, and even tax law. For example, the implementation of the Paris Agreement on Climate Change in 2016 and 2017 has already begun to shape domestic laws and policies and will continue to do so.
The role of digital technology in development has also become more prominent in legal frameworks. Digital rights and privacy have become developing law around the world , and issues related to cybersecurity and digital sovereignty present new challenges in areas as various as immigration, security, and trade. Digital platforms that have disrupted existing markets have generated a great deal of commentary in development law, and we expect that this trend will continue. Those involved in development policy will need to be able to navigate and utilize new digital technologies to aid in their work and will increasingly have to address the outmoded or absent laws related to those technologies in the countries in which they work.
