82558
The World Bank
Legal Review
Volume 5

Fostering Development through
Opportunity, Inclusion, and Equity
The World Bank Legal Review
Volume 5
Fostering Development through
Opportunity, Inclusion, and Equity

The World Bank Legal Review is a publication for policy makers and their advis-
ers, judges, a orneys, and other professionals engaged in the ﬁeld of interna-
tional development with a particular focus on law, justice, and development.
It oﬀers a combination of legal scholarship, lessons from experience, legal de-
velopments, and recent research on the many ways in which the application
of the law and the improvement of justice systems promote poverty reduction,
economic development, and the rule of law.
The World Bank Legal Review is part of the World Bank Law, Justice and De-
velopment Series managed by the Research and Editorial Board of the Bank’s
Legal Vice Presidency. Publication of The World Bank Legal Review, Volume 5
was made possible with support from the OPEC Fund for International
Development.
The World Bank
Legal Review
Volume 5

Fostering Development through
Opportunity, Inclusion, and Equity

Hassane Cissé
N. R. Madhava Menon
Marie-Claire Cordonier Segger
Vincent O. Nmehielle

Editors

THE WORLD BANK
Washington, D.C.
© 2014 International Bank for Reconstruction and Development / The World Bank
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Telephone: 202-473-1000; Internet: www.worldbank.org
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Fostering Development through Opportunity, Inclusion, and Equity. DOI: 10.1596/978-1-4648-0037-5
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The World Bank
Legal Review
Volume 5

Fostering Development through
Opportunity, Inclusion, and Equity

EDITORS
Hassane Cissé
Deputy General Counsel, Knowledge and Research, World Bank

N. R. Madhava Menon
Hon. Professor & IBA Chair in Continuing Legal
Education, National Law School of India, Bangalore

Marie-Claire Cordonier Segger
DPhil (Oxon), MEM (Yale), BCL & LLB (McGill)
Senior Legal Expert, Sustainable Development,
International Development Law Organization (IDLO)

Vincent O. Nmehielle
Professor of Law and Head of the Wits Programme on
Law, Justice and Development in Africa School of Law,
University of the Witwatersrand, Johannesburg, South Africa

PRODUCTION EDITOR
Elizabeth Hassan
Associate Counsel, World Bank
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Contents

Foreword xi
Jan Eliasson, Deputy Secretary-General of the United Nations
Preface xiii
Anne-Marie Leroy, Senior Vice President and Group General Counsel,
The World Bank
Contributors xv

Introduction
Opportunity, Inclusion, and Equity as Imperatives for
Meaningful Law and Justice-Guided Development 3
Vincent O. Nmehielle and N. R. Madhava Menon
PART I: Law and the Economy
Keeping Public-Private Partnership Infrastructure Projects
on Track: The Power of Multistakeholder Partnering Commi ees
and Dispute Boards in Emerging-Market Infrastructure Projects 21
Patricia O. Sulser and Cyril Chern
Protecting Traditional Practices and Country of Origin in
Developing Countries through Fair Trade and Intellectual
Property Rights 41
Beth Anne Hoﬀman and Charles Boudry
Tools for More Sustainable Trade Treaties with Developing
Countries 63
Markus W. Gehring
The Treatment of Insolvency of Natural Persons in South
African Law: An Appeal for a Balanced and Integrated Approach 91
André Boraine and Melanie Roestoﬀ
The Role of Personal Insolvency Law in Economic Development:
An introduction to the World Bank Report on the Treatment of
the Insolvency of Natural Persons 111
José M. Garrido
Specialized Insolvency Regimes for Islamic Banks:
Regulatory Prerogative and Process Design 127
Hdeel Abdelhady
viii Contents

The Role of Law in the Green Economy: Challenges and
Opportunities for the Liberalization of Environmental
Goods and Services 147
Fabiano de Andrade Correa

PART II: Justice and Rule of Law Reform
Institutional Responses to Social Demands:
Enhancing Access to Justice in Colombia 165
David F. Varela and Anne e Pearson
The Role of Access to Information in Promoting Development 189
Sean Fraser
The Search for Opportunity and Inclusion:
Insecurity and Migration 211
Emilio C. Viano
Toward a National Framework Law on Water for India 231
N. R. Madhava Menon
Targeting Justice Sector Services to Promote Equity and Inclusion
for the Poor in Jordan 245
Paul Pre itore
Serving the Justice Needs of the People: Adopting an Access
to Justice Approach in Somalia’s Rule of Law Reform 263
Nicholas Joseph

PART III: Environmental and Natural Resources Law
The Challenges of Reforming the Urban Legal Framework:
A Critical Assessment of Brazil’s City Statute Ten Years Later 279
Edesio Fernandes
Innovative Legal Measures for Climate Change Response in
Green Economy: Integrating Opportunity, Inclusion, and Equity 293
Marie-Claire Cordonier Segger and Yolanda Saito
The Constitutional Basis of Public Participation in
Environmental Governance: Framing Equitable Opportunities
at National and County Government Levels in Kenya 307
Robert Kibugi
Planning Laws, Development Controls, and Social Equity:
Lessons for Developing Countries 329
Rachelle Alterman
Land Use Law and the City: Toward Inclusive Planning 351
Ma hew Glasser
Contents ix

PART IV: Governance and Anticorruption
Fighting Corruption in Education: A Call for Sector
Integrity Standards 367
Mihaylo Milovanovitch
The Ba le between Corruption and Governance in India:
Strategies for Tipping the Scale 381
Sriram Panchu and Avni Rastogi
Leveling the Playing Field: A Race to the Top 399
Bart Stevens and Robert Delonis
The World Bank Group Sanctions System and Access to
Justice for Small and Medium-Size Enterprises 417
Frank Fariello and Giovanni Bo
Private Civil Actions: A Tool for a Citizen-led Ba le
against Corruption 437
William T. Loris
Fostering Opportunity through Development Finance in Africa:
Legal Perspectives from the African Development Bank 453
Kalidou Gadio

PART V: Empowerment and Equity for Diverse Communities
Nation Building, State Reconstruction, and Inclusiveness:
Issues on South Sudan as a New State and Somalia as a
Failed but Reemerging State 483
Vincent O. Nmehielle and John-Mark Iyi
Enabling Equal Opportunities for Women in the World of Work:
The Intersections of Formal and Informal Constraints 505
Jeni Klugman and Ma hew Morton
The Role of Law in Promoting the Right to Health for
Diverse Communities 523
David Pa erson, Elisa Sla ery, and Naomi Burke-Shyne
The Right to Health and Development: The Case of Uganda 545
Siobhán McInerney-Lankford and Moses Mulumba
Mainstreaming the Marginalized in Development:
Conceptualizing the Challenges in India 581
Pulapre Balakrishnan
The Right to Information as a Tool for Community Empowerment 599
Anupama Dokeniya
x Contents

Conclusion
A Challenging New Era for Law, Justice, and Development 615
Hassane Cissé and Marie-Claire Cordonier Segger
Afterword 639
Irene Khan, Director-General,
International Development Law Organization
Index 641
Foreword
JAN ELIASSON
DEPUTY SECRETARY-GENERAL OF THE UNITED NATIONS

We are at a crucial moment for shaping the world we want. The Report of the
High-Level Panel of Eminent Persons on the Post-2015 Development Agenda
sets out an ambitious yet practical vision for tackling poverty and sustainable
development. It reﬂects a growing realization that the rule of law is funda-
mental for responsive institutions and is a driving force for development.
This understanding was conﬁrmed when the United Nations General As-
sembly held its ﬁrst High-level Meeting on the rule of law in September 2012.
The resulting Declaration recognizes that rule of law and development are
strongly interrelated and mutually reinforcing and should be reﬂected in the
post-2015 international development agenda. The Declaration also reaﬃrmed
that the rule of law is indispensable for upholding peace and security, as well
as respect for human rights.
The World Bank Legal Review highlights the breadth of reach of the rule of
law and, most critically, its centrality to development. The theme, Fostering
Development through Opportunity, Inclusion, and Equity, speaks to the holistic
nature of development and its relationship to the rule of law.
Reﬂecting the World Bank’s work to mainstream law and justice into the
development process, the authors explore innovative ways in which the rule
of law can be used to help achieve opportunity, inclusion, and equity. The
United Nations Secretary-General has also made it a priority to mainstream
the rule of law across the work of the United Nations system.
The rule of law is a concept at the very heart of development and people’s
daily life across the world. It is the land deed in the hands of the farmer, the
entrepreneur’s legitimate contract, the badge of a trusted police oﬃcer, and
the birth certiﬁcate that lets a child be counted.
But the rule of law also ranges well beyond these particular ma ers. The
World Bank rightfully applies a justice lens to the protection of the environ-
ment, anticorruption, the economy, and the empowerment of marginalized
groups and communities.
This edition of The World Bank Legal Review is a signiﬁcant contribution to
scholarship on the rule of law and comes at a critical time. Our shared chal-
lenge—and obligation—is to build a future guided by the rule of law as a
vehicle for people’s security, rights, and economic well-being.

xi
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Preface
ANNE-MARIE LEROY
SENIOR VICE PRESIDENT AND GROUP GENERAL COUNSEL
THE WORLD BANK

The world is confronted by a wide array of complex challenges that demand
a ention. They range from fragile and conﬂict situations to the alarming pro-
gression of climate change, from the worrisome state of food security to the
persistent inequities and societal imbalances that limit people’s access to and
enjoyment of public goods. In some countries, political instability is threat-
ening the sustainability of development outcomes that have taken years of
painstaking eﬀort to achieve. Addressing these challenges is a top priority for
development institutions today.
The World Bank is striving to meet the increasing needs of its member
countries not only through its lending instruments but also by providing tech-
nical assistance, knowledge sharing, and advisory services. Institutionally, the
change process is strategically designed to reposition the Bank to carry out
its mandate more eﬃciently while evolving with the times. The twin goals of
eradicating extreme poverty and boosting shared prosperity have also set the
Bank on a path to not only secure positive outcomes in its operations, but also
ensure that such outcomes translate to be er lives for all, especially the poor.
The Legal Vice Presidency is actively supporting the Bank as it works to
meet its obligations. With the help and expertise of its team of lawyers, legal
analysts, and global partners, the Legal Vice Presidency is devising creative,
viable, and sustainable legal solutions that will help transform development
aspirations into reality. The World Bank Legal Review is one such eﬀort. This
year’s volume, subtitled Fostering Development through Opportunity, Inclusion,
and Equity, explores critical issues aﬀecting development, emphasizing that
we stand a be er chance of achieving more meaningful impact when develop-
ment processes are inclusive and equitable, and provide adequate opportuni-
ties for all.
Now is a time not only for action but also for reﬂection, as the internation-
al community strives to set the post-2015 development agenda. The peoples
of the world are clamoring for a louder voice and greater participation in the
process of reform at the national, regional, and international levels; and re-
cent actions by the international community indicate a willingness to engage
more actively in that process. At the same time, lessons learned over the years
equip us with the tools we need to create more targeted, proactive, and, con-
sequently, successful engagement. To realize our ambitions, law and justice

xiii
xiv Preface

must play an enhanced and overarching role, as demonstrated by the chapters
in this volume.
This, the ﬁfth volume of The World Bank Legal Review, has greatly beneﬁted
from the input of seasoned development experts under the guidance of our
distinguished editors: Deputy General Counsel for Knowledge and Research,
Hassane Cissé; Professor N. R. Madhava Menon of the National Law School
of India University (NLSIU); Dr. Marie-Claire Cordonier Segger of the Inter-
national Development Law Organization (IDLO), Rome; and Professor
Vincent O. Nmehielle of the University of Witwatersrand, South Africa.
I sincerely thank Jan Eliasson, the Deputy Secretary-General of the United
Nations, and Irene Khan, the Director-General of IDLO, who graciously wrote
this volume’s foreword and afterword, respectively. Now more than ever,
overcoming global challenges requires enhanced commitment and multi-
stakeholder partnerships among development institutions. Jan Eliasson’s and
Irene Khan’s valuable insights have greatly enriched this volume. I also thank
all the contributors for their impressive and well-researched contributions.
Their thoughts, perspectives, and recommendations are as important as they
are timely. My sincere appreciation also goes to Dr. Nigel Quinney for his stellar
and invaluable editorial assistance.
This volume’s chapters have been organized under ﬁve main headings:
law and the economy, justice and rule of law reform, environmental and natu-
ral resources law, governance and anticorruption, and empowerment and eq-
uity for diverse communities. Each of these ﬁve parts contains interesting and
insightful discussions on the role of law and justice in development, oﬀering
innovative and dynamic recommendations on how a synergy among law, jus-
tice, and development can inspire and facilitate more viable and sustainable
solutions to development challenges.
Contributors

Hdeel Abdelhady is Founder and Principal of MassPoint Legal and Strat-
egy Advisory PLLC, a boutique law and strategy ﬁrm in Washington, D.C.,
representing banks, companies, and organizations in market entry, ﬁnance
and corporate transactions, investment disputes, and regulatory compliance.
Ms. Abdelhady has practiced law in Washington and in Dubai with interna-
tional law ﬁrms and as in-house (secondment) counsel to ﬁnancial institutions.
Her legal experience spans industries, cultures, and legal environments; she
has worked on ma ers involving the United States, Africa, Asia, Europe, Latin
America, and the Middle East. Before law school, Ms. Abdelhady worked
with an award-winning Washington political media strategy ﬁrm, where she
was responsible for research and analysis of congressional, gubernatorial, and
mayoral campaigns and elections; ballot referenda; and corporate issues me-
dia. Ms. Abdelhady holds a J.D. from The George Washington University Law
School, where she is a Professorial Lecturer in law, and a B.A. (political science
and history) from the University of Pi sburgh.
Rachelle Alterman is the Founding President (2006–2010) of the International
Academic Association on Planning, Law and Property Rights. Holding de-
grees in planning and in law from Canadian and Israeli universities, Professor
Alterman specializes in cross-national comparative analysis of planning laws,
land use regulations, and property rights. Her most recent book is Takings In-
ternational: A Comparative Perspective on Land Use Regulations and Compensation
Rights (American Bar Association Press, 2010). Professor Alterman is based
at the Technion–Israel Institute of Technology, where she holds the Azrieli
Chair in Town Planning. She serves on the editorial boards of leading aca-
demic journals. As visiting professor, she has taught at major American and
Dutch universities. The Association of European Schools of Planning named
her Honorary Member (the ﬁfth person so honored). Professor Alterman has
also served as a consultant for the United Nations, the Organisation for Eco-
nomic Co-operation and Development, the World Bank, and a variety of other
public bodies. See h p://alterman.technio.ac.il.
Fabiano de Andrade Correa is a Brazilian lawyer and holds a Ph.D. in interna-
tional law from the European University Institute in Florence, Italy. Currently,
he serves as Legal Specialist at the International Development Law Organi-
zation (IDLO), in Rome, providing expertise for program development and
implementation on issues related to trade and sustainable economic develop-
ment. Mr. de Andrade Correa is a qualiﬁed lawyer with the Brazilian Bar As-
sociation, and before joining IDLO he practiced law with a leading Brazilian
law ﬁrm and clerked with the Court of Justice of the state of Rio Grande do
Sul, in Porto Alegre, Brazil. He is also a member of the Brazilian Branch of
the International Law Association, serving as alternate representative to the
Commi ee on International Law and Sustainable Natural Resources Manage-

xv
xvi Contributors

ment, and an Associate Fellow with the Centre for International Sustainable
Development Law (CISDL). He holds a law degree (LL.B., UFRGS, Brazil) and
a master’s degree in international relations (Escuela Diplomatica/Universidad
Complutense de Madrid, Spain).
Pulapre Balakrishnan is Professor of Economics at the Centre for Develop-
ment Studies, Thiruvananthapuram, of which he is currently the director. He
has wri en in the professional journals and is the author of the books Pricing
and Inﬂation in India (Oxford University Press, 1991) and Economic Growth in
India: History and Prospect (Oxford University Press, 2010). Mr. Balakrishnan
has held appointments at the University of Oxford, the Indian Statistical In-
stitute at Delhi, and the Indian Institute of Management at Kozhikode and
has served as Country Economist for Ukraine at the World Bank. See h p://
pulaprebalakrishnan.in.
Giovanni Bo is an Associate Counsel with the Operations Policy Practice
Group of the World Bank’s Legal Vice Presidency. He joined the Bank’s Legal
Department in 2010 and worked, as an advisory lawyer, in the Environmental
and International Law Practice Group and, as an operational lawyer, in the
Latin America and the Caribbean Practice Group. Prior to joining the Bank,
he was legal researcher at Human Rights Watch and worked for the European
Commission, in Brussels. He has also practiced European Union law in the
Brussels oﬃce of Pavia & Ansaldo. A foreign-trained a orney admi ed to
practice law in the state of New York, he holds an LL.M. in international and
comparative law from The George Washington University Law School (2009),
an advanced degree in European Union law from the University of Bologna
(2007), a Certiﬁcate in legal studies from University College London (2004),
and an LL.B. from the University of Genoa (2004). His recent publications in-
clude “The US Challenge to the Inclusion of Aviation Activities within the
EU Emissions Trading Scheme: A US-EU Dispute with Global Repercussions”
(World Bank, 2011) and “Activities in the Seabed and Ocean Floor beyond the
Limits of National Jurisdiction: The Responsibilities and Obligations of States
and International Organizations” (World Bank, 2011).
André Boraine is the Dean of the Faculty of Law at the University of Pretoria.
Over the years he has taught a variety of law subjects at both undergraduate
and postgraduate levels, and he supervises doctoral students on a continuous
basis. He is on the roll of practicing a orneys and is involved in practical legal
training programs of candidate a orneys as well as insolvency practitioners.
He was the INSOL Scholar for 2008 and has been recognized as an exceptional
achiever at the University of Pretoria. He is also a National Research Federa-
tion–rated researcher. His current research interests include insolvency law,
the law of civil procedure, and aspects of property law and consumer pro-
tection. He has published widely and regularly presents papers at local and
international conferences. During 2011, he served as a consultant to the World
Bank in relation to an ROSC analysis of the South African insolvency law sys-
tem. Mr. Boraine is a coauthor of a leading book on insolvency in South Africa:
Meskin: Insolvency Law (LexisNexis).
Contributors xvii

Charles Boudry served as an Associate Counsel in the Environmental and
International Law Unit in the Legal Vice Presidency of the World Bank. Before
joining the Bank, Mr. Boudry worked for the Swiss law ﬁrm of Bär & Karrer in
the litigation and international arbitration practice group. He holds an LL.M.
from Duke Law School (Duke-Geneva Scholar, 2011) and a master’s in eco-
nomic law from the University of Geneva.
Naomi Burke-Shyne is an Australian lawyer with 10 years’ experience in law
and human rights. She joined the International Development Law Organiza-
tion’s HIV and Health Law Initiative in 2009. Under this program, Ms. Burke-
Shyne worked extensively across Asia and the Paciﬁc, managing technical as-
sistance initiatives in Bangladesh, India, Indonesia, Nepal, Pakistan, Papua
New Guinea, the Philippines, Sri Lanka, and Timor-Leste. She has a strong
background in the rights of marginalized populations and has worked close-
ly with people living with HIV, men who have sex with men, transgender
people, and sex workers on discrimination and the right to health. Ms. Burke-
Shyne practiced as a lawyer in Australia prior to joining IDLO and holds a
master’s degree in international and community development from Deakin
University, Australia, and an LL.B. from the University of Queensland.
Cyril Chern, the Secretary of the Dispute Board Federation (DBF), Geneva,
is also a Barrister at Crown Oﬃce Chambers, London, and a Chartered Ar-
chitect, Chartered Arbitrator, Accredited Mediator, and Adjudicator and
holds the degrees of B.Arch. in architecture and engineering and J.D. He is a
Fellow of both the Chartered Institute of Arbitrators and the Dispute Board
Federation and is on both the FIDIC President’s List of Adjudicators and its
Assessment Panel and is a dispute board trainer for FIDIC, the DBF, and the
International Chamber of Commerce. Dr. Chern is the author of Chern on Dis-
pute Boards (1st and 2nd editions, Wiley-Blackwell), International Commercial
Mediation (Informa), and The Law of Construction Disputes (Informa). He is also
the coauthor of Emden’s Construction Law and its “ADR and Dispute Boards”
section (LexisNexis). His newest books, The Commercial Mediator’s Handbook
and Construction Delay and Damage, will be published in early 2014.
Hassane Cissé joined the World Bank in 1997 after serving for seven years
as Counsel at the International Monetary Fund. He has been Deputy General
Counsel, Knowledge and Research, of the Bank since 2009. In this capacity,
he provides intellectual leadership on strategic legal issues facing the Bank,
oversees advisory services on law and justice reforms, and leads the Bank’s
knowledge agenda on law, justice, and development. He is the editor-in-chief
of the World Bank’s Law, Justice and Development Series; has authored sev-
eral papers on international economic law and law, justice, and development;
and coedited the 2012 and 2013 volumes of The World Bank Legal Review. Prior
to his current position, Mr. Cissé served for several years as Chief Counsel for
Operations Policy of the World Bank. In this capacity, he contributed to the
modernization and simpliﬁcation of the Bank’s legal and policy framework,
and as legal adviser on governance and anticorruption, he led the exercise that
resulted in the adoption by the Bank in 2006 of an expanded policy framework
xviii Contributors

for sanctions. He was appointed in 2007 to serve as a member of the World
Bank’s newly established Sanctions Board. Mr. Cissé obtained his LL.B. from
Dakar University in Senegal, where he graduated at the top of his class; he
also holds an LL.M. degree from Harvard Law School as well as graduate
law degrees from the Universities of Paris I Panthéon-Sorbonne and Paris II
Panthéon-Assas and a graduate degree in history from Paris I University.
Mr. Cissé is a member of the World Economic Forum Global Agenda Council
on the Rule of Law.
Marie-Claire Cordonier Segger, D.Phil. (Oxon), M.E.M. (Yale), B.C.L. and
LL.B. (McGill), is Senior Legal Expert, Sustainable Development, for the In-
ternational Development Law Organization. She has 20 years of global trea-
ty negotiations and programming experience that spans 79 countries of the
Americas, Africa, and Asia Paciﬁc, and she has published over 80 papers and
18 books in ﬁve languages, including Sustainable Development Law (Oxford
University Press), Sustainable Justice (Martinus Nijhoﬀ), and Legal Aspects of
Implementing the Cartagena Protocol on Biosafety (Cambridge University Press).
She coleads the World Bank Global Forum on Law, Justice and Development
Thematic Working Group on Environment and Natural Resources Law and
serves on the Editorial Board of The World Bank Legal Review. In an academic
capacity, Dr. Cordonier Segger also coedits the Cambridge University Press
series Implementing Treaties on Sustainable Development and serves as Se-
nior Director for the Centre for International Sustainable Development Law
(CISDL). She is an Aﬃliated Fellow of the Cambridge University Lauter-pacht
Centre for International Law (LCIL); Visiting Professor of the University
of Chile Faculty of Law; Rapporteur of the International Law Association
(ILA) Experts Commi ee on International Law and Sustainable Development
of Natural Resources; and Councilor of the World Future Council. Dr. Cor-
donier Segger also is on the boards of ILA Canada, Nigeria’s Journal of Sus-
tainable Development Law and Policy, and the Cambridge Journal of International
and Comparative Law. Previously, Dr. Cordonier Segger has served as Senior
Director of Research for Sustainable Prosperity, A/Director of International Af-
fairs for Canada’s Ministry of Natural Resources, Americas Portfolio Director
for the International Institute for Sustainable Development and UN Environ-
ment Programme, and Associate Fellow of the Royal Institute for International
Aﬀairs.
Robert Delonis is a Senior Litigation Specialist in the World Bank Group In-
tegrity Vice Presidency (INT). He advises INT investigators regarding their
inquiries into allegations of fraud, corruption, collusion, and coercion aﬀect-
ing World Bank–supported activities; argues resulting sanctions cases in the
World Bank Group’s administrative sanctions system; and leads the negotia-
tion of se lements in cases for which an amicable resolution is pursued. Prior
to the formation of INT’s Special Litigation Unit, he was a core team member
on INT’s Detailed Implementation Review of the India Health Sector and a
team member (and, brieﬂy, acting head) of INT’s Voluntary Disclosure Pro-
gram. Before joining INT in 2006, he practiced law in the Washington, D.C.,
Contributors xix

oﬃce of a multinational law ﬁrm, focusing on civil litigation. He is a graduate
of Georgetown University and New York University School of Law.
Anupama Dokeniya is a Governance Specialist in the Governance and Pub-
lic Sector Group at the World Bank. She works on the implementation and
monitoring of the Bank’s Governance and Anticorruption Strategy; leads ana-
lytical work on transparency, accountability, and open governance issues; and
advises country teams in these areas. She has developed and delivered sev-
eral learning programs on governance and transparency issues in developing
countries, consulted on the use of information and communication technol-
ogy for development, and worked as a journalist. She holds a Ph.D. in com-
munications and international development from Cornell University.
Frank Fariello is a Lead Counsel with the Operations Policy Practice Group of
the World Bank’s Legal Vice Presidency. He is the Bank’s primary legal focal
point for its Governance and Anticorruption Strategy and sanctions system.
Since joining the Bank in 2005, he has also worked on a range of other legal
policy issues, including the Legal Harmonization Initiative, Bank engagement
in the criminal justice sector, and the legal aspects of the Bank’s Middle-In-
come Countries strategy. He is Vice Chair of the American Bar Association’s
International Anticorruption Commi ee. His recent publications include
“Coordinating the Fight against Fraud and Corruption” and “Transforming
through Transparency: Opening Up the World Bank’s Sanctions System” (The
World Bank Legal Review, volumes 3 and 4, respectively). He has lectured at
the Joint Vienna Institute, George Mason University, and the New York Uni-
versity School of Law. Prior to joining the Bank, he was Special Adviser to the
Vice President of the International Fund for Agricultural Development (IFAD)
and Senior Counsel in IFAD’s Oﬃce of the General Counsel. Prior to IFAD, he
practiced corporate law in a number of New York–based law ﬁrms, including
Skadden, Arps, Slate, Meagher & Flom. He holds a B.A. in history (magna
cum laude) from Brown University (1980) and a J.D. from New York Univer-
sity Law School (1983). He is admi ed to practice law in the state of New York.
Edesio Fernandes (LL.M., Ph.D.) is a Brazilian legal scholar based in the United
Kingdom, specializing in the legal dimensions of land, urban, housing, and
environmental processes and public policies. He is a member of DPU Associ-
ates and of the teaching faculty of the Lincoln Institute of Land Policy (LILP).
He has worked as both a lecturer and a consultant in several countries and
has published widely in English, Portuguese, and Spanish. He is the author,
among other publications, of the Policy Focus Report on land regularization
programs in Latin America (LILP, 2011). In 2003, he was Director of Land Af-
fairs at Brazil’s Ministry of Cities, and in that capacity he coordinated the for-
mulation of the National Program to Support the Sustainable Regularization
of Consolidated Informal Se lements in Urban Areas.
Sean Fraser is an associate with the Canadian law ﬁrm Blake, Cassels &
Graydon, working in the Litigation and International Dispute Resolution
practice groups. He also serves as an Associate Research Fellow with the
Human Rights and Poverty Eradication Division of the Centre for International
xx Contributors

Sustainable Development Law. Mr. Fraser previously spent time working for
the South African History Archives’ Freedom of Information Programme in
Johannesburg, South Africa, where he was involved with various public edu-
cation and advocacy campaigns that focused on improving the content and
implementation of access to information laws in that country. He holds an
LL.M. in public international law from Leiden University’s Advanced Studies
program, where he specialized in peace, justice, and development, as well as
a J.D. with a specialization in business law from Dalhousie University, and a
B.Sc. (with distinction) from St. Francis Xavier University.
Kalidou Gadio, a Mauritanian national, is the General Counsel of the African
Development Bank. Prior to this position, he served within the Bank as Coun-
try Director for North Africa Region I and as the Manager of the Operations
Aﬀairs Division in the Legal Department. Before joining the Bank, Mr. Gadio
worked with Coudert Brothers in New York as an Associate A orney and
with Jeantet et Associés, an international law ﬁrm in Paris. He holds an LL.M.
from Harvard Law School (1987), an advanced degree in international law
from the Sorbonne, University of Paris II, and a license en droit from the Uni-
versity of Mohamed V in Morocco. Mr. Gadio is a member of the New York
and Connecticut Bars and a former member of the Paris Bar.
José M. Garrido is Senior Counsel at the Legal Vice Presidency of the World
Bank in the Finance, Private Sector Development and Infrastructure Unit, spe-
cializing in the areas of insolvency and creditor/debtor regimes. A prominent
international lawyer and academic in Spain, he has held the chair in com-
mercial and corporate law at the University of Castilla–La Mancha since 2001.
Professor Garrido was also the General Counsel of the Spanish Securities
Commission and was appointed a High Level Company Law Expert for the
European Commission. He coordinated the work of the World Bank Insol-
vency Task Force on the treatment of personal insolvency and has published
extensively on ma ers of access to credit, particularly in the area of secured
transactions. Professor Garrido holds a Ph.D. in insolvency law (University of
Bologna), an LL.M. in corporate and commercial law (University of London),
and a J.D. (University of Alcala).
Markus W. Gehring, LL.M. (Yale University), J.D. (University of Hamburg),
M.A. (University of Cambridge), is Deputy Director of the Centre for Euro-
pean Legal Studies (CELS) and University Lecturer at the Faculty of Law, Uni-
versity of Cambridge. He is Director of Studies in Law and a Fellow at Hughes
Hall and serves as Lead Counsel for Trade, Investment and Finance Law with
the Centre of International Sustainable Development Law (CISDL). Dr. Geh-
ring has been a Visiting Professor at several universities around the world
and is ad personam Jean Monnet Chair in Sustainable Development Law in the
Faculty of Law, Civil Law Section, at the University of O awa. He is a member
of the Frankfurt Bar. Selected publications include Sustainable Development in
World Trade Law (Kluwer Law International, 2005) and Sustainable Development
in World Investment Law (Kluwer Law International, 2010). Dr. Gehring also
Contributors xxi

coedits the Cambridge University Press series Implementing Treaties on Sus-
tainable Development.
Ma hew Glasser recently joined the World Bank’s Legal Vice Presidency. His
legal career began in 1977 as a Municipal Bond Counsel and then a City A or-
ney in Colorado, and he has also worked as a registered professional lobbyist
in Washington, D.C., for Colorado cities. Just before joining the Bank’s urban
sector team in 2003, Mr. Glasser worked as an adviser in the South African
National Treasury, where he helped develop regulatory frameworks for mu-
nicipal borrowing and ﬁnancial emergencies. For more than 20 years he has
worked with national and local governments in Africa, Asia, and Europe on
policy and legislation regarding urban issues. Mr. Glasser is currently work-
ing on a book exploring the legal, regulatory, and institutional framework
within which the world’s cities operate. He obtained his J.D. from Cornell
University Law School, Ithaca, and B.A. (cum laude) and MBA from the Uni-
versity of Colorado.
Beth Anne Hoﬀman is currently an Operations Analyst in the Environmental
and International Law Unit in the Legal Vice Presidency of the World Bank.
Over her 18 years in the World Bank, Ms. Hoﬀman has held positions in the
Judicial Reform Unit of the Legal Vice Presidency and as a Public Sector Spe-
cialist in the Poverty Reduction and Economic Management Unit in the Latin
America and the Caribbean Region. She has worked on projects related to
privatization and decentralization in Argentina, Brazil, and Chile as well as
justice reform initiatives in all of the Bank’s ﬁve regions. She contributed to the
justice, governance, and land law sections of “Beating the Odds: Sustaining
Inclusion in a Growing Economy―A Mozambique Poverty, Gender and So-
cial Assessment,” which won the Africa Region’s 2009 Chief Economist’s Best
Practice Award for Economic and Sector Work. Ms. Hoﬀman holds a master’s
degree from Georgetown University’s School of Foreign Service and a dual
bachelor’s degree in politics and Spanish from Lake Forest College.
John-Mark Iyi, LL.B. (Honors), B.L., LL.M., was the 2010 Webber Wen el
Scholar in the School of Law, University of the Witwatersrand, Johannesburg,
South Africa, where he is completing a Ph.D. He is also currently a Programme
Associate at the Wits Programme on Law, Justice and Development in Africa.
Mr. Iyi has also served as a Research/Teaching Associate in the school. His
research focuses on public international law and international peace and se-
curity from an African perspective. Mr. Iyi’s most recent publications include
“The Duty of an Intervention Force to Protect Civilians: A Critical Analysis of
NATO’s Intervention in Libya” (Conﬂict Trends, 2012); “The Legal Framework
for Sub-regional Humanitarian Intervention in Africa: A Comparative Analy-
sis of ECOWAS and SADC Regimes” (SADC Law Journal, 2012); “Democracy
and the Development Crisis in Sub-Saharan Africa: Revisiting Some Precon-
ditions for a Developmental State Alternative,’’ in International Economic Law:
Voices of Africa (Siber Ink, 2012); “The AU/ECOWAS Unilateral Humanitarian
Intervention Legal Regimes and the UN Charter” (African Journal of Interna-
tional & Comparative Law, forthcoming); and “The Role of the African Union
xxii Contributors

Continental Early Warning System in Preventing Mass Atrocities,” in Africa
and the Responsibility to Protect: Article 4(h) of the African Union Constitutive Act
(Routledge, 2013).
Nicholas Joseph is Somalia Project Oﬃcer at the International Development
Law Organization (IDLO), where he undertakes a range of programming, re-
search, and legal advisory tasks relating to constitution building and justice
reform in support of national partners in Somalia. He coauthored a report on
the implementation of the judiciary chapter of the Provisional Constitution
of Somalia and supported national eﬀorts in planning for the development
of the justice sector in Somalia. Prior to his appointment as project oﬃcer,
Mr. Joseph was Legal Associate at IDLO, where he authored brieﬁngs for na-
tional partners in South Sudan on the design of the constitutional process and
the appropriate design of governance mechanisms within the constitutional
commission and wrote a report outlining the options and ramiﬁcations for
extending the constitution-building process beyond the constitutionally man-
dated timelines. He received his law degree from the University of Sheﬃeld.
Robert Kibugi is a Lecturer in law at the University of Nairobi’s Centre for
Advanced Studies in Environmental Law (CASELAP) and School of Law. He
previously taught at the Faculty of Law, University of O awa, in Canada. His
legal and policy research agenda focuses on, among other subjects, public par-
ticipation in natural resource governance; land use law for sustainable devel-
opment; climate change, including the role of law and policy in the adaptation
and mitigation of climate change; energy law; water resources management
and rights; and water and sanitation. He holds an LL.B. and an LL.M. from
the School of Law, University of Nairobi, and an LL.D. from the Faculty of
Law, University of O awa. He is an advocate of the High Court of Kenya.
Mr. Kibugi has published various chapters and articles in peer-reviewed
books and journals.
Jeni Klugman is the Director of Gender and Development at the World Bank
Group, where she serves as lead spokesperson on gender equality issues
and is responsible for developing strategic directions to support the institu-
tion’s gender and development priorities. She also serves on several advisory
boards, including the World Economic Forum’s Advisory Board on Sustain-
ability and Competitiveness and those related to the work of the Council on
Foreign Relations. Prior to taking up her position at the Bank in August 2011,
Ms. Klugman was the director and lead author of three global Human Devel-
opment Reports published by the United Nations Development Programme:
Overcoming Barriers: Human Mobility and Development (2009), The Real Wealth of
Nations: Pathways to Human Development (2010), and Sustainability and Equity:
A BeĴer Future for All (2011). From 1992 to 2008 she held various positions at
the Bank, focusing on poverty, inequality, and human development in low-
income countries in Africa, Asia, and Europe. Ms. Klugman has published
widely on topics ranging from poverty-reduction strategies and labor markets
to conﬂict, health reform, education, and decentralization. She holds a Ph.D.
in economics from the Australian National University, as well as postgraduate
Contributors xxiii

degrees in law and development economics from Oxford University, where
she was a Rhodes Scholar.
William T. Loris is Senior Lecturer and Director of the Loyola University Chi-
cago LL.M. Program on Rule of Law for Development. His degrees include
a J.D. from the University of Santa Clara and a master’s in international and
comparative law from the Vrije Universiteit Brussel. After 10 years of service
as a Legal Adviser to USAID in West and Central Africa and in Egypt, he co-
founded the International Development Law Organization (IDLO). Mr. Loris
served IDLO as General Counsel and as Director of Programs. He was appoint-
ed as IDLO Director General for two terms, during which he became known
as a leading advocate for the rule of law throughout developing countries
and countries in economic transition. He has served on the World Economic
Forum’s Global Agenda Council on Corruption and has been recognized by
Santa Clara University for his service to his profession and to humanity and
by Lithuania for his assistance during its transition.
Siobhán McInerney-Lankford is Senior Counsel at the World Bank Legal Vice
Presidency (Africa Practice Group) and former Senior Policy Oﬃcer, Institu-
tions, Law and Partnerships for Human Rights, Nordic Trust Fund, Opera-
tions Policy and Country Services Vice Presidency. She is an expert in interna-
tional human rights law, advising the World Bank in this area since 2002 and
regularly representing the World Bank in international human rights fora, in-
cluding the United Nations, European Union, and Organisation for Economic
Co-operation and Development (OECD). From 2006 to 2008, she served as
chair of the OECD’s Development Assistance Commi ee Human Rights Task
Team, and she was the World Bank representative to the UN High-Level Task
Force on the Right to Development from 2007 to 2009 and at the UN OHCHR
Vienna+20 meeting in 2013. Before joining the World Bank, she worked in pri-
vate practice in Washington, D.C. She has published widely on human rights
law and teaches occasionally. Dr. McInerney-Lankford holds an LL.B. from
Trinity College, Dublin, an LL.M. from Harvard Law School, and a B.C.L. and
D.Phil. in EU human rights law from the Law Faculty at Oxford University.
N. R. Madhava Menon holds degrees from Kerala University (B.Sc. and B.L.),
Aligarh Muslim University (LL.M. and Ph.D.), and Punjab University (M.A.).
He was enrolled as an Advocate in the Kerala High Court in 1956 at the early
age of 20. Dr. Menon left active legal practice and in 1960 joined the faculty
of Aligarh Muslim University, where he continued his teaching and research
until 1965, when he joined Delhi University and rose to become Professor
and Head of the Campus Law Centre. During this period, he was deputed to
serve as Principal of Government Law College, Pondicherry, and Secretary
of the Bar Council of India Trust. In 1986, at the invitation of the Bar Council
of India, Dr. Menon moved to Bangalore to set up the National Law School
of India University (NLSIU) and to initiate a new model of legal education,
the ﬁve-year integrated LL.B. program. He served NLSIU as its Founding
Vice Chancellor for 12 years. The success of the Bangalore model led to the
establishment of 15 similar law schools elsewhere in India. From 1998 to
xxiv Contributors

2003, he served as the Founding Vice Chancellor of the National University of
Juridical Sciences, from where the Supreme Court sought his services to set up
the National Judicial Academy (NJA) at Bhopal. Dr. Menon was the Founding
Director of NJA until 2006, when he retired from active employment. On his
retirement, the government of India appointed him as a member of the Com-
mission on Centre-State Relations (2006–2010) and decorated him with several
awards, among other honors. Dr. Menon now holds the International Bar As-
sociation Chair on Continuing Legal Education at the National Law School,
Bangalore. He also is the Chairman of the Menon Institute of Legal Advocacy
Training, an educational charity based in Trivandrum, where he lives. Dr. Me-
non is the author of more than a dozen books on legal education, the legal
profession, judicial training, and the administration of justice.
Mihaylo Milovanovitch is Senior Policy and Systems Development Specialist
at the European Training Foundation (ETF) of the European Union, and an
Edmond J. Safra Network Fellow at Harvard University. Prior to joining the
ETF, he was responsible for peer reviews and thematic analyses of education
policies in Central Asia, Eastern Europe, Latin America, and the Middle East–
North Africa region for the Organisation for Economic Co-operation and De-
velopment (OECD). A major area of his work is the governance and integrity
of education systems, and the development of sector-speciﬁc approaches to
corruption prevention, such as the OECD integrity of education systems meth-
odology for assessing education sector integrity. Past responsibilities of Mr.
Milovanovitch have included the planning and coordination of educational co-
operation with East Europe for the federal government of Austria and the edu-
cation and youth agenda of the Stability Pact for Southeast Europe. He holds a
master’s degree in advanced international studies from the Vienna Diplomatic
Academy and a master’s degree from the Munich School of Philosophy.
Ma hew Morton is a Young Professional in the World Bank’s Gender and De-
velopment team, where he works on gender-based violence and women’s eco-
nomic opportunities. Before joining the Bank, Mr. Morton served as Special
Adviser to the Commissioner of the U.S. Administration on Children, Youth,
and Families. There he led eﬀorts to integrate evidence-based policy mak-
ing with a focus on child trauma and youth homelessness. As a researcher,
Mr. Morton served as a lecturer and investigator at the University of Oxford’s
Centre for Evidence-Based Intervention, consulted for the European Commis-
sion on impact evaluation, and conducted research on youth empowerment
programming. He received a B.A. in political science at Stetson University and
an M.Sc. and D.Phil. in evidence-based social intervention at the University of
Oxford.
Moses Mulumba currently heads the Center for Health, Human Rights and
Development. He has previously worked in the areas of disability law and
policy, environmental law and policy, and the development dimensions of
intellectual property law. Mr. Mulumba’s current areas of interest include
health law and policy, international human rights law, health regulation, de-
velopment dimensions of intellectual property rights, access to medicines,
Contributors xxv

and maternal health rights. He has been an African Adviser to the HIV and
the Law Commission and coordinates the health equity work within EQUI-
NET in 16 East and South African Countries. His current projects include de-
veloping a model for community participation in health systems, formulating
goals for global health and for governance for global health post-2015, devel-
oping a model law on regulatory aspects of satellite-enhanced telemedicine
and eHealth for Sub-Saharan Africa (eHSA), and litigating the right to health
in Uganda. He has an LL.B., a postgraduate Bar Course Diploma, an M.Phil.,
and an LL.M.
Vincent O. Nmehielle, a Barrister and Solicitor of the Supreme Court of Nige-
ria, has over 22 years of professional and academic experience. He is currently
a Professor of Law and Head of the Wits Programme on Law, Justice and
Development in Africa at the University of the Witwatersrand (Wits) School
of Law in Johannesburg, South Africa, where he has taught since February
2002 and where he held the Bram Fischer Chair in Human Rights Law from
2002 to 2004. He was a Professorial Lecturer in law at the Oxford University
and George Washington University Human Rights Program in 2003 and 2004.
From 2005 to 2008, Professor Nmehielle served as the Principal Defender
of the UN-backed Special Court for Sierra Leone in Freetown, Sierra Leone.
He holds an LL.B. from the Rivers State University of Science and Technol-
ogy, Port Harcourt, Nigeria; an LL.M. in international law from the Univer-
sity of Notre Dame; and an SJ.D. in international and comparative law from
The George Washington University, Washington, D.C. Professor Nmehielle
specializes in international and comparative law, and his professional, aca-
demic, and research interests lie within the areas of law, governance, justice,
and development in Africa. He has wri en and consulted on constitutional
issues, human rights, international justice, and governance in Africa. His re-
cent works include Africa and the Future of International Criminal Justice (Eleven
International, 2012).
Sriram Panchu is a Senior Advocate in India. In 1985, he founded a citizens’
group, Citizen, Consumer and Civic Action Group, which has become in-
volved in a number of public causes. He has appeared in a wide range of
public interest cases, often relating to corruption and good governance, envi-
ronmental protection, and consumer rights. His articles on these issues have
been published in leading journals and newspapers. Mr. Panchu serves on
the boards of several charitable and public institutions. He is also a mediator
and has worked to make the mediation process a part of India’s legal sys-
tem. He was appointed the ﬁrst Honorary Organizing Secretary of the Madras
High Court Mediation and Conciliation Centre, the ﬁrst such center in India.
Mr. Panchu has published two books on mediation.
David Pa erson is head of social development programs at the International
Development Law Organization (IDLO), based in Rome, Italy. He was a
founding member of the Canadian HIV/AIDS Legal Network in 1993, and
from 1994 to 2008, he worked with the UN system (UNAIDS and UNDP) and
national and international NGOs on law, HIV, health, and development. Since
xxvi Contributors

2009, Mr. Pa erson has managed IDLO’s health law program, which has sup-
ported initiatives on HIV-related law and policy in 23 countries. In 2011, he
addressed the UN General Assembly on IDLO’s support for legal services for
people living with HIV and key aﬀected populations. Recent work explores
legal frameworks for responding to noncommunicable diseases, intellectual
property law, access to medicines, and litigation as a tool to advance the right
to food. Mr. Pa erson holds master’s degrees in law (McGill), and science
(SOAS, London), and postgraduate qualiﬁcations in community health (Mon-
treal) and development program evaluation (Carleton, World Bank).
Anne e Pearson is a lawyer who has conducted postgraduate studies in
criminology. She is an international consultant in the ﬁelds of criminal justice,
alternative legal services, access to justice, sociolegal research, victimology,
and victims’ assistance and restorative justice. Recently, she has focused on
access to justice projects aimed at decentralizing, integrating, and diversify-
ing justice services, as well as projects involving alternative conﬂict resolu-
tion mechanisms for marginal communities in large cities and populations
in small war-stricken towns. She has been resident in Colombia since 1975,
and since 1994 she has worked closely with the Colombian Justice House Pro-
gram as designer and promoter, ﬁrst national coordinator, staﬀ trainer, and an
evaluator and coordinator of the U.S. Agency for International Development
Agency’s project on international cooperation for community justice houses.
She is a vice president of the World Society of Victimology.
Paul Pre itore is a Senior Public Sector Specialist in the Public Sector Reform
Unit of the Middle East and North Africa Region. He holds a J.D. from the
Catholic University of America and is a member of the District of Columbia
Bar Association. His work within the World Bank focuses on the justice sector
and poverty, as well as on broader issues of public sector reform, account-
ability, and governance. During his Bank career, he has worked on programs
in Djibouti, Egypt, Iraq, Lebanon, Mongolia, Morocco, Palestine, Syria, and
Yemen. Prior to joining the Bank, Mr. Pre itore was the Property Law Coor-
dinator at the Oﬃce of the High Representative in Sarajevo, Bosnia and Her-
zegovina, where he coordinated issues related to postconﬂict land restitution
and human rights issues.
Avni Rastogi graduated from National Law School of India University, Ban-
galore, in 2010. She worked in the Corporate Aﬀairs Department of an oil and
gas public sector company in New Delhi for two years. She now works with
Sriram Panchu in his mediation practice and as a researcher on mediation and
governance issues. She also works as a project coordinator and researcher with
Transparent Chennai, an action research group based in Chennai that creates,
curates, and disseminates data on civic issues to enable be er planning.
Melanie Roestoﬀ is Professor in the Department of Mercantile Law, Univer-
sity of Pretoria. She holds the degrees B.L.C., LL.B., LL.M. (cum laude), and
LL.D. (2002). The title of her thesis is “A Critical Evaluation of Debt Relief
Measures for Individuals in the South African Insolvency Law.” Since her ap-
pointment at the University of Pretoria in 1990, Professor Roestoﬀ has taught
Contributors xxvii

a variety of law subjects at both undergraduate and postgraduate levels. In
2010, she was admi ed as an a orney of the High Court. She is also author or
coauthor of numerous publications in a wide variety of peer-reviewed jour-
nals and has presented papers at numerous national and international confer-
ences. Ms. Roestoﬀ is coauthor of one of the leading textbooks on insolvency
law in South Africa: Mars: The Law of Insolvency (9th edition; Juta).
Yolanda Saito, LL.B. (cum laude; University of O awa), B.A.Sc. (University
of British Columbia), is a member of New York State Bar, a Legal Specialist,
Green Economy and Biodiversity, at the International Development Law Or-
ganization, and leads the global initiative on Legal Preparedness for Achieving
the Aichi Biodiversity Targets. She also serves as the pro bono Program Co-
ordinator and as an Associate Fellow with the Human Rights and Poverty
Eradication program at the Centre for International Sustainable Development
Law and is a Senior Fellow with the One Justice Project. She has previously
worked in litigation and administrative law with Ecojustice Canada, ECOLEX
Ecuador, Canada’s Air India Inquiry, and McCarthy Tétrault LLP. She has
authored briefs and publications on sustainable development law issues, and
is currently working on a manuscript on the incorporation of the principles of
sustainable development into the jurisprudence of international and regional
courts from 1992 to 2012.
Elisa Sla ery has a decade of experience working in health, law, and human
rights. In September 2012, she joined the International Development Law Or-
ganization (IDLO) Social Development Unit, where she has been working
on disability, access to safe medicines, and health and gender issues. Prior
to joining IDLO, she was the Regional Director of the Africa Program at the
Center for Reproductive Rights, a nongovernmental legal organization. Her
fact-ﬁnding projects in the region focused on abuses of women in health
care facilities, discrimination against women living with HIV, and maternal
mortality. She has extensive experience working with accountability and
human rights mechanisms at the national, regional, and international levels.
Ms. Sla ery holds a J.D. from Columbia Law School and an M.A. from Duke
University.
Bart Stevens is a Senior Communications Oﬃcer in the World Bank Group
Integrity Vice Presidency, where he coordinates integrity training programs.
In 2005, he was responsible for the development and implementation of the
communications strategy for the launch of the Bank’s Voluntary Disclosure
Program. Prior to joining the World Bank in 1999, Mr. Stevens was a Senior
Communications Manager at the European Bank for Reconstruction and
Development, in London, where he set up the Bank’s internal communica-
tions function. Previously, he worked for more than eight years at the Exxon
Chemical International headquarters in Brussels, where he focused on public
aﬀairs as well as internal and crisis communications issues. Mr. Stevens holds
an M.A. in international aﬀairs and economics from the Johns Hopkins Uni-
versity School of Advanced International Studies and a law degree from the
Katholieke Universiteit Leuven, Belgium.
xxviii Contributors

Patricia O. Sulser is a Chief Counsel at International Finance Corporation
(IFC), based in Washington, D.C. She is the Global Lead Lawyer for IFC In-
fraVentures, a $150 million internally managed fund established by IFC in
2008 to fund and proactively develop private and public-private partner-
ship (PPP) infrastructure projects in the poorest emerging-market countries.
Ms. Sulser has been involved in the ﬁnancing of complex, multiparty infra-
structure projects for her entire career at IFC and, before, in private practice
in the New York; London; and Hong Kong SAR, China oﬃces of Shearman &
Sterling. She leads the IFC Legal Department Public-Private Partnership prac-
tice group and coordinates with colleagues from the World Bank Group and
other development ﬁnancial institutions on the G20 and World Bank Group
PPP agenda. Ms. Sulser is also a certiﬁed mediator and has provided legal
support for IFC’s establishment of mediation centers around the world. In ad-
dition, she actively promotes the use of alternative dispute resolution (includ-
ing dispute adjudication boards) in PPP and infrastructure projects world-
wide as the best means of keeping these important projects on track. She has
recently been appointed to the Dispute Board Federation Advisory Panel and
is a member of the Chartered Institute of Arbitrators.
David F. Varela is Special Adviser to the Minister of Government of the Re-
public of Colombia and the ﬁrst Policy and Strategy Director of the National
Agency for State Legal Defense of Colombia, which was established in 2011 to
direct the legal defense activities of more than 300 public sector agencies at the
federal level. Mr. Varela worked in the Public Sector Management Unit of the
Latin America and the Caribbean Region of the World Bank Group from its
Washington, D.C., headquarters between 2007 and 2012. He was responsible
for the design and supervision of more than 20 large justice-reform projects
supporting judicial authorities in numerous Latin American countries and
Morocco. From 1999 to 2002, Mr. Varela worked in the Latin America and the
Caribbean Division of the Legal Vice Presidency of the World Bank in Wash-
ington, D.C. He received his LL.M. in international business law from the In-
stitute of Comparative Law of McGill University (1989), and both a graduate
degree in economics and social sciences and a J.D. from Universidad Javeriana
(1984). He has wri en extensively on legal subjects and published two books
on justice reform: Improving the Performance of Justice Institutions: Lessons from
OECD Countries Relevant for Latin America (2011) and The Itagüí Courts: A Case
Study in Leadership and Management (2002).
Emilio C. Viano has an LL.B. and three master’s degrees in law, an M.A. in
sociology and anthropology, and a Ph.D. (summa cum laude) in the sociol-
ogy of law (New York University). Recently, he has taught and undertaken
research chieﬂy at American University’s School of Public Aﬀairs and Wash-
ington College of Law, but he has also been a professor at the University of
Paris, University of Cordoba (Argentina), Panteion University (Athens), Uni-
versity of Bologna, China University of Political Science and Law (Beijing),
and Shanghai International Studies University, among other institutions. His
work in law, criminal justice issues, and governance has been recognized by
his election as President of the Scientiﬁc Commission and as a Voting Member
Contributors xxix

of the Board of Directors of the International Society of Criminology (Paris).
He is member of the Task Force for the Creation of the UN World Security
University. He also chairs the commi ee organizing the World Congress of
Criminology to be held in Mexico in August 2014. Dr. Viano has consulted
worldwide, especially in the developing world and particularly on security
issues. He has published extensively, often speaks at international conferences
and universities, and often appears as a political analyst on television and
radio stations worldwide.
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The World Bank
Legal Review
Volume 5

Fostering Development through
Opportunity, Inclusion, and Equity
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Opportunity, Inclusion, and Equity
as Imperatives for Meaningful Law
and Justice-Guided Development
VINCENT O. NMEHIELLE AND N. R. MADHAVA MENON

In our globalized world, it is commonplace to throw around the concept “de-
velopment” in a manner that assumes that, somehow, we all share the same
understanding of what it means. In reality, there is no universally accepted
deﬁnition of the concept. As has been observed,1 a broad reading of develop-
ment, such as that oﬀered by the report of the Independent Commission on
International Development Issues, situates development within the context of
economic growth as “desirable social and economic progress,”2 based on the
idea that “without [economic] growth and social change one cannot speak of
development.”3 Scholars such as Walter Rodney put people at the center of
the development process. From this perspective, at the individual level, de-
velopment implies “increased skill and capacity, greater freedom, creativity,
self-discipline, responsibility and material well-being.”4 Despite the subjective
nature of those categories, Rodney maintains that “it is indisputable that the
achievement of any of those aspects of personal development is very much
tied in with the state of the society as a whole.”5 The emphasis on people in the
development process also received the scholarly approval of Julius Nyerere,
a respected African statesman and the ﬁrst president of Tanzania.6 Accord-
ing to Nyerere, “roads, buildings and increased crop output are not develop-
ment but tools of development”;7 for these to be development, they must help
to “develop the minds and understanding of people” or be used “for other

1 Yolanda T. Chekera & Vincent O. Nmehielle, The International Law Principle of Permanent Sov-
ereignty over Natural Resources as an Instrument for Development: The Case of Zimbabwean Dia-
monds, 6 African J. Leg. Stud. 18 (2013) (hereinafter, Chekera & Nmehielle).
2 Independent Commission on International Development Issues, North–South: A Programme
for Survival 48 (Pan Books 1980), cited in Chekera & Nmehielle, supra note 1, at 18.
3 Id.
4 Walter Rodney, How Europe Underdeveloped Africa 9 (Tanzania Publg. H.; Bogle-L’Ouverture
1972), cited in Chekera & Nmehielle, supra note 1, at 18‒19.
5 Id.
6 Julius Nyerere, Freedom and Development (Uhuru na Maendeleo): A Selection from the Writings
and Speeches, 1968–1973 59 (Oxford U. Press 1974), cited in Chekera & Nmehielle, supra note 1,
at 19.
7 Id.

3
4 The World Bank Legal Review

things that improve the health and comfort of the people.”8 In short, the deﬁn-
ing feature of development is that it “serves the people.”9
One cannot interrogate an understanding of the concept of development
without highlighting the widely acclaimed views of Amartya Sen. Sen argues
that economic growth is merely one aspect of development.10 Traditional no-
tions of development that conceptualize development as purely a ma er of
economic growth fail to appreciate that “economic growth [is] no more than a
means to some other objectives.”11 Development must concern itself with “en-
titlements of people and capabilities these entitlements generate.”12 Those in-
dividuals, organizations, and governments that champion development must
commit themselves to reducing that which deprives people and to broadening
the choices available to people.13
Sen’s views are echoed by Nayaran et al., who point out that “deprivation
represents a multidimensional view of poverty that includes hunger, illiteracy,
illness and poor health, powerlessness, voicelessness, insecurity, humiliation,
and a lack of access to basic infrastructure.”14 Sen himself sees development
in the light of whether people are empowered or disempowered: “whether
they can live long, escape avoidable morbidity, be well nourished, be able
to read and write and communicate, [and] take part in literary and scientiﬁc
pursuits,” among other human endeavors.15
Despite the normative and ideological disagreements that exist regarding
the notion of a human right to development, the 1986 United Nations Declara-
tion on the Right to Development16 adopts a decidedly balanced perspective
and cements the people-centered nature of the development process. As rec-
ognized in Preamble 2 to the declaration, development must be understood as
“a comprehensive economic, social, cultural and political process which aims
at the constant improvement of the well-being of the entire population and of
the individual on the basis of their active, free and meaningful participation in
the development and in the fair distribution of beneﬁts resulting therefrom.”17

8 Id.
9 Id., at 60.
10 Amartya Sen, Development: Which Way Now?, 93 Econ. J. 745, 748 (1983), cited in Chekera &
Nmehielle, supra note 1, at 20.
11 Id., at 753.
12 Id., at 754.
13 E. Wayne Nafziger, From Seers to Sen: The Meaning of Economic Development 1 (paper pre-
sented at the UN U./World Inst. Dev. Economics Research Jubilee Conference, June 17‒18,
2005), cited in Chekera & Nmehielle, supra note 1, at 20.
14 Deepa Narayan et al., Voices of the Poor: Can Anyone Hear Us? 4‒5 (Oxford U. Press 2000), cited
in Chekera & Nmehielle, supra note 1, at 20.
15 Sen, supra note 10, at 754.
16 Declaration on the Right to Development, Res/41/128 (adopted by the U.N. General Assembly,
Dec. 4, 1986), cited in Chekera & Nmehielle, supra note 1, at 21.
17 Declaration on the Right to Development, Preamble 2.
Opportunity, Inclusion, and Equity as Imperatives for 5
Meaningful Law and Justice-Guided Development

In a further step toward giving content to the meaning of development, the
eight Millennium Development Goals (MDGs),18 as articulated in 2000 under
the auspices of the United Nations and other development agencies, exem-
plify global aspirations to improve the well-being of the world’s poor and
reﬂect the general agreement of the majority of the world’s countries and de-
velopment institutions regarding the tangible a ributes of development (with
particular resonance in developing countries). The MDGs do not, however,
deﬁne what development is or is not.
Yet, while the deﬁnition of development remains protean, a clear consen-
sus exists that development must serve people and society, and must priori-
tize how the development process aﬀects people, particularly the poor and the
most vulnerable in society. As Peet and Hartwick argue, “human emancipation
and human welfare”19 must be central to development. The title of this volume
drives the message home. Fostering Development through Opportunity, Inclusion,
and Equity speaks to the holistic nature of the development process, a process
that should not only encourage all stakeholders to participate in the process
but also directly engage them. This volume generally and this introductory
chapter in particular posit that such participation must be guided by the law
and accord with the broader notion of justice for development as a concept to
be meaningfully appreciated today. A process that takes place without giving
stakeholders an opportunity to participate, or that excludes stakeholders, is
not only an unfair and inequitable process but also one that is likely to fall
foul of the notion of justice in a society that is governed by the rule of law.
Thus, equitable participation necessitates a careful inquiry into the conceptual
underpinnings of opportunity, inclusion, and equity as law and justice tools that
can be used to secure elements of meaningful development.

Opportunity as Key for Development: Inclusion and Equity
as Strategies for Achieving Development
“Opportunity” is an important dimension of the equality guarantee enshrined
in most constitutional documents. Denial of equal opportunity in terms of
access to basic needs such as health, education, work, leisure, and housing,
particularly in societies with a long history of discrimination and exploita-
tion based on race, caste, gender, and religion, results in skewed development
inimical to the rule of law and equal justice under law. Arguments based on
equity and inclusion can be advanced to equalize development opportunities

18 These goals as articulated include the eradication of “extreme poverty and hunger”; the
achievement of “universal primary education”; the promotion of “gender equality” and the
empowerment of women; the reduction of “child mortality”; the improvement of “maternal
health”; the need to “combat HIV/AIDS, malaria and other diseases”; and ensuring “envi-
ronmental sustainability” and the development of “a global partnership for development.”
See We Can End Poverty 2015: Millennium Development Goals—A Gateway to the UN System’s
Work on the MDGs, available at h p://www.un.org/millenniumgoals/.
19 Richard Peet & Elaine Hartwick, Theories of Development: Contentions, Arguments, Alternatives,
2d ed., 1 (Guilford 2009), cited in Chekera & Nmehielle, supra note 1, at 21.
6 The World Bank Legal Review

through the introduction of appropriate policies and regulations of the gov-
ernments concerned. These policies relate not only to the prohibition of dis-
crimination but also, and more importantly, to the creation of conditions in
which equality of outcomes or substantive equality will appear in communi-
ties previously long excluded from development. To a certain extent, aﬃrma-
tive action measures such as reserving a certain number of places for excluded
groups in schools and universities can help to meet demands for equal oppor-
tunity for those groups. In the progressive realization of the conditions that
tend to ensure equality of opportunity for all, development may have to take
certain forms that may not make economic sense in the short term. However,
the wisdom of designing and implementing locally owned policies, laws, and
institutions becomes apparent once the needs of future generations (of whose
heritage we are stewards) are taken sustainably into account, especially if
those local measures and actors address failures of management over global
public goods, such as biodiversity and climate change. This notion of sustain-
able development can be achieved through the assertion of many important
principles, including through legal and institutional reform that ensures the
integration of environmental and social considerations into economic decision
making that aﬀects many sectors of policy and law related to poverty reduc-
tion and broader sustainable development goals.20 In essence, legal systems
consciously make choices, intervening in economic planning and social recon-
struction to help create conditions of equal opportunity for all. In balancing
such choices with the freedom and liberty of individuals, the judiciary also
plays a critical role. Inclusive growth or growth with social justice is advocated
in many societies as a conceptual foundation on which to build sustainable
development under the rule of law. In India and South Africa, for example,
the legal system has embraced this model of law and development.
When he was U.S. president during the civil rights movement, Lyndon B.
Johnson spoke of the signiﬁcance of “opportunity” in individual and social
development:
Freedom is not enough. You do not wipe away the scars of centu-
ries by saying, “Now you are free to go where you want and do as
you desire, and choose the leaders you please.” You do not take a
person who, for years, has been hobbled by chains and liberate him,
bring him up to the starting line of a race and then say, “you are
free to compete with others” and still justly believe that you have
been completely fair. Thus, it is not enough just to open the gates of
opportunity. All our citizens must have the ability to walk through
those gates. This is the next and more profound stage of the ba le for
civil rights. We seek not just freedom but opportunity. We seek not
just legal equity but human ability, not just equality as a right and a

20 Marie-Claire Cordonier Segger & Ashfaq Khalfan, Sustainable Development Law: Principles,
Practices and Prospects (Oxford U. Press 2004); Marie-Claire Cordonier & C. G. Weeramantry
eds., Sustainable Justice: Integrating Social, Economic and Environmental Law (Martinus Nijhoﬀ
2004).
Opportunity, Inclusion, and Equity as Imperatives for 7
Meaningful Law and Justice-Guided Development

theory but equality as a fact and equality as a result. . . . To this end
equal opportunity is essential, but not enough.21
Fifteen years earlier, the Indian social reformer and constitutional expert
B. R. Ambedkar had pinpointed a contradiction between political equality, on
the one hand, and social and economic equality, on the other hand. Address-
ing the Constituent Assembly while presenting the draft of the republican
constitution, Ambedkar said:
On the 26th January, 1950 we are going to enter a life of contradic-
tions. In politics we have equality and in social and economic life, we
will have inequality. In politics we will be recognizing the principle
of one man one vote and one vote one value. In our social and eco-
nomic life, we shall, by reason of our social and economic structure,
continue to deny the principle of one man one value. How long shall
we continue to live this life of contradictions? How long shall we
continue to deny equality in our social and economic life? If we con-
tinue to deny it for long, we will do so only by pu ing our political
democracy in peril.22
These statements, from two very diﬀerent continents, highlight the chal-
lenges that legal systems in liberal democracies have faced in guiding develop-
ment without losing civil rights or political democracy. The roads traveled by
such legal systems are diﬀerent and the distance covered has varied. Yet, their
destination is the same, namely equal opportunity for all and equality before
law. The strategy they have employed has been to adhere to the rule of law
while balancing rights to equality, freedom, and liberty. In the process, diﬀer-
ent jurisdictions have evolved systems of equality, jurisprudence, and access
to justice that have helped to make development sustainable and inclusive.
In terms of development, equity entails the manner in which “resources
and opportunities are distributed in society”23—a fair manner that takes all
groups and individuals into account so as to level the “playing ﬁeld to achieve

21 Lyndon B. Johnson (1965), as quoted in the Report on the Equal Opportunity Commission (Min-
istry of Minority Aﬀairs, Government of India 2008). One is also reminded of the statement
of British suﬀragist Harriot Stanton Blatch (1856‒1940) on the lack of voting opportunity
for marginalized groups, as quoted by Susan B. Anthony & Ida Husted Harper in History of
Woman Suﬀrage, vol. 4, ch. 18 (1902):
I have seen in my time two enormous extensions of the suﬀrage to men—one in Amer-
ica and one in England. But neither the negroes in the South nor the agricultural labor-
ers in Great Britain had shown before they got the ballot any capacity of government;
for they had never had the opportunity to take the ﬁrst steps of political action. Very
diﬀerent has been the history of the march of women toward a recognized position in
the State. We have had to prove our ability at each stage of progress, and have gained
nothing without having satisﬁed a test of capacity. (emphasis added)
Available at h p://quotes.dictionary.com/i_have_seen_in_my_time_two_enormous#zms
-hfAhipiiLzWA.99.
22 Constituent Assembly Debates (vol. 11) 944‒945 (1943).
23 Josephine Tucker & Eva Ludi, Empowerment and Equity, in Poverty Reduction and Pro-poor
Growth: The Role of Empowerment 227 (OECD 2012). Available at h p://doi.org/10.1787
/9789264168350-en.
8 The World Bank Legal Review

equality of opportunity.”24 The emphasis on equity is particularly important
in the context of global commitments to more sustainable development, in-
cluding the commitment to establish regimes and regulatory instruments
necessary to secure sound stewardship of natural resources in a way that is
intergenerationally equitable, demonstrating respect for the needs of both
present and future generations, as is increasingly recognized in international
courts and tribunals.25 When opportunity, inclusion, and equity are present
in a society, an enabling environment can be facilitated, which in turn can
promote economic empowerment, “political voice,” access to justice, the de-
livery of and “access to public services,” the reduction or extermination of
“discrimination and social exclusion,” and more just and sustainable devel-
opment outcomes.26 Conversely, the absence of opportunity, inclusion, and
equity leads to exclusion, which lays the foundations for a heated polity of
“conﬂict and insecurity,” with risks of ethnic war in societies in Sub-Saharan
Africa (and other regions of the world) “where one or more ethnic groups face
active discrimination.”27 The “Occupy” movements that followed the global
economic meltdown in many developed countries, like the Arab Spring revo-
lutions that started in Tunisia and blew across Libya and Egypt and into Syria,
provide a glimpse into how societies can respond to various forms of lack of
opportunity, exclusion, and inequity in governance.
Law by its very nature is an instrument of social order, and as such it
is well positioned to respond to the societal yearning for development by
mainstreaming opportunity, inclusion, and equity—all elements of justice in
sustainable development. Eﬀective, strong, and functional legal and judicial
institutions are essential in the global quest to accelerate development around
the world. In other words, there cannot be eﬀective development without the
rule of law, which, as characterized by the World Justice Project in the Rule of
Law Index, hinges on “four universal principles”:
I. The government and its oﬃcials and agents are accountable
under the law.
II. The laws are clear, publicized, stable, and fair, and protect fun-
damental rights, including the security of persons and property.
III. The process by which the laws are enacted, administered and
enforced is accessible, fair and eﬃcient.
IV. Justice is delivered by competent, ethical and independent rep-
resentatives and neutrals who are of suﬃcient number, have

24 Id.
25 Marie-Claire Cordonier Segger & Yolanda Saito eds., Sustainable Development in International
Courts and Tribunals (Routledge forthcoming).
26 Tucker & Ludi, supra note 23, at 227–232.
27 Id., at 232.
Opportunity, Inclusion, and Equity as Imperatives for 9
Meaningful Law and Justice-Guided Development

adequate resources, and reﬂect the makeup of the communities
they serve.28
This quartet of principles reinforces the contemporary view of develop-
ment as people centered, because a society based on the rule of law as articu-
lated by the World Justice Project will clearly serve the interest of the society at
large. To these four principles, we can add a ﬁfth, underscored and explained
in the assembled works of this volume: regulatory and institutional reforms
are coherent and participatory across sectors, integrating social, economic,
and environmental considerations to meet the sustainable development needs
of present and future generations.
While such principles are typically embodied in legislation, they are equal-
ly represented in subsidiary legislation, such as regulations, as well as admin-
istrative directives and policies for the implementation of various legislative
endeavors, and administrative actions that eventually touch on development
plans and initiatives. Deploying these principles in the development process
is bound to promote equal opportunity, inclusion, and equity—all pivotal ele-
ments of justice. We cannot create a be er world, one that caters to the diverse
needs of our global society, without entrenching the theme of this volume in
the development process. Opportunity, inclusion, and equity in global devel-
opment are clearly the foundation stones of the MDGs, and their importance
is growing yet greater in the context of a new post-2015 sustainable develop-
ment agenda that builds on the gains of implementing the eight Millennium
Development Goals while identifying new development challenges.

Thematic and Speciﬁc Issues Covered in This Volume
This volume is made up of 32 chapters organized into 5 thematic parts. Part I,
“Law and the Economy,” includes chapters 1–7; part II, “Justice and Rule
of Law Reform,” is made up of chapters 8–13; part III, “Environmental
and Natural Resources Law,” spans chapters 14–18; part IV, “Governance and
Anticorruption,” comprises chapters 19–24; and part V, “Empowerment and
Equity for Diverse Communities,” includes chapters 25–30. The volume ends
with a concluding chapter and an afterword.

Law and the Economy
Chapter 1, by Patricia O. Sulser and Cyril Chern, is titled “Keeping Public-
Private Partnership Infrastructure Projects on Track: The Power of Multi-
stakeholder Partnering Commi ees and Dispute Boards in Emerging-Market
Infrastructure Projects.” The authors posit that unlike traditional public infra-
structure projects, public-private partnership (PPP) projects have not gener-
ally speciﬁed the use of contemporary dispute resolution methods, includ-
ing facilitative mediation, dispute boards, and conciliation. They propose that
stakeholders in complex, multistakeholder infrastructure projects structured

28 Mark David Agrast et al., Rule of Law Index 2012‒2013 Report 3 (World Justice Project 2012).
10 The World Bank Legal Review

as PPPs or fully private sector projects in emerging markets adopt a culture
and routine mechanism to anticipate, evaluate, and resolve disputes on a real-
time basis through the use of “multistakeholder commi ees,” called “part-
nering commi ees,” that include the appointment of a subset group, called a
“standing dispute board,” empowered to identify and ultimately to resolve
disputes on a real-time basis and expeditiously.
Chapter 2, by Beth Anne Hoﬀman and Charles Boudry, is titled “Pro-
tecting Traditional Practices and Country of Origin in Developing Countries
through Fair Trade and Intellectual Property Rights.” The authors interrogate
ways to protect traditional and local producers of commodities such as cof-
fee. Speciﬁcally, the authors explore Ethiopia’s legal and policy measures to
bolster coﬀee exports through branding and trademarking coﬀees on the in-
ternational market that began in mid-2000.
In chapter 3, “Tools for More Sustainable Trade Treaties with Develop-
ing Countries,” Markus W. Gehring explains that impact assessments can be
applied not only to transboundary development projects but also to develop-
ment policies and plans such as trade agreements. This leading expert dis-
cusses how new forms of impact assessments, mandated by law or policy, can
be expanded to take into account not just physical environmental issues but
also questions of equity, inclusion, and opportunity. He argues that by doing
so, the processes can identify and encourage more sustainable trade treaties
with developing countries. With a focus on the European Union’s Sustain-
ability Impact Assessment, the author highlights the connection between law,
policy, and development.
André Boraine and Melanie Roestoﬀ’s chapter, “The Treatment of Insol-
vency of Natural Persons in South African Law: An Appeal for a Balanced and
Integrated Approach,” addresses South Africa’s statutory and nonstatutory
procedures pertaining to the insolvency of natural persons as well as aspects
of the legal position regarding the regulation of insolvency practitioners and
the insolvency reform initiatives currently on the table. They argue that with
regard to natural persons, although the system provides for both liquidation
and repayment plans for overindebted consumer debtors, presently there is
no principled view and approach regarding the treatment of the insolvency of
consumer debtors in South African law.
José M. Garrido’s chapter, “The Role of Personal Insolvency Law in Eco-
nomic Development: An Introduction to the World Bank Report on the Treat-
ment of the Insolvency of Natural Persons,” puts the World Bank report in context.
The chapter describes the approach taken by the report and the main issues
that a personal insolvency regime needs to address in order to contribute to
development and to counteract the negative side eﬀects of increased access to
ﬁnance. The author posits that the concept of discharge occupies a central role,
because it provides the possibility for insolvent debtors to return to a produc-
tive life for their own beneﬁt and for the beneﬁt of society as a whole.
Opportunity, Inclusion, and Equity as Imperatives for 11
Meaningful Law and Justice-Guided Development

In chapter 6, “Specialized Insolvency Regimes for Islamic Banks: Regula-
tory Prerogative and Process Design,” Hdeel Abdelhady proposes the adop-
tion of specialized, administratively managed resolution regimes for Islamic
banks. The author argues that the proposed resolution model is substantively
appropriate and multipurpose in that it addresses, in a practical way, current
deﬁcits in relevant legal and regulatory environments, advances the sharia
policy of eﬀective market regulation, incorporates banking and capital market
provisions that ﬁt the cross-market nature of Islamic banking, and advances
the convergence of Islamic and conventional insolvency regimes.
Part I closes with Fabiano de Andrade Correa’s chapter, “The Role of Law
in the Green Economy: Challenges and Opportunities for the Liberalization of
Environmental Goods and Services.” The chapter explores how law can sup-
port the green economy by analyzing the challenges and opportunities related
to the liberalization of trade on environmental goods and services (EGS). The
author contends that trade can be a driver in the transition to a green economy
by, among other relevant objectives, helping to create and strengthen mar-
kets for goods and services that respond to sustainable development consid-
erations. He further argues that while the inclusion of EGS liberalization in a
regional context can help propel regulation and incentivize the transition to
a green economy, the point remains that regional measures cannot by them-
selves create an eﬀective global regulatory framework.

Justice and Rule of Law Reform
Part II opens with chapter 8, “Institutional Responses to Social Demands: En-
hancing Access to Justice in Colombia,” in which David F. Varela and Anne e
Pearson propose a policy of rationalization for the new options for access to
justice, especially by vulnerable social groups, made possible by the 1991 Con-
stitution of Colombia.
In chapter 9, “The Role of Access to Information in Promoting Develop-
ment,” Sean Fraser examines the status of the right to development in interna-
tional law and the role that access to information plays in promoting tangible
human development. The author argues that although the right to develop-
ment has gained acceptance among states and scholars, its practical imple-
mentation has been underwhelming in light of its vast potential. He posits
that the failure to maximize the beneﬁts of the right is due, at least in part, to
the inaccessibility of information that groups and individuals can use to pro-
mote and protect their human rights.
In chapter 10, “The Search for Opportunity and Inclusion: Insecurity and
Migration,” Emilio Viano explores the impact of the lack of rule of law on mi-
gration and the security of the migrant. The author argues that migrants are
often caught in the middle of “the push and pull” in this regard and become
very vulnerable to exploitation and victimization at all stages of the migration
journey. The chapter examines measures and policies designed to alleviate the
situation that leads to the traﬃcking, exploitation, enslavement, and servitude
of migrants. The author stresses the importance of respecting the rule of law,
12 The World Bank Legal Review

especially international refugee law, in the countries of destination in order to
ameliorate the current situation and prevent victimization.
N. R. Madhava Menon’s contribution, chapter 11, is titled “Toward a Na-
tional Framework Law on Water for India” and inquires into how to meet
the water demands of India’s 1.3 billion people in terms of both quantity and
quality, given the constraints of geography and the country’s rainfall pa ern.
Almost half the rainfall that the country receives happens during a period of
only two to three weeks, and about 90 percent of river ﬂows occur in just four
months in a year. In the same vein, 70 percent of surface water is contaminat-
ed by biological, toxic, organic, and inorganic pollutants. The author argues
that the scheme for the distribution of powers for water management between
the three levels of government has not worked well, hence the adoption of a
National Water Policy and an a empt to legislate a framework law on water
management that is binding on all three levels. The chapter examines the ele-
ments of the framework law and the prospects of its adoption in view of the
emerging crisis in water availability and governance.
In chapter 12, “Targeting Justice Sector Services to Promote Equity and
Inclusion for the Poor in Jordan,” Paul Pre itore examines the state of service
delivery for the poor in the justice sector of Jordan. Drawing on data from a
novel household survey devoted solely to justice sector issues that was con-
ducted by the Jordanian Department of Statistics in 2011, the author discusses
the reforms introduced to beneﬁt poor users of court services. He assesses the
current state of the delivery of justice sector services to the poor and explores
policy development; the demand side of services; gaps in service delivery; new
services under development; and gender aspects of service delivery. The chap-
ter also highlights a number of areas in which reforms might gain traction.
To end part II, Nicholas Joseph’s chapter, “Serving the Justice Needs of
the People: Adopting an Access to Justice Approach in Somalia’s Rule of Law
Reform,” examines the potential of “bo om-up and pro-poor approaches” in
the development of access to justice in Somalia as a postconﬂict country. In
this regard, the author discusses how the Somali government as well as inter-
veners in the country can focus on equity, inclusion, and opportunity in de-
veloping rule of law cultures, rather than strengthening and often solidifying
the elite status of justice and legal institutions.

Environmental and Natural Resources Law
Part III begins with Edesio Fernandes’s chapter, “The Challenges of Reform-
ing the Urban Legal Framework: A Critical Assessment of Brazil’s City Statute
10 Years Later.” The author explores the topic against the background that
in development discourses, management of natural resources occupies a sig-
niﬁcant place and several principles have evolved and found universal accep-
tance. Law on urban development is part of this package of principles. How-
ever, there are serious shortcomings with the implementation mechanisms in
place. These shortcomings are generally the result of pressure groups and of
sociopolitical processes. The author points out that Brazil’s urban policy law
Opportunity, Inclusion, and Equity as Imperatives for 13
Meaningful Law and Justice-Guided Development

of 2001 is a case study on the subject that highlights the pitfalls in the legal
regulation of urbanization and its eﬀect on development policies.
In chapter 15, “Innovative Legal Measures for Climate Change Response
in the Green Economy: Integrating Opportunity, Inclusion, and Equity,”
Marie-Claire Cordonier Segger and Yolanda Saito argue that for a greener
economy to truly take root, participatory legal and institutional reforms are
needed, as are new economic opportunities for all. The authors point out that
innovative legal instruments are currently being pioneered to address climate
change in many countries. However, they argue, in order for these reforms to
be just and implementable, they must also resolve important challenges of in-
clusion and equity, ensuring that the poorest and most vulnerable can access
the beneﬁts of climate ﬁnance and the new global green economy. The authors
underline that, as recognized in “The Future We Want,” the declaration of
the 2012 United Nations Commission on Sustainable Development, there is a
need for countries to move away from old economic practices that externalize
environmental and social costs, widening disparities in human security and
wasting scarce resources, and to start implementing a new green economy
that responds to pressing priorities of climate change, poverty reduction, and
sustainable development.
In chapter 16, “The Constitutional Basis of Public Participation in Envi-
ronmental Governance: Framing Equitable Opportunities at National and
County Government Levels in Kenya,” Robert Kibugi examines the 2010 Con-
stitution of Kenya as an interesting example of how governance is envisaged
by the general society to maximize public participation and sustainable devel-
opment. The constitution provides choices and opportunities to the admin-
istration to follow universally accepted principles in environmental decision
making. The author argues that in the context of this constitutional provision,
informed decisions can be made at all levels of government for equitable and
sustainable development in Kenya.
“Do planning regulations contribute to social justice or exacerbate social
disputes?” is the question examined in chapter 17 by Rachelle Alterman. “Plan-
ning Laws, Development Controls, and Social Equity: Lessons for Developing
Countries” ﬁnds that planning regulations do exacerbate social disparities,
more so in developing countries because regulations are vulnerable to greater
misuse in the developing world. Focusing on development control instru-
ments, the author advises decision makers in developing countries, including
representatives of aid organizations, to be careful in allowing the transplanta-
tion of planning laws from advanced economies to developing ones, because
those laws may not take local circumstances into account.
In a similar vein, Ma hew Glasser in chapter 18, “Land Use Law and the
City: Toward Inclusive Planning,” draws out the relationship between urban
law and development outcomes. The author posits that when the laws are in-
appropriate or impractical for the majority of the city population, an informal
sector vulnerable to eviction develops that raises problems of human rights
protection. The contention is often about aﬀordable access to the city, jobs,
14 The World Bank Legal Review

and other opportunities that very often get protection from the courts even if
the se lements are informal and therefore outside the law. He concludes that
good urban law must consider aﬀordability and access to the city.

Governance and Anticorruption
Corruption subverts governance, undermines the rule of law, and wreaks havoc
on the lives and livelihoods of people, particularly the poor. Although anti-
corruption laws are in place in most jurisdictions, their impact is generally
limited. This issue is perceived in terms of access to justice and denial of basic
rights and has led to organized movements seeking accountability in gover-
nance. In chapter 19, “Fighting Corruption in Education: A Call for Sector In-
tegrity Standards,” which begins part IV, Mihaylo Milovanovitch argues in
favor of sectorwide standards of integrity and a sector-speciﬁc prevention
approach to ﬁghting corruption. The author recommends cross-border agree-
ments against malpractices as an eﬀective way to combat corruption.
In chapter 20, “The Ba le between Corruption and Governance in India:
Strategies for Tipping the Scale,” Sriram Panchu and Avni Rastogi focus
on big-ticket corruption, given the limited resources available for the ﬁght
against corruption and the possible impact of exposing and punishing corrup-
tion at the highest level of government on the lower rungs of oﬃcialdom. The
authors recommend the establishment of a strong, high-proﬁle, independent
authority to oversee and discipline the leadership of the government and state
bureaucracy.
In chapter 21, “Leveling the Playing Field: A Race to the Top,” Bart Ste-
vens and Robert Delonis submit that any strategy to ﬁght corruption needs to
ensure that the operating ﬁeld is level and allows the private sector to operate
in an environment of fair competition and equal treatment under the rule of
law. They recommend a model of partnership between development agen-
cies and private ﬁrms based on voluntary disclosure, negotiated resolution
agreements, and an integrity compliance system as the best way to level the
ﬁeld. The authors point out that this model was evolved by the World Bank
Group, which created a sanctions system that excludes ﬁrms and individuals
that undermine fair competition from bidding in World Bank–supported de-
velopment project contracts.
It is, however, interesting to note that Frank Fariello and Giovanni Bo, in
chapter 22, “The World Bank Group Sanctions System and Access to Justice
for Small and Medium-Size Enterprises,” ﬁnd the World Bank’s sanctions sys-
tem not to be as eﬀective vis-à-vis small and medium-size enterprises, which,
unlike larger enterprises, simply refuse to engage with it, possibly because
of an “access to justice” issue for such small and medium-size enterprises.
The authors suggest modiﬁcations to make the system fairer and to more ad-
equately address the lower capacities of small and medium-size players in
accessing justice under the system.
Opportunity, Inclusion, and Equity as Imperatives for 15
Meaningful Law and Justice-Guided Development

As a way of dealing with corruption in governance, William T. Loris, in
chapter 23, “Private Civil Actions: A Tool for a Citizen-Led Ba le against Cor-
ruption,” recommends encouraging and facilitating civil actions by citizens.
This could be accomplished by providing for speciﬁc remedial and recovery
measures and empowering victims of corruption with support from media
and civil society to ﬁght corruption. He contends that the threat of criminal
prosecution will succeed in ﬁghting corruption only if political will and com-
mitment are present along with an independent, noncorrupt judiciary. Even
so, private civil actions duly sanctioned by the legal system can become an
additional weapon in a citizen-led ba le against corruption.
Chapter 24, “Fostering Opportunity through Development Finance in Af-
rica: Legal Perspectives from the African Development Bank,” looks at inter-
national economic governance and development. Kalidou Gadio proposes a
purposive rather than literal construction of the mandate of the African De-
velopment Bank in order to promote innovative economic interventions for
sustainable development in African countries. This approach would take into
account the circumstances of the various countries, some of which have been
aﬀected by conﬂicts and thus require innovative service delivery.

Empowerment and Equity for Diverse Communities
Against the background of mainstreaming the marginalized in development
by providing for equal opportunities, part V begins with Vincent O. Nmehielle
and John-Mark Iyi’s chapter, “Nation Building, State Reconstruction, and Incl
usiveness: Issues on South Sudan as a New State and Somalia as a Failed but
Reemerging State.” The authors opine that South Sudan and Somalia share
some signiﬁcant characteristics: both have been conﬂict zones in decades of
civil wars; and the ethnic groups and clans of both states have a common his-
tory of political exclusion, social injustice, and economic inequality. Both have
also recently started out on the path of nation building and state reconstruction.
The chapter examines the prospects of nation building and reconstruction in
both states and uses a cause-and-eﬀect analysis to argue for a development
approach that is based on the rule of law, social justice, and equality. The
authors contend that some core values of governance, when entrenched in
constitutive instruments of the state, function as indispensable drivers of so-
cial cohesion, political stability, and socioeconomic development; they also
argue that nation building and reconstruction eﬀorts in these countries must
be anchored on these norms. For meaningful development to occur, both
states must design policies that emphasize uniting factors while addressing
grievances and other structural issues that, if left to fester, heighten group
diﬀerences.
In chapter 26, “Enabling Equal Opportunities for Women in the World of
Work: The Intersections of Formal and Informal Constraints,” Jeni Klugman
and Ma hew Morton argue that multiple constraints in culture, markets, and
institutions inhibit women from accessing equal opportunities. They main-
tain that law reform in this regard can easily be thwarted by implementation
16 The World Bank Legal Review

challenges, including information gaps, institutional biases, and adverse so-
cial norms. The authors contend that law reform that is supplemented by
policy eﬀorts can, to a certain extent, redress gender gaps, particularly in the
world of work.
David Pa erson, Elisa Sla ery, and Naomi Burke-Shyne’s chapter, “The
Role of Law in Promoting the Right to Health for Diverse Communities,”
ﬁnds discrimination and stigma in the delivery of health services to be a se-
rious problem in realizing the right to health in diverse communities. They
argue that unless proactive policies supported by legal sanctions are adopted,
vulnerable groups in diverse communities will be denied the right to health.
Along the same lines, Siobhán McInerney-Lankford and Moses Mulumba
in chapter 28, “The Right to Health and Development: The Case of Uganda,”
highlight the centrality of the right to health in shaping health policy and de-
livery of health services. The authors draw out the content of that right in
relation to development goals, pointing out how human rights can add value
to development policies and programs.
In a conceptual analysis of India’s experience in development, Pulapre
Balakrishnan argues in chapter 29, “Mainstreaming the Marginalized in De-
velopment: Conceptualizing the Challenges in India,” that “capability” lies
at the core of freedom, opportunity, and development. The author contends
that it is the marginalized sections of Indian society that lack capability. Al-
though the Indian Constitution has some impressive provisions regarding
building capability, they are inadequate when it comes to capacitating the
marginalized. The author concludes that the “future of development in India
lies squarely in the space of politics,” with concrete political action needed to
implement the provisions of the constitution.
The ﬁnal element in part V is Anupama Dokeniya’s chapter, “The Right to
Information as a Tool for Community Empowerment.” It posits that the right to
information is universally acclaimed as an eﬀective instrument to ﬁght corrup-
tion by exposing it in the public. Referencing examples from India and Mexico,
the author explains how the right to information has been used as a tool to
expose the corrupt practices of administrative oﬃcials and thereby mobilize
people to demand corrective action. She concludes that the full potential of this
tool is not yet realized in many communities because of low awareness, weak
civil society groups, and the unwillingness of oﬃcials to release information.
In the concluding chapter of the volume, Hassane Cissé and Marie-Claire
Cordonier Segger emphasize that, now more than ever, there is an urgent
need to mainstream law and justice into development, given the critical devel-
opment challenges the world faces, such as state fragility and conﬂict, climate
change, food insecurity, bad governance, and persistent gender inequality.
They argue that viewing these issues through a justice lens would more ef-
fectively promote the rule of law, eradicate extreme poverty, and ultimately
achieve broader development goals. This approach should also guide and in-
form global actions in mapping out a robust post-2015 development agenda.
Opportunity, Inclusion, and Equity as Imperatives for 17
Meaningful Law and Justice-Guided Development

Indeed, the issues covered in this volume highlight the fact that law is an
instrument able to foster inclusion and equal opportunity in the development
process. Indeed, inclusion and equal opportunity are at the root of governance,
whether economic or political governance. Sustainable global development
can be achieved only if the law is deployed to help develop and implement
policies and programs that ensure opportunity and minimize marginalization.
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PART I

LAW AND THE ECONOMY
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Keeping Public-Private Partnership
Infrastructure Projects on Track
The Power of Multistakeholder Partnering
Committees and Dispute Boards in
Emerging-Market Infrastructure Projects

PATRICIA O. SULSER AND CYRIL CHERN

Eﬀorts to expand and improve traditional and social infrastructure and pub-
lic services (such as water and sanitation; electricity generation, transmission,
and distribution; roads, railways, ports, and airports; hospitals and clinics;
schools; and prisons) are intrinsic to sustainable economic growth and pov-
erty alleviation, especially in fragile and conﬂict-aﬀected states and rural ar-
eas, where the poorest communities can lack the broad and inclusive access
required to enjoy a digniﬁed existence and to graduate from extreme poverty.1
When successfully implemented, these infrastructure projects and public
services can directly address issues of opportunity, inclusion, and equity, as
explained in more detail below.2 It is therefore important to develop tools that
enhance the successful implementation of these projects and the delivery of
public services. This chapter addresses one such tool.
The direct cost of building and maintaining this infrastructure is indisput-
ably very high. Due to the size and complexity of these projects and the varied
interests of the parties involved, disputes inevitably arise during the course
of public-private partnership (PPP) and private sector infrastructure develop-
ment projects. Unlike traditional public infrastructure projects, PPP projects
have to date not generally speciﬁed the use of contemporary dispute resolu-
tion methods, such as facilitative mediation, dispute boards, and conciliation.
Left unresolved, disputes can result in enormous unplanned costs and delays,

1 The International Finance Corporation (IFC) uses the term “traditional” infrastructure to
mean water; sanitation; electricity generation, transmission, and distribution; roads, rail-
ways, ports, and airports; and some logistics, etc. It uses the term “social” to refer to hos-
pitals, clinics and health services; educational facilities; and prisons, etc. IFC invests in and
mobilizes resources for all of these kinds of projects and also provides advisory services in
both the traditional and social infrastructure areas, primarily to governments but also to cor-
porations, covering structuring of public-private partnerships and investment-climate work,
among other things.
2 See World Bank, Infrastructure, Strategy, available at h p://web.worldbank.org/WBSITE
/EXTERNAL/TOPICS/EXTINFRA/0,,contentMDK:23117980~menuPK:8497224~pagePK:641
68445~piPK:64168309~theSitePK:8430730,00.html; and 7(1) Jobs 14‒15 (2013), an IFC private
sector development-solutions publication.

21
22 The World Bank Legal Review

and in unnecessary damage to reputations and relationships―this in a sector
that can ill aﬀord any of these consequences.
This chapter proposes that stakeholders in complex multistakeholder in-
frastructure projects structured as PPPs and fully private sector projects in
emerging markets adopt a culture and routine mechanism to anticipate, eval-
uate, and resolve disputes on a real-time basis. This chapter further proposes
that this be achieved through the use of multistakeholder commi ees called
“partnering commi ees,”3 which include the appointment of a subset group,
called a “standing dispute board,” which is empowered to identify and ul-
timately to resolve disputes contemporaneously and expeditiously. Finally,
this chapter shows how to incorporate the necessary processes into the project
structure, how to select and empower the boards, how to justify the cost, and
how to maximize eﬀectiveness, all with a view to keeping projects on budget
and on track, to ensuring optimal results, and to preserving the business envi-
ronment for future projects.

Context: Public Infrastructure and Traditional Dispute Resolution
Poor infrastructure development can cost economies billions of dollars a year
in missed opportunities and negative drag on economic growth.4 In fact, the
International Bank for Reconstruction and Development was established to
help rebuild the infrastructure of Europe after World War II because of the im-
portance of infrastructure to the region’s renewed economic growth. Stated in
the positive, successful implementation of infrastructure projects and delivery
of public services are the engine of growth. Importantly, they also contribute
directly to the promotion of opportunity, inclusion, and equity. They are typi-
cally designed to provide aﬀordable access to all segments of the population,
including indigenous populations, rural communities, and the poorest and
marginalized. For instance, opportunities are created through job creation as
a result of the investments themselves and through increased economic de-
velopment as a result of improvements to a country’s infrastructure; there is
more equity when people can receive the infrastructure service involved. Gen-
erally, tools that encourage and facilitate PPP and private sector investments

3 In some large and complex projects, a “steering commi ee” is appointed and meets regu-
larly to take stock of the project’s progress. Such a commi ee is not typically empowered to
resolve disputes and frequently does not meet physically, including at the site or even in the
country.
4 See IFC Support to Infrastructure, Transactions in Power, Transport and Water (Intl. Fin. Corp.
2009), available at h p://www1.ifc.org/wps/wcm/connect/62aa5680498390a982c4d2336b93
d75f/InfrastructureBooklet_FINALweb.pdf?MOD=AJPERES&CACHEID=62aa5680498390a
982c4d2336b93d75f; see also Africa’s Infrastructure: A Time for Transformation (Agence Fran-
çaise de Développement, World Bank 2010), available at h p://siteresources.worldbank.org
/INTAFRICA/Resources/aicd_overview_english_no-embargo.pdf. There are myriad schol-
arly articles wri en by economists on the relationship between infrastructure and economic
growth, easily found by searching any of the more common Web-based search engines, such
as Google, or relevant institutional and academic databases.
Keeping Public-Private Partnership 23
Infrastructure Projects on Track

in infrastructure would certainly increase access to basic resources and create
more equity between segments of the population.
Major projects for the delivery and operation of infrastructure and public
services in developed countries are notoriously diﬃcult to prioritize, plan, ap-
prove, implement, and operate. They are a natural context for conﬂict given
their high proﬁle and the high stakes for governments, users of the services,
and the public at large, the la er of which is often taxed or charged, directly or
indirectly, to pay for the millions (often, billions) required for the construction
and operation of these projects over the long term. Two limited examples of
major infrastructure projects gone wrong are the Big Dig in Boston5 and the
Channel Tunnel in England,6 each of which suﬀered signiﬁcant delays and
enormous cost overruns for various reasons, including legitimate reasons not
due to any party’s fault.
Implementing projects for the delivery and operation of basic infrastruc-
ture and public services in emerging markets can be even more challenging
given the constraints on public budgets7 and government’s technical or hu-
man capacity, including the capacity to monitor and supervise works by third
parties. Projects in fragile and conﬂict-aﬀected states and in rural areas de-
signed to provide broad and inclusive access to the poorest communities pres-
ent another layer of challenges, even if projects are smaller and smaller sums
are involved. Such projects have been an area of intense strategic focus for the
G20, the World Bank Group, and other international-development ﬁnancial
institutions dedicated to the alleviation of poverty around the world.8
Given the constraints on emerging-market governments, there is consen-
sus around the need to mobilize the private sector to provide ﬁnancial and

5 The Central Artery/Tunnel (CA/T) project, known informally as the Big Dig, was a mas-
sive project begun in 1982 in Boston that rerouted the city’s central highway into a 3.5-mile
tunnel. The project also included the construction of a tunnel, a bridge, and an elevated
highway. The Big Dig was the most expensive highway project in the United States and was
plagued by, among other things, rising costs, delays, design ﬂaws, and allegations of poor
execution and use of substandard materials, not to mention criminal charges. The project
was originally scheduled to be completed in 1998 at an estimated cost of $2.8 billion (in
historical dollar values). The project was completed nearly ten years late at a cost overrun of
more than $10 billion (nearly 190 percent over planned costs).
6 The Channel Tunnel from Dover/Folkestone, England to Calais, France, is a 50-kilometer
undersea rail tunnel running beneath the English Channel. “From the word go, construc-
tion of the channel tunnel was blighted by delays which caused a rapid escalation of costs.
By the time Eurotunnel opened in May 1994, it was one year behind schedule and £2bn
($3.6bn) over budget. Before the ﬁrst passenger car had boarded Le Shu le for the short trip
from Folkestone to Calais, the original business plan was in ta ers.” See Jeﬀ Randall, How
Eurotunnel Went So Wrong, BBC News (June 13, 2005), available at h p://news.bbc.co.uk/2
/hi/business/4088868.stm.
7 Developing countries, especially the poorest countries and those with limited natural re-
sources, have limited ability to raise funds through taxation or to charge for public services,
and end users are often unable to aﬀord tariﬀs charged for such services.
8 See World Bank, Infrastructure, available at h p://web.worldbank.org/WBSITE/EXTERNAL
/NEWS/0,,contentMDK:20127296~menuPK:34480~pagePK:34370~theSitePK:4607,00.html.
24 The World Bank Legal Review

technical support to governments for the delivery of public services, with
a special emphasis on the poorest countries (especially fragile and conﬂict-
aﬀected states) and frontier regions and sectors in middle-income countries.9
Infrastructure projects can be publicly ﬁnanced and operated (with private
contractors building and delivering the works to the government, often un-
der a ﬁxed-price arrangement). Alternatively, a government may transfer the
ﬁnancial, commercial, construction, and operational risk wholly or partially
to the private sector. The partial but signiﬁcant transfer of these risks to the
private sector in partnership with the government is the essence of a PPP.
There is a copious amount of literature on the history and current practice
involved in public procurement and PPPs, but this is not within the scope of
this chapter.10 Successful implementation of the ﬁrst few PPPs or privately
ﬁnanced infrastructure projects in a country can be critical to that country’s
ongoing ability to garner public support and a ract to its infrastructure pro-
gram the scarce foreign and domestic resources that are necessary to ensure
its economic growth. This means assuring that the projects are structured in
a balanced way, with capable partners meeting their respective obligations so
as to maintain on-time, on-budget delivery and consistent and reliable opera-
tions of the infrastructure in question.
In reality, misunderstandings, diﬀerences of opinion, and disagreements
inevitably arise among two or more stakeholders during the life of even the
best-planned infrastructure projects, regardless of size. Disputes can arise at
the project level, among the direct stakeholders (such as between the private
construction contractor or operator and the government or the purchasers
of the goods or services), or at the ﬁnancing level, between investors/lenders
and the private company implementing the project, or among any of those
parties and the government because of political or economic events in the
country. Rapid resolution of any such disputes is critical to keeping funda-
mentally good projects on track and also to building and maintaining conﬁ-
dence among the many stakeholders in these complex projects—private sector
players, as well as governments and the local community—so that they will be
inclined to make follow-on investments in the country.
The most common forms of dispute resolution, especially in countries
without a track record of private sector investment in infrastructure projects
and public services, are litigation in courts and, to a somewhat lesser extent,
arbitration (and variations thereof).11 In these situations, a third party (a judge

9 See World Bank, Fragility, Conﬂict and Violence, available at h p://web.worldbank.org
/WBSITE/EXTERNAL/PROJECTS/STRATEGIES/EXTLICUS/0,,menuPK:511784~pagePK:64
171540~piPK:64171528~theSitePK:511778,00.html.
10 See World Bank, PPP Infrastructure Resource Center, available at h p://ppp.worldbank.org
/public-private-partnership/; see also International Finance Corporation, Advisory Services,
available at h p://www1.ifc.org/wps/wcm/connect/AS_EXT_Content/What+We+Do/Advi
sory+Services/About+Us/Public-Private+Partnerships.
11 Arbitration is often a preferred dispute resolution mechanism for construction projects be-
cause of the ability to select arbitrators with expertise on the complex issues that are inherent
in the infrastructure construction industry, and because the time and expense of arbitra-
Keeping Public-Private Partnership 25
Infrastructure Projects on Track

or arbitrator), who may have no expertise in the ma er at hand, evaluates
past events and evidence (including the terms of the contracts), decides which
party is “right” or “wrong,” and imposes a decision on the stakeholders. Proj-
ects may be delayed for months or even years during the formal legal proceed-
ings.12 In many developing countries, even if there is a functioning and repu-
table judiciary, courts may have enormous backlogs, adding to the potential
delays.13 Appointing experienced arbitrators, who often have full schedules,
and agreeing on hearing dates can add to the delay. In addition to the eﬀect of
the actual delays on the project timetable, delays can often lead to signiﬁcant
cost overruns (time is, after all, money), in some cases making the project no
longer ﬁnancially and economically feasible.14 Adding the polarization of the
parties and the deterioration of relationships to these delays and cost overruns
can produce a nice recipe for scu ling an emerging economy’s prospects for
achieving development outcomes.
In public sector projects expected to cost more than $10 million and to be
ﬁnanced directly or indirectly by the World Bank, the parties are required to
establish dispute boards15 to expedite the se lement of disputes.16 These dis-
pute boards are to be formed at the beginning of the contract for the proposed
works, although in practice they are often not established until a dispute
arises. They are empowered to make recommendations and, in some cases,
depending on which type of board they are, to provide interim decisions in

tion compared to litigation are usually less. Nevertheless, not every developing country has
implemented legislation for the enforcement of foreign arbitral awards. Also, arbitration can
still be extremely expensive and nearly as time-consuming as litigation. Moreover, local arbi-
tral procedural rules apply even to international arbitration, and these local procedural rules
can often be subjective and unpredictable.
12 Construction disputes can take ﬁve to six years to resolve, even in a fast-track court sys-
tem, and the project is often stopped during that period. This is the reason, in fact, that
dispute boards were started after arbitration itself became stalled in the process. The Dispute
Board Federation, in its Annual Board Report, June 2009, determined that the average delay,
worldwide, on construction projects without an ADR or Dispute Board process averaged
seven years, and in some countries, such as India, went as long as 20 years.
13 Many international investors require in their investment documentation that the parties sub-
mit to the jurisdiction of the courts of New York or England for the resolution of disputes,
although it is not uncommon for rights against sponsors to need to be enforced in the juris-
diction of the sponsor if the sponsor has assets only in its country. Investor-state disputes
often are required to be resolved in local courts.
14 Most PPPs and private sector infrastructure projects, which are often structured as limited-
recourse ﬁnancings (as opposed to corporate ﬁnancings), are heavily dependent on timely
completion and the commencement of revenue generation. Delays usually mean higher in-
terest on construction loans and possibly escalation of construction costs. In addition, delays
in generating revenues can mean that the ability to pay for operating and maintenance costs
(including loan principal and daily costs) can be jeopardized. In some cases, governments
impose an obligation on concessionaires and operators to pay liquidated damages for delays
for which they are responsible to compensate the government for the cost of “cover” and lost
opportunity.
15 These can be either a dispute review board that gives advisory opinions only or a dispute
adjudication board that gives binding and immediately enforceable decisions.
16 See full discussion below.
26 The World Bank Legal Review

respect to disputed ma ers. In PPPs and private sector projects (including
ones in which the World Bank may be involved), there is often no compa-
rable mechanism required to be built into the project for early and ongoing
identiﬁcation and resolution of disputes. The political and economic costs to
countries of projects being delayed or fully derailed as a result of conﬂicts that
end up in formal legal proceedings are enormous.
Building on the idea of dispute boards as employed in publicly pro-
cured projects ﬁnanced by the World Bank and as contemplated in certain
standard bidding and construction contracts of other institutions (see below),
two proposals are made. First, the parties to PPPs and private sector proj-
ects should establish a similar approach to responsive and proactive dispute
resolution. This would involve a partnering commi ee being instituted at the
inception of the project and remaining fully involved through the life of the
project as a means of keeping stakeholders routinely and frequently apprised
of progress and any unexpected challenges in meeting their respective expec-
tations. Second, for large infrastructure projects, the partnering commi ee
should include a dispute board from the inception of the project. In practice,
on smaller projects, the dispute board can and does substitute entirely for the
partnering commi ee, with each party choosing a member, and those mem-
bers choosing a collective chair. In either case, the dispute board should have
the power to help facilitate resolution of any dispute among the parties by
encouraging the appointment of an impartial mediator (if the parties have
not already pursued mediation) or to impose a decision on the parties when a
negotiated se lement is not possible, ensuring that the parties have the great-
est opportunity to resolve disputes promptly and to keep the project on track.
The decision can be binding or nonbinding, depending on the parties’ agree-
ment, as described below.

The Challenge to Deliver
The World Bank Group17 is at the forefront of the international-development
ﬁnancial institutions supporting PPPs in the traditional and social infrastruc-

17 The World Bank Group consists of ﬁve organizations: the International Bank for Recon-
struction and Development lends to governments of middle-income and creditworthy low-
income countries. The International Development Association provides interest-free loans—
called credits—and grants to governments of the poorest countries. The International
Finance Corporation is the largest global development institution focused exclusively on
the private sector. It helps developing countries achieve sustainable growth by ﬁnancing
investment, mobilizing capital and loans in international ﬁnancial markets, and providing
advisory services to businesses and governments. The Multilateral Investment Guarantee
Agency (MIGA) promotes foreign direct investment into developing countries to support
economic growth, reduce poverty, and improve people’s lives. MIGA fulﬁlls this mandate
by oﬀering political risk insurance (guarantees) to investors and lenders. The International
Centre for Se lement of Investment Disputes provides international facilities for conciliation
and arbitration of investment disputes. See World Bank, About Us, available at h p://web
.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/0,,pagePK:50004410~piPK:36602~the
SitePK:29708,00.html.
Keeping Public-Private Partnership 27
Infrastructure Projects on Track

ture sectors in emerging markets.18 Increasingly, the World Bank Group is
involved in cu ing-edge, ﬁrst-of-a-kind infrastructure projects with trans-
formational potential and the ability to be repeated and scaled up across the
emerging world. The World Bank Group’s ability to support the successful
ﬁnancing and sustained implementation and operation of a sound private sec-
tor or PPP project is central to enhancing investor conﬁdence more generally
in the country and thereby to boosting development outcomes. The demands
and expectations to produce development results in these most challenging
environments and to reach the broadest base of the population―including
rural and urban environments—are high. There are even greater challenges
for a developing country with limited government, judicial, ﬁnancial, or tech-
nical capacity, li le or no history of private investment, a nascent legal system,
or a limited track record of interpreting and enforcing contracts, as can be the
case in new countries or countries that have just entered a postconﬂict phase.
Particularly because of these challenging circumstances, it is critical that the
parties have an eﬀective and eﬃcient way to expedite resolution of the dis-
putes that will inevitably arise in these high-proﬁle, high-stakes infrastructure
projects. It is also important to ﬁnd an eﬀective way to monitor the progress of
the job itself, and to act as a control, such as by providing on-site monitoring,
and to aid in the prevention of fraud.

PPPs and Disputes That Arise
Public-private partnerships in the infrastructure sector typically involve mul-
tiple stakeholders. The typical “public” stakeholders might include, for ex-
ample, government and/or state-owned and/or municipal enterprises as (1)
grantor of a concession or license, (2) regulator, (3) purchaser or oﬀ-taker of
the public services or products being generated by the private operator for
distribution to consumers, and, sometimes, (4) investor. On the private sec-
tor side, such a project might involve (1) a private company (the borrower or
investee company that is licensed by the government to evaluate the feasibil-
ity of the project and to design, construct, and operate the project on a certain
timetable and at an agreed-on, often regulated, tariﬀ); (2) private construction
contractors and other service providers hired by the private operator to en-
able the private operator to meet its obligations to the government under its
concession, license, or oﬀ-take agreement; (3) lenders and political risk pro-
viders; and (4) investors―traditional shareholders as well as private equity
investors and others who have invested in, and who are therefore interested
in, the ﬁnancial success of, the private operator. Finally, such a project will
include the ultimate beneﬁciaries of the public services (including potentially
private, commercial, and industrial consumers or users) as well as the local
community. All of these stakeholders have distinct interests in pursuing proj-
ects, including anticipated “rewards” commensurate with the risks taken in
the project in the case of private sector stakeholders, and “value for money”

18 See World Bank, Annual Report 2012, available at h p://siteresources.worldbank.org
/EXTANNREP2012/Resources/8784408-1346247445238/AnnualReport2012_En.pdf.
28 The World Bank Legal Review

in the case of government stakeholders and end users. In some cases, one or
more parties may have an interest in delaying resolution of the dispute and
any payment or other obligations they may have as a result of the resolution
of the dispute. Most large, multiparty infrastructure projects involve not only
extensive construction phases but also operations over a long period, some-
times up to 50 years.
Disputes might arise as a result of poor or untimely performance by the
private operator; unexpected increases in costs of certain components or ser-
vices that disproportionately disadvantage a particular party;19 a natural force
majeure event that physically delays or impedes the project development, con-
struction, delivery of equipment, or operation; disputes among shareholders
of the private operator (e.g., over funding obligations); breaches by the gov-
ernment or its agencies; macroeconomic changes or changes in the political
or regulatory environment; or laws that make the original terms of the con-
cession or license disadvantageous for one or more of the parties.20 In some
cases, the local community can be negatively aﬀected by the proposed project;
for example, community members may need to be rese led or compensated,
or they may not understand how their needs will be met. In either case, if
disputes are left unaddressed or unresolved, relationships among the stake-
holders can deteriorate and, ultimately, the project can falter. PPPs are ad-
ditionally surrounded by intense public scrutiny, and when something goes
wrong in the project (e.g., a unilateral renegotiation of a concession’s terms
by the government,21 or a breach or unexcused deﬁcient performance by the
private operator), it often results in political fallout in the country. Lengthy
and expensive litigation or investor-state or other arbitration to resolve these
disputes can jeopardize the viability of the project or derail its implementation
or operation, and will at a minimum be frustrating to the private operator and
its contractors, investors, and lenders, as well as to the local government, end
users, and local community. In addition, certainty of outcome in formal pro-
ceedings (in litigation and also in arbitral proceedings) is not assured even in
seemingly strong cases, particularly in local arbitral fora or courts, which may
not have a long history of interpreting private commercial contracts or may
seem biased. Ultimately, these frustrating and often unpredictable formal dis-
pute resolution processes can seriously undermine both investor conﬁdence
and potential contractor interest in investing in the country or in a project
involving the same government or local parties.

19 According to a recent World Bank study, roughly 70 percent of hydropower projects were
completed with cost overruns exceeding 30 percent, and a majority of projects were ﬁnished
with 50 percent overruns. One or more parties must pay for or bear these cost overruns.
20 See Renewables, Retro-active FiT Cuts in Bulgaria Cause Sector Fury, See News (Sept. 17, 2012),
available at h p://renewables.seenews.com/news/retro-active-ﬁt-cuts-in-bulgaria-cause
-sector-fury-303005.
21 See Toolkit for PPPs in Roads and Highways, Contract Renegotiation and Adaptation (Public-
Private Infrastructure Advisory Facility 2009), available at h p://www.ppiaf.org/sites/ppiaf
.org/ﬁles/documents/toolkits/highwaystoolkit/6/pdf-version/4-37.pdf.
Keeping Public-Private Partnership 29
Infrastructure Projects on Track

The Need for Communication and Effective Dispute Resolution
It is vital in complex infrastructure projects that the parties keep as open a dia-
logue as possible in order to address contentious issues and changes in circum-
stances or perspectives as they arise and, ideally, even before they turn into
full-ﬂedged disputes. While it is important that the original commercial deal
among the stakeholders be respected, particularly when unforeseen “neutral”
changes have arisen, a forward-looking creative solution that involves adjust-
ment to the originally negotiated terms of a contract may be a reasonable, and
perhaps the most favorable and sustainable, outcome. However, representa-
tives of parties may become anxious about the possible fallout within their
constituencies because they have suggested a solution that departs from the
negotiated contract, or because they are not empowered to consider alterna-
tives to the negotiated contract terms. In addition, the parties may be reluctant
to appear “weak” in negotiations by suggesting a compromise solution, or
they may be concerned about the risk of compromising their legal rights and
remedies by agreeing to an “alternative” means of dispute resolution, such as
mediation or a dispute board mechanism. Yet, without a pre-agreed-on and
routine mechanism for airing and ideally resolving concerns before they turn
into disputes, the disputes that result may be diﬃcult or impossible to an-
ticipate or to resolve through direct negotiations among the parties—at least
not in a time frame that is reasonable given the time and resources involved
(including staﬀ and management time, external legal counsel time, etc.)—and
may lead to the deterioration of the project, relationships, and trust among the
parties, as described below.

Dispute Resolution Proposal for PPPs
Partnering Committees: Composition and Role
It is therefore proposed that, as a ma er of best practice in the construction
and operation of traditional and social PPPs and privately ﬁnanced infrastruc-
ture projects around the world, each signiﬁcant stakeholder be represented
on a partnering commi ee22 that conducts periodic meetings (occasionally on-
site and/or in country) from the inception of the project (for example, monthly
during development and construction and less frequently during operations).
Thus, the partnering commi ee for a power generation project might consist
of a member from each of the private developer/operators; each of the major
material supply, construction, or services providers; the government (usually
a representative from the lead ministry and/or their external advisers) and any
government entity purchasing services from the private operator or having

22 Sometimes, these commi ees are called “steering commi ees” or “project development com-
mi ees” and are included in a country’s standardized PPP contracts, together with extensive
reporting obligations about the project’s progress. This mechanism is critically important,
too, if the government or a government agency has an obligation to perform certain functions
to enable the private operator to deliver its works or services on time; e.g., a private power
plant operator’s ability to connect to the government-owned transmission line or grid.
30 The World Bank Legal Review

an ownership interest in the project; possibly the regulator, the lenders, and
investors; and, depending on the size, proﬁle, and dynamics of the project, a
representative from the local community. However, the membership of the
partnering commi ee can vary according to the project and the desires of the
stakeholders. The size and composition of the partnering commi ee needs to
be suﬃciently streamlined and managed to be and to remain productive and
not become sidetracked on minor issues or used as a forum for complaints
or delays. The speciﬁc mandate of the partnering commi ee would be (1) to
keep stakeholders apprised of project progress and any obstacles that have
arisen that could aﬀect the expectations of any of the parties or the scope,
price, or timing of the project; (2) to provide an early-alert mechanism to any
concerns of one or more stakeholders; (3) to provide a frequent and routine
forum for the parties to directly negotiate resolution of any disputes, where
possible; and (4) to commit to engage a mediator to facilitate the resolution of
disputes if the parties are unable to do so on their own through direct discus-
sions and negotiations.23 PPP projects can and should aﬀect the bo om-line
issues of opportunity, inclusion, and equity when they allow for local-level
input from those who will be using the project, those who will beneﬁt from
it, and those who will be impacted negatively by it; hearing all those voices
and providing for their inclusion in the early stages of the project through a
partnering commi ee will satisfy those vital needs. If used conscientiously as
a means of engaging the local community, a partnering commi ee can also be
an eﬀective means of avoiding oﬃcial complaints by the local community to
the World Bank’s Inspection Panel and to the IFC’s and MIGA’s Oﬃce of the
Compliance Adviser/Ombudsman, both independent recourse mechanisms
whose mission is to address complaints by people aﬀected by World Bank
Group projects and to enhance the social and environmental accountability of
the World Bank Group institutions.

Active Commitment to Mediate
The power of mediation is essentially accepted in the construction industry.
Many ﬁnancial institutions and companies involved in complex international
construction and infrastructure projects routinely provide in their contracts
for, and routinely use, alternative dispute resolution (ADR), and speciﬁcally
mediation, as a mechanism of “ﬁrst resort” when there is an incipient conﬂict
brewing among the parties or when direct negotiations over a ripe conﬂict
break down or are overly prolonged.24 (In this chapter, arbitration is consid-

23 Agreements to mediate can be tailored to ensure that the only disputes required to be me-
diated are those that (1) are good candidates for mediation and (2) do not jeopardize the
parties’ legal rights and remedies. A balance must be struck, however, between reassuring
parties that they do not give up too much by agreeing to mediate and creating a situation in
which the parties use the exclusions from the agreement to mediate as an excuse not to me-
diate. In situations in which the parties are reluctant or refuse to mediate, the dispute board
(discussed in the next section) can play an important role in urging the parties to try, at least
for an agreed-on period, to mediate disputes toward a negotiated se lement.
24 Construction industry contracts standardized by the International Federation of Consulting
Engineers (FIDIC) include provisions for “amicable se lement” of disputes among parties,
Keeping Public-Private Partnership 31
Infrastructure Projects on Track

ered a formal means of dispute resolution, much like litigation.) The Interna-
tional Institute for Conﬂict Prevention and Resolution (CPR) reports that over
4,000 companies and 1,500 law ﬁrms have established policy and signed a for-
mal pledge commi ing themselves to explore ADR options before pursuing
litigation.25 These ADR mechanisms can fall along a wide-ranging continuum,
between mediation on the one end and arbitration and litigation on the other.
For example, such ADR mechanisms might include expert determination. In
1996, General Electric Company (GE) began the process of systematic use of
mediation, and in 1998, GE initiated a company-wide Early Dispute Reso-
lution (EDR) program tied to GE’s Six Sigma Quality initiative to eliminate
“defects” in the company’s processes and products. As of 2011, GE routinely
used mediation globally to resolve disputes of all sizes and complexity. EDR
is considered by GE to address the demands of its clients through (1) mini-
mal waste of executive and managerial time; (2) preservation of important
business relationships; (3) maximization of outcome; and (4) predictability of
results. GE’s policy of preferring mediation in the ﬁrst instance for the resolu-
tion of disputes is based on a hardheaded, commercial analysis of the costs of
formal litigation or arbitration versus ADR mechanisms.26
Critical features of any voluntary mediation are its consensual and con-
ﬁdential nature, its ﬂexibility in structure and process, and its adaptability
to the needs and desires of the parties, including the need to control the out-
come. To further expedite resolution of disputes among the parties and keep
projects on track, it is therefore recommended that the parties select a few
mediators on a standby basis, up front, to be available to facilitate the resolu-
tion of disputes among the parties as and when disputes arise that cannot be
negotiated directly toward resolution. Indeed, in large infrastructure projects,
the dispute board often includes pre-agreed-on mediators, to avoid a dispute
over the selection of mediators just at the time when the parties could beneﬁt
from trying mediation toward a se lement.
Including a provision for mediation before or during the dispute board
process―as proposed here, especially in PPP and related contracts―can be an
important legal and “political” basis for parties to try mediation and thereby
to avoid criticism for acting beyond their authority and outside the contract

and the FIDIC generally endorses the use of ADR mechanisms to reach such an amicable set-
tlement. However, there is no speciﬁc requirement to a empt an amicable se lement prior
to a decision by the dispute board. In practice, if a dispute is “brewing,” the parties either
ask the dispute board for its opinion on the situation or hire a mediator. If a dispute hardens
and the dispute board renders a decision, there is a 56-day cooling-oﬀ period during which
the parties are urged to resolve the dispute amicably (by whatever means they choose, it be-
ing taken for granted that this means mediation). Then, if there is no se lement, the party in
whose favor the decision was made can go to arbitration for enforcement of the decision. See
infra, note 30, on subclauses 20.4 and 20.5 of FIDIC contracts.
25 See h p://www.cpradr.org. CPR’s Banking and Financial Services Commi ee is actively in-
volved in the development of best practices for use of ADR among banks and other ﬁnancial
institutions.
26 CPR has an excellent tool kit, available online, for early case assessment.
32 The World Bank Legal Review

terms. This may be especially true for government contract counterparties. To
avoid further criticism, the language could also explicitly preserve the right of
any party to pursue formal legal proceedings in parallel with the mediation or
at any time (in case of abuse of the mediation process by any party or threat to
any party’s rights or remedies of forestalling formal legal proceedings).
The continued operation of the partnering commi ee and the commit-
ment to mediate disputes during the life of the project are important to ensure
that there is an early warning of any changes in circumstances or challenges
during the operations, or any deterioration in the assets or services. In this
way, the parties can more consistently preempt the development of any dis-
putes or “bad blood” among the parties during perhaps the most vulnerable
period of the project and resolve such disputes informally, when possible.27

The Establishment and Role of the Embedded Dispute Board
It is also proposed that a standing subgroup of the partnering commi ee be
established as a dispute board (DB) for the speciﬁc PPP project. The DB should
be empowered to refer disputes to mediation and ultimately to adjudicate
the dispute if a negotiated se lement among the parties is not possible. The
DB should be able to refer a dispute to mediation either before it adjudicates
the dispute or during the adjudication step, described below. The mediation
and adjudication steps could run in parallel with each other, and the contract
could allow mediation to continue as long as needed, even into further adju-
dicative processes.
The DB can be a dispute resolution board giving opinions or, in the opin-
ion of the authors, it should be a dispute adjudication board with the power to
eﬀectively resolve a dispute in the event the disputing parties are unable to do
so on their own. The proposed adjudicative mechanism would be structured
as a hybrid of the “dispute review boards” contemplated for sizable publicly
procured projects ﬁnanced by the World Bank28 and the “dispute adjudica-

27 Some argue that a project is most vulnerable to interference by a government after the spon-
sor has poured all its money into and completed construction of the project. Given the long
life-span of some infrastructure projects, there could be a tendency for the periodic meetings
to be postponed or canceled, or for stakeholder representatives to change or not participate.
These factors should be taken into account in the structuring and organization of partnering
commi ees and in se ing realistic expectations based on the requirements of the project. If
the project is operating smoothly, there may not be a need for a partnering commi ee for the
full life of the project.
28 The World Bank’s standard form contract for procurement of works ﬁnanced by the World
Bank is broadly based on the FIDIC documents. Under international competitive bidding,
the World Bank’s Procurement Guidelines (para. 2.43) require that the conditions of contract
for goods, works, and nonconsulting services include dispute se lement provisions, and,
essentially as the preferred approach, further require that contracts provide for international
commercial arbitration in a neutral venue “unless the Bank has speciﬁcally agreed to waive
this requirement for justiﬁed reasons such as equivalent national regulations and arbitra-
tion provisions, or [because] the contract has been awarded to a bidder from the Borrower’s
country.” In the case of works, supply and installation, and single responsibility (including
turnkey) contracts, the dispute se lement provisions shall also include “mechanisms such
as dispute review boards or adjudicators, which are designed to permit a speedier dispute
Keeping Public-Private Partnership 33
Infrastructure Projects on Track

tion boards” that are used extensively in the private construction industry all
over the world29 and that are enshrined in various model construction con-
tracts, such as the widely used international procurement contracts of the In-
ternational Federation of Consulting Engineers (FIDIC) for major construction
works.30
Dispute adjudication boards were introduced into the FIDIC model docu-
ments (there are several versions) over a decade ago and are now included in
harmonized contract conditions that have been adopted by most multilateral
and bilateral development ﬁnancial institutions, including the World Bank,
for works to be ﬁnanced and procured in accordance with the rules of such
institutions and using the FIDIC contracts.31 While there are slightly diﬀerent
structures in the diﬀerent forms of FIDIC contracts, essentially the FIDIC form
of dispute adjudication board includes appointment of the board at the incep-
tion of the project with powers to impose interim binding decisions on the
parties pending resolution through a negotiated se lement among the parties
or through a ﬁnal arbitral award.32 The World Bank’s comparable provision,
included in its standardized contract for publicly procured works in projects
costing over $10 million to be ﬁnanced by the World Bank, states that “[i]n the
case of works, supply and installation, and single responsibility (including
turnkey) contracts, the dispute se lement provisions shall also include mech-
anisms such as dispute review boards or adjudicators, which are designed

se lement.” The World Bank’s Standard Bidding Documents for Works describe the details
of these boards. The World Bank’s procurement guidance and template contracts are avail-
able at h p://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/PROCUREMENT/0,,pa
gePK:84271~theSitePK:84266,00.html.
29 Various forms of DBs have been used in the U.S. construction industry since the 1960s in
connection with underground construction (such as tunneling) and water management proj-
ects. Most credit the 1975 building of the Eisenhower Tunnel project in Colorado as the ﬁrst
such use of a DB, in the current form. See Shaun Beaton, Dispute Resolution Boards in Power
Project Development, Infrastructure J. (2002), h p://www.ijonline.com/pdf/pdf/review2002
review2002_power_dispute_resolution.pdf; and Cyril Chern, Chern on Dispute Boards 8‒9
(2d ed., Wiley 2011). They are now used in other industries, as well, such as the insurance,
telecoms, ﬁnancial services, and maritime industries.
30 Dispute adjudication boards were introduced into the FIDIC model documents (there are
several versions) over a decade ago. Subclause 20 of the FIDIC Conditions—”Red Book”
(1999) and the 1999 editions of the other FIDIC contracts for major works, namely, the
Conditions of Contract for Plant and Design-Build (the “Yellow Book”) and Conditions of
Contract for EPC/Turnkey Projects (the “Silver Book”) (the three Books together being the
“1999 FIDIC Books”), as updated and added to Design, Build and Operate (the “Gold Book”).
31 As of 2013, the FIDIC harmonized contract conditions had been adopted by the World Bank,
European Bank for Reconstruction and Development, Asian Development Bank, African De-
velopment Bank, Black Sea Trade and Development Bank, Caribbean Development Bank,
Council of Europe Development Bank, and Inter-American Development Bank, among other
institutions. See h p://ﬁdic.org/node/321.
32 See h p://FIDIC.org; and Chern, supra note 29, at 8‒10. Note that this mechanism permits the
parties to refer the dispute to formal resolution in the courts or arbitration, as the case may
be. The “interim” nature of the decision of the DB is reassuring to parties who may be wor-
ried about compromising their formal legal rights and remedies.
34 The World Bank Legal Review

to permit a speedier dispute se lement.”33 The World Bank’s 2011 Standard
Bidding Documents for Works provide a mechanism for the establishment of
a similar dispute adjudication board for public works.
There is a good deal of literature to explain the advantages of dispute ad-
judication boards, including that the parties consider the input and decisions
of their dispute board to be at least as fair and informed as those of any court
or arbitral tribunal, and that they take a fraction of the time and cost of going
to arbitration. In addition, the dispute board typically helps in keeping the
parties “talking” and helps to “separate the people from the problem,” to use
popular conﬂict resolution vernacular. As a result, sometimes the mere exis-
tence of the dispute adjudication board is enough to preempt a dispute from
escalating into an entrenched ba le among the parties. The Dispute Board
Federation in Geneva has indicated, based on anecdotal research, that some-
thing approaching 98 percent of all disputes referred to a dispute board have
been successfully resolved. Moreover, of the dispute board decisions that have
been appealed to a court or arbitral tribunal, only a small fraction have been
overturned. For example, the US$2 billion Ertan Hydroelectric Dam project
in China had 40 disputes referred to its dispute review board, none of which
continued to arbitration. At the US$2.5 billion Katse Dam project in South Af-
rica, 12 disputes were referred to the dispute board, and, of these, only 1 went
on to arbitration, where the DB decision was upheld. When dispute adjudica-
tion boards are not eﬀective, it is often a result of delay in the DB’s appoint-
ment because of concerns over the costs of having a standing dispute board.34
The dispute adjudication board mechanism required for public procure-
ments ﬁnanced by the World Bank is not speciﬁcally required for PPP con-
tracts to be ﬁnanced by the World Bank and is not routinely established up
front, but rather is delayed to the time when a dispute has arisen.35 As a ma er
of best practice, therefore, and in contrast to alternative dispute resolution

33 See Section VII, General Conditions, Clause 20, Claims, Disputes and Arbitration, which in-
troduces a dispute board that may comprise one or three members, as may be determined by
the employer and speciﬁed in the contract data (Part A of Section VIII, Particular Conditions)
without regard to the estimated cost of the contract.
34 Chern, supra note 29, at 20‒24.
35 Depending on the project and ﬁnancing structure and the World Bank’s involve-
ment (e.g., a Bank loan or guaranty), PPP contracts can sometimes be procured un-
der “open competitive bidding procedures” determined acceptable to the World Bank.
In these types of PPP projects, the World Bank has ﬂexibility with respect to requir-
ing (or not requiring) compliance with the detailed procedures of international com-
petitive bidding, including the provision for a dispute review board or similar mecha-
nism contained in its standard contracts. However, a Guidance Note and Information
Note on Procurement in Public-Private Partnerships do seem to suggest (speciﬁcally in
the Information Note) that the contract include some mechanism for se ling disputes:

Dispute Resolution
• The Contract must specify a procedure for handling disputes under the terms of the
Contract…. [A] common form of dispute resolution involves a three stage process as
follows:
Keeping Public-Private Partnership 35
Infrastructure Projects on Track

mechanisms that may provide primarily for a facilitated means of reaching
a negotiated se lement among the parties,36 the proposed DB for complex,
multiparty PPP and private sector infrastructure projects (whether or not they
use contracts or ﬁnancing from institutions that require it) would involve ap-
pointment―at the inception of the project―of a standing DB consisting of im-
partial and independent experts who monitor the progress of the works and
address―in real time―contentious issues as they arise and before they turn
into true disputes. The role of the DB should be: (1) in the ﬁrst instance, to
refer unresolved disputes that may have arisen to mediation for an a empt
at a negotiated se lement among the parties;37 (2) to recommend a proposed
solution or problem-solving method, if the negotiated-se lement approach
(e.g., mediation) is proving to be ineﬀective; and (3) when necessary, to im-
pose a decision on the parties (typically after an informal opportunity for par-
ties to present their positions through wri en papers, interviews with person-
nel, and, in some cases, an informal hearing). It is proposed that decisions of
the DB should ideally be binding on the parties, pending ﬁnal resolution of

• the Grantor and Concessionaire consult with each other for a ﬁxed time period (pos-
sibly involving diﬀerent levels of internal consultation) in an a empt to come to a mu-
tually satisfactory agreement;
• if consultation fails, the parties may then (except in the case of certain types of dis-
pute) put their case before an expert to decide. The expert is appointed from a panel
(e.g. of construction or operation experts) whose appointment is regulated by the Con-
tract. It may be appropriate in certain circumstances to substitute other forms of Alter-
native Dispute Resolution (“ADR”) for this type of expert determination. Disputes re-
lating to the mechanics of price variations may go to a ﬁnancial expert agreed between
the parties at the time, and
• if either party is dissatisﬁed with the expert’s decision, it may refer the ma er either
to arbitration (itself a form of ADR) or to the courts for a ﬁnal and binding decision. The
method of appointing the arbitrator should be set out in the Contract.
h p://intranet.worldbank.org/WBSITE/INTRANET/OPERATIONS/INTPROCUREMENT/0
,,contentMDK:23051237~menuPK:60000186~pagePK:60000209~piPK:60000211~theSitePK:27
8020~isCURL:Y,00.html. Note that many parties elect to skip the internal consultation
requirement as they assume that it would have taken place before the dispute had escalated.
Some clients elect to forgo expert determinations or make such determinations non-
binding, preferring instead to rely on arbitration for binding resolution. With respect to par-
tial risk guarantees of the World Bank, commercial lenders often drive the issue. Generally,
the World Bank’s rules require a procurement process that meets the “economy and eﬃ-
ciency” standard, which is largely undeﬁned and leaves some ﬂexibility for the World Bank
to determine what makes sense within the context of the particular project.
36 See Chern, supra note 29, at 6‒8. While there is a continuum of ADR techniques, ADR usu-
ally has as its objective a negotiated se lement among the parties, often reached through the
facilitation of a neutral third party. There is often no agreed-on mechanism for the neutral
third party (mediator) to impose a decision (especially one that is binding) on the parties.
37 Judges are increasingly ordering parties to try to reach a se lement through mediation be-
fore resorting to the court for resolution of the dispute. Indeed, in some jurisdictions, the law
requires parties to try to resolve their disputes through mediation before pursuing a remedy
in court. Not every dispute is a good candidate for ADR or mediation—especially as a sole
mechanism for resolution of the dispute at hand, and there are often excellent reasons for
pursuing formal legal remedies in court or in arbitration instead of, or in parallel with, ADR.
There is ample literature on the advantages and disadvantages of the many mechanisms of
ADR and the features that make a project a good candidate for ADR in the circumstances. It
is also critical to ﬁnd a quality mediator.
36 The World Bank Legal Review

the ma er in accordance with a negotiated se lement among the parties or
through a ﬁnal judgment or arbitral award.38 A binding decision ensures that
the partnering commi ee and DB process are not used as a stalling tactic.
It is worth emphasizing that, with the interim binding-decision structure,
once the DB has given its decision, the decision must be adhered to. As a re-
sult, the project is not stalled or the timeline delayed while the unhappy party
takes the dispute further to arbitration or review. In other words, delays are
banished in this system.
Given the expertise and independence of DB members, DB decisions are
usually considered eﬃcient, rational, and extremely well tailored to the dis-
pute and project. An experienced DB can actually prevent disputes from aris-
ing, by giving informal advice to the contracting parties and by encourag-
ing parties to consider, in advance of any formal dispute, points of potential
friction. A DB may also be creative and not necessarily tied to the le er of
the underlying contract if there is some inherent deﬁciency or unfairness in
the contract or if circumstances have fundamentally changed. As a result, DB
members are often considered trusted members of the project administration
and are frequently asked to give advisory opinions to the parties on some
point, even before any dispute arises. Notwithstanding their ﬂexibility in re-
solving disputes, DBs may not be suitable for resolving/adjudicating all the
disputes that can arise in PPP transactions; in particular, they may not be able
to deal with highly charged political issues and similar problems, including
a empts by any party (public or private) to use the DB to renegotiate funda-
mentally sound terms on which parties based their decisions to enter into the
project contracts. In a formal or informal project administration role, a DB
can also inﬂuence the willingness and ability of the parties to perform their
respective obligations. In some cases, DBs have been helpful in preventing
corruption by supervising disbursements of moneys for agreed-on purposes
throughout the life of the project and at the time of the ﬁnal accounting among
the parties. Use of a DB also has an important role to play in promoting the in-
clusion agenda, as during hearings; the DB is not limited to hearing evidence
from the contractual parties themselves. Indeed, the DB is under a duty to ﬁnd
out the truth from whatever source is necessary; for example, this occasion-
ally can include hearing members of local tribes or other aﬀected community
members on the issues.
An important feature of a DB’s ability to impose a decision on the par-
ties (whether or not the decision is binding) is the speed of the dispute reso-

38 There is great debate over the advantages and disadvantages of binding vs. nonbinding deci-
sions of DBs. See Chern, supra note 29, at 4‒5. Decisions of DBs as used in the United States
have usually been nonbinding recommendations, whereas dispute adjudication boards used
in many other parts of the world are usually empowered to render a binding decision, which
can be appealed in a formal arbitration but which is binding pending a ﬁnal resolution
through a negotiated se lement of the parties or a ﬁnal arbitral award. In its standardized
documents, the International Chamber of Commerce oﬀers parties three kinds of DBs un-
der its Dispute Board Rules from which to select. See h p://www.iccwbo.org/Products-and
-Services/Arbitration-and-ADR/Dispute-Boards/Standard-ICC-Dispute-Boards-Clauses/.
Keeping Public-Private Partnership 37
Infrastructure Projects on Track

lution. While litigation and arbitration can often take years, a standing DB
can impose a decision extremely promptly in view of the members’ ongoing
familiarity with the project. DBs may be able to deliver such a recommend-
ed se lement or decision within as li le as one month of the full exchange
of information about the dispute or hearing, with a normal time limit being
84 days from the inception of the dispute and notiﬁcation to the DB. The time
savings can often be critical to the project’s viability as well as to maintaining
the parties’ relationships.39
It is both customary and essential that the DB include members with real-
world experience, including engineering, construction, commercial, and,
often, legal expertise. In larger projects, it is common for there to be three
members; in smaller projects, a single member with the right skill set can be
adequate. Thus, a DB might consist of one person selected by the owner, one
selected by the contractor, and the third (often the chair) selected by the ﬁrst
two, each subject to the approval of the parties to the contract.40 The chair-
person’s role is critical to the fairness, credibility, and eﬃciency of the DB in
resolving disputes. He or she must continually take all the facts and circum-
stances, and the parties’ legitimate interests and bargaining positions, into
account. This can be especially important if the DB is asked to assist in the
resolution of a ma er involving the aﬀected local community.

Frequency of Dispute Board Meetings
During construction, the DB should meet frequently (e.g., every month or ev-
ery other month), and make occasional visits to the site. Although a project is
arguably more vulnerable to disputes during the construction phase, during
operations, problems can also arise that threaten revenues and, potentially, the
viability of the project. The operations phase is also the phase during which
many stakeholders have a declining interest in the project; for example, if they
have already secured their returns or, in the case of the government, if it has
less capacity to continue to focus on the project. It is therefore recommended
that the DB portion of the partnering commi ee remain actively involved and
meet, if less frequently, at least semiannually or annually, depending on the
complexity and dynamics of the project. This continuing role for the DB is
important to maintaining an open environment in which to identify problems

39 For a good discussion about the complexities surrounding the enforceability of DB decisions,
see Christopher R. Seppälä, An Engineer’s Dispute Adjudication Board’s Decision Is Enforceable
By An Arbitral Award (White & Case Dec. 2009), available at h p://www.whitecase.com/ﬁles/
Publication/5787c9a1-5ebb-4858-aa74-b0543f0b5fec/Presentation/PublicationA achment/72
45da26-5ade-4380-b638-b361a26ac8f7/article_FIDIC_conditions_Dec09.PDF.
40 Some professionals believe that permi ing the appointment of a DB representative by each
party can create a situation in which there is a “representative” of each party and only one
true neutral in the DB. It is interesting to note that the Supreme Court of Colombia declared
this process unconstitutional a number of years ago. Thus, a be er practice may be to have
the main stakeholders agree on the names of the three DB members. Note, too, that in some
eastern European countries, in long-term concessions, DBs can have varying membership
for the project depending on the nature of the dispute. See Chern, supra note 29, at 11.
38 The World Bank Legal Review

and a empt to resolve them before they morph into rigid disputes and ulti-
mately threaten to derail or destroy the viability of the project.

Dispute Board Costs
DB costs should be shared equally by the contract parties. The total cost of
establishing and operating a DB has been estimated to range from as li le
as 0.015 percent to 0.05 percent of total project costs. Parties often consider
this a reasonable price to pay to avoid not only signiﬁcant project delays or
cost overruns but also the delays and direct costs associated with formal le-
gal proceedings. Indeed, some contractors bidding on contracts that include
a dispute adjudication board process have developed a practice of adjusting
downward the premium they would otherwise include in a contract tender
that includes only formal dispute resolution. The cost of a DB can often be
justiﬁed solely in terms of its contribution toward cementing and preserving
relationships among the parties, which has a particular value for parties that
may wish to do repeat business.41

Incorporating Partnering Committees and Dispute Boards
into the Project
It is impossible for construction and other project contracts for a PPP or pri-
vate infrastructure project to anticipate all events that will arise during the
project’s construction and operation. Nor can these contracts fully provide for
all remedies that might be appropriate in the circumstances, even if there is a
general agreement on allocation of project risks among the parties. Many proj-
ect contracts provide for dispute resolution but only brieﬂy explain a process
that might be used by the parties leading up to formal legal proceedings. It is
critical for the parties to incorporate partnering commi ees, mediation, and
the DB structure into their project contracts to provide a road map for how the
parties can anticipate and resolve disputes on a real-time basis, all within the
objective of respecting the parties’ original commercial understanding and
keeping the project on track.

Summary
Whether infrastructure projects for the delivery of public services are gov-
ernment owned and operated, PPPs, or privately ﬁnanced and operated, dis-
putes will inevitably arise. There is growing conﬁdence in and use of dispute
adjudication boards in large infrastructure and construction projects around
the world, and these structures are often already built into publicly procured
projects. To preserve the expectations of the parties regarding the timing and
costs of PPPs and privately ﬁnanced infrastructure projects, and to keep these
projects on track, it is proposed that, consistent with best practice, a partner-
ing commi ee with an embedded dispute board be established and become

41 See Chern, supra note 29, at 19; and Beaton, supra note 29.
Keeping Public-Private Partnership 39
Infrastructure Projects on Track

active at the inception of each project. If structured to provide a meaningful
ﬂow of information among the stakeholders, including aﬀected local commu-
nity members, a partnering commi ee can, together with a dispute board, be
instrumental in early identiﬁcation and resolution of any disputes that arise
before the parties and aﬀected local communities become entrenched in their
positions. In addition, a DB can play an important role in supporting a medi-
ated se lement agreement among the parties. When necessary, a DB can also
impose an interim binding decision on the contracting parties, pending reso-
lution of the ma er through a negotiated se lement or a ﬁnal arbitral award.
The costs associated with such a mechanism are more than outweighed by the
conﬁdence that project stakeholders and investors will have in infrastructure
investments generally in the country.
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Protecting Traditional Practices
and Country of Origin in Developing
Countries through Fair Trade
and Intellectual Property Rights
BETH ANNE HOFFMAN AND CHARLES BOUDRY

Ethiopia is widely regarded as the birthplace of coﬀee. With more than 30
native types of coﬀee plants, coﬀee is an integral part of Ethiopia’s cultural
heritage. The Ethiopian coﬀees Sidamo, Yirgacheﬀe, and Harrar are known
as some of the ﬁnest coﬀees in the world. Coﬀee makes up a large portion of
Ethiopia’s economy, accounting for more than 30 percent of the country’s total
export revenues. Moreover, nearly 20 percent of Ethiopia’s population earns
its living through coﬀee. Despite coﬀee’s importance—both on the interna-
tional market and to the domestic economy—coﬀee farmers in Ethiopia make
approximately US$1–$2 per day.
Ethiopia is a textbook example of how countries or producers can extract
higher export prices on the international market through the production of
specialty commodities. Since the collapse of the state-controlled coﬀee sec-
tor, Ethiopian coﬀee growers have pursued diﬀerent methods to gain greater
proﬁts. There is considerable experience in country in producing certiﬁed
organic and/or shade-grown coﬀees, as well as Fair Trade–certiﬁed coﬀees.
Most recently, the same producers have also used registered trademarks for
speciﬁc Ethiopian coﬀee exports.
In the mid-2000s, with considerable experience with the Fair Trade certiﬁ-
cation process, the Government of the Federal Republic of Ethiopia (Govern-
ment of Ethiopia; GoE) chose to exercise its intellectual property rights (IPRs)
on certain varieties of coﬀee beans. Early work on deﬁning coﬀee within the
framework of IPRs was done through a value chain analysis ﬁnanced by the
United Kingdom’s Department for International Development (DfID) and
in partnership with the Ethiopian Intellectual Property Oﬃce (EIPO). It was
under the DfID project that the Ethiopian coﬀee trademarks were registered
internationally for Harrar (and Harar), Sidamo, and Yirgacheﬀe coﬀees. Dur-
ing this time, much of the domestic legal framework was enacted to support
the intellectual property claims. The World Bank ﬁnanced a follow-up to the
DfID project. Both of these projects were aimed at improving the livelihoods
(and ultimately the revenues) of coﬀee producers in Ethiopia through Fair
Trade certiﬁcation and coﬀee name trademarking. These projects and their
outcomes are described in this chapter.

41
42 The World Bank Legal Review

The case of Ethiopian specialty coﬀees highlights the fact that accessing
high-value or specialty markets through legal means can bring international
recognition for traditional knowledge. IPRs can protect products on the inter-
national market when trademarked. The level at which interventions of this
type can achieve ﬁnancial success is ultimately aﬀected by the overall open-
ness of markets, the capacity of the legal system to assert these rights in in-
ternational markets, and the overall sustainability of the intervention. Other
market externalities, such as land ownership, access to credit, and the partici-
pation of women and children in the production process, were also factors in
Ethiopian coﬀee production.

Commodities and High-Value Markets
IPRs are one way that farmers and other producers may seek to distinguish
their products on the international market and earn higher proﬁts for their
products. Methods for the decommodiﬁcation of coﬀee include Fair Trade
certiﬁcation, and organic, shade-grown, or sustainably grown products. Fair
Trade certiﬁcation is governed by standards established by private interna-
tional organizations. Fair Trade standards are meant to be applied to produc-
tion regardless of existing domestic legal and regulatory laws.1
Fair Trade began as a social movement in the 1960s. Its aim was to bring
fair prices to producers in developing countries. Coﬀee was one of the ﬁrst
products that received the Fair Trade brand, and it remains the single most im-
portant Fair Trade product.2 Produced in developing countries by smallhold-
ers, coﬀee is well suited for this movement.3 Fair Trade promises fair prices
for products by sidestepping certain perceived market failures or anomalies.
Furthermore, Fair Trade has the promise of bringing the producer closer to the
consumer. Fair Trade–certiﬁed products are largely marketed as providing
ethical value-added for the consumer.
Fair Trade is not a process governed by national laws; it is a voluntary
process whereby producers adhere to 10 speciﬁc international standards that
can be applied to nearly any production system as long as the Fair Trade so-
cial standards are met.4 Producers pay a Fair Trade organization to certify
their product’s adherence to certain criteria.5 Certiﬁcation includes site visits
to producer organizations to inspect production methods. In many cases, Fair
Trade standards are more stringent than domestic norms, and the onus is on

1 World Development Report 2008: Agriculture for Development 132 (World Bank 2008).
2 Loraine Ronchi, Fair Trade and Market Failures in Agricultural Commodity Markets (World Bank
Policy Research Working Paper No. 4011, 2006).
3 Peter Leigh Taylor, In the Market but Not of It: Fair Trade Coﬀee and Forest Stewardship Council
Certiﬁcation as Market-Based Social Change, 33(1) World Dev. 136 (2005).
4 Kristina Sorby, Production Costs and Income from Sustainable Coﬀee 4 (World Bank Report No.
29598, 2002).
5 The Fair Trade Labeling Organization (FLO) regulates all organizations that provide Fair
Trade certiﬁcations.
Protecting Traditional Practices through Fair Trade and IPRs 43

the producer organization(s) to meet the Fair Trade standards in order to be
certiﬁed. The costs for the certiﬁcation process are borne by the producers
themselves and can be substantial relative to an individual farmer’s or small-
holder’s income.
Fair Trade standards are applied independently of local laws and stan-
dards. Often, Fair Trade standards require a level of organization and regula-
tion that may not exist in many developing countries. These standards center
around 10 main issues: creating opportunities for economically disadvantaged
producers; transparency and accountability; fair trading practices; payment
of a fair price; ensuring no child labor and no forced labor; commitment to
nondiscrimination, gender equity, and women’s economic empowerment and
freedom of association; ensuring good working conditions; providing capacity
building; promoting Fair Trade; and respect for the environment.6
Without a local organization or cooperative to manage the many Fair
Trade standards, a smallholder or subsistence farmer may not understand
their importance or how they will be evaluated during the certiﬁcation or re-
certiﬁcation process. Implementing these standards on an isolated or individ-
ual basis would be an onerous and expensive process. As a result, Fair Trade
producers are generally organized in cooperatives to be er manage the risks,
to deal with the resulting bureaucracy from the application of Fair Trade stan-
dards, and to ensure quality.
Within the Fair Trade standards, some are more easily implemented than
others; this was particularly the case with Ethiopian coﬀees. For example,
relatively few smallholders or subsistence farmers use commercial inputs—
such as fertilizers—when farming, which makes managing Fair Trade’s envi-
ronmental concerns relatively easy compared to meeting other standards. In
the case of Ethiopian coﬀee farmers, it has been reported that approximately
90 percent do not use any inputs in growing their coﬀees, making them virtu-
ally organic.7 Fair Trade studies have long posited that by adhering to Fair
Trade ecological and environmental practices, growers may reap larger yields,
and therefore bigger proﬁts.8
Issues related to transparency and accountability, capacity building, fair
pay and prompt payments, and the promotion of Fair Trade mainly apply
to the management of a farmers collective. As such, their impact on a small-
holder would be minimal, though it is conceivable that the collective would
ask a premium or contribution to manage these risks.

6 See the FLO World Fair Trade Organization (WFTO) website for a complete set of the stan-
dards, available at h p://www.wfto.com/?option=com_content&task=view&id=2&Itemid
=14 (accessed July 31, 2013).
7 Overseas Development Institute, Ethiopia Trademarking and Licensing Initiative: Supporting a
Be er Deal for Coﬀee Producers through Aid for Trade (2009), available at h p://r4d.dﬁd.gov.uk/
PDF/Outputs/TradePolicy/aidfortrade.pdf.
8 Sorby, supra note 4, at 1.
44 The World Bank Legal Review

The Fair Trade standards more diﬃcult to implement and sustain are
those related to labor. In the Ethiopian coﬀee sector, the majority of small-
holders use informal labor practices. Subsistence farming is often character-
ized by a structure in which the entire family participates. This means that
(pregnant) women and children are often involved in production. In many
cases, domestic law permits their participation, or the law is not enforced due
to the rural nature of agricultural production. Cultural norms and practices
may dictate that these practices are acceptable; some of these norms and prac-
tices may directly contravene prevailing law.
The Fair Trade certiﬁcation process, however, views gender and child la-
bor standards largely in black and white. By allowing children or pregnant
women to work on Fair Trade–certiﬁed farms, the local producer risks losing
certiﬁcation and the market premiums aﬀorded by the Fair Trade label.9 Simi-
larly, many coﬀee farmers depend on migrant labor when harvesting. The
highly transient nature of migrant labor may make it diﬃcult for smallhold-
ers to monitor the labor supply and, ultimately, to fully adhere to Fair Trade
standards.10
The issues of access to land and credit underlie the Fair Trade model but
are not explicitly addressed by the Fair Trade standards. Access to land and
land rights have a direct bearing on what crops are produced and how they
are produced. Though Fair Trade welcomes and promotes the participation of
women producers in its networks through its gender standard, it falls short
of advocating for women’s land rights. Similar to the issue of labor discussed
above, cultural norms and practices may contravene national laws regarding
women’s inheritance of land. Without directly addressing issues of inheri-
tance or a woman’s right to hold property, the Fair Trade standard on gender
may miss an opportunity to build equity and capacity within producer com-
munities and organizations.
Linked to the issue of landholdings, access to credit can be a pressing is-
sue for smallholders engaged in Fair Trade production. Access to credit allows
farmers to buy new seeds or seedlings and fertilizers. Credit may also help a
family ensure that a child receives health care or education. Credit for small-
holders may be particularly diﬃcult to obtain due to their geographic location
and industry.11 Microcredit may be be er suited to subsistence farming, as
the cooperatives themselves may be more able to provide for their members’
needs than regular commercial banks can. Given this, and the comparatively
high cost of certiﬁcation, it is somewhat surprising that Fair Trade organiza-

9 For an interesting discussion on child labor and adherence to the Fair Trade standards, see
Leonardo Becche i & Marco Constantino, The Eﬀects of Fair Trade on Aﬃliated Producers: An
Impact Analysis on Kenyan Farmers, 36(5) World Development 823–842 (2008).
10 See, generally, Cathy Farnworth & Michael Goodman, Growing Ethical Network: The Fair
Trade Market for Raw and Processed Agricultural Products (background paper for the World
Development Report 2008).
11 World Development Report 2008, supra note 1, at 143.
Protecting Traditional Practices through Fair Trade and IPRs 45

tions have not taken a more proactive approach to provide a more enabling
ﬁnancial environment for their producers.
Credit could ultimately remove one of the biggest barriers to market entry
and increase production. It could also provide a form of insurance for produc-
ing families to weather market declines. Surveys of Ethiopian coﬀee farmers
have shown that a lack of credit greatly aﬀects their willingness to buy agri-
cultural inputs to boost production. In some cases, farmers have reported not
wanting to take credit at all.12
Finally, with regard to both organically grown and shade-grown products,
the majority of smallholder coﬀee production in Ethiopia is done through sub-
sistence farming. The certiﬁcation process for these kinds of agricultural prod-
ucts is fairly streamlined. Ethiopian coﬀees are largely—if not entirely—pro-
duced without commercial fertilizers, GMO seeds, or other means that would
degrade the environment. If coﬀee production were to shift from smallholders
to larger farms, care would need to be taken to ensure that a commitment to
organic or shade-grown farming would continue to ensure certiﬁcation and,
ultimately, market premiums.

Intellectual Property Rights and Agricultural Products
There is a range of IPRs that can be used to seek protection for an agricultural
product: trademarks, geographical indications (GIs), and traditional knowl-
edge (TK). Each country has its own intellectual property (IP) system, but
some general rules can be delineated. As with the Fair Trade standards de-
scribed above, adherence to any of the methods below will create value-added
commodities for export to other markets. All are relevant legal instruments
for the Ethiopian coﬀee case: trademarks and GIs are recognized in key export
markets, such as the European Union and the United States, Ethiopia’s main
export markets for coﬀee, and TK is receiving increasing a ention from the
international community.

Trademarks
A trademark serves to distinguish a product or service from similar goods,
products, or services. It prevents confusion among consumers about the prod-
uct origin and protects the owner’s goodwill.13 A trademark does not refer to
the quality of the processes used to elaborate the service or manufacture the
good. It a aches to a good or services regardless of either the manufacturing

12 Samuel Gebreselassie & Eva Ludi, Agricultural Commercialisation in Coﬀee Growing Areas of
Ethiopia (research paper prepared for the Future Agricultures Consortium, Mar. 2008), avail-
able at h p://r4d.dﬁd.gov.uk/PDF/Outputs/Futureagriculture/coﬀee_paper.pdf.
13 Maria Brownell, Coﬀee Trademark Licensing for Farmers: Brewing a Farmer-Owned Brand, 14
Drake J. Agric. L. 299 (2009).
46 The World Bank Legal Review

process or the location of the manufacturing process. The value of a trademark
depends on the intrinsic quality of the product or service itself.14
Under U.S. trademark law, a party can ﬁle an application with the United
States Patent and Trademark Oﬃce (USPTO) to register a word, a logo, a de-
vice, a slogan, a package design, a scent, a color, or a shape. If the application
is accepted, the registered trademark becomes the private property of the reg-
istering party and can be used or licensed only by that party on the goods or
services identiﬁed in the application.15
A trademark owner has a right to permit nonowners to use the owner’s
mark, in which case the parties will enter into a license agreement. A trade-
mark owner can also prevent others from using the same or a similar mark
on otherwise similar products. In the United States, trademark owners must
protect their trademark by policing for its unauthorized use and can actively
enforce their right by excluding every other entity from using their trademark,
in order to prevent it from becoming diluted or generic.16
A trademark for a geographic region raises some issues because it gives
the owner the exclusive right to use the trademarked name commercially.
Generally, a geographically descriptive term cannot be granted a trademark
because it is only descriptive, the reason being that all place-names should
remain available for use by all competitors. However, this rule has an excep-
tion, and to overcome the descriptive nature of a geographic term, the term
must have acquired a “secondary meaning.” A term has a secondary meaning
when the product is considered signiﬁcant beyond the physical location of the
goods.17 Thus, when a geographic term is associated with qualities indepen-
dent of its physical location, the secondary meaning test is proven, and the
product can be registered. This test of secondary meaning was applied to the
Ethiopian case.

Geographical Indications
A GI is a name or sign used on certain products that indicates the region of
origin of a speciﬁc good or service and relates to some standard of quality
associated with the good or service. There is no universal deﬁnition for what
constitutes a GI. It can include certiﬁcation marks, designated GIs, protected
designations of origin, protected GIs, and appellations of origin.18

14 Mary O’Kicki, Lessons Learned from Ethiopia’s Trademarking and Licensing Initiative: Is the Euro-
pean Union’s Position on Geographical Indication Really Beneﬁcial for Developing Nations?, 6 Loy.
U. Chi. Intl. L. Rev. 324–325 (2008–2009), at 319.
15 See U.S. Trademark Law: Rules of Practices and Federal Statutes (U.S. Pat. & Trademark Oﬀ.,
Aug. 2012), available at h p://www.uspto.gov/trademarks/law/tmlaw.pdf.
16 Brownell, supra note 13, at 300.
17 Id., at 296.
18 O’Kicki, supra note 14, at 321.
Protecting Traditional Practices through Fair Trade and IPRs 47

The United States and the European Union have diﬀerent approaches
regarding GIs. Under U.S. trademark law, GIs are registered and protected
with the USPTO as a certiﬁcation mark and must meet the secondary meaning
requirement to be registered. A certiﬁcation mark indicates that the good or
service bearing the mark possesses certain qualities or is made according to
traditional methods, as determined by a party, such as a trade group or a gov-
ernment entity, including state agricultural agencies, but not by a manufac-
turer itself. The mark indicates that the manufacturer adhered to third-party
standards when producing the product. Certiﬁcation marks tend to be owned
by a collective group that establishes the standard or criteria that a product
must meet to bear the organization’s certiﬁcation mark.19
There are several diﬀerences between a trademark and a certiﬁcation mark
in the U.S. IPR system. First, a certiﬁcation mark is used by a third party, not
by the original manufacturer itself, to indicate some a ribute or quality of the
goods. Second, while trademark owners are required to prevent every other
entity from using their trademark, a U.S. certiﬁcation mark owner cannot ex-
clude other manufacturers that meet the standards and criteria as deﬁned by
the registered certiﬁcation mark. In this respect, the U.S. system of certiﬁca-
tion marks creates opportunities for new producers and enables them to be
associated with a particular certiﬁcation mark, which can be a very valuable
asset. A study found that consumers would be willing to pay 60 percent more
for a wine labeled “Napa Valley” than for a wine labeled “California.”20
In the European Union, GIs are given a registration and protection system
independently of trademarks. This is a core element of the EU trade and ag-
riculture policy, and the European Union established a single system for the
registry of GIs for some products intended for human consumption and cer-
tain foodstuﬀs, but not all. This system provides protection for two categories
of GIs: protected designation of origin and protected GIs. The EU system also
oﬀers protection for traditional specialty guaranteed.21
A protected designation of origin covers agricultural products and food-
stuﬀs that are produced, processed, and prepared in a given geographical area
using recognized know-how. Thus, a protected designation of origin product
is tied both to the land through production and to the people who process
and prepare the good. It is important to note that the European Union places
a high value on the human skill associated with the preparation of a good.22 In
order to qualify for GI protection, at least one of the stages of production, pro-
cessing, or preparation must take place in the geographical area. Because only

19 Id.
20 Id., at 321 & note 78.
21 See, generally, the European Commission’s deﬁnitions of geographical indicators and tradi-
tional specialties for deﬁnitions and lists of speciﬁc products, and so on, Geographical Indica-
tions and Traditional Specialties, available at h p://ec.europa.eu/agriculture/quality/schemes/
(accessed Apr. 23, 2013).
22 O’Kicki, supra note 14, at 323.
48 The World Bank Legal Review

one of the three stages needs to occur within the designated region, protected
GIs are not as closely tied to the land as protected designation of origins. As
for the traditional specialty guaranteed protection, it highlights the traditional
character, either in the composition or in means of production, and it is not
directly connected to the land.23

The TRIPS Agreement and Geographical Indications
Geographic origin has been cited in trade for over a century, and in their cur-
rent form, GIs are governed by the 1995 WTO Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement). Article 22.1 of the
TRIPS Agreement deﬁnes GIs as “indications which identify a good as origi-
nating in the territory of a Member, or a region or locality in that territory,
where a given quality, reputation or other characteristic of the good is essen-
tially a ributable to its geographic origin.” This broad deﬁnition encompasses
many of the diﬀerent permutations of GIs that are legally recognized by WTO
member countries.24 Moreover, the TRIPS Agreement (Articles 41 ss.) requires
that all WTO members provide a certain level of protection for IPRs, including
the legal means for a member country to assert and enforce its IPRs.
The TRIPS Agreement provides two levels of protection for GIs, depend-
ing on the product considered. For products other than wines and spirits (Ar-
ticle 22), a GI is protected to the extent it does not cause consumer confusion
or mislead the public as to the origin of the product. The protection of a GI is
therefore not absolute. An appellation such as “Camembert-like cheese made
in Canada” is permi ed, since the origin is clearly mentioned. Wines and spir-
its beneﬁt from an additional protection under Article 23: GIs can be used only
for products that originated in the place indicated by the GI in question. Thus,
only producers of Champagne from the Champagne region of France can use
the term “Champagne” to identify their products. “Champagne-like” and
“produced by the Champagne method” are prohibited product designations
under the TRIPS Agreement.25 The European Union advocates that the protec-
tion granted to wines and spirits be extended to all registered GIs.26 This means
that product designations such as “Camembert-like cheese made in Canada”
would no longer be authorized if the European Union succeeds in its eﬀorts.
The strong legal protection granted to wine and spirit GIs under Article 23
of the TRIPS Agreement is similar to the legal protection provided by the
trademark system. For example, the GoE has registered the word “Harar” as a
trademark for its coﬀee in several countries (see below for a description of the

23 See Geographical Indications and Traditional Specialties, supra note 21.
24 O’Kicki, supra note 14.
25 Id., at 324.
26 The Special Session of the TRIPS Council in WTO discussed at length the issue of applying
GI for wine. This discussion can be found at Communication from the European Commu-
nities, Geographical Indications, TN/C/W/26, TN/IP/W/11 (June 14, 2005), available at h p://
www.wto.org/english/tratop_e/trips_e/gi1_docs_e.htm (accessed Apr. 23, 2013).
Protecting Traditional Practices through Fair Trade and IPRs 49

Ethiopian case), so only the GoE has the legal right to use and to license the
word “Harar” for coﬀees. “Harar-like” and “in the style of Harar” are unac-
ceptable uses of the word. In the same vein, only producers from the Cham-
pagne region, meeting the criteria described in the GI registration, can use the
word “Champagne” in their label.27

Traditional Knowledge
Traditional knowledge (TK) is not protected under the TRIPS Agreement. Cur-
rently, countries seeking IP protection for TK in the international market must
ﬁt it into one of the IP categories that is protected under the TRIPS Agreement.
In principle, because GIs are not “intended to reward innovation, but rather
to reward members of an established group or community adhering to tra-
ditional practices belonging to the culture of that community or group,” it is
understandable that some developing nations would embrace the GI system
as a means to protect their TK.28 In other cases, communities have sought to
establish trademarks.
TK has received increasing a ention in a range of recent international poli-
cy discussions. There have been considerable eﬀorts to enshrine TK protection
in the law—most notably with the World Intellectual Property Organization
(WIPO’s) establishment of the Intergovernmental Commi ee on Intellectual
Property and Genetic Resources, Traditional Knowledge, and Folklore (the
IGC).29 The IGC’s mission is to draft and reach an agreement on an internation-
al legal instrument (or instruments) that will ensure the eﬀective protection of
TK, traditional cultural expressions, and genetic resources.30 The IGC suggests
the following deﬁnition(s) for TK: “[refers to]/[includes]/[means] know-how,
skills, innovations, practices, teachings and learnings of [indigenous [peoples]
and [local communities]]/[or a state or states] that are dynamic and evolving,
and that are intergenerational/and that are passed on from generation to gen-
eration, and which may subsist in codiﬁed, oral or other forms.”31
Eﬀorts to protect TK by a new system of IPRs focus almost exclusively on
the knowledge of indigenous people. The proponents of a new legal regime
invoke concepts of property to enhance the protection of TK. A 2009 WIPO re-
port states that “holders of TK should be entitled to fair and equitable sharing

27 O’Kicki, supra note 14, at 325.
28 Id.
29 Stephen R. Munzer & Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Tradi-
tional Knowledge, 27 Cardozo Arts & Ent. L.J. 37, 38 (2009).
30 WIPO uses the term traditional knowledge to encompass traditional knowledge, genetic re-
sources, and traditional cultural expressions. For more on how all three subtopics ﬁt under
WIPO’s TK classiﬁcation, see h p://www.wipo.int/tk/en/igc/index.html (accessed Apr. 23,
2013).
31 Protection of Traditional Knowledge: Draft Articles Rev. 2 (Apr. 26, 2013), available at h p://
www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_24/wipo_grtkf_ic_24_facilitators_docu
ment_rev_2.pdf (accessed Aug. 5, 2013).
50 The World Bank Legal Review

of beneﬁts arising from the use of their knowledge.”32 The objectives of the TK
legal protection would be to promote respect for TK; deter the misappropria-
tion of TK; empower TK holders, who are typically marginalized indigenous
communities; and protect tradition-based innovation.33 Proponents advocate
the creation of sui generis rights via international treaties and the establish-
ment of global databases of TK. There are those who oppose an establishment
of a legal instrument to protect TK, voicing concern that this type of IP protec-
tion would be “contrary to how many indigenous communities conceive of
their cultural heritage.”34 The concept of TK will continue to evolve with the
continued work of the IGC and the overall eﬀorts of WIPO.

The Case for Ethiopian Fine Coffees
By the mid-2000s, the GoE already had enacted a considerable legal frame-
work to protect Ethiopia’s cultural and agricultural heritage. This included,
inter alia, Trademark Registration & Protection Proclamation No. 501/2006;
Access to Genetic Resources and Community Knowledge and Community
Rights No. 482/2006; the Plant Breeders’ Right Proclamation; Copyright and
Neighboring Rights Protection Proclamation No. 410/2000; and Research and
Conservation of Cultural Heritage Proclamation No. 209/2000.
In the international sphere, Ethiopia has been a member of WIPO since
1998. The GoE is also a signatory to the Convention on Biological Diversity. It
signed the Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Beneﬁts and the Cartagena Protocol on Biosafety to the
Convention of Biological Diversity, as well as the International Treaty on Plant
and Genetic Resources for Food and Agriculture.
Coﬀee historically has been a major export for Ethiopia. The collapse of
the International Coﬀee Agreements in the late 1980s and the almost simulta-
neous collapse of the state-run coﬀee trade that occurred with the overthrow
of the Derg led to disarray and a precipitous drop in coﬀee earnings for the
country. State-run coﬀee cooperatives collapsed, leaving many to rebuild af-
ter losing their records and premises due to looting. Over time, and with the
reestablishment of coﬀee cooperatives and export agencies, the coﬀee sector
began to rebuild. With market liberalization, prices paid to producers began
to rise by the 1990s, and the government allowed some gourmet coﬀees and
organics to be sold directly on the international market.
Private land ownership, which had been abolished by the Derg, remained
state controlled in the post-Derg (post-1991) period. This fact is important be-
cause all of the country’s land belongs to the GoE and the government claims

32 WIPO, Intellectual Property and Traditional Knowledge 11 (Booklet No. 2), available at h p://
www.wipo.int/freepublications/en/tk/920/wipo_pub920.pdf; cited in Munzer & Raustiala,
supra note 29, at note 3.
33 Munzer & Raustiala, supra note 29, at 39.
34 Id.
Protecting Traditional Practices through Fair Trade and IPRs 51

the right to direct all economic initiatives. Recognizing that coﬀee would re-
main one of the country’s chief exports, the GoE’s ﬁrst Poverty Reduction
Strategy paper—A Plan for Accelerated and Sustained Development to End Poverty
(PASDEP) (2005‒2009/10) noted that
due consideration will also be given to the production of high value/
cash crops like fruit and vegetables, coﬀee, tea and spices which
could play a signiﬁcant role in improving the living standards of
smallholder farmers and strengthening the foreign currency earning
capacity of the country.35
The PASDEP gave the GoE a strong role in supporting the coﬀee produc-
tion. This included targeted assistance to coﬀee preparation industries and the
provision of adequate warehouses and storage facilities both in the woredas
and centrally. Moreover, maintaining the quality of the coﬀee exports was a
priority for the GoE. In this regard, the PASDEP called for, inter alia,
• Improving the quality and agricultural products to supply ex-
port markets, improving existing standards and produce new
ones, and ensure the introduction and control of proper obser-
vation of standards;
• Establishment of coﬀee and tea inspection and auction centers
in major coﬀee growing woredas.36
It was against this backdrop that the GoE began to work with DfID to
develop its ability to enforce and manage its IPRs internationally in the early
2000s. As part of DfID’s eﬀorts, and in order to build capacity within the GoE
to support these claims, the project provided technical assistance to the Ethio-
pia Intellectual Property Oﬃce, established in 2003.
The overall aim of DfID’s support was to aﬀord coﬀee producers a means to
negotiate coﬀee prices through the operation of a transparent market. The pro-
ject was based on a value chain analysis and a value capture strategy that en-
tailed the use of trademarks, branding and licensing, and brand management.
DfID brought together the biggest actors in the national coﬀee market
with the creation of the Ethiopian Fine Coﬀee Stakeholder Commi ee. This
commi ee included local coﬀee farmers cooperatives, the relevant line min-
istries, EIPO, and the Ethiopian Coﬀee Exports Association Board. Through
the creation of this commi ee, as well from as the direct support to EIPO, the
DfID project assisted in crafting trademark strategies and policies to maintain
and protect the value of four high-value Ethiopian coﬀees—Harrar, Harar (an-
other trademarked name for Harrar), Sidamo, and Yirgacheﬀe—on the inter-
national market.

35 Government of Ethiopia, Ministry of Finance and Economic Development (MoFED), Ethiopia:
Building on Progress, A Plan for Accelerated and Sustained Development to End Poverty (PASDEP)
(2005/06-2009/10), vol. 1: Main Text (MoFED, Sept. 2006), available at h p://siteresources
.worldbank.org/INTETHIOPIA/Resources/PASDEP_Final_English.pdf.
36 Id., at 106.
52 The World Bank Legal Review

The DfID project undertook a value chain analysis for these Ethiopian
coﬀees. The objective of the value chain analysis was to ensure that value was
accrued at the production end of the coﬀee value chain. The DfID project also
worked with a law ﬁrm on a pro bono basis to register the four coﬀees in 33 in-
ternational markets, including the United States, the European Union, Japan,
Canada, Australia, and Saudi Arabia. Early indications from this trademark-
ing eﬀort showed an increase in export prices on the order of 50–100 percent.37
Trademarks may be more lucrative for producers to use, because they require
less up front as compared to Fair Trade. This is important for a farmer making
only a slight margin on products and is a diﬀerent approach from Fair Trade
certiﬁcation, which requires compliance with a number of standards and rela-
tively costly site inspections before crops are certiﬁed.
The DfID eﬀort also sought to establish more transparent mechanisms for
exporting. The collapse of the Derg regime and the resulting liberalization of
the coﬀee sector resulted in the corresponding collapse of the old systems and
agencies supporting Ethiopia’s coﬀee exports. The Ethiopian Coﬀee Purchase
and Sales Enterprise and the Ethiopian Coﬀee Export Enterprise emerged as
government-controlled agencies in the early post-Derg period. By the 2000s,
even these state-run companies were being phased out and replaced by pri-
vate entities. Work was under way in Ethiopia to create a nationwide com-
modity exchange linked to various warehouses to handle coﬀee auctions.
Maintaining the brands established with DfID assistance, however, meant
that coﬀee farmers needed to understand and apply the brand and ensure that
quality was preserved. This would be a long-term process, as historically there
had been li le emphasis on coﬀee quality in Ethiopia. The World Bank would
help ﬁnance, inter alia, a government-sponsored campaign to raise awareness
among coﬀee farmers.

Trademark Dispute with Starbucks
In March 2005, the GoE ﬁled trademark applications with USPTO for three
of Ethiopia’s specialty coﬀees: Harrar, Sidamo, and Yirgacheﬀe. This appli-
cation took some companies, including U.S.-based Starbucks, by surprise. In
2004, Starbucks had applied for trademark registration of a limited-edition
coﬀee. Shirkina Sun-Dried Sidamo. Ethiopia, working with Oxfam and a U.S.-
based pro bono law ﬁrm, requested that Starbucks withdraw its trademark
application to allow its own trademark application to move forward. Star-
bucks’ initial response to Ethiopia was that a certiﬁcation mark or a GI was
a more appropriate designation for Ethiopia’s heritage coﬀees.38 Eventually,
Starbucks withdrew its application for Shirkina Sun-Dried Sidamo, stating it
was a limited-edition coﬀee, but the dispute did not end there.

37 Overseas Development Institute, supra note 7, at 10.
38 O’Kicki, supra note 14, at 329–330.
Protecting Traditional Practices through Fair Trade and IPRs 53

The National Coﬀee Association (NCA), representing U.S. coﬀee roasters,
importers, retailers, and distributors, including Starbucks, objected to Ethio-
pia’s applications for trademarking Harrar and Sidamo by ﬁling notices of
opposition with USPTO. The NCA contended that Sidamo and Harrar his-
torically have been used in the United States. Furthermore, the NCA posted
that these were generic terms for coﬀee from geographical regions of Ethiopia
and therefore did not meet the legal criteria to qualify for trademark registra-
tion. This point of view was adopted by USPTO, which did not register these
trademarks.39
Ethiopia appealed this decision, arguing that the names had acquired
secondary meaning to consumers (that is, consumers recognized the words
as a source of quality and for characteristics of the coﬀee) and were not ge-
neric words for coﬀee. Ethiopia eventually succeeded, and, in February 2008,
the USPTO recognized Ethiopia’s qualiﬁcation under the secondary-meaning
test and granted Ethiopia a trademark for the coﬀee-producing regions.40 Ul-
timately, Starbucks signed a licensing agreement with Ethiopia recognizing
Ethiopia’s ownership of the names.

The World Bank Intellectual Property Rights Project
The World Bank coﬀee project came about at a time when the Bank was ac-
tively looking into Fair Trade as a way to raise proﬁts for farmers and induce
development. In the lead-up to the 2008 World Development Report, Agricul-
ture for Development (WDR), considerable research was done by the Bank on
the impacts of Fair Trade. Agriculture for Development recognized the growing
trend of producing high-value or niche agricultural products for export. The
WDR called this trend “decommodiﬁcation,” as producers sought alternative
markets for these products.41 Yet, the report oﬀered no speciﬁc policy recom-
mendations on Fair Trade as a result of this research. On the contrary, the
WDR cited a number of concerns about Fair Trade, related to rationing of
Fair Trade products in the export markets due to saturation, and the high
cost for farmers to do business with the Fair Trade organizations themselves.42
The report made recommendations for governments to establish enabling en-
vironments for agriculture and agricultural exports, with speciﬁc support to
smallholders through strong producer organizations and more transparent
market mechanisms.
IPRs ﬁt squarely within the World Bank’s operational policies. Speciﬁ-
cally, the Bank’s Indigenous Peoples Policy (Operational Policy 4.10) of the
same period endorses the use of IPRs as one of nine initiatives to support

39 See h p://tsdr.uspto.gov (case no. 78589307) for the proceedings documents; cited in O’Kicki,
supra note 14, note 133.
40 An Ethiopian trademark for Yirgacheﬀe was awarded by the USPTO in August 2006.
41 World Development Report 2008, supra note 1, at 132.
42 Id., at 133.
54 The World Bank Legal Review

development and poverty reduction.43 The policy further recognizes cultural
ties to lands, as well as the species and fauna of indigenous peoples.44 The
World Bank’s support for Ethiopian coﬀee ﬁts well within this framework.
The GoE ﬁrst approached the World Bank for technical assistance with
EIPO and for the protection and enforcement of the country’s IPRs. The re-
quest came in as EIPO’s involvement with DfID was drawing to a close. At
the time the World Bank grant was developed, the Ethiopian government
claimed that Ethiopian coﬀee names had been misappropriated in both local
and foreign markets, the most visible example of which was the U.S. trade-
mark dispute with Starbucks. The GoE asserted that the country’s unique cul-
tural, biotech, and agricultural assets held considerable promise as IP assets
on the international market. With the proper branding and enforcement of the
country’s IPRs, these products could be appropriately valued and could gen-
erate the export income anticipated by the government. The promotion and
enforcement of IPRs was seen as an eﬀective policy tool to promote social and
economic development in the country.
The World Bank project, Managing and Enforcing Intellectual Property
Rights: Creating a Driver of Growth—an Institutional Development Fund
(IDF) grant—was approved in June 2006 for US$496,000.45 The project closed
in October 2010. The project objective was to strengthen the capacity of EIPO
to manage, brand, and protect IPRs in Western markets. Although the coun-
try had considerable potential for branding other IPRs for other products,
such as leather, ﬂowers, spices, and traditional medicine knowledge, the IDF
grant focused solely on coﬀee. The main beneﬁciaries of the project activities
were EIPO, Ethiopian coﬀee growers’ organizations, and coﬀee growers more
generally.
The grant had three main activities: to assess IP assets within the country,
building local capacity to undertake these types of assessments; to build the
capacity of Ethiopian administrative and justice sector teams to enforce IPRs;
and to empower local IPR owners.
Due to delays in project approval, the IP asset valuation exercise was
ultimately done with the assistance of DfID prior to that project’s closing.
The Starbucks case helped transform EIPO’s role, further transforming the

43 The 2005 Indigenous Peoples Policy was important in that this version of the policy con-
tained nine speciﬁc product lines for which Bank-ﬁnanced projects could actively provide
assistance to indigenous communities. One of these product lines dealt speciﬁcally with in-
tellectual property rights. OP 4.10, para. 22(h).
44 For purposes of the World Bank–ﬁnanced Ethiopian coﬀee project, however, the policy
framework was adapted to the circumstances but not applied because the GoE does not
recognize indigenous peoples.
45 This type of grant is given to build just-in-time capacity for a discrete need within the gov-
ernment. Prior to 2011, the IDF gave priority to grant proposals that focused on one of ﬁve
areas: public expenditure management and ﬁnancial accountability; procurement; results-
oriented monitoring and evaluation systems; systemic legal and judicial reforms; or nonfo-
cus or other. The Ethiopia IDF grant focused on systemic legal and judicial reforms.
Protecting Traditional Practices through Fair Trade and IPRs 55

agency’s responsibilities and changing the scope of many of the planned IPR
activities. In mid-2007, EIPO embarked on a process of reorganization with
World Bank support. It sought to broaden its responsibilities from serving as
a conventional IP registry to more broadly engaging in advocacy activities on
a national, regional, and international scale. EIPO placed the country’s inno-
vations and products at the fore with this restructuring. As part of the reorga-
nization and expansion of its activities, EIPO proposed to undertake greater
outreach to small and median enterprises within Ethiopia, as well as build
greater awareness of IPRs in local universities and industries.
A large portion of the grant activities involved the creation of a licensing
and branding program within EIPO. Originally, the World Bank project envi-
sioned the creation of specialized capacities within EIPO to manage trademark
registration, foreign supply chain licensing, brand management, and stake-
holder engagement. Recognizing that there was low recognition and knowl-
edge of IPRs within various government agencies, the World Bank project
scaled back its original aim to create a licensing program within EIPO. Rather,
a comprehensive training program was designed and implemented using a
train-the-trainers approach. Under this initiative, four EIPO staﬀ members
were trained on issues relevant to certiﬁcation.
The project sought to expand the number of coﬀees trademarked in inter-
national markets. EIPO chose to pursue the licensing of Limu and Nekemte
coﬀees internationally, ﬁrst by developing a value capture analysis for these
two coﬀees. Brand guidelines were also drafted for these two coﬀees, based
largely on the precedent set by the guidelines developed for Harar, Harrar,
Sidamo, and Yirgacheﬀe coﬀees. The project engaged the same U.S.-based law
ﬁrm that had worked on the Starbucks case and the trademark claims for the
four trademarked coﬀees on a pro bono basis.46 At the project’s conclusion, it
was estimated that the legal services provided for the trademarking of these
two coﬀees cost close to US$1.0 million, more than twice the total amount of
the grant. This ﬁgure is relatively conservative; a considerable amount of legal
work was done drafting model licensing contracts and creating an umbrella
brand standard and trademark.
As part of EIPO’s new advocacy and outreach eﬀorts, an Intellectual
Property Rights Center was established in Addis Ababa to house information
regarding IPRs. The center is open to the public. EIPO launched a website in
Aramaic to describe EIPO’s role and responsibilities. In addition, the grant
ﬁnanced a number of outreach activities to empower local producers, includ-
ing television and radio programs, as well as leaﬂets regarding the role of
intellectual property in their own personal lives and on the role that EIPO has
played in the enjoyment and enforcement of those rights.

46 Ultimately, this activity led to the registration of only one coﬀee in one international market.
This was due to a dispute between EIPO and the pro bono law ﬁrm over minor, nonlegal
fees paid by the ﬁrm in the course of licensing. EIPO disputed the ﬁrm’s claim that the gov-
ernment needed to pay the charges. At the end of the project, EIPO and the ﬁrm were in a
stalemate over the payment of the fees and additional licensing.
56 The World Bank Legal Review

The grant’s more successful activities involved the outreach activities re-
lated to IP and coﬀee growers themselves. A number of radio and television
programs were produced and aired on local stations to empower local IPR
owners on IPR protection. These activities were targeted speciﬁcally at small
producers, cooperatives, local business owners, and IP lawyers.
The grant was active in creating and disseminating local knowledge re-
garding IPRs. EIPO delivered speciﬁc training to the coﬀee farmers cooper-
atives and other stakeholders regarding the importance of maintaining the
respective brands. Through their own experiences with producing other de-
commoditized coﬀees—such as organics, shade-grown, and Fair Trade cof-
fees—various Ethiopian coﬀee farmers unions47 were aware of the importance
of quality and began to ensure quality in their own production. Furthermore,
the licensing agreements to use the trademarked brand names of coﬀee were
royalty free for the coﬀee farmers, meaning that any additional proﬁt accrued
to the coﬀees at the point of sale accrued to the coﬀee farmer.
The grant had the least success in building the capacity of local Ethiopian
administrative and justice sector teams. This was due in large part to the gen-
eral outward/export orientation of the project. Local judges, lawyers, investi-
gators, and other government oﬃcials were less involved in the enforcement
of IPRs. There was li le buy-in for the project’s activities by the customs and
other enforcement oﬃcials.

Project Outcomes
The World Bank project built on a number of crucial building blocks already
in place in Ethiopia. The fact that the project implementation was not depen-
dent on the passage of new laws or structures—most of which were created
under the DfID project—meant that the time frames for implementation were
short. Furthermore, when the project was designed, it was conceivable that
the project outcomes could be met by the end of the project’s original three-
year term. It was also conceivable that certain targets for capacity building
within EIPO and among the coﬀee growers could be met during the original
implementation period.
The World Bank project largely succeeded due to the presence of an en-
abling framework for trade within the country. On a much larger scale, and as
measured by the website produced by Doing Business, it is more costly, time-
consuming, and bureaucratic to export out of Sub-Saharan Africa than it is to
export out of Latin America.48 Africa-speciﬁc studies, notably a World Bank

47 A number of coﬀee cooperatives emerged in the post-Derg era. These include the Oromia
Coﬀee Farmers Cooperative Union, the Yirgacheﬀe Coﬀee Farmers Cooperative Union, the
Sidama Coﬀee Farmers Cooperative Union, and the Kaﬀa Forest Coﬀee Farmers Coopera-
tive Union.
48 Cf. data in Trading across Borders. Published by the Doing Business Project, World Bank
Group, available at h p://www.doingbusiness.org/data/exploretopics/trading-across
-borders (accessed Apr. 1, 2013).
Protecting Traditional Practices through Fair Trade and IPRs 57

report on mango production in Mali, cite the need to leverage economies of
scale though the creation and support of producer organizations in country.49
The DfID and World Bank projects tapped into well-organized, existing coﬀee
farmers cooperatives to boost exports and ensure export quality. The consider-
able experience in country with Fair Trade branding as well as organic brand-
ing on the international market helped to create a culture of quality coﬀee.

A Success Story: The Oromia Coffee Farmers Cooperative Union
The Oromia Coﬀee Farmers Cooperative Union (OCFCU) was established
in 1999 in Addis Ababa to facilitate the direct export of coﬀee produced by
small farmers organized in cooperatives throughout the state. It is the old-
est of the existing coﬀee farmers unions; it was one of the most active cof-
fee farmers cooperative unions under the World Bank project. The OCFCU
operates in Oromia regional state, where 65 percent of the country’s coﬀee
is grown. It is responsible for processing, marketing, and commercializing
coﬀee for its members. OCFCU comprises 197 primary cooperatives, repre-
senting some 200,000 farming families. The OCFCU oversees quality control
and a processing plant and has established a bank for cooperative members.

The World Bank project also beneﬁ ed from the Ethiopian Commodities
Exchange (ECX), established in 2008. The ECX was initially supported by the
GoE. The ECX provided a transparent, real-time platform for trading coﬀee
and other commodities. It also served as an independent veriﬁcation body
for the qualities and types of coﬀees delivered. Compared to the Derg era,
when the state controlled coﬀee trade through the creation of cooperatives,
set prices, and mandated only two auctions per year, the ECX provides coﬀee
farmers greater transparency, timeliness, and assurance that their coﬀee will
be marketed correctly, reducing transaction costs for farmers and traders.
A long-standing history of coﬀee exports in country, an existing culture
of agricultural cooperatives, and a growing appreciation for quality within
the coﬀee farmers cooperative unions were the main factors that were already
present. Furthermore, the government’s own policies to promote specialty
coﬀees through special pricing mechanisms, and later EIPO’s support of IPRs
in international markets, helped boost exports and proﬁts.
On the whole, the use of trademarks did bring be er prices to producers
and farmers in Ethiopia. Farmers saw the greatest increases in proﬁts when
producing a combination of Fair Trade, organic, and trademarked coﬀees.
WIPO estimates that prior to the enforcement of IPRs, Ethiopian smallholders
received approximately US$1 per kilo of coﬀee; the ﬁnal market price ranged
from US$20 to US$28 per kilo. WIPO also reported that Yirgacheﬀe farmers’
income doubled in 2007 with the use and enforcement of IPRs.50 This rise in

49 Morgane Danielou, Patrick Labaste, & Jean-Michel Voisard, Linking Farmers to Markets: Ex-
porting Malian Mangoes to Europe (World Bank Africa Region Working Paper No. 60, 2003).
50 See communications of WIPO: The Coﬀee War: Ethiopia and the Starbucks Story, available at
h p://www.wipo.int/ipadvantage/en/details.jsp?id=2621 (accessed Apr. 4, 2013).
58 The World Bank Legal Review

prices had a direct impact on local coﬀee-farming communities and indivi-
duals. The coﬀee unions have self-reported an increase in investments in
coﬀee-producing communities through the provision of physical infrastruc-
ture for schools, the creation of health posts, and the development of fresh-
water supplies, among other developments.51
The project had mixed success when it came to promoting IP issues in-
ternally. By the end of the project, there was considerable awareness among
local coﬀee producers regarding their ability to use IP to extract a higher price
on the market for their coﬀees. The project had more limited traction in dis-
cussing these issues with government oﬃcials, such as judges and customs
oﬃcials. For a majority of these oﬃcials, IP will remain a theoretical issue until
clear domestic cases of IP infringement arise. Some observers have hinted at
the fact that kickbacks may be at play with regard to inspectors and those in-
volved in the export trade. Maintaining clear governance structures and trans-
parency, with direct oversight by concerned stakeholders, will be the only
way to ensure that such problems are minimized.
By the end of the World Bank project, EIPO had let a number of trademark
licenses lapse on the international market. Trademarks in the United States
require constant policing and research to enforce. Keeping licenses and trade-
marks current requires a level of internal organization, planning, and ﬁnancial
resources that fell outside the scope of this project. This leads to questions
regarding the overall viability and sustainability of IPR interventions such
as this.

A Possible Way Forward
Fair Trade and trademarking (through the enforcement of IPRs) can help pro-
mote development within countries that pursue export-led growth. Both Fair
Trade and IPRs have their strengths and their weaknesses. A combination of
the two may provide the best way to promote equitable development while
helping coﬀee farmers mitigate prevailing market risks.
World Bank research has shown that Fair Trade can deliver higher prices
to producers and access to high-value markets.52 The World Development Report
2008: Agriculture for Development recognized that by linking agribusiness and
smallholders, there could be reductions in rural poverty.53 As illustrated by
the Ethiopian case, Fair Trade certiﬁcation and IPRs can complement existing
trade regimes. There is evidence that Fair Trade creates real impacts at the lo-
cal level through the creation of a more level playing ﬁeld for coﬀee farmers.
There is also evidence of concrete improvements in Ethiopian Fair Trade pro-

51 See the table Life Improving, published by the Oromia Coﬀee Farmers Cooperative Union,
available at h p://www.oromiacoﬀeeunion.org/LifeImproving.php (accessed Apr. 4, 2013).
52 Ronchi, supra note 2, at 1.
53 World Development Report 2008, supra note 1, at 135.
Protecting Traditional Practices through Fair Trade and IPRs 59

ducer communities through the building of health posts, schools, and clean
drinking wells.
At the same time, the same research shows that Fair Trade does not sup-
plant international trade mechanisms. As a single cash crop, coﬀee faces a
number of externalities on the international market that are diﬃcult to over-
come. Regardless of special trademarks or brands, coﬀee prices remain vola-
tile on the international market. Like conventional coﬀee, Fair Trade coﬀee
exports can face market saturation. Ethiopian smallholders, cognizant of the
risk of solely producing coﬀee, often raise other crops as well as produce to
feed their own families.
Furthermore, Fair Trade mechanisms cannot wholly protect Fair Trade
products from market failures. This was certainly the case for Ethiopian cof-
fee in the fall of 2012, as local prices for coﬀee were higher than international
prices. Many coﬀee farmers turned to the production of local consumable
products to weather the drop in international prices. Without support to fur-
ther diversify exports—both on a general level and with respect to the protec-
tion of the country’s TK through IPRs—Ethiopia will lose market share and
development potential.
However noble Fair Trade’s objectives are, it can create unintended in-
congruences within markets. A community risks considerable harm by losing
Fair Trade certiﬁcation but may feel disempowered to apply the standard for
cultural or ﬁnancial reasons. Indeed, the decertiﬁcation process would inﬂict
considerable ﬁnancial harm on a community or producer organization, as the
fees paid to the Fair Trade certifying organization are substantial. These op-
portunity costs—and the level of risk involved to the producer itself—may
discourage current and new entrants into the Fair Trade market.
With respect to Fair Trade’s child labor standards, producers can quickly
fall into trouble and lose Fair Trade certiﬁcation if children perform tasks dur-
ing (re)certiﬁcation site visits. Some research has indicated that while labeling
(such as Fair Trade) may be a deterrent for using child labor in the production
of the Fair Trade goods, this labor pool may be shifted into domestic produc-
tion where child labor is not an issue.54 One study of organic and Fair Trade
producers in Kenya showed that they employed virtually the same (high) lev-
els of child labor as conventional means of production.55
Building greater outreach on this standard, in particular by international
Fair Trade groups to local producers, may go a long way toward changing at-
titudes regarding these practices. Furthermore, there may be real and pressing
economic needs for children to be involved in production. If Fair Trade orga-
nizations would adopt a more graded or phased application of this standard,

54 Jean-Marie Baland & Cédric Duprez, Are Fair Trade Labels Eﬀective against Child Labour?, 12
(Discussion Paper No. 6259, Ctr. Econ. Policy Research, 2007), available at h p://www.cepr
.org/pubs/dps/DP6259.asp.
55 Leonardo Becche i & Marco Constantino, The Eﬀects of Fair Trade on Aﬃliated Producers: An
Impact Analysis on Kenyan Farmers, 36(5) World Dev. 823–842 (2008).
60 The World Bank Legal Review

one where children would a end school but could also work for a prescriptive
amount or period of time, communities could reap the double beneﬁts of Fair
Trade and increased human capital.
In the case of the Fair Trade gender standard, its promotion of women’s
rights within the production of Fair Trade–labeled goods is commendable.
Yet, the standard is silent regarding the support of a woman’s right to hold
land. Women, particularly in Africa, can face tremendous obstacles to own-
ing and working their own farms. Although much has been wri en about
large-scale land grabs in Africa, smaller land grabs within communities over
inheritance tend to impact women the most.
Female land ownership in Ethiopia—for example, of land received by
women through post-Derg land distribution or through the death of their hus-
bands—does not automatically give the women a right to cultivate their own
ﬁelds. Labor restrictions do not allow women to use oxen to plow ﬁelds. Many
women keep their ﬁelds in coﬀee production because they are able to hire
migrants and temporary labor to work during the harvests more easily than
if they are growing other crops.56 Continued restrictions on women working
their own land, and dwindling pools of migrant workers, will have a negative,
long-term impact on women heads of household if the economy continues to
diversify and oﬀers more skilled, higher-paid jobs.
The IPR approach to trademarking of coﬀees, as noted above, has an ex-
ternal focus and therefore does not have the same level of impact on social
development within the coﬀee-producing communities. Unlike with Fair
Trade certiﬁcation, a farmer does not face (substantial) up-front costs to the
trademark or brand using IPRs, as the Ethiopian licensing agreements are roy-
alty free. The trademark approach is less interventionist for the individual
coﬀee farmers, although coﬀee farmers associations may pass some of their
overhead costs on to the producers through fees. The quality of the coﬀees is
ensured through the coﬀee farmers associations as well as the ECX.
Maintaining market share and quality have been constant problems for all
producers in Ethiopia. If the country continues to pursue export-led growth
through exports such as specialty coﬀees, the local coﬀee farmers coopera-
tive associations must continue their outreach and capacity-building activities
within communities around these issues. Additional policy supports from the
GoE or capacity-building activities from international Fair Trade associations
can be extremely beneﬁcial in creating a strong culture of quality and brand
adherence.
To date, few cases of World Bank–ﬁnanced projects have involved the en-
forcement of IPRs. One reason may be the reluctance to use such a legal-based
and (inherently) costly activity in pursuit of development. Unfortunately,
an impact evaluation of the World Bank project’s activities fell outside the
purview of the IDF grant. An evaluation of the cost-eﬀectiveness of the IPR

56 Gebreselassie & Ludi, supra note 12, at 14.
Protecting Traditional Practices through Fair Trade and IPRs 61

intervention would be useful, as the World Bank has provided a speciﬁc poli-
cy recommendation to undertake protection of traditional knowledge through
IPRs in its Indigenous Peoples’ Policy.
From the data gathered in the World Bank project, it is apparent that some
of the proﬁts made through decommoditization have been reinvested into
the community. It is diﬃcult to measure the quantitative impact of the Bank-
ﬁnanced IPR intervention, either on a cost basis (cost to farmer) or a beneﬁts
basis. Furthermore, it is diﬃcult to separate a purely Fair Trade coﬀee from
a trademarked coﬀee because production is so intertwined in Ethiopia. Some
anecdotal evidence points to certain economic and social gains made at the
cooperative level. In the future, impact evaluations would be useful to gauge
the overall eﬀectiveness of enforcing IPRs on the international market.
What is apparent from the World Bank–ﬁnanced project is that IPRs re-
quire specialized legal knowledge. This knowledge and capacity are often be-
yond the scope of a domestic IP agency such as EIPO. It is highly unlikely that
EIPO (or any national government) would be the main actor in drafting future
licensing agreements. A greater appreciation by local agencies of the content
of an agreement and the steps taken to ﬁle and fulﬁll such an agreement would
go a long way toward ensuring greater sustainability of IP assets over the long
term. Future twinning arrangements with (pro bono) law ﬁrms and local IP
agencies would ensure greater understanding and appreciation of how these
agreements and rights work on the international level. Building capacity with-
in local legal communities—through specialized training provided by local
bar associations, Fair Trade training and legal advisory services provided by
international Fair Trade organizations, and speciﬁc courses in law schools—
could help build the technical capacity to run domestic IP programs and re-
duce the involvement of other international actors. This approach will take
considerable time to consolidate. As noted above, some of the teaching will
remain theoretical in developing countries until there is a landmark IPR case.
The World Bank project brought an understanding to Ethiopian coﬀee
growers and exporters alike that trademarks could bring value above and be-
yond that of merely Fair Trade–certiﬁed coﬀee. As a single cash crop, coﬀee
exports face a number of market externalities that are diﬃcult to overcome.
Without greater diversiﬁcation of crops or products for export, Ethiopian cof-
fee farmers will continue to weather cycles of boom and bust. Further diversi-
ﬁcation of Ethiopia’s export base, including the pursuit of protecting other TK
assets on the international market through trademarks, and continued adher-
ence to Fair Trade standards by producer organizations in country, can bring
considerable equitable development to Ethiopia while growing the economy.
The gains made through Fair Trade certiﬁcation and the use of trademarks
positively aﬀected those involved in the Ethiopian coﬀee sector. The larger
question remains whether or not these gains can be sustained ﬁnancially and
institutionally.
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Tools for More Sustainable Trade
Treaties with Developing Countries
MARKUS W. GEHRING

The European Union has long struggled to ﬁnd the right tools to integrate
social, economic, and environmental priorities into its trade policies and trea-
ties and to foster opportunity, inclusion, and equity. This has become more
important since the Lisbon Treaty entered into force on December 1, 2009.
One element of the Lisbon Treaty, the Treaty on European Union, is to “foster
the sustainable economic, social and environmental development of develop-
ing countries with the primary aim of eradicating poverty” (Article 25). This
general objective is also binding for the EU’s international trade policy or, to
be more precise, for the EU’s “common commercial policy,” per Article 205 of
the Treaty on the Functioning of the European Union.
One of the most important tools that the EU has implemented to achieve
this objective is a detailed process of the assessment of the impact of trade
treaties.1 Impact assessments are an integral part of environmental policy
making and increasingly address social concerns such as health impacts.2 An
earlier generation of environmental impact assessment (EIA) methodologies
focused almost exclusively on the risks for the natural, biophysical environ-
ment that were engendered by speciﬁc development projects.3
The prototypical EIA procedure involves a preliminary scientiﬁc or
information-gathering phase and a report, which is then followed by a deci-
sion to proceed with the activity (a ﬁnding of “no signiﬁcant impact”) or to
undertake a more in-depth assessment. An initial screening is performed to
determine if a project triggers the EIA requirement.4 If an EIA is necessary,
a scoping phase follows, whereby the party in charge of the EIA determines
which impact should be considered as well as which alternatives should be
assessed.5 Following this phase, a full assessment may be required, which

1 G. Duran & M. E. Marin, Environmental Integration in the EU’s External Relations: Beyond Mul-
tilateral Dimensions 234 (Hart Publg. 2012).
2 For more information on the evolution from environmental to sustainable development as-
sessment, see M. C. Cordonier Segger & A. Khalfan, Sustainable Development Law 175 (Oxford
U. Press 2004).
3 See M. Gehring & M. C. Cordonier Segger, Sustainable Development through Process in World
Trade Law, in Sustainable Development in World Trade Law 191, 192 (M. Gehring & M. C. Cor-
donier Segger eds., Kluwer L. Intl. 2005).
4 United States National Environmental Policy Act (NEPA) and Agency Planning, 40 C.F.R. secs.
1501.3, 1501.4, 1507.3, 1508.9 (2002).
5 There are varying approaches to and varying emphases in the diﬀerent stages. For example,
the EIA process in the United States under NEPA is a detailed two-tier process in which

63
64 The World Bank Legal Review

includes more comprehensive investigations and studies, public meetings or
consultations, and the publication of more-in-depth studies supplemented
with recommended measures to mitigate risks and enhance beneﬁts (a man-
agement plan).6
At national levels, the United States National Environmental Policy Act
of 1969 (NEPA) is generally considered to have introduced the concept of the
EIA.7 NEPA requires a report that includes an “assessment of the likely or
potential environmental impacts of [a] proposed activity.”8 In the 1970s, many
nations adopted NEPA-style EIA processes, including Canada (1973), Aus-
tralia (1974), New Zealand (1974), Colombia (1974), Thailand (1975), France
(1976), and the Netherlands (1979).9 The 1987 publication of the Brundtland
Report, Our Common Future, which called for improved environmental impact
assessments, also contributed to the evolution of national laws on the issue.10
By 1999, half of the 48 Sub-Saharan African countries had adopted EIA legis-
lation.11 Even though political regimes, regional priorities, and cultural values
are diﬀerent in various countries, EIA processes tend to be consistent.12 As
with other emerging themes in contemporary international law, the contours
of national EIA policy and law have gained increasing normative resonance in
the international arena.13 As a consequence, EIAs have been included in both

an environmental assessment is conducted to determine the necessity of pursuing a full
environmental impact statement. An environmental impact statement is not required if there
is a ﬁnding of no signiﬁcant impact (FONSI) at the end of the environmental assessment. To
some extent, then, the environmental assessment combines the scoping phase and the base-
line study. See 40 C.F.R. secs. 1501.3, 1501.4, 1506.6. Other jurisdictions take a more stream-
lined (or less rigorous, depending on one’s perspective) approach to the scoping process that
may or may not involve public participation. See, for example, Dennis Te-Chung Tang, New
Developments in Environmental Law and Policy in Taiwan, 6 P. Rim L. & Policy J. 245, 257–263,
304 (1997); European Commission, Guidance on EIA Scoping pt. A (2001), available at h p://
ec.europa.eu/environment/eia/eia-guidelines/g-scoping-full-text.pdf.
6 European Commission, supra note 5, at 194.
7 NEPA, sec. 102, 42 U.S.C. sec. 4332 (2000). See Kevin R. Gray, International Environmental
Impact Assessment: Potential for a Multilateral Environmental Agreement, 11 Colo. J. Intl. Envtl.
L. & Policy 83, 89 (2000); Christopher Wood, Environmental Impact Assessment: A Comparative
Review 1 (2d ed., Prentice Hall 2002).
8 United Nations Environment Programme (UNEP), Governing Council Decision: Goals and
Principles of Environmental Impact Assessment, princ. 4, UNEP/GC.14/17 Annex III, UNEP/GC/
DEC/14/25 (June 17, 1987) (hereinafter, UNEP EIA Principles), reprinted in UNEP, Principles
of Environmental Impact Assessment, 17 Envtl. Policy & L. 36 (1987).
9 Wood, supra note 7.
10 World Commission on Environment and Development, Our Common Future: Brundtland Re-
port (Oxford U. Press 1987).
11 Mohammed Bekhechi & Jean-Roger Mercier, The Legal and Regulatory Framework for Environmental
Impact Assessments: A Study of Selected Countries in Sub-Saharan Africa 13 (World Bank 2002).
12 Erika L. Preiss, The International Obligation to Conduct an Environmental Impact Assessment:
The ICJ Case Concerning the Gabcikovo-Nagymaros Project, 7 N.Y.U. Envtl. L. J. 307, 310 (1999);
Alexandre S. Timoshenko, The Problem of Preventing Damage to the Environment in National
and International Law: Impact Assessment and International Consultations, 5 Pace Envtl. L. Rev.
475, 481–482 (1988).
13 After a certain amount of international consensus (see the growing literature on international
Tools for More Sustainable Trade 65
Treaties with Developing Countries

multilateral environmental agreements at the international level and in trade
agreements at the global and regional levels.
The requirement to conduct an impact assessment has become common
in international law. The Convention on Environmental Impact Assessment
in a Transboundary Context (Espoo Convention) speciﬁcally contains such
obligations for the parties to the treaty. The obligation to undertake EIAs has,
in international law, become applicable beyond the limits of national jurisdic-
tion, when activities are proposed to take place in areas of “common concern”
or “common heritage” of humanity. In this vein, duties to conduct a variety of
EIA procedures are found in the 1991 Protocol to the Antarctic Treaty on Envi-
ronmental Protection14 and under the 1982 UN Convention on the Law of the
Sea (UNCLOS).15 For example, the International Tribunal on the Law of the
Seas concluded in 2001 that the United Kingdom had breached its obligations
under UNCLOS in relation to the authorization of the MOX (mixed oxide fuel)
plant, inter alia, by refusing to carry out a proper environmental assessment
of the impacts on the marine environment of a MOX plant.16 In an ITLOS case
involving a proposed development in a disputed area between Singapore and
Malaysia, the judges imposed provisional measures that included an impact
assessment.
The International Court of Justice (ICJ) has found a duty to conduct EIAs
before proceeding with serious transboundary projects under customary in-
ternational law as well as treaty law, in the case concerning the Danube Dam17

environmental law, e.g. Philippe Sands, Principles of International Environmental Law, 3d ed.
(Cambridge U. Press 2012), on the necessities of EIAs, norms associated with the assessment
policy have “ﬁltered back” from international to national and regional laws in three man-
ners: through the inﬂuence of soft law; under state obligations to implement speciﬁc inter-
national obligations; and under obligations in customary international law. See M. Gehring
& M. C. Cordonier Segger eds., Sustainable Development in World Trade Law 194 (Kluwer L.
Intl. 2005).
14 See Antarctic Environmental Protocol, 30 I.L.M. 1461 (1991), art. 23(1). Nine parties have rat-
iﬁed the protocol to date, but all 26 Antarctic Treaty consultative parties are required to
bring it into force. See also Convention on the Conservation of Antarctic Marine Living Resources
(May 20, 1980), T.I.A.S. No. 10240, 1329 U.N.T.S. 48.
15 United Nations Convention on the Law of the Sea (UNCLOS), vol. 1833 U.N.T.S. 3; 21 I.L.M. 1261
(1982 preamble, arts. 192, 194). See also Agreement for the Implementation of the Provisions of the
UN Convention on the Law of the Sea (Dec. 10, 1982), relating to the conservation and manage-
ment of straddling ﬁsh stocks and highly migratory ﬁsh stocks, U.N. Doc. A/CONF.164/38
(1995), 34 I.L.M. 1542 (1995). Straddling Stocks Agreement, preamble and arts. 2, 5, address
issues such as the inadequate management of high-seas ﬁsheries, the overutilization of ﬁsh-
ing resources, and the inadequate regulation of ﬁshing vessels. UNCLOS states, at art. 206:
“When States have reasonable grounds for believing that planned activities under their ju-
risdiction or control may cause substantial pollution of or signiﬁcant and harmful changes to
the marine environment, they shall, as far as practicable, assess the potential eﬀects of such
activities on the marine environment and shall communicate reports of the results of such
assessments in the manner provided in article 205.”
16 ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, [2001] ITLOS 10
(Order of Dec. 3, 2001).
17 For an expression of the customary principle, see Preiss, supra note 12, at 206. Judge Schwebel,
speaking for the majority, took judicial notice of the vulnerability of the environment and the
66 The World Bank Legal Review

as well as more recently and more explicitly in the Pulp Mill and Costa Rica/
Nicaragua cases. One can now persuasively argue that there are customary
obligations to consult on and cooperate in the implementation of projects that
might aﬀect other states’ interests. The weight of evidence has led many legal
scholars and the ICJ to ﬁnd that there is a customary international law re-
quirement to do an EIA when transboundary impacts could result from a pro-
posed course of action.18 Transboundary EIA obligations are particularly well
established with regard to international waterways. Given that 261 major river
basins are shared by two or more sovereign nations, waterways constitute a
signiﬁcant class of transboundary environment requiring improved planning,
regulation, and management.19
Questions remain as to whether and how impact assessment might be
applied to broader development policies and plans, such as trade agreements,
rather than simply transboundary development projects, and how new forms
of impact assessments mandated by law or policy might be expanded to take
into account not just physical, environmental issues but also questions of eq-
uity, inclusion, and opportunity.
The application of impact review and assessment tools to trade agree-
ments has, from the start, been inextricably linked to questions of law, policy,
and development. One of the main reasons for engaging in impact assess-
ments is to increase the information base in order to avoid trade decisions
that might be harmful for the environment; however, impact assessments are
increasingly being performed in the context of broader development issues.
The explicit sustainable development objective of virtually all assessment

importance of having risks assessed on a continuous basis. These provisions were construed
by Judge Weeramantry in a minority opinion as “building in” the principle of EIA. He added
that a duty of EIA is to be read into treaties whose subject can reasonably be considered to
have a signiﬁcant impact on the environment. The Experts Group on Environmental Law
of the World Commission on Environment and Development in 1984 identiﬁed EIA as an
emerging principle of international law. For examples of treaty obligations in this respect, see
Convention on the Law of the Non-navigational Uses of International Watercourses (Watercourses
Convention) (36 I.L.M. 700 (1997), G.A. Res. 51/229, U.N. GAOR, 51st Sess., 99th mtg., U.N.
Doc. A/RES/51/229 (1997): ILC, 1997); Convention on the Protection and Use of Transboundary
Watercourses and International Lakes (Helsinki Water Convention) (1936 U.N.T.S.) 269; 31 I.L.M.
1312 (1992): United Nations Economic Commission for Europe (UNECE), 1992, at art.
3(1)(h), where states are required to develop, adopt, implement, and, as much as possible,
render compatible relevant measures to ensure that an EIA is applied. See also International
Law Commission (ILC), Draft Articles on the Non-navigational Uses of International Watercourses,
U.N. Doc. A/46/10 (1991), at 161, and U.N. Doc. A/CN.4/L492 & Add. 1 (1994).
18 In the 2010 Pulp Mill on the River Uruguay ICJ case between Argentina and Uruguay, the
court considered and stated that it is a requirement under “general international law” to
undertake an EIA when there is a risk that the proposed industrial activity may have a sig-
niﬁcant adverse impact in a transboundary context, in particular, on a shared resource. See
also Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of
13 July 2009, para. 64. In the literature, see Patricia Birnie, Alan Boyle, & Catherine Redgwell,
International Law and the Environment, 3d ed. (Oxford U. Press 2009); Sands, supra note 13;
Gehring & Cordonier Segger, supra note 13.
19 Aaron T. Wolf et al., International River Basins of the World, 15 Water Resources Dev. 387, 391
(1999).
Tools for More Sustainable Trade 67
Treaties with Developing Countries

tools applied to trade agreements underlines this trend. Trading partners
now view sustainable development as a global concept that applies to their
international relations. This impression is most pronounced in the European
Union, where the foreign policy objective that applies to trading relations also
concerns sustainable development at home and abroad. One of the ﬁrst in-
ternational organizations to consider such assessments was the Organisation
for Economic Co-operation and Development (OECD), through its 1993 Pro-
cedural Guidelines on Trade and Environment, which pinpointed “reviews” as a
tool for legal and policy coherence.20 In 1994, the OECD proposed a complete
methodology,21 which has had a substantive inﬂuence on the development of
impact assessment tools in many countries.22 Since these early a empts, the
scope and procedures of these instruments have evolved considerably.23
Several impact assessment instruments are now being applied to evaluate
proposals for trade liberalization and new trade law. Trade impact assess-
ments have distinct scope, requirements, a ributes, and legal foundations
in diﬀerent national, regional, and international contexts. The earliest types
of impact assessment, typically found at the national level, were concerned
with reviewing the environmental eﬀects of trade. As a result, assessments
often considered only environmental issues, making li le reference to social
issues (i.e., indigenous peoples, gender, health, poverty, social development).
Examples of such tools include Canadian environmental assessments and U.S.
environmental reviews of new trade agreements.
More recent impact assessment instruments for sustainable development
seek to integrate elements of economic, environmental, and social concerns.
The sustainability impact assessment methodology that is employed by the
EU is one example of this approach. These distinctions are important—certain
states, regions, and international organizations are simply evaluating the na-
tional or international environmental eﬀects of their potential trade policies
without focusing on social equity and inclusion elements, while others are
undertaking broader sustainability assessments of trade policies. These diﬀer-
ences are, at least in part, a reﬂection of the diversity of contexts and origins of
existing assessment methods and mandates. In this chapter, when distinctions
between the environmental and sustainable types of impact assessment are
not relevant, the generic term “impact assessment” is used.
This chapter considers current practices in impact assessments related
to trade treaties, especially how these instruments place greater emphasis on

20 OECD, Procedural Guidelines on Trade and Environment (1994) (hereinafter, OECD, Procedural
Guidelines).
21 OECD, Methodologies for Environmental and Trade Reviews, OCDE/GD(94)103 (hereinafter,
OECD, Methodologies).
22 C. Tebar Less, The OECD Methodology for the Environmental Assessment of Trade Policies and
Agreements: Types of Eﬀects to Evaluate, in The International Experts’ Meeting on Sustainability
Assessments of Trade Liberalisation—Quito, Ecuador, 6–8 March 2000, Full Meeting Report 82
(WWF 2000).
23 Gehring & Cordonier Segger, supra note 13.
68 The World Bank Legal Review

opportunity, inclusion, and equity, and how, through this reﬁnement, impact
assessments can assist trade agreements be er reﬂect law, justice, and devel-
opment concerns. The ﬁrst section elaborates the rules concerning the basic
structure and methodologies of impact assessments as they are being used
across jurisdictions. The second section considers existing impact assessment
mechanisms with relevance to trade in speciﬁc jurisdictions, such as the NAFTA
environmental reviews, the U.S. and Canadian processes, the EU’s instru-
ments, and those used by certain international organizations, discussing the
opportunities presented by these processes. The third section analyzes the ex-
isting mechanisms and their rules, considering how they might be er reﬂect
the sustainable development principle of equity through measures to ensure
greater a ention to inclusion and oﬀering recommendations.

Rules Governing Impact Assessments of Trade Agreements
across Jurisdictions
All impact assessment mechanisms for trade treaties share certain elements.
However, diﬀering time frames and degrees of integration between environ-
mental, economic, and social considerations exist. This section explains the
general analytical framework and methodology of environmental assess-
ments of trade negotiations and treaty texts.
Impact assessment normally follows four main steps: conduct a scop-
ing exercise; perform an initial review; publish the preliminary assessment
(which informs negotiators of the party that uses an impact assessment); and
prepare a ﬁnal assessment. Ongoing reviews may be mandated as follow-up.
Most impact assessments are structured to examine the economic eﬀects
of trade liberalization scenarios that are likely to result from a new treaty, to
ascertain the potential environmental eﬀects of this liberalization, and to ana-
lyze the potential signiﬁcance of projected environmental impacts to provide
a basis from which to identify options to enhance positive beneﬁts while miti-
gating negative eﬀects. Impact assessments that are oriented toward sustain-
able development objectives, such as those undertaken by the EU, investigate
economic and environmental as well as social development implications of
trade negotiations. Each trading relationship is distinct, and trade agreements
have the potential to aﬀect few or many sectors of the parties’ economies. A
trade agreement may be as simple as a single tariﬀ reduction or business nego-
tiation with few environmental consequences, or it may provide the legal un-
derpinnings of a full-blown economic partnership and cooperation process in
which goods, services, public procurement, intellectual property, investment,
competition, and other provisions are expected to be agreed to and where sev-
eral potentially serious environmental and social impacts may be identiﬁed.
In the case of the U.S. environmental reviews, only negotiations that reach a
certain magnitude of economic relevance are subject to the next phase of the
assessment, which involves increased consultation and analysis of the poten-
tial environmental impact in the United States. In most other countries, as-
Tools for More Sustainable Trade 69
Treaties with Developing Countries

sessment might end at the initial review phase if no signiﬁcant environmental
impacts are foreseen, a ﬁnding of no signiﬁcant impact (FONSI).
The deﬁnition of “signiﬁcant’’ is by no means se led. As noted by legal
scholars,
Agreements such as the Espoo Convention, the North American
draft TEIAA264, the East African MOU, and others speciﬁcally re-
quire a transboundary environmental impact assessment (TEIA)
to be conducted for activities that are likely to have a “signiﬁcant”
impact on the environment. The deﬁnition of “signiﬁcant” in these
instruments varies, or is frequently vague or as-yet undetermined.24
To minimize uncertainty, international instruments or national laws often
prescribe a nonexhaustive list of speciﬁc activities that require a transbound-
ary or other environmental impact assessment.25
The objective of an initial review is to identify the potential impacts of the
trade negotiations on the environment. The level of analysis is variegated and
depends on the mandate of the impact assessment. Some environmental as-
sessments merely examine the eﬀects wrought on a domestic level (Canada),
whereas others investigate transboundary impacts once a certain threshold is
crossed (United States). Still other processes, such as sustainability impact as-
sessments, take a global perspective in analyzing the impacts (EU). Deﬁnition
of the key issues that are relevant and identiﬁcation of areas in which further
investigation is necessary are achieved through a broad consultation process
that engages authorities from various interested government departments, as
well as expert groups and academics; public stakeholders and civil society
organizations, including representatives of vulnerable groups; and the private
sector. In the scoping or initial review phases, experts and consultants assess
the range of potential issues. Information-gathering and scientiﬁc studies typ-
ify the process at this point.26 In some countries, including the United States,
the public is invited to participate in the scoping stage to help identify im-
pacts, alternatives, and data sources.27 The environmental impact assessment
can provide an important mechanism for advancing the transparency, partici-
pation, and accountability advocated by Principle 10 of the Rio Declaration,28
and may provide an opportunity for vulnerable citizens to advocate for greater
inclusion of their interests and needs at the initial stages of trade negotiations.
Due to this participatory element, impact assessment processes could be a

24 Angela Z. Cassar & Carl E. Bruch, Transboundary Environmental Impact Assessment in Interna-
tional Watercourse Management, 12 N.Y.U. Envtl. L. J. 222 (2004).
25 Id. This article gives many examples, including appendix I of the Espoo Convention and the
bilateral agreement between Estonia and Latvia.
26 See Gehring & Cordonier Segger, supra note 13, at 194.
27 Julie Teel, International Environmental Impact Assessment: A Case Study in Implementation, 31
Envtl. L. Rep. (Envtl. L. Inst.) 10,291, 10,294–10,306 (2001).
28 United Nations Conference on Environment and Development: Rio Declaration on Environment and
Development (adopted June 14, 1992), U.N. Doc. A/CONF.151/5/Rev.1, 31 I.L.M. 874, 878.
70 The World Bank Legal Review

tool for diverse sectors of societies to use as they seek greater economic and
social inclusion. When taken seriously and eﬀectively implemented, public
participation measures can provide local and underrepresented interests an
opportunity to be heard and to participate in decision making that aﬀects their
environment and livelihoods.29
In terms of further steps, in most cases, the preliminary assessment docu-
ment is discussed formally, informing the negotiators as to projected economic
and environmental impacts of trade liberalization in certain areas and in cer-
tain processes, and in some cases requiring a formal internal or externally
released reply from the responsible authority. For some countries, the report,
even at this initial phase, may contain mention of mitigation proposals, par-
ticularly if potential impacts are familiar from previous trade agreements. For
example, if the preliminary scoping or review identiﬁes that an importing
party might be vulnerable to pressure to lower its environmental standards
in order to a ract investment, the preliminary report might note that this im-
pact could be addressed by the inclusion of provisions commi ing all parties
not to lower standards to a ract investment. Some instruments also consider
a “zero-line approach” when appropriate––the preliminary assessment may
suggest ceasing negotiations on trade liberalization in a speciﬁc product area.
For example, if a preliminary scoping exercise notes that the liberalization
of wood and wood products holds the potential to increase rates of illegal
extraction of timber from protected areas, the preliminary report might rec-
ommend that the parties not increase market access by liberalizing trade in
this sector without ﬁrst assuring themselves that forest governance has been
strengthened.
To give a more speciﬁc example, the preliminary appraisal of measures
for inclusion in the proposed WTO Millennium Round Agenda30 led to the
initial EU sustainability impact assessment ﬁndings presented in table 1.
After publication of a preliminary assessment that informs negotia-
tors, a ﬁnal and more detailed assessment report is prepared that addresses
the issues raised in the scoping and initial review. Often, the responsible
authority will need to commission in-depth studies that will result in reports
on key projected impacts (positive or negative) that might be important for the
negotiations and encompass the consultation of relevant authorities in other
departments, including scientiﬁc and economic commissions. To continue
with the earlier example, following the initial ﬁndings of the EU sustainabil-
ity impact assessment of the World Trade Organization (WTO) Millennium
round of trade negotiations, the most important measures that were found
to hold potential for adverse or other impacts were subjected to a review and

29 Nicholas A. Robinson, International Trends in Environmental Impact Assessment, 19 B.C. Envtl.
Aﬀ. L. Rev. 591, 594 (1992).
30 Colin Kirkpatrick, Norman Lee, & O. Morrissey, WTO New Round: Sustainability Impact As-
sessment Study (Phase Two Report) S.14 (Mar. 2004).
Tools for More Sustainable Trade 71
Treaties with Developing Countries

Table 1. Signiﬁcant Sustainability Impacts of the WTO New Round According to
Colin Kirkpatrick et al.

Signiﬁcant impacts

Scenario 1 Scenario 2 Scenario 3
Impact on (business as usual) (liberalization) (moderate liberalization)

A B C A B C A B C

EU countries 0(-1) 0 0(-1) ±1 ±1 ±1 -1/+1 -1/+1 -1

Developing 0 0 0 ±1 ±1 ±1 -1/+1 -2/+1 -1
countries

Least-developed 0 0 0 ±1 ±1 ±1 -1/+1 -2/+1 -1
countries

Global 0 0 0 ±1 ±1 ±1 -1/+1 -1/+1 -1

Note: This table summarizes the outcomes of a scoping exercise. In the column headings, “A”
represents economic impacts (changes in the level of average real income; net ﬁxed capital
formation; and employment); “B” represents projected social impacts (changes in level of equity
and poverty, health, and education; and gender inequality); and “C” represents environmental
impacts (changes in air, water, and land quality; biological diversity; and air resource stocks).
In the table, “0” is a nonsigniﬁcant impact compared with the base condition; “1” denotes areas
where a lesser signiﬁcant impact is projected, and “2” is where a greater signiﬁcant impact
can be projected. The symbol “+” is used to represent a potential positive impact, whereas “-”
is used to represent a negative impact, and “±” raises the potential for positive and negative
impacts, meaning that the net eﬀect is uncertain and/or varies according to context. Parentheses
indicate situations in which the impact in the base situation can be compared with the existing
situation. The use of -/+ notes a range indicating variation over time.

presented in a general summarized report with proposed measures to enhance
positive outcomes and to reduce or mitigate potential negative outcomes for
the societies, environments, and economies aﬀected. These later phases of
the sustainability impact assessment took into account the outcomes of pub-
lic participation processes, including consultations with nongovernmental
organizations (NGOs). Numerous workshops were held both in Europe and
in the developing country trading partner in every phase of the assessment,
with a dedicated and accessible website used to publish reports and other
documents.31 The site was promoted on social media to allow for exchanges
of opinions in less formal se ings. Although, due to other factors, the WTO

31 Id.
72 The World Bank Legal Review

Ministerial Conference in Sea le was ultimately unsuccessful,32 the sustain-
ability impact assessment process provided opportunities for the inclusion of
otherwise unheard voices, defusing certain elements of public concern and
reducing the potential for conﬂict, as well as inﬂuencing the European Com-
munity negotiation position.
Most impact assessments also contain an ex post ﬁnal assessment, pre-
pared after the negotiations have been concluded and the ﬁnal text has been
approved. The closing report illustrates how some negotiation positions may
have changed due to the contents of the preliminary assessment. The ﬁnal re-
port might illuminate the trade-oﬀs and balance between economic liberaliza-
tion and environmental protection,33 thereby explaining motives behind deci-
sions that potentially have adverse environmental eﬀects but were accepted
in order to secure other beneﬁts deemed important by the mandated decision
makers.

Rules Governing Impact Assessments of Trade Agreements
by Jurisdiction
The section above presents the main components shared by most trade agree-
ment impact assessments, drawing on examples of actual environmental as-
sessments and sustainability impact assessments. This section provides an il-
lustrative overview of the methodologies and practical applications of impact
assessments for trade agreements at national and regional levels and discusses
several examples of practical applications that highlight the opportunities for
law and sustainable development provided by these instruments.34
The OECD was the ﬁrst international organization to address the ﬁeld
of environmental assessments, following studies undertaken in some of its
member states.35 As early as 1994, a methodology for such assessments was
proposed,36 and OECD Methodologies for Environmental and Trade Reviews was

32 See Gary Sampson, Trade, Environment and the WTO: The Post-Sea le Agenda (Overseas Dev.
Council 2000). See also, P. Grady & K. Macmillan, Sea le and Beyond: The WTO Millennium
Round (Global Economics Ltd 1999); Edith Brown Weiss, The Rise or the Fall of International
Law, 69 Fordham L. Rev. S.345 ﬀ. (2000).
33 Bernard Hoekman, Aaditya Ma oo, & André Sapir, The Political Economy of Services Trade
Liberalization: A Case for International Regulatory Cooperation?, 23(3) Oxford Rev. Eco. Policy
367–391 (2007).
34 The ﬁelds and areas of applications are many. See Katarina Granah, Study to Inform a Subse-
quent Impact Assessment on the Commission Proposal on Jurisdiction and Applicable Law in Divorce
Ma ers (European Policy Evaluation Consortium 2006), or Siripen Supakankunti & Wa ana
S. Janjaroen, Impact of the World Trade Organization TRIPS Agreement on the Pharmaceutical
Industry in Thailand, 79(5) Bull. of the World Health Org. (2001).
35 Cristina Tebar Less, The OECD Methodology for the Environmental Assessment of Trade Policies
and Agreements: Types of Eﬀects to Evaluate, in The International Experts’ Meeting on Sustainabil-
ity Assessments of Trade Liberalisation (Mar. 6–8, 2000, full meeting report, Gland 2000), S.82ﬀ.
36 OECD, Methodologies, supra note 21.
Tools for More Sustainable Trade 73
Treaties with Developing Countries

adopted at a joint session of trade and environment experts.37 Before this, in
1993, the OECD ministers had adopted procedural guidelines on trade and
the environment suggesting the examination and review of economic and en-
vironmental policies.38 The guidelines endorse the use of reviews as a tool for
legal and policy coherence:
Governments should examine or review trade and environmental
policies and agreements with potentially signiﬁcant eﬀects on the
other policy area and identify alternative policy options for ad-
dressing concerns. Governments may co-operate in undertaking
such examinations and reviews. Governments should follow-up as
appropriate: to implement policy options to re-examine the policy
agreements and any measure in place, and to address any concerns
identiﬁed in the conclusion of such re-examinations.39
Since these guidelines were drafted, there have been signiﬁcant advances
in thinking regarding environmental assessments that show that the OECD
guidelines are ﬂawed. The OECD’s recommendations were founded on an
alternative-based approach, favoring cooperation between states on a bilateral
or even multilateral level. This was not adopted in subsequent state initiatives
but remains a valid suggestion. The OECD also recommended retrospective
assessments following the main assessment but, again, none of the OECD
member states adopted this approach. All discussed impact assessment in-
struments fall short of these OECD recommendations. From another perspec-
tive, the guidelines did not recommend public participation in the assessment
process, which has proven to be an essential part of these assessments. Dur-
ing early discussions, reviews and assessments were conceptualized as pure
expert exercises rather than as opportunities for public participation and the
inclusion of diﬀerent sectors. The methodology adopted by the OECD builds
on this approach. Without reference to public participation, these approaches
constitute a violation of the principle of precaution through process.
It took years to develop methodologies for environmental assessments of
trade measures. Although no formal conclusions were adopted at a workshop
on assessing the environmental eﬀects of trade liberalization held in 1999, the
record of discussions reveals that the 1994 OECD Methodologies for Environ-
mental and Trade Reviews were still seen as a valid approach, in particular with
regard to the diﬀerent types of impacts that an assessment of a trade measure
should address.40 The methodology has not been signiﬁcantly amended since.
There have been discussions in the WTO to develop a common approach, but
these were overshadowed by the Doha Round discussions. So when assess-
ments at the national level were ﬁrst recommended in the Doha Declaration,

37 Originally founded as the OECD Joint Session of Trade and Environment Experts, now
meeting as the Joint Working Party on Trade and Environment.
38 OECD, Procedural Guidelines, supra note 20.
39 Id.
40 OECD, Assessing the Environmental Eﬀects of Trade Liberalisation Agreements: Methodologies—
Proceedings of the Paris Workshop 11 (OECD 2000).
74 The World Bank Legal Review

there was li le to suggest further eﬀorts at the multilateral level.41 Gaps in
methodologies were revealed in the WTO Commi ee on Trade and Environ-
ment discussions. The absence of a speciﬁc methodology for assessing impacts
in trade, services, and investment was subject to criticism by WTO member
states. Furthermore, the need for intensiﬁed research concerning the integra-
tion of social aspects into environmental assessments was identiﬁed.42
In current practice, several methodologies are being tested in parallel.
This section introduces the principal instruments, providing analysis of the
legal foundations of each trade impact assessment (IA) tool, including its po-
litical context; the evolution of the IA tool’s scope and methodological content;
a brief step-by-step outline of how the IA tool functions in practice; an expla-
nation of the IA tool’s modes of public participation and consultation; and a
concrete example in which the IA tool was applied to assess the impacts of a
particular trade negotiation.

The European Union’s Sustainability Impact Assessments on Trade
The European Union, in accordance with Agenda 21 and the 1992 Rio Decla-
ration, established the sustainability impact assessment, a mechanism crafted
to include environmental and social concerns in economic policies to pro-
mote sustainable development.43 Since the 1990s, the commission has devel-
oped processes implementing the “precautionary principle” with the goal of
“be er understand[ing] the beneﬁts and costs of its policies and to manage
risk, including ex-ante assessment of policies (i.e. assessment in advance of
implementation).”44 Sustainability impact assessments seek to identify po-
tential social, economic, and environmental impacts using indicators from all
three pillars of sustainable development. In the quest for a fully developed
and rigorously deﬁned methodology, indicators and measurements have both
quantitative and qualitative a ributes.45 Today, the sustainability impact as-
sessment is at the vanguard of holistic impact assessment tools, showing evi-

41 Doha WTO Ministerial Declaration (4th Ministerial Conference, Doha, Qatar: WT/MIN(01)/
DEC/1; 41 I.L.M. 746 (2002), 2001), para. 6.
42 See Richard Tarasofsky, Report on the Workshop “Methodologies for Environmental Assessment of
Trade Liberalisation Agreements” (WTO-Document WT/CTE/W/133, Feb. 18, 2000).
43 European Commission, Directorate-General of Trade, Draft Handbook for Sustainability Im-
pact Assessment 1 (European Commn. 2005) (hereinafter, SIA Handbook), available at h p://
trade-info.cec.eu.int/doclib/docs/2005/april/tradoc_122363.doc.,
44 The precautionary principle is at the intersection of three areas of law (economic, social, and
environmental) within the broad rubric of international sustainable development law. The
precautionary approach to risk management commits states, international organizations,
and civil society, particularly the scientiﬁc and business communities, to avoid activity that
may cause signiﬁcant harm to human health, natural resources, or ecosystems, including in
the face of scientiﬁc uncertainty. See Cordonier Segger & Khalfan, supra note 2, at 100.
45 Although the commission currently proposes to determine the methodology for each sus-
tainability impact assessment, it considers the incorporation of a mix of qualitative and
quantitative methods, such as case studies, modeling, statistical estimations, and expert
opinion, to be beneﬁcial.
Tools for More Sustainable Trade 75
Treaties with Developing Countries

dence of being a fully integrated instrument and including recommendations
for enhancement and mitigation.
Member-state and NGO demands leading up to the WTO Ministerial
Conference in Sea le prompted the Directorate General for Trade of the EC
(the DG Trade) to commission a study conducted by a research team aﬃli-
ated with the University of Manchester. This team was tasked with develop-
ing a methodology for an ex ante sustainability impact assessment. After the
methodology was formalized (with degrees of context-speciﬁc ﬂexibility), the
DG Trade inaugurated several studies using the framework for assessing the
impact of trade policy on sustainable development. After reﬁning, the sustain-
ability impact assessment consisted of four main phases:
• Screening: to determine which measures require SIA because they are likely
to have signiﬁcant impacts
• Scoping: to establish the appropriate coverage of each SIA
• Preliminary sustainability assessment: to identify potentially signiﬁcant ef-
fects, positive and negative, on sustainable development
• Mitigation and enhancement analysis: to suggest types of improvements that
may enhance the overall impact on sustainable development of new trade
agreements/measures46
These phases are infused with avenues of public participation and consulta-
tion with civil society organizations. Numerous workshops and consultations,
both formal and informal, are held at each phase of the process. A website
provides public access to reports and timely publications.
One of the more unconventional and controversial features of the sustain-
ability impact assessment methodology is the investigation of the impacts on
the (often developing country) trading partner(s) in trade negotiations, rather
than simply the impacts on the commissioning EU state. Unfortunately, re-
search collaboration with trading partners is not always reciprocal. For in-
stance, although strong collaborative links between researchers were possible
for the sustainability impact assessment of EU-Mercosur trade negotiations
and the SIA of the EU-Mediterranean trade negotiations,47 the sustainability
impact assessment of the EC–Cooperation Council for the Arab States of the
Gulf trade negotiations did not unfold as smoothly.48 The means of mobilizing
public participation in the studies varied, from extensive debates and consulta-
tions to merely an administered website. As the private consultancy noted, “The
NGO world did not show a big interest in the topic, nevertheless engagement

46 See Gehring & Cordonier Segger, supra note 13, at 211.
47 See Final Report EU-Mercosur SIA (Mar. 2009), available at h p://trade.ec.europa.eu/doclib
/docs/2009/april/tradoc_142921.pdf.
48 See PriceWaterhouseCoopers, Sustainability Impact Assessment (SIA) of the Negotiations of the
Trade Agreement between the European Community and the Countries of the Cooperation Coun-
cil for the Arab States of the Gulf (GCC) (PWC 2004), available at h p://trade-info.cec.eu.int
/doclib/docs/2005/january/tradoc_121208.pdf.
76 The World Bank Legal Review

was done at several moments. NGO from the Gulf Cooperation Council (GCC)
have not even replied to our requests to get their view, input (sic).”49 In a recent
sustainability impact assessment of the EU-Canada Comprehensive Economic
and Trade Agreement (CETA), consultants obtained positive responses from
the public in the EU, but comparatively li le input from Canadians. As noted
in the study, possible reasons included “that domestic issues, including cli-
mate and transportation policies take most importance; that CETA represents
a small portion of Canada’s trade; and that Europe is generally perceived as
an environmental leader. For these reasons, CETA appears to generate li le
interest or worries in the environmental community.”50 If similar reasoning
were transposed to a developing country context, where the possibility for
consultation might be much more limited than in Canada, this would raise
serious concerns as to participation and the potential value for inclusion of
diverse groups and especially the most vulnerable elements of society that
could be aﬀected by the degradation of resources or other impacts of trade
liberalization.
The EU-Andean trade sustainability impact assessment provides a use-
ful example of the methodology and its outcomes.51 In 2006, the EU and An-
dean countries began negotiations for a regional trade agreement; and in
2008, pursuant to the Draft Handbook for Sustainability Impact Assessment (SIA
Handbook),52 the EC commissioned a sustainability impact assessment of these
negotiations. The sustainability impact assessment investigators, during the
initial assessment, focused on increasing outreach, including by establishing
a dedicated website that a racted more than 3,000 unique visitors. One-day
consultations were conducted in Lima and other cities, and inputs were ac-
tively solicited from a variety of stakeholders, ranging from local grassroots
NGOs to government departments.53
The study concluded that the impact on trade for the EU was predicted to
be insigniﬁcant; as for the Andean countries, an increase in trade and invest-
ment ﬂows between 3 to 10 percent was predicted. Although the methodology
takes a broad-brush approach, this report nevertheless provides an example of
how a sustainability impact assessment can highlight both potential impacts
and opportunities for development. The analysis started with a modeling of
the expected economic impact. It used two scenarios, a modest scenario of
50 percent liberalization of services and an ambitious scenario with 75 percent
liberalization of services. As concluded in the sustainability impact assess-
ment, the economic impact of the trade accord was positive:

49 Id., at 36.
50 Final Report for the EU-Canada Sustainability Impact Assessment (SIA) on the EU-Canada Com-
prehensive Economic and Trade Agreement, footnote 11, available at h p://trade.ec.europa.eu
/doclib/docs/2011/september/tradoc_148201.pdf.
51 EU-Andean Trade Sustainability Impact Assessment (hereinafter, EU-Andean Trade SIA), avail-
able at h p://trade.ec.europa.eu/doclib/docs/2010/april/tradoc_146014.pdf.
52 SIA Handbook, supra note 43.
53 EU-Andean Trade SIA, supra note 51, at 136.
Tools for More Sustainable Trade 77
Treaties with Developing Countries

The modeling analysis shows modest income gains for all econo-
mies in all se ings and scenarios, with the biggest absolute gains
occurring in the EU and Colombia, where real incomes are projected
to increase by up to €4 billion and €2.8 billion respectively. In rela-
tive terms, the expected income gains are estimated to be highest
for Bolivia and Ecuador, where real income is expected to increase
by between 0.5 and 2 percent of GDP. The impact in the EU is only
marginal, at less than 0.1 percent of GDP. On an aggregate level, real
income across all Andean countries will increase by €5 billion under
the ambitious scenario.54
In other words, economic modeling predicted large overall gains for the
developed country partner and signiﬁcant relative gains for the developing
country partners. As the report noted, however, the trade agreement could
also generate important social and environmental impacts. These might in-
clude unmanaged expansion of the agricultural frontier, with the potential to
exacerbate biodiversity loss and exponentially increase illegal logging, and
expansion of mining and petroleum extraction, with related environmental
impacts and social conﬂict in rural areas. The assessment identiﬁed several
sustainable development opportunities, including increased monitoring and
reporting on EU companies and their compliance with corporate social re-
sponsibility (CSR) standards in mining, oil, and gas, as well as cooperation
to strengthen education, to make forestry activity more sustainable, and to
improve ﬁnancial, public utilities, and environmental service sectors, among
others. The assessment identiﬁed important development opportunities if
the liberalization is accompanied by careful services regulation. The report
stressed that, “with eﬀective domestic regulatory control, market opening in
the basic utilities sector improves access for the poor to aﬀordable and reliable
services in water, energy, communications and transportation. Liberalization
of distribution may result in some reduction in prices for consumers.”55 Un-
fortunately, the response by the commission after the negotiations were con-
cluded was somewhat lackluster with regard to regulatory assistance:
In this respect, the Commission services recall that the ﬁndings of
this SIA are available to the governments of Andean countries which
have the prime responsibility for the strengthening of their national
and regional legislations in this area. In addition, the Commission
services point out that the Commission has already been playing a
substantial role in promoting this regulatory capacity building via
its actions in the region.56
It is unclear if the simple fact that the sustainability impact assessment itself
is available to government regulators will open new sustainable development

54 Id., at 9.
55 Id., at 108.
56 Commission Services Position Paper on the Trade Sustainability Impact Assessment (SIA) of the
Multiparty Trade Agreement with Andean Countries (Nov. 2010), available at h p://trade
.ec.europa.eu/doclib/docs/2010/november/tradoc_146987.pdf.
78 The World Bank Legal Review

opportunities for the developing country trading partners or support partici-
patory processes for inclusion of vulnerable or excluded groups.
The recommendations of the EU-Andean sustainability impact assess-
ment report do highlight speciﬁc development opportunities in the area of
biofuels, noting the expected expansion of biofuel production in the region
due to the economic treaty with the EU.57 Development opportunities such as
increased market access for the export of biodiesel and bioethanol along with
measures to address challenges such as the pressure to increase landholding
to the detriment of social cohesion, are discussed. Environmental impacts are
not neglected, and the sustainability impact assessment signals potential chal-
lenges generated by conversion of tropical forest to farmlands for biofuels.
The sustainability impact assessment reported that biofuels produced with
tailored and appropriate technologies, sourced from existing agricultural
lands without replacing food crops, could beneﬁt the Andean countries and
highlighted speciﬁc regions where this might occur. This balanced assessment
seems to have beneﬁted from signiﬁcant background research and stakeholder
input. Careful analysis can maximize trade and economic opportunities for
the developing country partner, if accompanied by appropriate policy mea-
sures, regulations, and enforcement capacity.
The sustainability impact assessment gives special a ention to the needs
of vulnerable groups. In the Andean countries, the focus is on the needs of
indigenous populations. The sustainability impact assessment highlights
the vulnerability of indigenous groups as one of the main social concerns in
the region, alongside rural poverty. It establishes clear linkages between in-
creased deforestation and conglomeration in the agricultural sector and the
vulnerability of indigenous populations. Thus, the sustainability impact as-
sessment highlights that
in so far as poverty is deeper in rural areas, particularly in more re-
mote areas, indigenous peoples are adversely aﬀected by insuﬃcient
access to basic goods and services. Although li le information exists
about non-contacted indigenous peoples, there is evidence that the
way of life of those who inhabit the Peruvian Amazon and the tropi-
cal forest of Bolivia are under constant threat, as modernization and
commercial economic activity continues to penetrate these areas.58
The European Commission, in its response, took this concern into consid-
eration, highlighting further cooperation initiatives and enhanced support to
Andean governments to address poverty, education, and health concerns.59
This focus, coupled with new cooperation measures to promote opportunities,
inclusion, and equity, is one of the most important beneﬁts of the sustainabil-
ity impact assessment process for these countries. The European Commission
white paper demonstrates that despite the lack of explicit legal frameworks,

57 Id., at 74–81.
58 Id., at 32.
59 Id., at 8.
Tools for More Sustainable Trade 79
Treaties with Developing Countries

the de facto requirement that the commission take sustainability impact as-
sessment outcomes into account can help this tool serve the interests of inclu-
sion and equity. For several sustainability impact assessments, as is clear from
the responses of the commission to the studies, the inputs were carefully con-
sidered and inﬂuenced the negotiating position of the EU, particularly with
regard to mitigation or ﬂanking measures.

The U.S. and Canadian Environmental Assessments/Reviews
In 1991, the United States conducted pilot assessments on certain aspects of
negotiations for the North American Free Trade Agreement (NAFTA).60 At
ﬁrst, U.S. NGOs litigated to apply general EIA laws to trade negotiations, ar-
guing that the oﬃce of the United States Trade Representative (USTR) should
conduct an environmental impact statement of its negotiation positions for
NAFTA under the U.S. National Environmental Policy Act (NEPA).61 How-
ever, because the ﬁnal decision as to whether or not to sign a trade agreement
rests with the U.S. president, the U.S. Court of Appeals found that a trade
agreement could not be considered an “action of an agency” and dismissed the
request.62 Several years later, on November 16, 1999,63 President Bill Clinton
signed Executive Order (EO) 13.141, which codiﬁes environmental reviews
as an internally binding assessment obligation for trade negotiations, using
terminology to avoid confusion with an environmental impact statement and
to prevent litigants from using environmental review results in future litiga-
tion.64 The political context was signiﬁcant in this instance. In preparation for
the Sea le WTO Ministerial Conference, the U.S. sought to strengthen inclu-
sion of civil society into trade negotiations. EO 13.141 contained essentially
the same phases as required under the NEPA, belonging to the same family of
legal instruments as the environmental impact statement. The environmental
review—an ex ante procedure laden with public participation requirements—
is tripartite in character and avoids imposing any conditions on the trade ne-
gotiation process. The ﬁrst phase is initiated by a notice in the Federal Register
describing the proposed trade agreement and soliciting public comments and
statements about the scope of the environmental review. In the second phase,
the environmental review is to be published where practicable and further
comments are encouraged. The ﬁnal phase constitutes the ﬁnal environmental
review, the content of which contains a compendium of public concerns that
were considered by the drafting body.

60 U.S. Trade Representative (USTR), Draft Review of U.S.-Mexico Environmental Issues (USTR
1991). For a full account of the history, see J. Salzmann, Executive Order 13.141 and the Envi-
ronmental Review of Trade Agreements, 95 Am. J. Intl. L. 368 (2001).
61 Public Citizen v. Oﬃce U.S. Trade Representative, 822 F. Supp. 21 (D.D.C. 1993).
62 Public Citizen v. Oﬃce U.S. Trade Representative, 5 F.3d 549 (D.C. Cir. 1993).
63 U.S. Federal Registry 64(.222) of 18.11.1999, 63.169.
64 Executive Order 13.141, sec. 7, contains the usual disclaimer for executive orders: “This order
is intended only to improve the internal management of the executive branch and does not
create any right, beneﬁt, trust, or responsibility, substantive or procedural, enforceable at
law or equity by a party against the United States, its agencies, its oﬃcers, or any person.”
80 The World Bank Legal Review

Several features of the instrument are noteworthy for the purposes of this
chapter. First, environmental reviews are primarily an instrument used to as-
sess environmental, rather than social or other, impacts:
The United States is commi ed to a policy of careful assessment and
consideration of the environmental impacts of trade agreements.
The United States will factor environmental considerations into the
development of its trade negotiating objectives. Responsible agen-
cies will accomplish these goals through a process of ongoing as-
sessment and evaluation, and, in certain instances, wri en environ-
mental reviews.65
If the environmental eﬀects (positive and negative) are determined to be
transboundary in nature and have ramiﬁcations for the United States, the as-
sessment may take on a more global character.66 Edicts within the environmen-
tal review procedures provide for cooperation to build the capacity of trading
partners for environmental protection in order to ensure “the promotion of
sustainable development.”67 Governmental actions that may impede sustain-
able development are prohibited. Coordination between the administration
and Congress, as well as encouragement toward participating in international
environmental agreements, is included in the Trade Act of 2002.
By 2013, six U.S. environmental reviews had taken place. The environ-
mental review for the Central American Free Trade Agreement (CAFTA),
which considered the impact of including the Dominican Republic in the
trade agreement, was published in February 2005.68 The disclosure reiterated
an interim review in 200369 and pronounced that the modiﬁed membership
may have relatively greater eﬀects on the economies of Central
America and the Dominican Republic. In the near term, however,
net changes in production and trade are expected to be relatively
small because exports to the United States from these countries al-
ready face low or zero tariﬀs. Longer term eﬀects, through invest-

65 Executive Order 13.141, sec. 1.
66 USTR, Guidelines for Implementation of EO 13.141 (USTR 2001), app. C.G: “Transboundary and
global impacts may include those on: Places not subject to national jurisdiction or subject to
shared jurisdiction, such as Antarctica, the atmosphere (including ozone and climate change
features), outer space, and the high seas; Migratory species, including straddling and highly
migratory ﬁsh stocks and migratory mammals; Impacts relating to environmental issues
identiﬁed by the international community as having a global dimension and warranting
a global response; Transboundary impacts involving the boundaries of the United States;
Environmental resources and issues otherwise of concern to the United States.” Available at
h p://www.ustr.gov/sites/default/ﬁles/guidelines%20for%2013141.pdf.
67 Trade Act of 2002, sec. 2102(b)(11)(d).
68 USTR, Final Environmental Review of the Dominican Republic–Central America–United States Free
Trade Agreement (USTR 2005), available at h p://www.ustr.gov/assets/Trade_Agreements
/Bilateral/CAFTA/asset_upload_ﬁle953_7901.pdf.
69 USTR, Interim Environmental Review of the U.S.–Central America Free Trade Agreement (CAFTA)
(Aug. 22, 2003), available at h p://www.ustr.gov/assets/Trade_Agreements/Bilateral/CAFTA
/asset_upload_ﬁle946_3356.pdf.
Tools for More Sustainable Trade 81
Treaties with Developing Countries

ment and economic development, are expected to be greater but
cannot currently be predicted in terms of timing, type and environ-
mental implications.70
Canadian environmental assessments of trade agreements are also founded
on phased analytical reviews, intergovernmental discussion procedures, and
public comment periods, although the Canadian environmental assessments
appear to have less scope regarding international issues than the U.S. envi-
ronmental reviews do. Canada’s environmental assessments of trade agree-
ments were also adopted in a particular political and historical context. In
1994, Canada carried out a brief ex post environmental review of the Uruguay
Round WTO Agreements, perhaps in part to reassure the Canadian public and
stakeholders as to what had been agreed on.71 In 1999, the newly consolidated
Department of Foreign Aﬀairs and International Trade (DFAIT) undertook to
assess the outcomes of the Uruguay Round agreements anew, after their ﬁrst
four years of operation, to prepare for the expected WTO Millennium Round
negotiations (later postponed by the WTO Ministerial Conference in Sea le
in 2000). The Retrospective Analysis of the 1994 Canadian Environmental Review
of the Uruguay Round of Multilateral Trade Negotiations was published in
November 1999.72
Increasing domestic pressure from agencies, civil society groups, and oth-
ers led the Canadian government to introduce the internally binding Cabi-
net Directive on Strategic Environmental Assessment of Plans and Policies in
1999.73 After the positive experience of introducing an informal environmental
impact statement framework in the 1980s prior to formally adopting the Ca-
nadian Environmental Assessment Act (CEAA) in 1992 and its entry into force
in 1995, the Canadian government may have anticipated a similar approach
for environmental assessments of trade agreements.74 The 1999 cabinet direc-
tive mandates that every governmental policy be assessed as to its environ-
mental impact.75 Trade policy was included in Annex 1 of the cabinet direc-
tive, because the CEAA is not applicable to trade policy.76 Binding guidelines
were also adopted, detailing all necessary assessments and regulated public

70 Id., at para. 4.
71 Department of Foreign Aﬀairs and International Trade (DFAIT), 1994 Canadian Environmen-
tal Review of the Uruguay Round of Multilateral Trade Negotiations, available at h p://www
.dfait-maeci.gc.ca/sustain/EnvironA/strategic/urugay-en.asp.
72 See DFAIT, h p://www.dfait-maeci.gc.ca/tna-nac/documents/retrospective-e.pdf.
73 See Gehring & Cordonier Segger, supra note 13, at 206.
74 Id.
75 Canadian Environmental Assessment Agency (CEAA), Strategic Environmental Assessment:
The 1999 Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Propos-
als; Guidelines for Implementing the Cabinet Directive (CEAA 1999) (hereinafter, Guidelines for
Implementing the Cabinet Directive).
76 For its history, see Canadian Environmental Assessment Agency, The Canadian Environmen-
tal Assessment Act: Introduction 2d ed. (2011), available at h p://www.ceaa-acee.gc.ca/default
.asp?lang=En&n=0DF82AA5-1; the complete text is available at h p://laws-lois.justice.gc.ca
/eng/acts/C-15.21/page-1.html.
82 The World Bank Legal Review

participation.77 Later, in addition to consultations with provinces and territo-
ries, representatives from the ﬁrst nations (i.e., indigenous nations), and other
civil society representatives, this framework was expanded to bilateral, re-
gional, and multilateral trade negotiations. The Framework for Conducting En-
vironmental Assessment of Trade Negotiations was adopted through a decision
of the cabinet in February 2001.78 Implementation of the cabinet directive on
strategic environmental assessments in the area of trade policy was allocated
to DFAIT.
The Canadian environmental assessment of trade agreements consists of
three primary phases. In the initial environmental assessment, a DFAIT-led
interagency commi ee analyzes the scope of the negotiations and the range
of potential negative or positive environmental impacts within Canada from
the economic eﬀects of the potential treaty. If these are found to be minimal,
the formal assessment halts at this stage.79 If a second phase is mandated, it
involves the elaboration of a draft study, with a third phase resulting in a ﬁ-
nal report. The draft environmental assessment is intended to assist Canadian
trade negotiators. The ﬁnal report describes the result of the trade negotia-
tions and speculates on the role the assessment played in reaching the conclu-
sion. All stages are guided by public participation requirements, including
the publication of drafts; a website designed for interested stakeholders to
comment on the assessment; interdepartmental and multilevel government
consultation; and an explicit feedback loop in which concerns that have arisen
are factored into the investigation. Ex post monitoring and ex post assessment
might be recommended but are not mandatory.80
Several features are noteworthy. First, the Canadian environmental as-
sessments focus almost exclusively on environmental issues, rather than social
and development issues. Despite this narrow scope, the Canadian government
refers to the assessment instrument as an indispensable decision-making tool
for promoting sustainable development. Environmental assessments contrib-
ute to the enhanced transparency and good governance principles of sustain-
able development by encouraging “more open decision making within the
federal government by engaging representatives from other levels of govern-
ment, the public, the private sector and non-governmental organizations in
this process.”81 The environmental assessment guidelines succinctly summa-
rize these objectives: “to assist Canadian negotiators integrate environmental
considerations into the negotiating process by providing information on the
environmental impacts of the proposed trade agreement; and to address pub-

77 CEAA, Guidelines for Implementing the Cabinet Directive on the Environmental Assessment of
Policy, Plan and Program Proposals (Privy Council Oﬀ. & CEAA 2010).
78 DFAIT, Framework for Conducting Environmental Assessments of Trade Negotiations (DFAIT Feb.
2001), available at h p://www.international.gc.ca/trade-agreements-accords-commerciaux
/env/framework-cadre.aspx.
79 See Gehring & Cordonier Segger, supra note 13, at 208.
80 Id.
81 DFAIT, supra note 78.
Tools for More Sustainable Trade 83
Treaties with Developing Countries

lic concerns by documenting how environmental factors are being considered
in the course of trade negotiations.”82
The Canadian assessment process seeks a balance between public partici-
pation and new ideas and direct impact on the negotiation, that is, the ques-
tion as to how the assessment results inﬂuence the negotiations. It does not
assess social and developmental concerns explicitly and is restricted to envi-
ronmental impacts within Canada (even though certain health issues are con-
sidered). The procedure eschews any investigation of environmental impacts
on the trading partner or potential implications on a global level.
The environmental impact assessments of the United States and Canada
are similar in their outcomes. For instance, the 2003 Initial Strategic Environ-
mental Assessment Report of the Canada–Central America Four Free Trade Nego-
tiations (El Salvador, Guatemala, Honduras, and Nicaragua) concluded that
the small quantity of trade ﬂows overall would have negligible economic ef-
fects, and therefore, the environmental consequences were insigniﬁcant for
Canada.83 Even in areas where increased exports such as high-value paper and
plastics were likely, the Central America negotiations were deemed to pre-
clude adverse environmental eﬀects. The assessment did not consider eﬀects
of the negotiations on the C4 countries (El Salvador, Guatemala, Honduras,
and Nicaragua), nor was a more regional approach to an environmental as-
sessment considered. Given the limited scope of Canada’s environmental as-
sessment process, this missed opportunity is regre able but understandable.
Basic support for further studies in the C4, coupled with international coordi-
nation of assessment eﬀorts, might have enabled Canada to address impacts
with regard to the trading partners.
As another example, Canada’s initial environmental assessment of the
proposed free trade agreement (FTA) with Andean countries concluded:
While FTAs with the Andean Community are expected to provide
increased market access into Canada, it is unlikely that there will be
a substantial increase in trade in services as a result of these negotia-
tions. Canada is already quite open in most services sectors and no
domestic regulatory changes are expected as a result of FTAs with
the Andean Community. There may be some increased services ex-
ports to Andean countries, but it is diﬃcult to segregate the eﬀects
of the Canada-Andean Community trade negotiations from those
resulting from Canada’s other trade negotiations or implementation
of existing regional or bilateral trade agreements or from unilateral
liberalization. Generally speaking, while the environmental impacts
are not expected to be signiﬁcant, we will need to consider indirect

82 Id., at 4.
83 DFAIT, Initial Strategic Environmental Assessment Report of the Canada–Central America Four
Free Trade Negotiations (El Salvador, Guatemala, Honduras and Nicaragua) (DFAIT 2003),
available at h p://www.international.gc.ca/trade-agreements-accords-commerciaux/env
/EAlist-listeEE.aspx.
84 The World Bank Legal Review

or cumulative impacts and the synergies between environmental
goods and services which may increase the impact.84
In other words, these types of assessment are less helpful to developing
country partners and have less potential to identify development opportuni-
ties than they are to Canada. In spite of vigorous public participation provi-
sions, the restricted scope of the assessments, together with their focus on en-
vironmental impacts of economic changes alone, appears to limit their ability
to signal opportunities for sustainable development cooperation, inclusion, or
equity in developing countries.

Securing Greater Equity through Trade Impact Assessments
Some observations can be made about the role that impact assessments might
play in securing more equitable trade agreements.

Economic Considerations Continue to Dominate Trade-Related
Impact Assessment Instruments
Impact assessments require economic analysis to assess the likely impact of
proposed economic development in the parties to a trade negotiation or ﬁ-
nancial arrangement. An impact assessment is based on relative consensus on
simple cases (for example, tariﬀs) that use commonly acknowledged econo-
metric calculations. The inﬂuence of impact assessments extends beyond ini-
tial ﬂows of trade in goods to shape infrastructure projects (harbors, roads,
airports) and facilities for trade in services such as transport, health, educa-
tion, and other vulnerable social sectors. Therefore, careful consideration of
equity issues, including the potential for a trade agreement to widen or nar-
row existing income and other disparities, is important.

The European Union: Sui Generis in Its Application of
Developmental and Social Concerns in Trade-Related
Environmental Impact Assessments
The United Nations Environment Programme (UNEP) gave special recog-
nition to the EU for its fully integrated impact assessment instrument.85 Al-
though most environmental impact assessment tools fail to explicitly consider
social and developmental issues, the EU’s sustainability impact assessments
model amalgamates economic, social, and environmental issues using a mix of
measures and indicators constantly undergoing reﬁnement. The SIA Handbook
enunciates the virtues of a ﬂexible, context-speciﬁc methodological approach
to sustainability impact assessment. In keeping with its cu ing-edge status
in impact assessment innovation, the EU is considering proposals to extend

84 Canada–Andean Community Free Trade Negotiations—Initial Environmental Assessment Report
(Jan. 2008), available at http://www.international.gc.ca/trade-agreements-accords
-commerciaux/agr-acc/andean-andin/ea-andean-andine.aspx?lang=en.
85 UNEP, Reference Manual for the Integrated Assessment of Trade-Related Policies (UNEP 2001).
Tools for More Sustainable Trade 85
Treaties with Developing Countries

sustainability impact assessments to human rights. This development, from
the perspective of securing increased law, justice, and development through
opportunity, inclusion, and equity, is a step in the right direction.

Public Participation Has Become Central, Although Successful
Engagement Is Inconsistent at Best
Most impact assessment mechanisms and practices rely on domestic public
inputs to direct the extensiveness of the study and to identify potential envi-
ronmental or social impacts of trade liberalization. Expert groups work with
the public and with civil society organizations but are expected to investigate
the validity of concerns raised through consultation feedback cycles. At a min-
imum, initial impact assessment reports are published or available on govern-
ment websites, and solicitation of comments occurs. Final drafts of impact
assessments seek to incorporate issues deemed material, often addressing con-
cerns that have arisen through public participation. Impact assessment proce-
dures such as the EU’s sustainability impact assessment procedure integrate
sustainable development concerns, taking potential social impacts into con-
sideration. These impact assessments depend on strong public participation
and often have a broad range of participation mechanisms instilled in their
methodologies. Numerous workshops and consultations, at both formal and
informal levels, are held at each phase of the assessment. Sustainability im-
pact assessments hold the potential to facilitate cross-boundary consultations
through a coordinated structure of transfrontier public discussions.86 As an
essential tool for signaling concerns related to equity and potential disparities
in the eﬀects of a potential trade negotiation, public participation and engage-
ment procedures oﬀer an excellent starting point. However, inconsistencies
remain, in part due to lack of support, in terms of capacity and resources. The
DG Trade is considering the formalization of such processes, as discussed in
the Draft Handbook for Sustainability Impact Assessment (SIA Handbook), and this
is one area in which further development of impact assessment instruments
holds the potential for equity and inclusion.87

Regulatory Reviews, a Fundamental Aspect of
Environmental Impact Assessments, Seem Less
Applicable in Sustainability Impact Assessments
Chieﬂy in the case of the Canadian environmental assessments and the U.S. en-
vironmental reviews of trade negotiations, regulatory reviews are an integral
part of the assessment process. In contrast, the SIA Handbook has no provi-
sions mandating the analysis of regulations. Indeed, EU consultants rarely
give regulatory analysis a central role in the studies undertaken. Assessing the

86 Transboundary consultations, however, are not easy to organize. For example, the allocation
of responsibilities for facilitating these international discussions raises important questions
that could require clariﬁcation. In addition, discrepancies related to substantive and tempo-
ral issues that may exist in the scoping process need to be assuaged.
87 SIA Handbook, supra note 43.
86 The World Bank Legal Review

regulatory impact of trade liberalization is interesting to lawyers speciﬁcally
because of the need to harmonize international commitments with the na-
tional legal framework. Not surprisingly, the majority of studies undertaken
merely reiterate that trade positions requiring negative modiﬁcations to na-
tional environmental regulatory conﬁgurations are untenable. However, this
trend may be diminishing; due to increased public awareness concerning in-
vestment arbitration, recent U.S. environmental reviews have a empted to
rebuﬀ the argument that investor-state arbitration processes could be used to
negatively inﬂuence U.S. environmental laws.88

Conclusions
Diﬀering methodologies and applications of impact assessment tools and sev-
eral deﬁciencies inhibit the evolution of impact assessments of trade agree-
ments into a universally utilized instrument that integrates principles of sus-
tainable development, serving as a tool for opportunity, equity, and inclusion.
The focus of the current instruments—principally national—has a limit-
ing eﬀect on their applicability.89 This defect is clearest in the case of Canada,
where global environmental impacts of trade negotiations enter analysis only
if they aﬀect Canada. The national nature, even though endorsed by the WTO
Doha Ministerial Declaration, could lead to imbalances in scenarios in which
bilateral trade negotiations take place among trading partners with disparate
resources and stringency of regulation. This situation may be exacerbated if
parties to an existing regional trade agreement enter into a trade agreement
with a third country, which then assesses the impact in a necessarily narrow
way (for example, the case of the U.S.-Andean trade agreement).
One potential solution to the paucity of impact assessments with a global
perspective is embodied in the framework of the EU sustainability impact as-
sessment, which mandates a reciprocal impact assessment on trading part-
ners. Although some critics have argued that the overall eﬀect of the sustain-
ability impact assessment is limited, there is growing evidence that the EU
Commission’s reports have legal value and can be referred to as administra-
tive practice. On several occasions, negotiation teams amended their positions
based on a sustainability impact assessment ﬁnding. Employing regional

88 The case in question was the environmental review assessing the Australia-U.S. Free Trade
Agreement. The USTR took the position that regulatory alterations were not intrinsically
detrimental to U.S. interests in the case of an “open economic environment and the shared
legal traditions and the conﬁdence of investors in the fairness and integrity of their respective
legal systems.” For further discussion, see M. Kerr, Sustainable Development in the Australia-
US Free Trade Agreement, in Gehring & Cordonier Segger, supra note 13, at 499, 510.
See lengthy discussion in USTR, Final Environmental Review of the Dominican Republic–Central
America–United States Free Trade Agreement (USTR 2005); USTR, Final Environmental Review of
the United States–Morocco Free Trade Agreement (July 2004), available at h p://www.ustr.gov
/assets/Trade_Agreements/Bilateral/Morocco_FTA/asset_upload_ﬁle569_5831.pdf.
89 Nicholas Low, Global Ethics and Environment (Routledge 1999).
Tools for More Sustainable Trade 87
Treaties with Developing Countries

impact assessments to overcome a lack of parity among trading partners in-
volves methodological and structural innovation as well as increased informa-
tion exchange. However, a empts by NAFTA trading partners to initiate an
integrated assessment process at the regional level have not progressed be-
yond discussions about abstract methodology issues. In fact, the EU is the sole
region to produce a self-reﬂective environmental assessment. The multilateral
forum of the WTO provides another potential solution to the inadequacies of
national and bilateral impact assessments.
Moving beyond the narrow focus of common impact assessments of trade,
there is greater potential for applying strategic environmental assessments to
negotiations. When environmental impact assessments are applied to projects,
target-related indicators (performance based, speciﬁc timeline) limit the reach
of enhancement and mitigation recommendations. Conversely, strategic-level
assessments incorporate process-related indicators such as the soundness of
institutional planning, management processes, and mechanisms. Indeed, stra-
tegic environmental assessments have already been formulated and imple-
mented in most states for the analysis of land use plans or policies. Broadly
deﬁned in Article 2.6 of the 2003 Protocol on Strategic Environmental Assess-
ment (the Kiev Protocol), strategic environmental assessments are
the evaluation of the likely environmental, including health, eﬀects,
which comprises the determination of the scope of an environmental
report and its preparation, the carrying out of public participation
and consultations, and the taking into account of the environmental
report and the results of the public participation and consultations
in a plan or programme.90
Thus, the Kiev Protocol explicitly regulates the impact assessment of
plans and programs but is not binding at the policy level. This protocol is
an international treaty designed to mitigate the tension between internation-
ally delimited impact assessment procedures and state freedom to govern
the exploitation of the environment. Trade policy and negotiations are not
covered under the protocol, which mentions the importance of assessing the
environmental and developmental (particularly health) impact of plans and
programs. The Kiev Protocol limits the assessment of plans and programs to
the following areas: agriculture; forestry; ﬁsheries; energy;91 industry, includ-
ing mining; transport; regional development; waste management; water man-
agement; telecommunications; tourism; and town and country planning or
land use.
Other international cooperation has been based on the foundations laid
out in the Kiev Protocol. UNEP adopted a more inclusive approach to impact

90 The Kiev Protocol was entered into force on July 11, 2010. By June 2013, 25 countries had
ratiﬁed the protocol. It was negotiated in the context of the 1991 Espoo Convention (30 I.L.M.
800). For more information, see UNECE Components of Strategic Assessment, available at
h p://www.unece.org/env/eia/sea_protocol.html.
91 Jochen Lamp, The Baltic Sea Gas Pipeline: A Transnational Infrastructure Project as Touchstone for
International Environmental Standards, 58(4–5) Osteuropa 383–391 (2008).
88 The World Bank Legal Review

assessments, fabricating an expanded deﬁnition that considers “the economic,
environmental and social eﬀects of trade measures, the linkages between these
eﬀects, and aims to build upon this analysis by identifying ways in which the
negative consequences can be avoided or mitigated, and ways in which posi-
tive eﬀects can be enhanced.”92
UNEP avoided proposing a single methodology, suggesting instead that
countries carefully tailor their assessments to the speciﬁc sector of trade and
potential impacts at hand. After testing and reﬁning integrated assessment
methods through various country studies,93 UNEP developed a considerable
amount of analytical data that can be used by developing countries and others
seeking to undertake speciﬁc studies, but it has not developed any rules.94 The
scope of these studies has been national in character.
As this chapter has indicated, the inconsistencies and patchiness of the
current international impact assessment regime leave plenty of room for im-
provement to galvanize environmental protection and to graft sustainable de-
velopment issues ﬁrmly onto trade negotiation proceedings. In this sense, the
evolution of the sustainability impact assessment in the European Union can
serve as an example. Given that the current scale and scope of the described
assessments are restricted, a genuinely collective review mechanism is ad-
visable. Broader participation is possible and necessary. Multilateral—or at
least multilaterally coordinated—assessment could provide superior results
because the impact on all participating members would be explored simulta-
neously. Akin to the case of transnational projects, broader information and
participation can drive legal innovations as ameliorative results feed more
easily into the negotiation process.
An expanded commitment to equity, informed by the precautionary
principle, might be met procedurally by some form of impact assessment
adopted at the institutional level of the WTO.95 The obligation to perform an
impact assessment can be called “precaution through process.”96 Conducting
simultaneous assessments at the WTO level can help overcome resource and
regulatory imbalances. Perhaps the most egalitarian of the international ﬁ-
nancial institutions, the WTO operates on a do ut des basis, precluding any

92 UNEP, Reference Manual for the Integrated Assessment of Trade-Related Policies (UNEP 2001),
available at h p://www.unep.ch/etb/publications/intAssessment/refmaniaFinal.pdf.
93 UNEP Economics and Trade Programme, Country Projects on Trade Liberalisation and the En-
vironment and on the Design and Implementation of Economic Instruments, available at h p://
www.unep.ch/etu/etp/acts/capbld/cp.htm.
94 See UNEP, Annual Report 68 (UNEP 2006).
95 See Gehring & Cordonier Segger, supra note 13, at 191, 192.
96 See M. Gehring, Nachhaltigkeit durch Verfahren im Welthandel (diss., U. Hamburg 2005). See
also C. Weeramantry’s separate opinion in New Zealand v. France; he saw the obligation to
perform an environmental impact assessment as ancillary to the precautionary principle, ICJ
Decision (Sep. 22, 1995), ICJ Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court’s Judgment of Dec. 20, 1974 in the Nuclear Tests (New Zealand v.
France) Case, ICJ Reports (1995), 344.
Tools for More Sustainable Trade 89
Treaties with Developing Countries

single country from swaying the outcome of negotiations. Even though a full
WTO review, comprising all the negotiations and impact assessments on the
148 member states, would probably be untenable, subsets of the membership
might be able to undertake such a task. However, the dearth of commitment
on devising a coherent methodological framework has obstructed fruitful
progress on this front. Arguably, the best place for coordinating assessment
eﬀorts within the WTO is the Trade Policy Review Mechanism (TPRM). The
rationale for embedding multilateral impact assessments in the TPRM is tri-
partite: congruencies in the objectives and outcomes of the tools,97 adherence
to comparable principles, and feasibility within the established institutional
arrangement.98 Furthermore, discussion on such an innovation may not be
politically charged; information provided in a trade policy review is barred
from applicability in dispute se lements. An incipient WTO strategic impact
assessment body would be more likely to receive acclaim if it were molded
from existing institutional structures.99
There are myriad parallels between impact assessments and current trade
policy review mechanisms. Both instruments are designed to exchange and
obtain information but are not teleological toward results rendered.100 More-
over, both trade policy reviews and impact assessments adhere to analogous
principles: trade policy reviews scrutinize the degree to which WTO mem-
bers fulﬁll their WTO commitments; impact assessments analyze the extent to
which states ponder the multifarious implications of new areas of trade. Thus,
impact assessments could be considered part of the WTO pledge to support
sustainable development initiatives and policies of its members. Furthermore,
the transparency a ribute of trade policy reviews is shared by impact assess-
ments, making impact assessments relevant in diﬀerent stages of the trade
policy review process. One oﬀshoot of such coherence would be to enable
members to include their latest national trade impact assessments in their
mandatory country reports. As the trade policy reviews are currently con-
ﬁgured, national impact assessments are considered extraneous: Swi erland
included sections on trade and the environment in its 2000 trade policy review
country report, but the WTO secretariat was unable to review those aspects.101
Another point of connection resulting in improved complementarity be-
tween nationally derived impact assessments and trade policy reviews could

97 Bernard M. Hoekman & Will Martin, Developing Countries and the WTO: A Pro-active Agenda
(Blackwell 2001).
98 Kym Anderson & Bernard M. Hoekman, The WTO’s Core Rules and Disciplines 2 (Edward
Elgar, 2006).
99 Tilman Santarius et al., Balancing Trade and Environment—An Ecological Reform of the WTO as
a Challenge in Sustainable Global Governance 46 (Wuppertal Paper No. 133, Wuppertal Inst. for
Climate, Env., Energy, Feb. 2004).
100 Id., at 45.
101 See Trade Policy Review Body, Joint Trade Policy Review Swi erland and Liechtenstein,
(Minutes of Meeting, Dec. 4 & 6, 2000, WTO-Dokument WT/TPR/M/77/Add.1 vol. 24,
Jan. 2001).
90 The World Bank Legal Review

be the augmented range of information gathering executed by the WTO sec-
retariat. The secretariat could extend its focus on other international ﬁnancial
institutions to embrace environmental or developmental (including human
rights—an integral aspect of sustainable development) organizations. Finally,
the publication requirements of the TPRM are in line with common impact
assessment tools. Concerns arising from the impact assessment consultation
process could be brought to the table at the multilateral level to abet coordina-
tion. Participation in these debates should be extended to NGOs, similar to the
multifaceted consultation requirements of extant impact assessments.102
At a fundamental level, a truly multilateral impact assessment regime
would have to ensure broad developing country participation to countervail
perceptions that the innovation is yet another way to move forward with dis-
guised protectionism. Some observers fear that impact assessments could be-
come a precondition for trade agreements103 or could consume the diminutive
resources of strained environmental ministries. Substantive inclusion of other
international stakeholders and transferring elements of the process to com-
petent international organizations such as UNEP and UNDP are alternatives
worthy of examination.104
There are many lessons to be learned from national and regional assess-
ment measures in order to facilitate greater equity and inclusion within the
WTO. The framework encompassing current national impact assessments is
conducive to public participation, although useful enhancement and mitiga-
tion recommendations are limited by the national scope of the mechanism.
Moreover, integrated impact assessments are indicative of substantive ad-
vances but have uneven sway on the outcomes of national negotiation posi-
tions. This chapter has highlighted the need for participation and coordina-
tion eﬀorts at the regional level for regional trade agreements, as well as the
potential for progress at the multilateral level for the WTO. Inherent diﬃcul-
ties exist in eﬀorts to innovate existing multilateral organizations and to open
up proceedings and decision making to heretofore excluded participants. At-
tempts by the WTO to replicate impact assessment strategies tested by other
international organizations (such as the World Bank) have led to critiques
from developing countries. Any innovation in institutional mandate and av-
enues of participation within the ﬂedgling impact assessment regime need to
be broad based and conducted in a manner that facilitates ownership of the
process for developing countries. The long-term premises of sustainable de-
velopment, founded on both intragenerational and intergenerational equity,
necessitate a high threshold of consensus and proactive commitment.

102 OECD, Trading Up: Economic Perspectives on Development Issues in the Multilateral Trading Sys-
tem (OECD 2006).
103 USAID provided funding for the Jordanian side of the impact assessment process for the
U.S.-Jordan Free Trade Agreement.
104 Frank Biermann, A World Environment Organization: Solution or Threat for Eﬀective Interna-
tional Environmental Governance? (Ashgate 2005).
The Treatment of Insolvency of Natural
Persons in South African Law
An Appeal for a Balanced
and Integrated Approach

ANDRÉ BORAINE AND MELANIE ROESTOFF

The increased availability of credit around the world and the recent global
ﬁnancial crisis have emphasized the need for modern and eﬀective regimes
for the insolvency of natural persons.1 An eﬀective and eﬃcient personal in-
solvency regime, and hence its ability to assist in counteracting poverty, eco-
nomic exclusion, and inequality, can play an important role in the economic
development of a country, especially in South Africa.2
To be er understand the availability and operation of personal insolvency
and debt relief measures in South Africa, one must have an understanding of
the socioeconomic conditions in South Africa and the levels of overindebted-
ness of natural person debtors in that society.3
South Africa can largely be classiﬁed as a developing economy, although
it contains elements of a highly developed economy and elements of an ex-
tremely underdeveloped economy. The diﬀerences between these two ex-
tremes are stark, and there are few bridges between these two landscapes.4
As of the latest national census, South Africa had 50 million inhabitants, of
whom around 25 percent were formally classiﬁed as unemployed and around

1 See Working Group on the Treatment of the Insolvency of Natural Persons, Report on the
Treatment of the Insolvency of Natural Persons 2 (Insolvency and Creditor/Debtor Regimes
Task Force, World Bank 2012), available at h p://www-wds.worldbank.org/external/default
/WDSContentServer/WDSP/IB/2013/05/02/000333037_20130502131241/Rendered/PDF/771
700WP0WB0In00Box377289B00PUBLIC0.pdf.
2 See Michael R. Rochelle, Lowering the Penalties for Failure: Using the Insolvency Law as a Tool
for Spurring Economic Growth; The American Experience, and Possible Uses for South Africa, 2 J.
South African L. 315 (1996). With regard to ﬁnancial inclusion in South Africa, see World
Bank, South Africa Economic Update: Focus on Financial Inclusion (May 2013). As indicated in
this report (at v), this topic is especially important for South Africa because it could help
reduce poverty and inequality and stimulate job creation.
3 See Hermie Coe ee & Melanie Roestoﬀ, Consumer Debt Relief in South Africa: Should the Insol-
vency System Provide for NINA Debtors? Lessons from New Zealand (forthcoming).
4 For a general discussion of the socioeconomic context and social policy needs in South Af-
rica, see Marius P. Olivier, Nicola Smit, & Evance R. Kalula, Social Security: A Legal Analysis
(LexisNexis Bu erworths 2003).

91
92 The World Bank Legal Review

23 percent lived below the national poverty line.5 Although white South Afri-
cans are generally perceived to be rich and black South Africans are generally
perceived to be poor, the “new” society that has taken shape since the advent
of the current democratic order in 1994 is not so clear-cut. To be sure, the
former apartheid laws did exclude the majority of South Africans from many
opportunities in the economy, including the credit markets. Despite this—
and despite the fact that great inequalities still exist—the ﬁnancial position of
many black South Africans has improved over the past 20 years.6 Although the
average white-headed household still earns more than 5.5 times the income of
the average black-headed household, there has been a signiﬁcant rise in the
number of black-headed households that can be described as middle-class.7
Overindebtedness can aﬀect—and is aﬀecting—all communities.
Of the estimated 50 million South Africans, nearly 16 million (almost a
third) receive government social grants, such as children’s grants, disability
grants, or old-age grants.8 However, the number of South Africans liable for
personal income tax is signiﬁcantly less than this ﬁgure.9
When it comes to granting credit, there was a major increase in the mi-
croloan market during the 1990s, when South Africa embraced a democratic
constitution. This also gave rise to a signiﬁcant problem of overindebtedness,
especially among black South Africans.10 Since June 2007, there has been an
ongoing deterioration in the number of consumers in “good standing.” At the
end of December 2012, credit bureaus had recorded 19.97 million active credit
consumers, of whom 9.34 million had impaired credit records. Thus, only

5 World Bank, Poverty Headcount Ratio at National Poverty Line (% of Population), available at
http://search.worldbank.org/data?qterm=national+poverty+rate&language=EN&format
(accessed Apr. 10, 2013); See Quarterly Labour Force Survey (Statistical Release P0211, Statis-
tics South Africa, July 31, 2012), available at h p://www.statssa.gov.za/publications/P0211
/P02114thQuarter2012.pdf (accessed Apr. 10, 2013).
6 The income-expenditure survey conducted by Statistics South Africa indicates that the an-
nual household income of white-headed South African households increased by 0.4 per-
cent between 2005–2006 and 2010–2011, while the corresponding ﬁgure for other population
groups ranged between 28 and 37 percent. See Income and Expenditure of Households (Statisti-
cal Release P0100, Statistics South Africa, 2012).
7 Murray Leibbrandt et al., Trends in South African Income Distribution and Poverty since the Fall
of Apartheid (Social, Employment and Migration Working Paper No. 101, Organisation for
Economic Co-operation and Development, May 28, 2010).
8 See Pravin Gordhan, 2012 Budget Speech (Feb. 22, 2012), available at h p://www.treasury.gov
.za/documents/national%20budget/2012/speech/speech.pdf. (accessed Apr. 10, 2013).
9 Oupa Magashula, Address by the Commissioner of SARS to the Standing CommiĴee on Finance
on the 2011 Tax Statistics (May 23, 2012), available at h p://www.sars.gov.za/home
.asp?pid=63144 (accessed Apr. 12, 2013). The South African Revenue Services (SARS) report-
ed a growth in the individual tax register from 1.7 million in 1994 to 6 million in 2010. A fur-
ther growth to more than 12 million was reported in 2011 following a policy change to regis-
ter all individuals in formal employment. However, this ﬁgure does not reﬂect the number of
individuals actually liable for income tax because all salary earners, irrespective of whether
they are liable, must now be registered with SARS. See Coe ee & Roestoﬀ, supra note 3.
10 André Boraine, Some Thoughts on the Reform of Administration Orders and Related Issues, 36 De
Jure 217, 230 (2003).
The Treatment of Insolvency of Natural Persons 93
in South African Law

53.2 percent of active credit consumers were in good standing.11 Many of these
overstretched or debt-stressed, if not insolvent, consumers will be subject to
some kind of debt collection procedure.
Certain individual debt collection procedures, including wage garnishee
orders, have become notorious due to abuses in the South African system.
Garnishee orders have even been blamed for labor unrest, because these or-
ders are not limited to a prescribed percentage of the debtor’s income, giv-
ing rise to a zero paycheck situation for some debtors.12 Debtors subject to
garnishee orders are technically insolvent but are usually not able to ﬁle for
sequestration with the view of ultimately obtaining a statutory discharge
following rehabilitation because they do not meet the requirements set by
the Insolvency Act 24 of 1936.
The Insolvency Act provides for sequestration, which entails a liquidation
of assets; other statutes provide for debt-restructuring procedures, namely,
the Magistrates’ Courts Act 32 of 1944 (MCA) and the National Credit Act 34
of 2005 (NCA).13 In addition, voluntary debt restructuring is possible for some
debtors.
This chapter discusses and evaluates the statutory and nonstatutory pro-
cedures pertaining to the insolvency of natural persons, the regulation of in-
solvency practitioners, and the insolvency reform initiatives on the table in
South Africa. The chapter demonstrates that the current South African system
does not follow a balanced approach and it does not provide adequate debt
relief to all insolvent or debt-stressed individuals. There is no principled view
or approach regarding the treatment of the insolvency of natural persons in
South African law. This chapter is therefore an appeal to South African law-
makers to address this weakness; in this regard, it proposes suggestions for
insolvency law reform.

11 National Credit Regulator, Credit Bureau Monitor Fourth Quarter (Dec. 2012), available at
h p://www.ncr.org.za/publications/CBM%20Dec%202012.pdf (accessed Apr. 10, 2013).
12 “In incidents, entire pay checks have been absorbed for the repayment of debt through
garnishee orders, while in other cases miners have been forced to repay in excess of ten
times their outstanding debt.” See Malcolm Rees, Mines to Investigate Garnishes, Moneyweb
(Apr. 3, 2013), available at h p://www.moneyweb.co.za/moneyweb-economic-trends/mines
-to investigate-garnishees. For proposals to improve the position, see Working Document on
Magistrates’ Courts Amendment Bill (Feb. 21, 2013), available at h p://www.northernlaw
.co.za/Documents/magistrate_court/Working%20document%20Magistrates’%20Courts%20
Amendment%20Bill%2021Feb13.pdf.
13 For a detailed discussion of the South African statutory measures, see Melanie Roestoﬀ &
Hermie Coe ee, Consumer Debt Relief in South Africa: Lessons from America and England; and
Suggestions for the Way Forward, 24 South African Mercantile L.J. 53 (2012); Lienne Steyn,
Statutory Regulation of Forced Sale of the Home in South Africa 349 (L.L.D. thesis, U. of Pretoria,
2012); André Boraine, Corlia van Heerden, & Melanie Roestoﬀ, A Comparison between Formal
Debt Administration and Debt Review: The Pros and Cons of These Measures and Suggestions for
Law Reform, part 1, 45(1) De Jure 80 (2012), part 2, 45(2) De Jure 254 (2012).
94 The World Bank Legal Review

Sequestration under the Insolvency Act
The insolvency of natural persons is primarily regulated by the Insolvency
Act,14 which provides that a sequestration order can be obtained upon appli-
cation to the South African High Court15 by a creditor for compulsory seques-
tration of the debtor’s estate16 or upon application for voluntary surrender of
his or her estate by the debtor.17 After a sequestration order is granted, the
debtor is formally referred to as an “insolvent.”
The granting of a sequestration order is based on a number of statutory
requirements, but the “advantage for creditors” requirement is the decisive
factor regarding whose estate will be sequestrated and whose will not.18 One
of the most important questions used to determine compliance with this re-
quirement is if the creditors will receive a pecuniary beneﬁt.19 In practice, this
relates to the question of whether unsecured concurrent creditors will receive
at least a dividend based on the pari passu principle. The size of the dividend
is not prescribed in the Insolvency Act, but some courts require an indication
in the case of voluntary surrender that the dividend will be at least 20 cents
to the rand.20 The court will consider other factors within the realm of the
advantage principle, such as whether the trustee will be able to unearth other
assets, and also alternative repayment measures, such as an administration
order under the MCA or debt review under the NCA.21 The court hearing the
ma er has discretion to grant the sequestration order.22 The requirement of
the advantage of creditors plays a signiﬁcant role in the exercise of this dis-

14 See, in general, Jennifer M. Kunst et al., Meskin: Insolvency Law, chs. 2–3 (LexisNexis 2012),
Eberhard Bertelsmann et al., Mars: The Law of Insolvency in South Africa, chs. 3–5 (Juta 2008).
15 The sequestration procedure is therefore expensive. See Melanie Roestoﬀ & Stéfan Renke,
Debt Relief for Consumers: Insolvency and Consumer Protection Legislation pt. 2, 27 Obiter 98, 99
(2006).
16 Insolvency Act of 1936, secs. 8–12 (hereinafter Insolvency Act).
17 Id., at secs. 3–7.
18 Id., at secs. 6, 10, 12.
19 See Meskin & Co. v. Friedman (1948) 2 SA (W) 555, 559; Lynn & Main Inc. v. Naidoo (2006) 1 SA
(N) 59, 68; Ex parte Bouwer & Similar Applications (2009) 6 SA (GNP) 382, 386.
20 In the past, the South African courts have set the minimum dividend at 10 cents on the rand
for each concurrent creditor (Nieuwenhuizen & Another v. Nedcor Bank Ltd. [2001] 2 All SA
364 (O) 367); Ex parte Kelly [2008] 4 SA 615 (T) 617). In recent times, however, a dividend of
20 cents on the rand is generally regarded as the minimum beneﬁt that has to be established
before a sequestration application will be granted (Ex parte Ogunlaja & Others [2011] JOL
27029 (GNP) para. 9).
21 See C. H. Smith, The Recurrent Motive of the Insolvency Act: Advantage of Creditors 7 Modern
Bus. L. 27 (1985). See also Jhatam v. Jhatam (1958) 4 SA 36 (N); Behrman v. Sideris (1950) 2 SA
366 (T); London Estates (Pty) Ltd. v. Nair (1957) 3 SA 591 (D); Ex parte Ford & Two Similar Cases
(2009) 3 SA 376 (C). See, further, C. Van Heerden & A. Boraine, The Interaction between the Debt
Relief Measures in the National Credit Act 34 of 2005 and Aspects of Insolvency Law, 12 Potchef-
stroom Electronic L.J. 22 (2009).
22 Julie Whyte Dresses (Pty) Ltd. v. Whitehead (1970) 3 SA 218 (D) 219.
The Treatment of Insolvency of Natural Persons 95
in South African Law

cretion, and the court will not grant an order if it deems the application to be
an abuse of the sequestration process.23
After sequestration, an insolvent debtor may be rehabilitated, which in
principle gives the debtor a discharge of presequestration debt.24 Sequestration
coupled with rehabilitation under the Insolvency Act is the only formal statu-
tory procedure that provides for a discharge of debt of overburdened debtors.
In some instances, unsecured creditors either will receive no payment or will
receive only a triﬂing dividend in lieu of the original debt. Still, as a rule, the
debtor will enjoy the advantage of the discharge that follows rehabilitation.
The advantage to creditors is decisive in this regard. If the court cannot be con-
vinced of such advantage, the estate will not be sequestrated and the debtor
will not receive the statutory discharge. This situation causes a diﬀerentiation
between debtors whose estates can be sequestrated and those who are overbur-
dened but who cannot obtain a sequestration order due to the absence of an ad-
vantage to creditors. Such diﬀerentiation may be irrational in some instances.25
This situation is illustrated by Van Rooyen v. Van Rooyen (Automutual In-
vestments (EC) (Pty) Ltd., Intervening Creditor).26 In this instance, two former
members of a close corporation, S and V, bound themselves as sureties for the
due performance of certain contractual payments in favor of a creditor of the
close corporation. The estate of S was subsequently sequestrated, but no divi-
dend was paid out to the creditors. In view of the sequestration of S’s estate,
V became liable for the total remaining debt of the close corporation. Because

23 See Craggs v. Dedekind; Baartman v. Baartman & Another; Van Aardt v. BorreĴ (1996) 1 SA (C)
935, 937; Ex parte Steenkamp & Related Cases (1996) 3 SA (C) 822, 825; Van Eck v. Kirkwood (1997)
1 SA (SE) 289, 290; Van Rooyen v. Van Rooyen (Automutual Investements (EC) (Pty) Ltd., Interven-
ing Creditor) (2000) 2 All SA (SE) 485, 490; Beinash & Co. v. Nathan (1998) 3 SA (W) 540, 542;
Lemley v. Lemley (2009) JDR 0445 (SE) 4. Because sequestration can eventually aﬀord a debtor
a discharge of his or her debts, the process of compulsory sequestration has in the past been
used—or, according to some, abused—by debtors in the form of an application for a so-
called friendly sequestration to obtain debt relief. See Roger G. Evans, Friendly Sequestrations,
the Abuse of the Process of Court, and Possible Solutions for Overburdened Debtors, 13 South Afri-
can Mercantile L.J. 485 (2001). See also Esterhuizen v. Swanepoel & Sixteen Other Cases (2004) 4
SA (W) 89, 92. This phenomenon developed because proving advantage in a compulsory se-
questration application is less onerous than proving advantage in a voluntary sequestration
application. Unlike voluntary surrender, which requires positive proof of advantage for cred-
itors, compulsory sequestration requires only a “reasonable prospect” that it will be to the
advantage of creditors—compare the wording of the Insolvency Act, secs. 10(c) and 12(1)(c).
Furthermore, no formal requirements are prescribed with regard to compulsory sequestra-
tion; Catherine Smith, Friendly and Not So Friendly Sequestrations, 3 Modern Bus. L. 58, 59
(1981). However, regarding applications for voluntary surrender, the South African courts
have tightened their approach to thwart abuse of the process. See, for example, Ex parte
Bouwer & Similar Applications, supra note 19, at 386, and, further, Bertelsmann et al., supra
note 14, at 63.
24 See Insolvency Act, sec. 129.
25 See André Boraine & Roger Evans, The Law of Insolvency and the Bill of Rights, in The Bill of
Rights Compendium para. 4A8 (LexisNexis 2009 update); Lee Steyn, Human Rights Issues in
South African Law, 13 Intl. Insolvency Rev. 1, 11 (2004).
26 See Van Rooyen v. Van Rooyen, supra note 23. See also Boraine & Evans, supra note 25, at para
4A8; Evans, supra note 23, at 503.
96 The World Bank Legal Review

V could not repay this debt, her mother brought an application for compul-
sory sequestration of her estate, but the application was denied due to the fact
that the court did not accept that there would be an advantage for creditors.
Because her debt amounted to more than R 50,000, she could not apply for ad-
ministration under Section 74 of the MCA. Debt review under the NCA, which
was not an option at the stage when the Van Rooyen case was decided, would
oﬀer relief only if the debt qualiﬁed as a credit agreement as provided for by
this act. As is discussed below, the alternative procedures of administration
and debt review do not provide discharge for overburdened debtors. More-
over, South African insolvency legislation does not provide for a procedure for
dealing with assetless estates or no-income-no-asset (NINA) debtors.27

Rehabilitation and Discharge of Debt under the Insolvency Act
The only statutory discharge oﬀered to natural person debtors in South Af-
rican law is provided for by Section 129 of the Insolvency Act. Sequestration
followed by rehabilitation of the insolvent aﬀords the debtor a discharge of all
presequestration debts.28
An insolvent will automatically be rehabilitated after 10 years from the
date of sequestration. However, any interested party is entitled to apply to the
court within that 10-year period to prevent automatic rehabilitation.29 An in-
solvent may also be rehabilitated by means of a court order.30 The Insolvency
Act provides various conditions and diﬀerent time limits before the debtor
may apply for rehabilitation, but he or she usually has to wait four years from
the commencement date of sequestration.31
An insolvent may apply for rehabilitation to the same court that granted
the sequestration order.32 The application must be supported by an aﬃdavit
in which the insolvent declares that he or she has made a complete surrender
of his or her estate and has not granted or promised any person any beneﬁt
or entered into any secret agreement with the intent to induce the trustee
or any creditor not to oppose the application. The aﬃdavit must contain in-
formation relating to the dividend paid out to the creditors and the current
income, expenditures, and assets of the insolvent.33 Anyone with an inter-
est in the estate may object to the insolvent’s rehabilitation.34 The insolvent

27 See Roestoﬀ & Coe ee, supra note 13; Coe ee & Roestoﬀ, supra note 3.
28 Insolvency Act, sec. 129(1)(b).
29 Id., at sec. 127A.
30 Id., at sec. 124.
31 See the proviso to the Insolvency Act, sec. 124(2).
32 See, with regard to formal defects in aplications for rehabilitation, Ex parte Mason (1981) 4 SA
648 (D); Ex parte Anderson (1995) 1 SA 40 (SE); Ex parte Minnie et Uxor (1996) 3 SA 97 (SE); Ex
parte Elliot (1997) 4 SA 292 (W); Ex parte Van Zyl (1997) 2 SA 438 (EC).
33 Insolvency Act, sec. 126.
34 Id., at sec. 127(1).
The Treatment of Insolvency of Natural Persons 97
in South African Law

must furnish security with the registrar of the high court in the value of at
least R 500 for any costs incurred due to the opposition of the application for
rehabilitation.35 The insolvent must usually also give notice to the master of
the high court and/or his or her trustee, as well as in the Government GazeĴe,
depending on the speciﬁc statutory ground he or she relies on, prior to bring-
ing the application.36 The statutory grounds for rehabilitation by court order
are as follows:
• The insolvent may apply for rehabilitation after 12 months have elapsed
since the date of conﬁrmation of the ﬁrst trustee’s account. The insolvent
must publish a notice of the intended application in the Government Ga-
zeĴe at least six weeks prior to the application.37
• When the insolvent had been sequestrated previously, he or she may
apply for rehabilitation three years after date of conﬁrmation of the
trustee’s ﬁrst account. Also, six weeks prior, notice must be given to the
master and creditors with the publication of a notice to that eﬀect in the
Government GazeĴe.38
• When the insolvent has been convicted of any fraudulent act in relation
to his or her existing or previous insolvency, or any other oﬀense under
Sections 132, 133, and 134 of the Insolvency Act, the insolvent may apply
for rehabilitation after ﬁve years have elapsed from the date of conviction.
Six weeks’ prior notice must be given.39
• When no claims were proved by any creditor, the insolvent has not been
convicted of an oﬀense mentioned in Section 124(2)(c), and this is the ﬁrst
time that his or her estate has been sequestrated, the insolvent may apply
for rehabilitation six months after the application for his or her sequestra-
tion. Six weeks’ prior notice must be given.40
• When a composition is agreed to as indicated in Section 119(7) of the In-
solvency Act, and where the master of the high court certiﬁes that at least
50 cents on the rand was paid in respect to all claims proved against the
estate, or when security was given for such payment, the insolvent may
apply for rehabilitation. The insolvent must give three weeks’ notice of the
application in the Government GazeĴe, and a copy of the notice must also
be handed to the trustee.41

35 Id., at sec. 125.
36 Id., at sec. 124.
37 Id., at sec. 124(2)(a).
38 Id., at sec. 124(2)(b).
39 Id., at sec. 124(2)(c). In none of the cases mentioned in sec. 124(2) will the court order rehabili-
tation within four years after sequestration without the master’s recommendation—proviso
to sec. 124(2). See also Ex parte Porrit (1991) 3 SA 866 (N); Ex parte Anderson (1995) 1 SA 40 (SE);
Greub v. The Master (1999) 1 SA 746 (C).
40 Insolvency Act, sec. 124(3).
41 Id., at sec. 124(1).
98 The World Bank Legal Review

• When all claims have been paid in full together with interest, the insolvent
may, at any time after conﬁrmation of the distribution account, apply for
rehabilitation. Three weeks’ prior notice must be given to the master and
the trustee.42
The court hearing the application may refuse, postpone, or grant the re-
quested order for rehabilitation and may also impose conditions for rehabili-
tation.43 Before granting the order, the court must be convinced that the statu-
tory requirements referred to above have been met and that the rehabilitation
of the debtor is indeed desirable. It is thus accepted in South African law that
an insolvent does not have a right to rehabilitation but that rehabilitation is
a discretionary ma er in the hands of the courts.44 Such discretion must be
exercised judicially and not arbitrarily.45 It is normally expected that both the
trustee and the master will provide a report as to the desirability of rehabili-
tation in a particular instance. Apart from the facts stated in the application
of the insolvent, the court will also consider these reports and objections to
rehabilitation raised by creditors, if any.46 When exercising its discretion, the
court will consider the desirability of rehabilitation in the sense of whether
the insolvent deserves to be rehabilitated. In this regard, the question is if the
insolvent is a person who ought to be allowed to trade with the public on the
same basis as any other honest person.47
Subject to any conditions imposed by the court, rehabilitation ends se-
questration; discharges all the insolvent’s presequestration debts, except those
arising out of any fraud on his or her part; and relieves the insolvent of every
disability resulting from sequestration.48 A claim for maintenance (alimony) is
an ongoing obligation, and even a rehabilitated insolvent will remain obliged
to pay maintenance out of future income. The court hearing the ma er may
also impose conditions for rehabilitation, including an order that certain debts
will not be discharged upon rehabilitation.49

42 Id., at sec. 124(5).
43 Id., at sec. 127(2) and (3). See, further, Kruger v. The Master (1982) 1 SA 754 (W); Ex parte Le
Roux (1996) 2 SA 419 (C); Ex parte Theron; Ex parte Smit; Ex parte Webster (1999) 4 SA 136 (O);
Ex parte Fourie (2008) 4 All SA 340 (D).
44 Ex parte HiĴersay (1974) 4 SA 326 (SWA).
45 Ex parte Phillips (1938) CPD 381.
46 Ex parte Goshalia (1957) 2 SA 182 (N); Ex parte Isaacs (1962) 4 SA 767 (W).
47 Ex parte Heydenreich (1917) TPD 657, 658; Greub v. The Master (1999) 1 SA 746 (C).
48 Insolvency Act, sec. 129(1).
49 Id., at sec. 129, read with sec. 127(3) and (4).
The Treatment of Insolvency of Natural Persons 99
in South African Law

Alternative Statutory Procedures
South African law provides two statutory debt-restructuring models for natu-
ral person debtors: administration order under the MCA50 and debt review
under the NCA.51

Administration Orders under the MCA
Natural person debtors who are unable to pay the amount of any judgment
against them or to meet their ﬁnancial obligations and who do not have suf-
ﬁcient assets capable of a achment to satisfy such judgment or obligations
may apply to a magistrate’s court for an administration order that would, if
successful, compel the creditors to accept a rearrangement or restructuring of
the debt.52
Although this procedure does provide debt relief for natural person debt-
ors, its application is limited in that it applies only when the debts amount
to not more than R 50,000.53 The procedure oﬀers no discharge,54 and debtors
may thus remain under debt almost indeﬁnitely. Debts that are claimable only
in the future, that is, after the granting of a particular administration order, are
not included in the order.55
In terms of an administration order, a court will assist the debtor by ap-
pointing an administrator to take control of the debtor’s ﬁnancial aﬀairs and
to manage the payment of debts due to creditors.56 In terms of the order, the
debtor has an obligation to make monthly or weekly payments to the adminis-
trator. The administrator, after deducting necessary expenses and a speciﬁed
remuneration determined by a prescribed tariﬀ, must in turn make a regular
distribution out of such payments to all proven creditors.57 The procedure has
an element of a collective judicial procedure and is therefore sometimes de-
scribed as a modiﬁed form of insolvency proceedings.58

50 Administration orders are regulated by the Magistrates’ Courts Act (MCA), sec. 74. See, in
general, L. T. C. Harms et al., Civil Procedure in the Magistrates’ Courts paras. 37.1–37.10 (But-
terworths 1997); Torquil J. M. Paterson, Eckards’ Principles of Civil Procedure in the Magistrates’
Courts 218 (Juta 2005).
51 See National Credit Act (NCA), sec. 86. See, also, in general, C. Van Heerden, Over-indebted-
ness and Reckless Credit (ch. 11) & A Practical Discussion of the Debt Counselling Process (ch. 14),
in Guide to the National Credit Act (J. W. Schol ed., LexisNexis 2008); J. M. O o & R.-L. O o,
The National Credit Act Explained 64 (LexisNexis 2013).
52 MCA, sec. 74(1).
53 Government Notice R1411, in Government GazeĴe 19435 (Oct. 30, 1998).
54 See MCA, sec. 74U.
55 Cape Town Municipality v. Dunne (1964) 1 SA (C) 741, 744. See, further, Carletonville Huishoude-
like Voorsieners (Edms) Bpk v. Van Vuuren en ‘n Ander (1962) 2 SA (T) 296, and M. A. Greig,
Administration Orders as Shark Nets, 117 S.A.L.J. 622, 624 (2000), for a discussion of in futuro
debts as well as criticism of the exclusion thereof.
56 MCA, sec. 74E.
57 Id., at sec. 74I–J.
58 H. J. Erasmus & D. E. Van Loggerenberg, Jones and Buckle: The Civil Practice of the Magistrates’
100 The World Bank Legal Review

A restructuring sanctioned by court order thus basically entails a repay-
ment plan that will provide for an extension of the repayment period. It is
implicit in the procedure that the debtor must have a regular income, because
he or she must make weekly or monthly payments to the administrator to
be distributed among the creditors. The amount that the debtor must pay to
the administrator is based on an approximation of the diﬀerence between the
debtor’s future income and the sum of a reasonable amount required for the
maintenance of the debtor and his or her dependents, periodic payments to be
made under credit agreements per the NCA, payments to be made under an
existing maintenance order, periodic payments to be made under a mortgage
bond, and certain other future debts.59 Secured debt, insofar as it qualiﬁes as
in futuro debt, is thus excluded from an administration order, and an order
for the rescheduling of such debt is therefore not possible. However, the court
will usually and may at its discretion, when calculating the amount to be paid
to the administrator in terms of the order, make provision for the periodic
payment that a debtor is obliged to make under a credit agreement under the
NCA as well as for the periodic payments under a mortgage bond.60
Administration under Section 74 of the MCA ﬁrst and foremost provides
for a debt-restructuring plan in the form of a repayment plan However, Sec-
tion 74C(1)(b) and Section 74K allow in principle for property to be realized
(by selling) by the administrator if a court authorizes such sale. However, this
provision is seldom used in practice. Furthermore, if the property to be sold is
subject to a credit agreement under the NCA, the wri en consent of the credit
provider must ﬁrst be obtained.61
Administration has become subject to severe criticism due to, among
other reasons, the following: 62
• Various abuses are manifest in the system.
• There are many practical diﬃculties, especially the lack of capacity of
some courts to deal with all the applications.
• There is no proper regulation of administrators.
• No maximum time period for repayment or discharge is provided for.
• Because no discharge or maximum period for repayment is provided for,
the added administration costs and interest cause the amount of debt to
escalate to such an extent that many debtors never get out of debt.

Courts in South Africa 305 (Juta 1996); Weiner NO v. Broekhuysen (2003) 4 SA 301 (SCA) 305. See,
further, for a diverging opinion, C. P. Joubert, Artikel 74: Magistraatshowewet 32 van 1944 Soos
Gewysig, 19 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 135, 138 (1956).
59 MCA, sec. 74C(2).
60 Id.
61 NCA, sec. 74C(1)(b)(i).
62 See Boraine, supra note 10, at 230.
The Treatment of Insolvency of Natural Persons 101
in South African Law

• Because the procedure is limited to those instances in which the debt is
not more than R 50,000, many debtors are excluded from this procedure.
• It is not clear to what extent this procedure and debt review under the
NCA should or could coexist.63

Debt Review under the NCA
Section 86 of the NCA covers debt review.64 The NCA regulates various as-
pects relating to “credit agreements.” Not all types of debt are regulated by
this act.65 The purpose of NCA Section 3(g) is to address and prevent over-
indebtedness of consumer debtors and to provide mechanisms for resolving
overindebtedness based on the principle of satisfaction by the consumer of
all responsible ﬁnancial obligations. The cornerstone of debt relief under the
NCA is thus full satisfaction, and not to provide a discharge of any kind.66
In order to assist overindebted consumers, the NCA created the oﬃce of
debt counselors, persons designated to oﬀer and conduct the services of debt
counseling and debt review that may lead to the restructuring of credit agree-
ments regulated by the NCA.67
The process of debt review commences with a consumer applying to a debt
counselor to be declared overindebted and to be placed under debt review.68
During the initial debt review process, the debt counselor is obliged to re-
view the debtor’s credit agreements in order to determine whether the debtor
is overindebted and whether reckless credit was extended.69 A consumer is
overindebted if the preponderance of available information at the time of the
determination indicates that the consumer is or will be unable to satisfy in a
timely manner all the obligations under all the credit agreements to which
he or she is party. This is determined with regard to the person’s ﬁnancial
means, prospects, and obligations and probable propensity to satisfy all the
obligations of all his or her credit agreements in a timely manner.70 The NCA

63 See Boraine, van Heerden, & Roestoﬀ, supra note 13, at 267.
64 NCA, sec. 86, should be read with the National Credit Regulations, reg. 24. For a detailed
discussion of the debt review process, see M. Roestoﬀ et al., The Debt Counselling Process: Clos-
ing the Loopholes in the National Credit Act 34 of 2005, 23 Potchefstroom Electronic L.J. 247, 255
(2009).
65 The NCA applies only to “credit agreements” as deﬁned in sec. 8. These are a credit facility,
a credit transaction, a credit guarantee, or a combination thereof. Usually, two elements can
be identiﬁed in credit agreements, namely, a deferral of payment and a charge, interest, or
fee. See sec. 1 for the deﬁnitions of the diﬀerent credit agreements; O o & O o, supra note 51,
at 20.
66 See, further, NCA, sec. 3(i); ColleĴ v. FirstRand Bank Ltd. (2011) 4 SA 508 (SCA), at 514.
67 NCA, secs. 86–87.
68 Id., at sec. 86(1), read with the National Credit Regulations, reg. 24(1). Debt review may also
be initiated by any court hearing any ma er in which a credit agreement is being considered
and it is alleged that the debtor is overindebted; NCA, sec. 85.
69 NCA, sec. 86(6).
70 Id., read with NCA, sec. 79.
102 The World Bank Legal Review

furthermore prescribes certain penalties for the credit provider in the case of
reckless credit granting under Sections 83 and 84.
An assessment by a debt counselor regarding the overindebtedness of a
consumer will determine the way forward. In this regard, NCA Section 86(7)
provides that if, as a result of an assessment conducted under Section 86(6),
a debt counselor reasonably concludes that a consumer is not overindebted,
the debt counselor must reject the application, even if he or she has concluded
that a particular credit agreement was reckless at the time it was entered into.71
However, if the debt counselor concludes that the consumer is not overin-
debted but is nevertheless experiencing, or likely to experience, diﬃculty
satisfying all the consumer’s obligations under credit agreements in a time-
ly manner, the debt counselor may recommend that the consumer and the
respective credit providers voluntarily consider and agree on a plan of debt
re-arrangement. If such a plan is accepted by (all) the credit provider(s), the
debt counselor may obtain a consent order from a magistrate’s court under
Section 86(8)(a) to eﬀect the restructuring as provided for by the NCA in
Section 86(7)(c)(ii). Should the debt counselor conclude that the consumer is
indeed overindebted, the debt counselor may issue a proposal recommend-
ing that the magistrate’s court make either or both of the following orders as
provided for in the subsections of Section 86(7)(c) of the NCA:
• That one or more of the consumer’s credit agreements be declared to be
reckless credit, if the debt counselor has concluded that those agreements
appear to be reckless
• That one or more of the consumer’s obligations be rearranged by:
• Extending the period of the agreement and reducing the amount of
each payment due accordingly
• Postponing during a speciﬁed period the dates on which payments
are due under the agreement
• Extending the period of the agreement and postponing during a speci-
ﬁed period the dates on which payments are due under the agreement
• Recalculating the consumer’s obligations because of contraventions of
NCA Part A72 or B73 of Chapter 5 or Part A74 of Chapter 6
When a debt rearrangement is ordered, the eﬀect is usually that the
amount of the installment is reduced and the payment term is extended. In
practice, the debt counselor does not receive and distribute payments on be-

71 In such an instance, the debtor may, with the approval of the magistrate’s court, apply
directly to the court for an order covered by NCA, sec. 86(7)(c).
72 Dealing with unlawful agreements and provisions.
73 Dealing with disclosure, form, and eﬀect of credit agreements.
74 Dealing with collection and repayment practices.
The Treatment of Insolvency of Natural Persons 103
in South African Law

half of the debtor; this function is assigned to independent payment distribu-
tion agents.75
Although the court has limited restructuring powers, it is empowered to
force, or “cram down,” a rescheduling of debt upon creditors. The court is also
empowered to order such rescheduling with regard to secured debt, which
includes, inter alia, obligations with regard to home mortgages. Compared to
foreign systems, such as Chapter 13 repayment plans in the U.S. Bankruptcy
Code, this is revolutionary.
No provision is made in the NCA for a debt counselor to realize a debtor’s
assets or to make such a recommendation to a court. In practice and in view
of the determination of overindebtedness under Section 79,76 assets available
for realization may be taken into consideration for the purposes of debt re-
structuring. In Standard Bank of South Africa Ltd. v. PanayioĴs, it was held that
“ﬁnancial means” under Section 79 also include assets and liabilities and that
“prospects” under Section 79 include prospects of improving the consumer’s
ﬁnancial position, such as increases in and liquidation of assets.77 In the case
of credit agreements that involve goods as the subject ma er of the agree-
ment, the consumer’s ﬁnancial means and prospects must therefore include
the prospect of selling the goods in order to reduce the consumer’s indebted-
ness.78 It therefore appears that South African courts are not willing to allow
consumers to include a credit agreement in the eventual rearrangement order
or to retain the subject ma er of the agreement if they believe that such goods
are luxurious and unnecessary for the maintenance of the consumer and his
or her dependents.79
Debt review followed by debt restructuring under the NCA is in high de-
mand among South African natural person debtors due to economic woes and
because the majority of their debts amount to credit agreements as regulated
by the NCA. However, the process is not without diﬃculties. Following are
the most signiﬁcant:80
• Debt restructuring under the NCA does not oﬀer a discharge. The NCA
envisages full repayment of the debt, and no time limit is prescribed re-
garding the rescheduling of the debt repayment period.

75 See, with regard to payment distribution agents, E. Van Zyl, Registration and the Consequences
of Non-registration, in Guide to the National Credit Act para. 525 (J. W. Schol ed., LexisNexis
2008).
76 Sec. 79(1)(a) provides that the debt counselor must take into consideration the debtor’s “ﬁ-
nancial means, prospects and obligations.”
77 Standard Bank of South Africa Ltd. v. PanayioĴs (2009) 3 SA 363 (W) para. 47.
78 Id., para. 77.
79 See Boraine, van Heerden, & Roestoﬀ, supra note 13, at 94.
80 See Roestoﬀ & Coe ee, supra note 13, at 68–70; Boraine, van Heerden, & Roestoﬀ, supra note 13,
at 93–103.
104 The World Bank Legal Review

• A particular credit agreement that has already commenced will be ex-
cluded from the debt review application.81 In this regard, the Supreme
Court of Appeal held that the provisions of Section 86(2) would bar the
consumer from including that speciﬁc agreement in the debt review pro-
cedure as soon as a Section 129(1)(a) notice has been delivered in respect
to that speciﬁc agreement.82
• The fact that the procedure does not provide for a discharge causes debt-
ors to remain in debt almost indeﬁnitely and causes an escalation in the
amount of the debt, due to the cost and interest factor.
• As in the case of administration orders under the MCA, there seems to
be a lack of capacity in some magistrates’ courts to deal with the many
applications, and this causes delays in the ma ers being heard within a
reasonable time.
• The NCA does not speciﬁcally prescribe the procedure to be followed or
the information to be disclosed when a debt review application is brought
to court. It is not clear what the hearing entails. The procedure may be
regarded as cumbersome, costly, and slow.
• The NCA provides that a credit provider may give notice to terminate the
debt review process 60 business days after the date on which the consum-
er applied for the debt review.83 In this regard, the Supreme Court of Ap-
peal held that a referral of a debt review ma er to the court does not bar
the credit provider from terminating the debt review.84 A credit provider
may therefore terminate the process in respect to a speciﬁc agreement as
soon as 60 business days have elapsed, irrespective of whether the ma er
is pending in court. Such termination is not necessarily a dead end for the
consumer, because the NCA provides that a court may order that the debt
review resume in regard to a credit agreement that is being enforced by
litigation.85 However, courts are reluctant to order a resumption of debt
review, and it seems that an order will be granted only if a court is con-
vinced that the consumer will eventually succeed in the application for
debt review.86
• Although nearly the majority of consumer debts amount to credit agree-
ments under the NCA, this debt-restructuring procedure is applicable to
only credit agreement debt, not to other types of debt that a consumer may
have. This aspect restricts the applicability of the procedure. In practice,

81 NCA, sec. 86(2).
82 See Nedbank Ltd. v. National Credit Regulator (2011) 3 SA (SCA) 581, 590. A Section 129(1)(a)
notice is a le er that a credit provider must send to a defaulting consumer before the credit
provider may commence legal proceedings to enforce the agreement.
83 NCA, sec. 86(10).
84 ColleĴ v. FirstRand Bank Ltd., supra note 66.
85 NCA, sec. 86(11).
86 ColleĴ v. FirstRand Bank Ltd, supra note 66, at para. 19; Wesbank v. Schroder (2012) JOL 28767
(EL) paras. 16, 17.
The Treatment of Insolvency of Natural Persons 105
in South African Law

debt counselors sometimes use the voluntary distribution procedure in
conjunction with the statutory procedure in order to deal with noncredit
agreement debt as well.87 It is possible to restructure some debt under the
NCA and other debt in terms of an administration procedure, but these
procedures are not well aligned.88
• As a result of the decision in Investec Bank Ltd. v. Mutemeri and Another,89
a debtor who opts for debt review as a form of debt relief may be barred
from continuing with this process when a creditor decides to apply for
the compulsory sequestration of the debtor’s estate. In that case, the court
held that an application for compulsory sequestration did not amount to
debt enforcement under the NCA,90 and therefore did not preclude the ap-
plicant creditor from proceeding with an application for sequestration.91
The debtor is therefore given no choice as to how to deal with his or her
ﬁnancial dilemma and will be forced to lose his or her assets and be sub-
jected to the social stigma of being insolvent.92

Nonstatutory Procedures
Natural person debtors may, with the cooperation of creditors, use an infor-
mal creditor agreement that may amount to a voluntary debt restructuring or
voluntary composition. This method is based on the contractual principle of
consent, but some creditors are not prepared to participate in such a volun-
tary system. When the creditors accept a rescheduling of payment, it is also
referred to as a voluntary distribution.

Insolvency Practitioners
Although South African insolvency law in the broadest sense does not pro-
vide for regulated insolvency professionals, there are a orneys, accountants,
and auditors who act as such. There are also other persons without formal
qualiﬁcations who take appointments as insolvency practitioners. In general,
only the trustee appointed per the Insolvency Act is viewed as an insolvency

87 See Boraine, van Heerden, & Roestoﬀ, supra note 13, at 267.
88 Id.
89 Investec Bank Ltd. v. Mutemeri and Another (2010) 1 SA 265 (GSJ). See, further, FirstRand Bank
Ltd. v. Evans (2011) 4 SA 597 (KZD), and Naidoo v. Absa Bank Ltd. (2010) 4 SA 597 (SCA), con-
ﬁrming the decision in Mutemeri. See the discussion of Naidoo by N. Maghembe, The Appellate
Division Has Spoken: Sequestration Proceedings Do Not Qualify as Proceedings to Enforce a Credit
Agreement under the National Credit Act 34 of 2005, 14 Potchefstroom Electronic L.J. 171 (2011).
90 See NCA, sec. 130(1).
91 NCA, sec. 88(3); Investec Bank v. Mutemeri, supra note 89, at 274–277. See, for a detailed discus-
sion of the Mutemeri case, A. Boraine & C. Van Heerden, To Sequestrate or Not to Sequestrate
in View of the National Credit Act 34 of 2005: A Tale of Two Judgments (2010), 13 Potchefstroom
Electronic L.J. 84 (2010).
92 See Roestoﬀ & Coe ee, supra note 13, at 62–63; Maghembe, supra note 89, at 177–178.
106 The World Bank Legal Review

practitioner; the insolvency fraternity in South Africa does not generally view
debtors who apply for alternative debt relief measures such as administration
orders or debt review to make use of formal bankruptcy procedures. Although
insolvency practitioners appointed to deal with the liquidation of assets per
the Insolvency Act are not compelled by law to belong to a professional body,
there are statutory bars against the appointment of certain persons to act as
trustees under the Insolvency Act.93 With regard to the administration of a
sequestrated estate, the master of the high court fulﬁlls a supervisory role and
can thus be seen as a type of regulator.94 The master has discretion to appoint
a person to act as a trustee in the case of sequestration, but will in practice ap-
point only persons with some expertise in the ﬁeld who are not barred from
such appointments.
The NCA created the oﬃce of the debt counselor, a person designated to
oﬀer and conduct the service of debt review. Debt counselors are regulated by
the national credit regulator (NCR), a regulatory body, and must comply with
certain statutory requirements, undergo training, and register as such under
the NCA before they may act as such.95
In the case of administration orders, there is no regulatory body except
when the administrator is, for example, also an a orney or an accountant who
might be disciplined by his or her respective professional body in the event
of misconduct. However, a court has certain statutory powers96 to deal with
an administrator who fails to meet his or her statutory duties.97 There are no
formal requirements or disqualiﬁcations set for administrators appointed by
the court under Section 74 of the MCA.
All the categories of “insolvency practitioners”—namely, trustees, debt
counselors, and administrators—are in principle subject to systems of pre-
scribed fees, which are borne by the debtor or his or her insolvent estate in the
case of sequestration.98 At present, there is no state funding available to meet
these fees when the debtor or the debtor’s estate cannot meet them.
If an estate is sequestrated under the Insolvency Act and there is a short-
fall to meet the costs of administering such an estate, certain creditors may

93 That is, a system of negative licensing. See Insolvency Act, sec. 55.
94 The master does not supervise the debt review and administration procedures.
95 See National Credit Regulations, reg. 10.
96 See MCA sec. 74E(2). See, further, Stander v. Erasmus (2011) 2 SA 320 (GNP) 324.
97 See, for example, MCA, sec. 74J.
98 The trustee is entitled to have the remuneration be taxed by the master according to tar-
iﬀ B in the second schedule to the Insolvency Act; see Insolvency Act, sec. 63(1). The debt
counselor’s remuneration consists of an initial application fee of R 50; see NCA, sec. 86(3)(a),
read with sch. 2 of the regulations. A debt counselor may also claim the fees prescribed by
the Debt Counselling Association of South Africa (DCASA). Currently, debt counselors are
bound to this fee structure as a condition of their registration as debt counselors; Boraine,
van Heerden, & Roestoﬀ, supra note 13, at 259. In general, the remuneration of an admin-
istrator is capped at 12.5 percent of the regular payments received from the debtor for the
purposes of distribution among creditors; MCA, sec. 74L(2).
The Treatment of Insolvency of Natural Persons 107
in South African Law

become liable toward the estate to se le these costs by means of a system of
contributions.99 In the case of debt review under the NCA, debtors must in
principle pay the fees of debt counselors, but those who earn less than R 2,500
per month may apply for assistance from the NCR.100

Insolvency Law Reform Initiatives
The South African Law Reform Commission has been working on new insol-
vency legislation since 1987; it published a report and a draft Insolvency Bill
in 2000.101 One of the aims of the reform project is to have one piece of insol-
vency legislation that deals with the insolvency of both individuals and other
entities, such as companies. In March 2003, the cabinet accepted the concept
of a new uniﬁed Insolvency Act, but this initiative has stalled. Likely due to
the Companies Act of 2008, a further working document containing the Draft
Insolvency and Business Recovery Bill in the format of a working document
was completed by the Department of Justice in 2010. It is unclear when the
government will take this new piece of legislation forward.
The 2010 Draft Insolvency Bill uses the term “liquidation” when refer-
ring to both the liquidation of juristic persons and the sequestration of natural
persons. The advantage for creditors requirement is, however, retained in the
2012 draft bill.102 However, li le changed from the Insolvency Act 24 of 1936
in principle, and the draft bill as the latest document dealing with insolvency
reform in South Africa does not introduce a revolutionary new insolvency
system. For all intents and purposes, the Insolvency Act 24 of 1936 is still the
main piece of legislation that deals with personal insolvency insofar as it re-
lates to the liquidation of assets of insolvent debtors, and at present it is still
unclear when the reform initiatives as mentioned above and further discussed
below will be taken forward
The 2010 Insolvency Bill proposes an alternative debt relief measure to
sequestration in the form of a preliquidation composition.103 The composition
is supervised by the court, and provision is made for an investigation into

99 See Insolvency Act, sec. 106. See, with regard to contribution in general, David Burde e,
Kontribusiepligtigheid van Skuldeisers in Insolvente Boedels, Nov. De Rebus 1004 (1993); David
Burde e, New Problems Relating to Contribution in Insolvent Estates, 63 T.H.R.H.R 458 (2000).
100 NCR press release (July 2008).
101 South African Law Commission, Report on the Review of the Law of Insolvency (Project 63) vol. 1
(explanatory memorandum) and vol. 2 (draft bill) (Feb. 2000) (hereinafter 2000 Explanatory
Memorandum and 2000 Insolvency bill, respectively).
102 See 2000 Insolvency Bill, cls. 7(1)(b) and 8(1)(c), and the concomitant 2000 Explanatory
Memorandum, at 15. From the 2010 Insolvency Bill, it appears that the commission has not
changed its mind in regard to retaining the advantage for creditors principle; see cls. 3(8)(a)(ii),
10(1)(c)(i), 11(1)(c).
103 See 2010 Insolvency Bill, cl. 118.
108 The World Bank Legal Review

the aﬀairs of the debtor.104 Although the proposed composition is in essence
a debt-restructuring device, a prescribed majority of creditors can bind the
minority.105 If the majority do not accept the composition and the debtor is
unable to pay substantially more than what is oﬀered in the composition, the
court must declare that the proceedings have ceased and that the debtor is in
the position in which he or she was prior to the commencement thereof. Al-
ternatively, the court must determine if Section 74 of the MCA can be applied
to the debtor; if it can be, the court must apply the provisions accordingly and
within the discretion of the presiding oﬃcer.106
Administration orders became extremely popular after 1994, to such an ex-
tent that they were referred to as “an industry.” Many observers feel that the
unregulated nature of this industry gave rise to serious abuse. It was widely be-
lieved that unscrupulous administrators were holding unsuspecting consumer-
debtors at ransom—and that these debtors would never escape their ﬁnancial
problems. There were indications that many individuals who had to rely on
so-called microlenders ended up under the administration regime, which has
aggravated their debt situation rather than aﬀording relief. In spite of the fact
that a Micro Finance Regulatory Council was established in 1999 to accredit
lenders and monitor their behavior, problems in this area persisted.
These and other complaints prompted the Department of Justice to imple-
ment a reform project in 2001.107 The Centre for Advanced Corporate and In-
solvency Law, based at the University of Pretoria, conducted this project with
the view of advising on reform. As a result of this preliminary investigation,
which culminated in the Interim Report on the Review of Administration Orders
in Terms of Section 74 of the Magistrates’ Courts Act 32 of 1944, the Department
of Justice requested the South African Law Reform Commission to appoint a
project commi ee to make formal proposals regarding the reform of adminis-
tration orders. The project commi ee was appointed in 2003, and the project
registered as Project 127, Review of Administration Orders.108 This project was
eventually suspended, pending the promulgation of the NCA, but, contrary to
expectations, the NCA did not deal with administration orders.

104 Id., at cl. 118(10)(e).
105 That is, a majority in number and two-thirds in value of the concurrent creditors who vote
on the composition; 2010 Insolvency Bill, cl. 118(17).
106 See 2010 Insolvency Bill, subcls. 118(22)(a) and (b). The commission’s proposal in the 2000
Insolvency Bill aﬀorded the debtor the option to convert to liquidation and rehabilitation un-
der the proposed Insolvency Act in instances in which the composition was not accepted by
the required majority; see the discussion of this proposal by M. Roestoﬀ & L. Jacobs, Statutêre
Akkoord voor Likwidasie: ’n Toereikende Skuldenaarremedie, 30 De Jure 189, 207 (1997).
107 See Boraine, supra note 10, at 218; Roestoﬀ & Coe ee, supra note 13, at 66.
108 See Boraine, supra note 10, at 219.
The Treatment of Insolvency of Natural Persons 109
in South African Law

Conclusion
The main point of criticism against the South African insolvency system for
individuals is that it is largely creditor oriented despite the worldwide trend
to accommodate debtors seeking relief. The South African system does not
provide adequate debt relief to insolvent or debt-stressed individuals, and
the proposals of the South African Law Reform Commission do not address
this situation. Moreover, there is no principled view or approach regarding
the treatment of the insolvency of natural persons in South African law. Even
when the insolvency reform initiatives discussed above are considered, there
is no sense of integrating the various procedures in order to establish an over-
arching framework. For example, it is not clear if and how administration
and debt review could operate in the same case. It is also not clear why provi-
sion should be made for two coexisting procedures serving the same purpose,
namely, to provide for debt reorganization. The legislature, when introducing
the NCA in 2007, missed a golden opportunity for comprehensive reform.
South African law needs a complete overhaul of its debt relief measures.
Existing statutory procedures should be streamlined by eliminating the over-
lap between the diﬀerent procedures and the unnecessary duplication of
regulators and “insolvency practitioners.” A principled approach should be
adopted to deal with the liquidation of assets, debt restructuring, and asset-
less estates in a coherent way. With regard to debt-restructuring measures,
lawmakers should devise one single measure providing for all debt reorga-
nization cases. Lawmakers should build on the existing and well-established
system of debt counseling that is regulated by the NCR as the regulatory body
under the NCA.
The South African personal insolvency system must abandon its creditor-
oriented approach. The system should provide adequate debt relief and equal
treatment to all insolvent or overindebted individuals. The Van Rooyen case
illustrates the plight and dilemma of many overburdened debtors in South
Africa. Because many creditors do not receive signiﬁcant beneﬁt from the se-
questration of the estate of their debtors, in spite of the advantage of creditors’
principle, debtors are treated inequitably, in that many are left without re-
lief in the form of a statutory discharge.109 This exclusion infringes the basic
constitutional right of equality under the South African Constitution110 and
upholds the dualism in the South African economy.111
As Rochelle suggests, a discharge of debt and a fresh-start policy in per-
sonal insolvency could be an eﬀective tool for spurring economic growth and
development. In his words:

109 See Boraine & Evans supra note 25, at para. 4A8.
110 See South African Constitution (1996), sec. 9(1); Boraine & Evans, supra note 25, at para. 4AB;
Steyn, supra note 25, at 11.
111 See Coe ee & Roestoﬀ, supra note 3.
110 The World Bank Legal Review

Improving the citizen’s economic lot is a central priority for most
national governments. Insolvency laws can have a signiﬁcant role to
play in this work. Were the penalties for failure lowered from their
current levels in South Africa, citizens and companies would take
more economic risks to succeed. More businesses would start, more
jobs would be created, and society as a whole would beneﬁt. Those
who fail would not become modern lepers, but instead would re-
ceive another chance to be productive for themselves and society..112

112 Supra note 2, at 315.
The Role of Personal Insolvency Law
in Economic Development
An Introduction to the World Bank Report on the
Treatment of the Insolvency of Natural Persons

JOSÉ M. GARRIDO

The association between insolvency law and economic development is fre-
quently overlooked. The idea of insolvency evokes failure and poverty, which
is indicative of a lack of economic development. However, the role of insol-
vency law is broad, and insolvency law serves several important functions in
an economy. It is a useful instrument to reallocate assets to more productive
uses, and an appropriate reorganization or debt-restructuring framework pro-
vides instruments to preserve valuable businesses under distress. Traditional
business insolvency regimes, however, tend to lack the appropriate treatment
of the indebtedness of natural persons. An eﬀective personal insolvency re-
gime provides solutions for indebted persons while a aining broader goals
for inclusive economic development.
A couple examples illustrate the connection between personal insolvency
law and economic development. In India, the indebtedness of farmers has re-
sulted in severe social problems, with an alarming number of farmers com-
mi ing suicide.1 In Hungary, the crisis created by the expansion of mortgage
credit denominated in foreign currencies, especially in Swiss francs, resulted
in the default of one-quarter of all mortgage loans in the country, creating an
enormous social conﬂict.2 Both examples show that the connections between
ﬁnancial stability and personal indebtedness have become stronger and that
the issue of personal insolvency is at the forefront of an agenda for inclusive
economic development and shared prosperity in both developed and devel-
oping nations.
This chapter provides an introduction to the work undertaken by the
Working Group of the World Bank’s Insolvency Task Force. The ﬁrst section

1 See K. Nagaraj, Farmers’ Suicides in India: Magnitudes, Trends and Spatial Pa erns (2008), avail-
able at h p://www.macroscan.org/anl/mar08/pdf/farmers_suicides.pdf, reporting 190,753
suicides from 1995 to 2006, and considering the ﬁgure an underestimation; see also A. R. Va-
savi, Shadow Space: Suicides and the Predicament of Rural India (Three Essays Collective 2012),
referring to 199,132 suicides in the period 1997‒2008, according to oﬃcial records, which
tend to underestimate the real number of suicides. Although there is a constellation of causes
for this suicide epidemic, personal indebtedness is considered to be one of the major factors.
2 See Tamas Egedy, The Eﬀects of Global Economic Crisis in Hungary, 61(2) Hungarian Geograph-
ical Bull., 155, 162–163 (2012).

111
112 The World Bank Legal Review

provides background on the project. The second section describes the issues
covered in the World Bank’s Report on the Treatment of the Insolvency of Natural
Persons (hereinafter World Bank report) and the contribution of the report to a
be er understanding of the essential issues in the treatment of the insolvency
of natural persons.3 A short conclusion examines possible future develop-
ments in this area.

Background to the World Bank’s Involvement
in Personal Insolvency Law
The World Bank developed its insolvency and creditor rights (ICR) initiative
as part of the standards and codes initiative of the international ﬁnancial ar-
chitecture. Per the mandate of the Financial Stability Forum, the World Bank
developed a standard for the assessment of ICR regimes, known as the ICR
standard.4 This standard comprises the World Bank Principles for Eﬀective
Insolvency and Creditor Rights Systems5 and the recommendations from the
United Nations Commission for International Trade Law (UNCITRAL) Leg-
islative Guide on Insolvency Law.6 The World Bank is responsible for the de-
velopment of the standard and for the assessment of the legal, regulatory,
and institutional frameworks in business insolvency. Those assessments are
conducted under the program of reports on the observation of standards and
codes (ROSC), which has covered more than 60 countries. The experiences
of the ROSC program have been positive, and the program has contributed
to numerous reforms in various legal systems, which have resulted in more
eﬃcient insolvency systems responsive to the needs of developing economies
and contributed to the solution of crises in the corporate and ﬁnancial sectors.
The original focus of the ICR initiative was exclusively on business insol-
vency systems. There is a clear justiﬁcation for this: at the time the insolvency
initiative was launched and the ﬁrst version of the World Bank Principles was
passed, the main concern was to deal with the aftermath of the Asian and
Latin American corporate and ﬁnancial crises of the late 1990s. These crises
aﬀected the corporate sectors ﬁrst, and the contagion then spread to the ﬁ-
nancial sector. Eﬃcient mechanisms to restructure loans and to reorganize
businesses were identiﬁed as a main element missing in the countries that suf-

3 World Bank, Report on the Treatment of the Insolvency of Natural Persons, para. 7 (hereinaf-
ter, World Bank report), available at h p://www-wds.worldbank.org/external/default
/WDSContentServer/WDSP/IB/2013/05/02/000333037_20130502131241/Rendered/PDF/7717
00WP0WB0In00Box377289B00PUBLIC0.pdf.
4 See Creditor Rights and Insolvency Standard (2005), h p://siteresources.worldbank.org/GILD
/ConferenceMaterial/20774191/ICR_Standard_21_Dec_2005_Eng.pdf.
5 See World Bank, Principles for Eﬀective Insolvency and Creditor/Debtor Regimes, available at
h p://siteresources.worldbank.org/INTGILD/Resources/ICRPrinciples_Jan2011.pdf. The
principles were originally formulated in 2001 and revised in 2005 and 2011.
6 United Nations Commission for International Trade Law, Legislative Guide on Insolvency
Law, parts 1‒2 (United Nations 2004), available at www.uncitral.org/pdf/english/texts
/insolven/05-80722_Ebook.pdf.
The Role of Personal Insolvency Law in Economic Development 113

fered the consequences of the crises most intensely. Some scholars have com-
mented that ﬁnancial stability is the ﬁrst precondition for economic growth,7
and therefore the focus on business insolvency and on restructuring mecha-
nisms for distressed companies is entirely justiﬁed. As a result of the eﬀorts
of the international community in dealing with insolvency and restructuring
frameworks in systemic crises, a comprehensive and ﬂexible standard is now
available for all countries and there is a growing body of knowledge and expe-
rience about the eﬀectiveness of institutions and rules dealing with business
insolvency.
However, the global ﬁnancial crisis in 2008 showed a very diﬀerent pic-
ture: in many of the countries where the crisis had the worst impact, the crisis
originated in the ﬁnancial sector and subsequently aﬀected both businesses
and individuals. The crisis also showed, for the ﬁrst time, the connections
between personal indebtedness and a systemic crisis: the origination of the
ﬁnancial crisis in the subprime lending practices in the U.S. market demon-
strated clear links between unlimited credit expansion to businesses and in-
dividuals and macroeconomic ﬁnancial stability.8 This was particularly ap-
parent in certain countries, such as the Baltic states.9 Analyses of the global
ﬁnancial crises have concluded that the indebtedness of natural persons and
the lack of proper mechanisms to deal with it may have serious social and
economic repercussions.10
There are further considerations on the importance of personal insolvency
law.11 Insolvency is a phenomenon that occurs only in societies in which credit
is widespread. Without credit, there is no insolvency and there is no need for
an insolvency regime. Yet, the need for an insolvency framework manifests it-
self in all societies in which access to credit becomes the foundation for the de-
velopment of economic activities. This is the explanation for the development
of the ﬁrst insolvency regimes in the Middle Ages.12 But in medieval socie-
ties, access to credit was restricted to merchants and the aristocratic class. In
modern society, access to credit is a fundamental tool for every individual. It
is the basis for the acquisition of housing, for the development of professional

7 See, for example, William C. Dudley, president and chief executive oﬃcer, Federal Reserve
Bank of New York, Speech, Financial Stability and Economic Growth (Bre on Woods Comm.,
Intl. Council Meeting 2011, Washington, DC, Sept. 23, 2011), available at h p://www.bis.org
/review/r110927c.pdf. In the words of Dudley, “A stable ﬁnancial system is a prerequisite for
sustainable economic growth.”
8 See Stijn Claessens et al., Cross-Country Experiences and Policy Implications from the Global
Financial Crisis, 25 Econ. Policy 267 (2010).
9 On the crisis in the Baltic states, see, generally, Gediminas Macys, The Crisis and Economic
Recovery in Baltic Countries, 2 Intl. J. Humanities & Soc. Sci. 202 (2012).
10 See Nick Huls, Consumer Bankruptcy: A Third Way between Autonomy and Paternalism in Private
Law, 3 Erasmus L. Rev. 7 (2010).
11 Throughout this chapter, and in the World Bank report, the expressions “personal insol-
vency” and “insolvency of natural persons” are used interchangeably.
12 See Louis E. Levinthal, The Early History of Bankruptcy Law, 66 U. Pa. L. Rev. 223 (1918).
114 The World Bank Legal Review

and economic activities, for education, and for the satisfaction of consumption
needs. Access to credit and entrepreneurial skills are motors of economic de-
velopment.13 A modern economy is based on credit, with many positive eﬀects
for development; but a credit-based economy means that individuals sustain
considerable levels of debt,14 and this results in higher rates of personal insol-
vency.15 In essence, the rise in consumer bankruptcies is a by-product of the
rise of consumer credit.16
Strategies for economic growth and poverty reduction are frequently
based on the expansion of available credit, especially for small and medium-
size enterprises and households. The increase of the importance of access to
ﬁnance and the development of ﬁnancial intermediation have created the
need for an insolvency regime. Greater access to credit brings about more
economic opportunities while allowing more possibilities for individuals to
incur debts and to default on payments. Constructive solutions to the negative
consequences of indebtedness are useful tools for sustainable and inclusive
economic development. The regulation of personal insolvency has an inﬂu-
ence on how individuals perceive and deal with risks in their economic activ-
ity, and determines whether and how individuals suﬀering from an excessive
debt burden can return to a productive economic life.
The increasingly recognized importance of personal insolvency law has
a racted the a ention of academic researchers17 and several regional orga-
nizations and international associations.18 It is in this context that the World

13 See Huw Lloyd-Ellis & Dan Bernhardt, Enterprise, Inequality and Economic Development, 67
Rev. Econ. Stud. 147 (2000).
14 See International Monetary Fund (IMF), Dealing with Household Debt, chap. 3 in World Eco-
nomic Outlook: Growth Resuming, Dangers Remain, vol. 1 (IMF 2012). See also Yan Liu & Chris-
topher Rosenberg, Dealing with Private Debt Distress in the Wake of the European Financial Crisis:
A Review of the Economics and Legal Toolbox (IMF Working Paper WP/13/44, 2013).
15 See House of Commons, Public Accounts Commi ee, Helping Over-Indebted Consumers (UK
Parliament, 2010). According to the report, UK consumers had some £1,459 billion of out-
standing debt as of November 2009, and personal borrowing represented 160 percent of
household annual pretax income.
16 See the pioneering work of Teresa Sullivan, Elizabeth Warren, & Jay Lawrence Westbrook, As
We Forgive Our Debtors (Oxford U. Press 1989); David A. Moss & Gibbs A. Johnson, The Rise
of Consumer Bankruptcy: Evolution, Revolution, or Both, 73 Am. Bankr. L. J. 311 (1999).
17 See Jacob Ziegel, Comparative Consumer Insolvency Regimes: A Canadian Perspective (Hart
2003); Johanna Niemi, Iain Ramsay, & William Whitford eds., Consumer Bankruptcy in Global
Perspective (Hart 2003); Kent Anderson, The Explosive Growth of Personal Insolvency and the
Concomitant Birth of the Study of Comparative Consumer Bankruptcy, 42 Osgoode Hall L.J. 661
(2004); Jason Kilborn, Comparative Consumer Bankruptcy (Carolina Academic Press 2007).
18 See Johanna Niemi-Kiesiläinen & Ann-Soﬁe Henrikson, Report on Legal Solutions to Debt Prob-
lems in Credit Societies (report prepared for the Bureau of the European Commi ee on Le-
gal Co-operation, 2005), available at h p://www.coe.int/t/e/legal_aﬀairs/legal_co-operation
/steering_commi ees/cdcj/cj_s_debt/CDCJ-BU_2005_11e%20rev.pdf; Udo Reifner et al.,
Consumer Overindebtedness and Consumer Law in the European Union: Final Report (report pre-
sented to the Commn. of the European Communities, Health and Consumer Protec. Direc-
torate-General, Sept. 2003), available at h p://news.iﬀ-hh.de/media.php?id=1886; INSOL
International, Consumer Debt Report: Report of Findings and Recommendations (2001), avail-
able at h p://www.insol.org/pdf/consdebt.pdf (a second version of the INSOL report was
The Role of Personal Insolvency Law in Economic Development 115

Bank Insolvency Task Force, in sessions held in Washington, D.C., in January
2011, considered the topic of the insolvency of natural persons. The task force
reviewed a survey covering 59 countries that highlighted, among other as-
pects, the lack of personal insolvency systems in the low- and middle-income
countries included in the survey.19 The data, together with an analysis of the
global ﬁnancial crisis and its connections with the indebtedness of individu-
als, prompted the task force to create a working group to study the treatment
of the insolvency of natural persons.20
The working group comprised academics, judges, practitioners, and policy
makers from many countries. The working group was formed to “study the
issue of the insolvency of natural persons and produce a reﬂective report on
this ma er, suggesting guidance for the treatment of the diﬀerent issues in-
volved, taking into account diﬀerent policy options and the diverse sensitivi-
ties around the world.”21 Within the working group, a drafting commi ee was
established, comprising specialists in comparative approaches to personal
insolvency regimes.22 The drafting commi ee produced successive versions
of the report that were submi ed to the working group. The working group
commented on those drafts and debated them in meetings held in Washing-
ton, D.C., in November 2011 and December 2012, when the substantive work
of the working group was concluded.

The World Bank Report on the Treatment
of the Insolvency of Natural Persons
The objective of the working group was to produce a document that could
serve as guidance for policy makers considering reforms in the area of per-
sonal insolvency law. However, the issue of personal insolvency presents

published in 2011). See also Nick Huls, Toward a European Approach to Overindebtedness of
Consumers 16 J. Consumer Policy 215 (1993); European Commission, Enterprise Directorate
General, Best Project on Restructuring, Bankruptcy and a Fresh Start, Final Report of the Expert
Group (2003), available at h p://ec.europa.eu/enterprise/policies/sme/ﬁles/sme2chance/doc
/failure_ﬁnal_en.pdf; European Commission, Towards a Common Operational European Deﬁ-
nition of Over-Indebtedness (2008), available at h p://ec.europa.eu/social/BlobServlet?docId
=5093&langId=en.
19 The survey was directed by Adolfo Rouillon at the World Bank. The results of the survey are
available at h p://siteresources.worldbank.org/EXTGILD/Resources/Jan11-CI-Rouillon.pdf.
The full name of the task force is World Bank Insolvency and Debtor/Creditor Regimes Task
Force.
20 See the concluding remarks of the task force meeting by Vijay S. Tata (chief counsel, LEGPS,
World Bank), available at h p://siteresources.worldbank.org/EXTGILD/Resources/WB_TF
_2011_Consumer_Insolvency.pdf. See also Susan Block-Lieb, Best Practices in the Insolvency
of Natural Persons, available at h p://siteresources.worldbank.org/EXTGILD/Resources
/WB_TF_2011_Consumer_Insolvency.pdf.
21 See World Bank report, supra note 3, para. 7.
22 The drafting commi ee included Jason Kilborn, from the John Marshall Law School of Chi-
cago (chairman); Jose M. Garrido, senior counsel at the World Bank (secretariat); Charles D.
Booth, from the University of Hawaii; Johanna Niemi, from the University of Helsinki; and
Iain Ramsay, from the University of Kent.
116 The World Bank Legal Review

challenges and does not lend itself easily to a uniﬁed or uniform treatment.
A itudes to personal insolvency law are embedded in the society, the culture,
and the history of a particular country. Whereas business insolvency law re-
sponds to a set of common problems in modern economies, albeit using diﬀer-
ent legal techniques, the social implications of the policy options in business
insolvency are less intense than those of personal insolvency law.23 Therefore,
although the problems of personal indebtedness are virtually universal, there
are substantial diﬀerences in the way those problems are treated.24
The working group recognized the diﬃculties of creating a standard in
the area of personal insolvency law. Even a standard such as the one used for
business insolvency (the ICR standard), which is eminently functional and al-
lows for important variations, would be too rigid for the development of solu-
tions to the problem of personal indebtedness in diﬀerent parts of the world. It
was clear from the start, therefore, that the result of the working group would
not be a model, a template, or a standard for the regulation of personal insol-
vency. Instead, the approach favored was nonprescriptive, based on the idea
that an organized report could arrange all the important topics that a personal
insolvency system needs to address and show the advantages and disadvan-
tages of diﬀerent, tested approaches to the problems that typically arise in the
development of such systems. In this way, the report acknowledges that a list
of best practices in personal insolvency law may be premature, but it oﬀers
a catalogue of problems and solutions. Policy makers can use the report as a
checklist for the topics to address in a reform or as an analytical tool for an
already-existing system.
Another task for the working group was to determine the relation be-
tween a report on the treatment of the insolvency of natural persons and the
ICR standard, which applies to business insolvency regimes. The diﬃculty
lies in the fact that the ICR standard applies not only to companies and other
legal persons but also to natural persons engaged in business activities. The
insolvency law was initiated with the insolvency of merchants, long before
companies became the main vehicle for organized economic activity. Tradi-
tional insolvency systems are not designed to deal with the problems of in-
debtedness of natural persons in a modern society. There are important dif-
ferences between systems developed to address the insolvency of traders and

23 There is an exception to this general observation: the treatment of workers in the insolvency
of businesses tends to be a topic in which opposing policies and traditions clash. In practice,
the international standard oﬀers only very general guidance on how to solve the issues of
worker protection in the insolvency of businesses.
24 This is demonstrated by the existence of a rich comparative legal literature on the subject:
See, for a variety of countries and methodological approaches, Jason Kilborn, The Innovative
German Approach to Consumer Debt Relief: Revolutionary Changes in German Law, and Surprising
Lessons for the United States, 24 Nw. J. Intl. L. & Bus. 257 (2004); Jason Kilborn, Out with the
New, In with the Old: As Sweden Aggressively Streamlines Its Consumer Bankruptcy System, Have
U.S. Reformers Fallen Oﬀ the Learning Curve?, 80 Am. Bankr. L.J. 435 (2007); Junichi Matsu-
shita, Japan’s Personal Insolvency Law, 42 Texas Intl. L.J. 765 (2007); Rafael Efrat, Global Trends
in Personal Bankruptcy, 76 Am. Bankruptcy L.J. 81 (2002); Iain Ramsay, Comparative Consumer
Bankruptcy, U. Ill. L. Rev. 241 (2007).
The Role of Personal Insolvency Law in Economic Development 117

merchants, on one hand, and systems designed to treat the insolvency of natu-
ral persons, on the other hand.
In some states, a distinction has been drawn between the insolvency of
merchants and the insolvency of consumers.25 This distinction may be fea-
sible—and eﬀective—in a number of legal systems, but the line between
consumers and entrepreneurs is increasingly blurred in both developed and
developing economies. In fact, a common pa ern in developing economies
is the existence of a high percentage of self-employed persons.26 Taking into
account that the distinction between entrepreneurs and consumers is not use-
ful in most economies, the question is how to draw a relevant distinction be-
tween a standard designed for business insolvency and the issues raised by
the insolvency of natural persons. No clear dividing line categorizes persons
according to the degree of sophistication or complexity of their economic ac-
tivities, and the deﬁnitions of traders, typical of the commercial codes in 19th-
century Europe, are an unsuitable basis for diﬀerent regimes. The distinction
lies, instead, in the diﬀerent approaches that the law takes toward insolvency.
Deﬁned as such, the function of the World Bank report is not to create a dif-
ferent standard for the insolvency of natural persons as opposed to a standard
for business insolvency, but to analyze the questions that refer to insolvent
debtors as persons, rather than paying a ention to other considerations.
What distinguishes a system for the regulation of personal insolvency,
as opposed to business insolvency, is that the personal element occupies the
central position in such a system. Of course, personal insolvency systems have
implications for the economy of a country, as the most recent ﬁnancial crises
have shown, but the main considerations in the design of a personal insol-
vency system exceed the purely economic aspects and must focus, ﬁrst and
foremost, on the human element present in these insolvencies. This concept
colors the World Bank report and distinguishes clearly the subject ma er and
the approach followed from the documents in which the business insolvency
standard is based.27 In essence, the World Bank report recognizes that there are
overlapping areas in the regime of business insolvency and in a personal insol-
vency regime: both regimes aim for “increasing and more fairly distributing
payment to creditors, streamlining procedures, and enhancing economic per-
formance for the ultimate beneﬁt of society,”28 but the diﬀerence is that busi-
ness insolvency focuses on credit protection and the preservation of enterprise

25 For example, in the United States, the words “consumer bankruptcy” are most frequently
used to refer to the insolvency of natural persons. Paradoxically, there are many procedures
in the U.S. Bankruptcy Code that apply to both consumers and business actors.
26 See Carlo Pietrobelli, Roberta Rabello i, & Ma eo Aquilina, An Empirical Study of the Deter-
minants of Self-Employment in Developing Countries, 16 J. Intl. Dev. 803 (2004).
27 The World Bank report states clearly that it does not conﬂict with the business insolvency
standard. In fact, the report takes a diﬀerent look at the issues that the insolvency of indi-
viduals creates, and it explicitly refers to the standard in all cases in which the insolvency of
a natural person does not present peculiarities and can be adequately treated in accordance
with the approaches recommended in the standard.
28 See World Bank report, supra note 3, at para. 51.
118 The World Bank Legal Review

value, whereas an insolvency regime for natural persons places the human
elements of indebtedness problems at the center of the system, with the main
goal of alleviating those problems for the beneﬁt of debtors and society as
a whole.

The Beneﬁts of an Effective Personal Insolvency System
The World Bank report raises awareness about the importance of a personal
insolvency system by examining the beneﬁts produced by a well-designed
regime for the treatment of personal insolvency.29 There are substantial dif-
ferences as compared with business insolvency systems, where the protection
of credit is the overriding concern. A personal insolvency system represents a
balanced solution to the problems of indebtedness of individuals, taking into
account not only the interests of creditors but, more important, the interests of
debtors and the interests of society as a whole. A personal insolvency regime
provides relief to “honest but unfortunate” debtors and their families, and it
beneﬁts society as a whole by addressing wider social issues.30
The World Bank report cites numerous beneﬁts ﬂowing from the exis-
tence of an eﬃcient insolvency system. These beneﬁts can be grouped un-
der common themes, showing how personal insolvency can beneﬁt creditors,
debtors, and society as a whole.
A sound ﬁnancial sector beneﬁts from an eﬀective personal insolvency
system. A well-functioning personal insolvency system encourages proper
valuation of accounts, because it forces creditors—especially ﬁnancial insti-
tutions—to recognize the loss of value of their claims and to take remedial
action. A personal insolvency system reduces wasteful collection costs and ef-
forts, and it can also reduce the destruction of value that results from ﬁre sales,
especially in systemic crises. The existence of a personal insolvency system
encourages responsible lending. Such a system reduces negative externali-
ties produced by inaccurate risk assessment31 and helps concentrate losses on
those who are prepared to deal with losses in an eﬃcient and eﬀective way.
Even more important, an eﬀective system for the treatment of the insol-
vency of natural persons directly beneﬁts the debtors and their families, pro-
viding them with incentives to continue being productive and to solve their
indebtedness problems. These beneﬁts ﬂow to society as a whole in a number
of ways: by reducing social costs of illness, crime, and unemployment;32 by

29 Id., at para. 58ﬀ.
30 On the challenges faced by personal insolvency systems from a social point of view, see Teresa
Sullivan, Elizabeth Warren, & Jay Lawrence Westbrook, The Fragile Middle Class: Americans
in Debt (Yale U. Press 2000).
31 See Jason J. Kilborn, Twenty-Five Years of Consumer Bankruptcy in Continental Europe: Internal-
izing Negative Externalities and Humanizing Justice in Denmark, 18 Intl. Insolv. Rev. 155 (2009).
32 See INSOL report (2001), supra note 18, at 4: “Solving consumer debt problems can be very
complex. Unfortunately, these problems are frequently caused by or in relation to socio-
psychological factors, such as divorce, redundancy, job loss, addiction, disability etc. These
situations interfere with the quality of life and in many respects may have serious conse-
The Role of Personal Insolvency Law in Economic Development 119

increasing the production of taxable income; by maximizing economic activity
and encouraging entrepreneurship; and by enhancing stability and predict-
ability in the ﬁnancial system and the economy.
An eﬀective and eﬃcient personal insolvency regime, therefore, both
avoids waste and increases productivity, and it contributes to a healthier and
more stable economy. These beneﬁts deserve careful consideration by policy
makers and provide a justiﬁcation for the importance of developing adequate
regimes for the treatment of the insolvency of natural persons. The World Bank
report considers the impediments in achieving the objectives of a personal in-
solvency system. Those impediments are identiﬁed as fraud, stigma, and moral
hazard. These factors may operate at diﬀerent levels of intensity, reducing the
beneﬁts of a personal insolvency system.33 Cultural and historical peculiarities
of each society may require diﬀerent responses to these issues,34 but the experi-
ence of a number of systems shows that these concerns may be overcome.

Core Legal Attributes of an Insolvency Regime for Natural Persons
The World Bank report describes the main a ributes of a personal insolvency
regime.35 In including such a description, the report makes no a empt to
promote any particular system as the “ideal” regime for the treatment of the
insolvency of natural persons. The report includes the essential elements of
a system, with diﬀerent possibilities and options and their corresponding
advantages and disadvantages, as experienced in numerous legal systems
of both developed and developing countries. The report acknowledges that
the design of a personal insolvency regime needs to take into account the pe-
culiar traits of a nation—social, economic, and cultural—in a more marked
fashion than a business insolvency system does. A one-size-ﬁts-all approach
is expressly discarded. Another important concept is that personal insolvency
law does not exist in a vacuum: it is essential to consider connections with the
general insolvency regime and connections with the regulation of consumer
and commercial credit.
The World Bank report concentrates on the legal a ributes that are ger-
mane to personal insolvency regimes. There are numerous issues—for in-
stance, the regulation of avoidance actions or the regulation of insolvency pro-
fessionals—for which the solutions provided by general insolvency regimes
require practically no additional consideration. The report focuses on aspects
that may require special treatment in a regime for the treatment of the insol-
vency of natural persons: the general design of the regime; the relationship

quences for the health of the debtor and his or her family and the way they live. They may
become socially isolated or retreat from life altogether.”
33 See Rafael Efrat, Personal Bankruptcy in the 21st Century: Emerging Trends and New Challenges;
The Evolution of Bankruptcy Stigma, 7 Theoretical Inq. L. 365 (2006).
34 See Iain Ramsay, Between Neo-liberalism and the Social Market: Approaches to Debt Adjustment
and Consumer Insolvency in the EU, 35 J. Consumer Policy, 421 (2012).
35 See World Bank report, supra note 3, at para. 126ﬀ.
120 The World Bank Legal Review

of the formal insolvency regime with alternative informal solutions; the role
of courts, agencies, and intermediaries; the conditions for access to the insol-
vency process; and the solutions to the insolvency process and the discharge
of the debtor.

General Regime Design: Procedural Options and the Relation
with Informal Workouts
There are many options for the design of a personal insolvency regime: in
some countries, a special statute for the treatment of consumer indebtedness
represents the way in which a separate insolvency regime is introduced. In
other countries, there is a closer integration with the general insolvency re-
gime, and the general insolvency statute includes a regime that either is ﬂex-
ible enough to accommodate the needs of natural persons or incorporates spe-
cial rules and procedures for natural persons.36 The decision regarding which
options to use depends mostly on the characteristics of the national legal sys-
tem and the political implications of enacting a special statute for consumers
or individual debtors.
In any case, a formal insolvency regime can serve as the backdrop for
informal negotiations, as creditors and debtors “bargain in the shadow of
insolvency law.”37 It is important that an insolvency regime provide for the
possibility of resolving insolvency through informal negotiations, often called
workouts, with subsequent savings in costs, fees, and administrative and judi-
cial resources. There are important advantages to negotiated solutions: apart
from lower costs, the most noticeable ones are the avoidance of stigma and a
less adverse impact on debtors’ scores in credit information systems. There
are also advantages in the fact that informal negotiations tend to yield be er
outcomes for creditors and can provide for greater ﬂexibility to accommodate
the needs of both the debtor and the creditor, taking into account, addition-
ally, that ﬁnancial institutions generally prefer to renegotiate loans than to
resort to formal enforcement or insolvency proceedings.
There are obstacles to voluntary negotiations, however. Some creditors
refuse to negotiate and, in so doing, boyco a negotiated solution to the in-
solvency of the debtor. Other creditors do not engage actively in negotiations,
exhibiting considerable apathy.38 As with creditor apathy in business insol-
vency, the law can provide mechanisms to deal with holdout and inactive
creditors by imposing the binding force of agreements on those creditors.
The experience in the few systems in which informal alternatives to insol-
vency have been successful suggests that several elements perform a useful

36 Id., at para. 139ﬀ.
37 Following the classic expression of Robert H. Mnookin & Lewis Kornhauser, Bargaining in
the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).
38 The phenomenon is similar in some of its traits to that of rational apathy of shareholders in
corporate law: see Robert C. Clark, Vote Buying and Corporate Law, 29 Case W. Res. L. Rev. 776
(1978–1979).
The Role of Personal Insolvency Law in Economic Development 121

role in promoting negotiations, such as professional assistance in negotiations
at a very low cost, or without cost, and a standstill agreement so that there is
no immediate threat of the enforcement of claims.

The Institutional Framework
An essential part of a personal insolvency system is a well-functioning insti-
tutional framework.39 Ideally, the institutional framework reduces the overall
costs of the system by minimizing errors in the treatment of insolvent debtors
and by providing for timely resolution of cases, with predictable results for all
parties. The design of an institutional structure for a personal insolvency sys-
tem must take into account the context of existing institutions and the avail-
ability of professional intermediaries in any particular country.
A factor in personal insolvency systems is the large number of cases.40 The
high number of individual insolvents, together with the relative homogeneity
of many of these cases, allows for standardized systems of treatment and re-
quires a reconsideration of the costs and resources necessary to resolve cases
in which the legal controversies tend to be less complex than those that arise
in corporate or business insolvencies.
The institutional framework to be adopted depends on the capability of
the state. In some institutional frameworks, an administrative agency is in
charge of the insolvency procedures; others are characterized by hybrid public-
private systems in which public insolvency procedures coexist with private
restructuring alternatives; and still others are court-based systems. Although
the majority of countries have court-based systems, some countries have
adopted administrative approaches, with courts taking a role only in disputed
cases.
Intermediaries are very important in most systems. In several countries,
public agencies play a signiﬁcant role in the insolvency of natural persons.
Hybrid public-private models exist in which the primary actors are insolvency
practitioners who perform several functions in the personal insolvency pro-
cess under the supervision of a public regulator.41

Access to the Formal Insolvency Regime
A main challenge in implementing a personal insolvency regime is the cre-
ation of enough incentives for honest and unfortunate debtors so that they are

39 See World Bank report, supra note 3, at para. 152ﬀ.
40 See, for example, Edward J. Janger, Crystals and Mud in Bankruptcy Law: Judicial Competence
and Statutory Design, 43 Ariz. L. Rev. 559, 615 (2001), which highlights the well-known fact
that every year there are more than one million consumer bankruptcy cases in the United
States.
41 In this regard, the English individual voluntary arrangement, which consists of a payment
plan agreed to outside the court with the assistance of an insolvency practitioner, provides
a good example; see Adrian Walters, Individual Voluntary Arrangements: A “Fresh Start” for
Salaried Consumer Debtors in England and Wales?, 18 Intl. Insolv. Rev. 5 (2009).
122 The World Bank Legal Review

able to use the insolvency process without being deterred by stigma or by the
costs of the procedure itself.42
The World Bank report lists the main approaches used to ﬁnance personal in-
solvency processes. Those approaches include state funding; cross-subsidiza-
tion of low-value insolvencies by higher-value estates; state subsidies to pro-
fessionals involved in the process and write-oﬀ of court costs when there is
an inability to repay; levies on creditors, such as taxation of distressed debt to
fund cases for which individuals have no ability to pay; and no state support
beyond general public funding of the court system.
On the issue of standards for access to individual insolvency, the World
Bank report emphasizes that standards should be transparent and certain and
should ensure against improper use by creditors or debtors. There are dif-
ferent philosophies on this issue. On the one hand, open access represents
an approach whereby any individual who meets an insolvency test gains ac-
cess to an insolvency procedure that allows an ultimate discharge of debts.
On the other hand, numerous systems include additional requirements, with
the purpose of addressing the problems of moral hazard and debtor fraud.
When high barriers to access are used, the risk is that they can result in a large
number of individuals being driven out of the formal economy, with negative
consequences for themselves, for creditors, and for society. It is possible to ad-
dress the problems of abuse of process, or of questionable conduct within the
process itself, by imposing sanctions or denying some or all of the beneﬁts of
the insolvency process.

Payment through Liquidation or through a Payment Plan
Personal insolvency law comprises many of the features of traditional busi-
ness insolvency law: it is a collective process in which creditors participate to
protect their interests, and one of main goals of the process is the satisfaction
of claims. However, in personal insolvencies, creditor participation is reduced
due to a lack of incentives for creditors to take part in procedures in which the
absence of valuable assets is the rule. This lack of resources does not justify
a complex structure of creditor participation through creditors’ meetings or
creditor commi ees.
Regarding payment to creditors, there are important qualiﬁcations in per-
sonal insolvency law. There are two fundamental approaches to payment, as
in business insolvency: creditors may receive a payment through the liqui-
dation of the debtor’s assets, or they may receive a payment through a plan
funded with the debtor’s future income.
Payment presents one of the most intense conﬂicts in personal insolvency
law. If personal insolvency aims at the preservation of the person, allowing
the debtor to resume a productive life, then a liquidation cannot include all

42 See World Bank report, supra note 3, at para. 186ﬀ.
The Role of Personal Insolvency Law in Economic Development 123

the assets of the debtor nor can a payment plan absorb all the future income
of the debtor.
In most legal systems, natural persons are allowed to keep some of their
essential assets. Exemptions, therefore, represent a relevant aspect of the per-
sonal insolvency regime and of the debt enforcement regime in general.43
Typically exempt assets are automobiles, household furnishings, postcom-
mencement salaries, retirement plans, and professional equipment. Diﬀer-
ences in the treatment of exemptions can create incentives and disincentives
for debtors, although the eﬀects of those incentives and disincentives on the
conduct of actual debtors have often been overstated.44 The family home is an
exemption in some legal systems, but this exemption can be alleged by the
debtor against unsecured creditors and does not aﬀect the rights of mortgage
creditors to enforce their security. The social problem caused by the loss of
housing as a result of mortgage foreclosures may require extraordinary mea-
sures, especially in the context of a systemic crisis.45
Exemptions are clearly connected to the notion of a fresh start. When debt-
ors exit from insolvency, discharge their debts, and obtain a fresh start, they
should own suﬃcient property to meet their basic needs. In some systems,
exemptions have provided the only relief to debtors, in the absence of a dis-
charge, but experience shows that exemptions alone, without the extinction of
debt, are insuﬃcient to provide debtors with the opportunity of resuming a
normal, productive life.
Because available assets of natural person debtors often have li le or no
value, personal insolvency regimes increasingly incorporate payment plans
based on the future income of debtors. In some cases, a payment plan is an
alternative to traditional liquidation, but in other cases, the most valuable as-
sets of debtors are liquidated and the payment plan is a subsequent phase of
the procedure.
The requirement of a payment plan based on future income in exchange
for the discharge of debt has given rise to the notion of earned start, rather
than a simple fresh start.46 However, including future income in the insolvency
of natural persons raises a number of other issues. For example, a personal
insolvency system cannot achieve its basic goals if debtors do not preserve
a suﬃcient portion of their income to cover their basic needs. In this regard,

43 Id., at para. 223ﬀ.
44 See William J. Woodward Jr. & Richard S. Woodward, Exemptions as an Incentive to Voluntary
Bankruptcy: An Empirical Study, 57 Am. Bankr. L.J. 53 (1983); see also Susan Block-Lieb &
Edward J. Janger, The Myth of the Rational Borrower: Rationality, Behavioralism, and the
Misguided “Reform” of Bankruptcy Law, 84 Texas L. Rev. 1481 (2006).
45 See Michelle J. White, Bankruptcy: Past Puzzles, Recent Reforms, and the Mortgage Crisis (NBER
Working Paper No. 14549, Dec. 2008), available at h p://www.nber.org/papers/w14549;
Adam J. Levitin & Joshua Goodman, Mortgage Market Sensitivity to Bankruptcy Modiﬁcation
(paper presented at the 2008 Am. L. & Economics Assn. Conference), available at h p://law
.bepress.com/cgi/viewcontent.cgi?article=2485&context=alea.
46 See World Bank report, supra note 3, at para. 262ﬀ.
124 The World Bank Legal Review

the discussion mirrors the debate on property exemptions. But additional is-
sues need to be considered in the design of a personal insolvency system, and
perhaps the most important one is the duration of payment plans. There are
substantial diﬀerences in the duration of plans that can be linked to social and
cultural issues. Although from a purely logical perspective, longer payment
plans should result in higher payments to creditors, the experience in several
systems suggests that payment plans extending over periods of many years
create disincentives for debtors and do not result in signiﬁcantly higher rates
of repayment to creditors. Debtors who have no valuable assets and cannot
generate signiﬁcant disposable income are known as NINAs (no income, no
assets). These debtors may have no access to the formal insolvency system,
and, if they are granted access, they may be unable to comply with the re-
quirements of a payment plan. In those cases, the main goals of the insolvency
system may not be achieved if these persons cannot receive relief. This obser-
vation illustrates the broader issue of the crisis of payment plans. Payment
plans can be regarded not primarily as an instrument to extract a higher pay-
ment from debtors, but rather as a mechanism that prevents moral hazard and
abuse of the insolvency system and that inculcates the notions of payment
responsibility and ﬁnancial discipline.
Some systems have introduced incentives for the productivity of debtors
in payment plans. This is an interesting approach, because persons who are
producing virtually all excess income for third parties—the creditors—can
easily devote their eﬀorts to covering only their basic needs, rendering the
payment plan ineﬀective. Combining incentives with penalties can create a
positive dynamic in payment plans.
A payment plan requires monitoring tools, and it may need to provide for
the necessity of revising the circumstances of the debtor and modifying the
plan, especially when the insolvency regime establishes a long rehabilitation
period for debtors.

Discharge
Discharge is the essential feature and one of the most salient characteristics
of modern systems for the regulation of the insolvency of natural persons.47
One of the principal purposes of an insolvency system for natural persons
is to reestablish the debtor’s economic capability, in other words, economic
rehabilitation,48 and discharge is the most eﬀective way in which the debtor
can resume productive activity for society. It is also the most eﬀective incen-
tive for the use of a personal insolvency regime.49

47 See Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy, 98 Harv. L. Rev. 1393 (1985);
Margaret Howard, A Theory of Discharge in Consumer Bankruptcy, 48 Ohio St. L.J. 1047 (1987);
John C. McCoid II, Discharge: The Most Important Development in Bankruptcy History, 70 Am.
Bankr. L.J. 163 (1996).
48 See, for instance, Richard M. Hynes, Why (Consumer) Bankruptcy?, 56 Ala. L. Rev. 121 (2004).
49 See Emily Kadens, The Last Bankrupt Hanged: Balancing Incentives in the Development of Bank-
ruptcy Law, 59 Duke L.J. 1229 (2010).
The Role of Personal Insolvency Law in Economic Development 125

The World Bank report analyzes the three main elements in a rehabilita-
tion policy.50 Discharge of debts is the most important one, but two additional
elements are connected to the treatment of indebtedness: debtors should not
be discriminated against after having been subject to an insolvency process
(principle of nondiscrimination); and debtors should be in a position to avoid
excessive indebtedness in the future, which may require the adoption of mea-
sures to change debtors’ a itudes concerning the use of credit, depending on
the circumstances of each case.51 In some systems, debtors are not allowed into
the insolvency system again until the passage of a period of time.
The discharge of debt provides a fresh start for the debtor by extinguish-
ing unpaid debts. This notion is contrary to traditional principles of the law
of obligations, however, and many legal systems reject the notion of a straight
discharge. Most systems try to favor “honest but unfortunate” debtors over
persons responsible for fraudulent or reckless behavior, but these distinctions
are not always easy to draw. A requirement of good faith of the debtor is
important to justify the loss of creditor rights caused by the discharge. Addi-
tionally, debtors need to “earn” a discharge by surrendering their nonexempt
assets to creditors and/or by complying with a payment plan for a speciﬁed
period of time.
To be eﬀective, a discharge should include as many debts as possible. Cer-
tain debts may be excluded from the discharge due to social or economic con-
siderations, including child and spousal support, ﬁnes and other sanctions,
and taxes; the examples diﬀer depending on the country. A more problematic
issue that aﬀects the eﬀectiveness of discharge is the sureties given by mem-
bers of the debtor’s family. Because discharge generally aﬀects only individual
debtors, family members who have guaranteed debts may ﬁnd themselves in
a diﬃcult situation. There is a trend toward greater ﬂexibility in the treatment
of guarantees, although the issue presents numerous challenges.

Conclusion
Insolvency is an inevitable consequence of credit. As economies grow and ac-
cess to credit becomes widespread, the need for an eﬀective personal insol-
vency law will become more apparent. Developing an eﬀective insolvency
regime that provides solutions to the complex and sensitive problems of the
indebtedness of natural persons and assists in returning debtors to a produc-
tive life requires a deep knowledge of legal techniques and considerable expe-
rience in their implementation. The World Bank report condenses knowledge

50 See World Bank report, supra note 3, at para. 354ﬀ.
51 Prevention of overindebtedness requires policies that are broader than the regulation of in-
solvency. See Claudia Lima Marques, Fundamentos Cientíﬁcos da Prevenção e Tratamento do
Superendividamento, in Prevenção e Tratamento do Superendividamento 15 (Claudia Lima Mar-
ques, Clarissa Costa Lima, & Káren Bertoncello eds., Departamento de Proteção e Defesa do
Consumidor & Sistema Nacional de Defesa do Consumidor 2010).
126 The World Bank Legal Review

and experience in this area and is an extremely useful instrument for research-
ers and policy makers.
The World Bank report is not prescriptive, and it does not purport to oﬀer
solutions that are applicable to all countries. Instead, the purpose of the report
is to provide a comprehensive list of issues to consider in the design of a per-
sonal insolvency system and an analysis of the positive and negative eﬀects of
the diﬀerent policy choices available in the conﬁguration of the legal regime.
In this regard, the report represents an approach that is very diﬀerent from
that of international standards. The report acknowledges the impact of cul-
tural, legal, and social diﬀerences; policy makers can assess the consequences
of their policy choices, and the implicit message that emerges favors a more
humane and equitable treatment of debtors. Indeed, the history of bankruptcy
law evidences a clear trend toward a more humane treatment of debtors.
There has been a long evolution from the extreme treatment of debtors un-
der primitive Roman law, which included the (possibly ﬁgurative) killing and
dismemberment of debtors.52 The contrast with modern insolvency systems is
striking: debtors are provided an opportunity to restart a productive activity
and are assisted by social and educational programs. A personal insolvency
system has become an important element for the promotion of equity and
inclusion in modern societies.
Recently, Colombia became the ﬁrst Latin American country to introduce
a personal insolvency regime with the notion of the discharge of debts as a
core element.53 The Colombian regime provides for discharge through liqui-
dation or through the completion of a payment plan. The drafters of the new
law have declared that the World Bank report was a valuable element in their
analysis of the reform and a useful tool to guide choices among diﬀerent policy
options with the ultimate goal of designing an eﬀective system. It is hoped
that policy makers in other countries will rely on the World Bank report, and
that the treatment of personal indebtedness and personal insolvency becomes
an essential element in policies that seek to achieve inclusive and sustainable
economic development.

52 See Geoﬀrey MacCormack, Partes Secanto, 36 Tijdschrift voor Rechtsgescheidenis 509 (1968);
see also S. Laurence Shaiman, The History of Imprisonment for Debt and Insolvency Laws in
Pennsylvania as They Evolved from the Common Law, 4 Am. J. Leg. Hist. 205 (1960). Although
the killing and dismemberment of the debtor seems to be ﬁctional, the alternative of selling
the debtor as a slave was used, not to mention the practice of imprisonment for debts, which
was common in European countries for many centuries.
53 See Ley 1564 (2012) (Colombian General Code of Procedure), secs. 531ﬀ.
Specialized Insolvency Regimes
for Islamic Banks
Regulatory Prerogative and Process Design

HDEEL ABDELHADY

The failures of large ﬁnancial institutions in 2007 and 2008 revealed the inad-
equacy of existing insolvency regimes to resolve failed ﬁrms while limiting
the impact to the ﬁnancial system, public funds, and market conﬁdence.1 In
response, governments have studied and adopted measures to be er manage
the insolvency of ﬁnancial institutions, with a focus on systemically impor-
tant ﬁnancial institutions (SIFIs) and a ention to smaller ﬁrms. In the United
States, the Dodd-Frank Wall Street Reform and Consumer Protection Act cre-
ated a special framework for the resolution of systemically important ﬁnan-
cial companies.2 In the United Kingdom, the Banking Act 2009 established
a Special Resolution Regime to facilitate the swift and orderly resolution of
failed ﬁrms.3 Multilaterally, the G20 Financial Stability Board has moved to
strengthen and standardize resolution frameworks.4 These measures share
common policy objectives; namely, the timely detection of risk, early regula-
tory intervention, the avoidance of government bailouts and related moral
hazard, and enhanced market discipline.

1 In this chapter, Arabic terms such as mudaraba, mudarib, and Shari’ah appear with alterna-
tive phonetic spellings, due to diﬀerences in spelling between the author and some quoted
sources. Because the diﬀerences are minor and the meanings remain clear, source spellings
are intact. The terms Shari’ah and Islamic law are used interchangeably.
2 Orderly Liquidation Authority (OLA) under Title II of the Dodd-Frank Wall Street Reform
and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codiﬁed as amended
in sca ered sections of 12 U.S.C. and 15 U.S.C.) (hereinafter Dodd-Frank). In this chapter,
OLA, a substantively harmonized and administratively managed resolution regime, is dis-
cussed as a framework of reference for the design of insolvency regimes for Islamic banks,
which, like some ﬁnancial companies subject to OLA, straddle banking and capital markets
and are well-suited for insolvency frameworks that combine banking and capital market
rules and administratively managed insolvency processes
3 Banking Act 2009, 2009, ch. 1, secs. 90–122 (Eng.). See also, for a brief overview, Her Majesty’s
Treasury, Banking Act 2009 and the Establishment of the Special Resolution Regime, available at
h p://www.hm-treasury.gov.uk/ﬁn_stability_bankingact_srr.htm (accessed May 2, 2013).
Notably, the Special Resolution Regime includes resolution mechanisms used in the United
States for decades, such as bridge banks and regulator-brokered transfers of failed bank as-
sets and liabilities to healthy ﬁrms.
4 See, for example, Financial Stability Board, Key A ributes of Eﬀective Resolution Regimes for Fi-
nancial Institutions (Oct. 2011), enumerating the “core elements . . . necessary for an eﬀective
resolution regime.”

127
128 The World Bank Legal Review

Notably, Islamic banks and other Islamic ﬁnancial institutions have been
absent from recent discussions on the resolution of failed banks.5 This is not
unexpected. Islamic ﬁnancial institutions are not—individually or collective-
ly—suﬃciently large or interconnected to qualify for SIFI status.6 But there is
no reason to wait for Islamic banks to become systemically important to adopt
regimes for their resolution. Islamic banks are not yet “too big to fail,” but
they are too young to risk failure.7 Many governments, in Muslim-majority
and other jurisdictions, have embraced Islamic banks, but only half-heartedly:
they have taken steps to a ract funds through Islamic ﬁnance, but have yet to
construct the legal and regulatory infrastructure needed to support its sustain-
able growth within their borders. This approach has proved passable, but it is
neither legally sustainable nor economically optimal. Particularly in Muslim-
majority jurisdictions, Islamic banking has the potential to boost economic
and ﬁnance sector development and ﬁnancial inclusion. To realize this po-
tential, enabling legal and regulatory environments are required to facilitate
the sustainable growth of Islamic banking. Such environments must include
insolvency regimes for Islamic banks that, like other well-crafted regimes
promote market conﬁdence, allow for early detection of risk and regulatory
intervention, and impose market discipline on Islamic banks and their coun-
terparties, including by necessitating, if not mandating, improved disclosure
and contracting practices.

5 Although the World Bank and the Islamic Financial Services Board (IFSB), an Islamic ﬁnan-
cial services standard-se ing body, have explored “[e]ﬀective insolvency regimes for Islamic
ﬁnancial institutions,” with a focus on framing some of the issues.
6 Information about the systemic importance of Islamic banks has been, and is, relatively
scant. For example, the authors of a 2008 International Monetary Fund (IMF) publication
believed their paper was “the ﬁrst to provide a cross-country empirical analysis of the
role of Islamic banks in ﬁnancial stability.” Martin Čihák & Heiko Hesse, Islamic Banks and
Financial Stability: An Empirical Analysis 3 (International Monetary Fund Working Paper
No. WP/08/16, 2008). Available literature on Islamic banks and ﬁnancial stability is based on
theoretical models, rather than on “formal empirical analysis.” (Id., at 5.)
7 Uncertainty as to the nature of Islamic ﬁnancial instruments and investor rights at default
has had a chilling eﬀect. For example, the sukuk market was adversely aﬀected by a lead-
ing Shari’ah scholar’s 2007 opinion raising doubts about the legality of some sukuk (com-
monly described as “Islamic bonds”) then on the market. See, for example, Robin Wiggles-
worth, Sharia Boards: Scholars Hold Sway over the Success of Products, Financial Times (May
5, 2009), available at h p://www.ft.com/cms/s/0/91c1636e-3836-11de-9211-00144feabdc0
.html#axzz2UMouSeaW (accessed May 5, 2013). Dubai World’s November 2009 request to
halt debt repayments, including payments to holders of a $3.5 billion sukuk issued by the
property developer Nakheel, exposed uncertainty as to the legal rights and obligations of
sukuk holders in default or other distress. See, for example, Heiko Hesse & Andreas Jobst,
Debrieﬁng Nakheel: Wider Implications for the Sukuk Market, Roubini Global Economics, Econo-
monitor (Apr. 29, 2010), available at h p://www.economonitor.com/blog/2010/04/debrieﬁng
-nakheel-wider-implications-for-the-sukuk-market/ (accessed May 5, 2013). In banking,
some Egyptian consumers and regulators remain skeptical of Islamic banking as a result of
decades-old fraud cases involving Islamic institutions. See, for example, Flirting with Islamic
Finance, infra note 21 (“For many years, Egyptians have had reservations against Islamic ﬁ-
nance, after ﬁrms like Al-Rayan and Al-Saad stripped thousands of Egyptians of millions of
pounds in Ponzi schemes in the mid-1980s”).
Specialized Insolvency Regimes for Islamic Banks 129

This chapter advocates the adoption of specialized, administratively man-
aged (nonjudicial) resolution regimes for Islamic banks, for the following reasons:8
• Insolvency regimes must mirror the unique features of Islamic banking;
proﬁt-sharing investment accounts are discussed as an example of those
unique features.
• Early intervention and expeditious resolution at failure are necessary to
protect consumers, maintain conﬁdence in banks, and preserve the as-
sets of failing or failed banks. These objectives would be best met through
nimble, administratively managed processes rather than through the
courts and subject to generic bankruptcy laws, particularly in jurisdic-
tions in which the courts and/or insolvency laws are not suited for bank
failures or where existing procedures might lead to ad hoc outcomes.9
• Islamic banking is, where Shari’ah compliance is concerned, eﬀectively
self-regulating, at both the ﬁrm and industry levels. Self-enforced Shari’ah
compliance is appropriate given the relative youth of Islamic banking and
the potential innovation beneﬁts of laissez-faire approaches. But because
Shari’ah shapes all aspects of Islamic banking, self-regulation must be
tempered by robust process-based and outcome-driven regimes that dis-
allow the monopolization of information to an extent that regulators are
limited in their ability to obtain, process, validate, and act on information
pertinent to the health of Islamic banks.
Importantly, the positions advanced in this chapter are premised on the view
that deﬁning legal outcomes through specialized insolvency regimes for
Islamic banks will propel―as a ma er of necessity―Islamic banks, standard-
se ing bodies, and regulators to improve existing Islamic banking regula-
tion, with much needed policy direction and urgency.

Islamic Banking
Islamic banking has grown rapidly in the past 35 years,10 reaching an esti-
mated value of $1.1 trillion in 2012.11 Since 2008, growth has accelerated even

8 This chapter is concerned only with Islamic banks, and not with Islamic windows of conven-
tional banks.
9 In some jurisdictions, bank resolution can be ad hoc, even where the law provides for the
regulation of banks by a single authority. For example, in the United Arab Emirates, “on-
shore” banks are supervised by the Central Bank. The Central Bank may appoint a liquida-
tor and not itself liquidate insolvent banks (which are also subject to generally applicable
insolvency laws). Such a framework does not ensure uniformity of outcomes. See United
Arab Emirates Union Law No. 10 of 1980, Concerning the Central Bank, the Monetary System,
and Organization of Banking.
10 Since shortly after the establishment of Dubai Islamic Bank in 1975. The ﬁrst modern Islamic
bank was Mit Ghamr, established in 1963 in Egypt. The establishment of Dubai Islamic Bank
is used as a time marker here given the bank’s comparatively large size, wider commercial
banking mandate, and greater visibility.
11 Camilla Hall, Islamic Banking: Impressive Growth Underscores Success, Financial Times
(Mar. 27, 2012), available at h p://www.ft.com/cms/s/0/09a99422-7291-11e1-9be9-00144
130 The World Bank Legal Review

faster. By some estimates, Islamic banking broke $1 trillion in 2009, from
$947 billion in 2008.12 “One potential scenario” predicts that “global Islamic
banking assets with commercial banks . . . [will] reach $1.8 trillion in 2013 . . .
representing average annual growth of 17%.”13 In the Middle East and North
Africa, Islamic banking assets are projected to more than double to $990 bil-
lion by 2015, from $416 billion in 2010.14 In Gulf Cooperation Council states,
Islamic banks have “crossed the . . . important 25% [market share] threshold
which means . . . [they] are competing in the conventional market as well.”15
At the ﬁrm level, it is expected that Islamic banks will take near-term steps to
achieve scale through mergers and expansion.16
The growth of Islamic banks should be welcome. They have the potential
to facilitate ﬁnancial inclusion, including by meeting the needs of ﬁnancially
marginalized individuals and small and medium-size enterprises (SMEs) and
capturing assets traditionally beyond the reach of formal economies. Accord-
ing to the World Bank, approximately “2.5 billion adults lack access to formal
ﬁnancial services, limiting their ability to beneﬁt from economic opportuni-
ties, improve their health and education, and raise their income levels.”17 In
the Middle East and North Africa, a natural market for Islamic banks, “only
18% of adults have a bank account.”18 In Egypt, the most populous Arab state,
fewer than 10 percent of Egyptians have bank accounts, according to some es-
timates.19 In Indonesia, the largest Muslim country by population, SMEs “are
facing a credit crunch,” notwithstanding the relative liquidity of Indonesia’s
commercial banks.20 In other majority-Muslim jurisdictions, the market poten-

feab49a.html#axzz2UKZvZVYt (accessed May 5, 2013). This is a conservative estimate. Ernst
& Young, for example, estimates the 2011 value of global Islamic banking assets at $1.334 tril-
lion. Ernst & Young, World Islamic Banking Competitiveness Report 2013: Growing beyond DNA
of Successful Transformation, 6 (Dec. 2012), available at h p://www.mifc.com/index.php?ch
=151&pg=735&ac=818&bb=ﬁle1 (accessed May 3, 2013).
12 Pejman Abedfar, Philip Molyneux, & Amine Tarazi, Risk in Islamic Banking 2 (LAPE working
paper, May 3, 2012). Cumulative estimates include both wholly Islamic banks and Islamic
windows of conventional banks.
13 Ernst & Young, supra note 11, at 6.
14 Ernst & Young, The World Islamic Banking Competitiveness Report: A Brave New World of Sus-
tainable Growth 2011–2012 8 available at h p://www.ey.com/Publication/vwLUAssets/IBCR
_Report/$FILE/IBCRReport2011(LR)%20Final.pdf (accessed May 3, 2013).
15 Id., at 19.
16 Id., at 66, 70.
17 World Bank, Financial Inclusion: Helping Countries Meet the Needs of the Under-Banked and
Under-Served, available at h p://www.worldbank.org/en/results/2013/04/02/ﬁnancial
-inclusion-helping-countries-meet-the-needs-of-the-underbanked-and-underserved (ac-
cessed May 3, 2013).
18 Id.
19 Business Today Egypt, Payroll Potential, available at h p://www.businesstodayegypt.com
/index.php?url=news/display/article/artId:39/payroll-potential/secId:3 (Jan. 1, 2011) (ac-
cessed May 3, 2013).
20 Jay K. Rosengard, If the Banks Are Doing So Well, Why Can’t I Get a Loan? Regulatory Constraints
to Financial Inclusion in Indonesia 1 (Kennedy Sch. of Govt., Mossavar-Rahmani Ctr. for Bus.
Specialized Insolvency Regimes for Islamic Banks 131

tial for Islamic banking is strong due to religion-based demand.21 In minority-
Muslim jurisdictions, regulators are keen to develop Islamic banking and
ﬁnance to cater to small Muslim populations and to a ract foreign funds.22
With the growth of Islamic banking and its potential comes the need for
substantively appropriate regulation and eﬀective enforcement. An Interna-
tional Monetary Fund (IMF) study on Islamic banks and ﬁnancial stability
found that “Islamic banks pose risks to the ﬁnancial system that . . . diﬀer from
those posed by conventional banks . . . [due to] the speciﬁc features of Islamic
contracts, and the overall legal, governance, and liquidity infrastructure of Is-
lamic ﬁnance.”23 The same study concluded that large Islamic banks, compared
to small Islamic and small and large conventional banks, were the least stable
of the group.24 “[L]arge Islamic banks . . . [had] signiﬁcantly lower z-scores [a
stability measure] than small Islamic banks,” while large conventional banks
were found to have “signiﬁcantly higher z-scores than small commercial
banks.”25 The growth of Islamic banks in number and size necessitates and
underscores the importance of tailored regulation and insolvency frameworks.

& Govt. Working Paper No. 2011-15, Harv. U. 2011).
21 Some research has shown a preference among Muslim consumers for Islamic banking when
it is available and perceived to be truly Shari’ah compliant. This sentiment was illustrated in
an article about an Egyptian consumer who planned to transfer her savings to Islamic banks
“after spending the last 15 years unwillingly investing her money in interest-bearing invest-
ment certiﬁcates . . . [and feeling that her proﬁts were] never blessed.” Sherine Abdel-Razek,
Flirting with Islamic Finance, 1092, Al-Ahram Weekly (Apr. 5–11, 2012), available at h p://
weekly.ahram.org.eg/2012/1092/ec1.htm (hereinafter Flirting with Islamic Finance). The article
reﬂects the preference of some Muslim consumers for Islamic banking, as well as their skep-
ticism, noting the view of some Egyptians that “even Islamic banks in Egypt did not apply
Sharia law completely.”
22 For example, in South Africa, where 2 percent or less of the population is Muslim, authorities
are working to position the country as an Islamic ﬁnance hub. Xola Potelwa, S. Africa’s FNB
Hires New Sharia Commi ee, Faces Regulation Challenges, Reuters (Apr. 30, 2013), available
at h p://www.reuters.com/article/2012/08/28/safrica-fnb-sharia-idAFL5E8JQ3OM20120828
(accessed May 3, 2013). Similarly, in Zambia, where approximately 12 percent (or less) of
the population is Muslim, the country’s central bank governor explained that Zambia’s
relatively small Muslim population includes “ ‘high value businessmen who control a very
signiﬁcant share of the Zambian economy,’ making their exclusion from the banking sector
hurtful to the economy.” Other Muslim-minority jurisdictions, such as the United Kingdom;
Hong Kong SAR, China; and Singapore, have pursued Islamic ﬁnance with varying degrees
of ambition.
23 Čihák & Hesse, supra note 6, at 4–5, countering the minority view that Islamic banking, as
practiced, for example, in Malaysia, “is not very diﬀerent from conventional banking . . .
[and thus] for purposes of ﬁnancial section analysis, Islamic banks should be treated simi-
larly to their commercial [conventional] counterparts.”
24 Id., at 13–16 and generally. Finding also that Islamic banks—small and large—“appeared to
be more stable than commercial banks . . . [a] result [that] seem[ed] driven by small Islamic
banks that have higher z-scores than small commercial banks (indicating higher stability),
while large Islamic banks have lower z-scores than large commercial banks.” (Id., at 13‒14.)
25 Id., at 14 & note 12, noting that these ﬁndings were at 1 percent. The authors indicate a
positive correlation between “greater income diversity” (i.e., nonlending-based income) and
increases in z-scores in large Islamic banks, “suggesting that a move from lending-based
operation to other sources of income might improve stability in those banks.” (Id., at 17.)
132 The World Bank Legal Review

Islamic Banks in Practice
Four of the bedrock principles of Shari’ah that shape Islamic banking are
• The prohibition of riba, a term commonly described as interest but that
more broadly connotes the predetermination of ﬁxed and guaranteed re-
turns with elements of excessive risk asymmetry26
• Proﬁt and loss sharing (PLS)
• The avoidance of gharar; that is, uncertainty to a degree that would obfus-
cate or frustrate economic or contractual purpose27
• The avoidance of speculation
As to the prohibition of interest, the Accounting and Auditing Organisation
for Islamic Financial Institutions (AAOIFI) has a standard on the conversion
of banks from conventional to Islamic that is emphatic. That standard requires
as a prerequisite of conversion that “[a]ll traces of conventional transactions
whereby the bank originated monetary assets and is liable to pay interest for
them must be liquidated.”28 The prohibition of interest—the primary measure
of proﬁt and marker for managing assets and liabilities in conventional bank-
ing—in principle distinguishes Islamic banks in all aspects of their operations.

Islamic Banking: Commercial Landscape
To compete with conventional counterparts, Islamic banks often benchmark
proﬁt margins to prevailing interest rates (e.g., Libor), both in extending credit
and in sourcing funding through deposits. For example, ijarah (lease ﬁnance)
and murabaha (cost-plus-proﬁt sale-based ﬁnancing) transactions (on the asset
side of the banks’ balance sheets) are typically benchmarked to interest rates.
On the liability side of the balance sheet, Islamic banks raise funds through

26 The concept of riba is well elucidated, as follows:
[R]iba—a term literally meaning “an excess” and interpreted as “any justiﬁable increase
of capital whether in loans or sales”—is the central tenet of the [Islamic] system . . .
riba covers not only usury but also the charging of “interest” as widely practiced. This
prohibition is based on arguments of social justice, equality, and property rights. Is-
lamic law encourages the earning of proﬁts but forbids the charging of interest because
proﬁts, determined ex post, symbolize successful entrepreneurship and creation of ad-
ditional wealth, whereas interest, determined ex ante, is a cost that is accrued irrespec-
tive of the outcome of business operations. . . . Social justice demands that borrowers
and lenders share rewards as well as losses . . . and that the process of accumulating and
distributing wealth in the economy be fair and representative of true productivity.
Hennie Van Greuning & Zamir Iqbal, Risk Analysis for Islamic Banks 7 (International Bank for
Reconstruction and Development/World Bank 2008).
27 AAOIFI, a key standard-se ing body, deﬁnes gharar as “a state of uncertainty that exists
when the process of concluding a transaction involves an unknown aspect . . . gharar refers
to the status of results that may or may not materialize.” AAOIFI, Shari’a Standards for Islamic
Financial Institutions, Shari’a Standard No. (31), Controls on Gharar in Financial Transactions,
para. 2/1 (Accounting and Auditing Organisation for Islamic Financial Institutions 1432H-
2010) (entire compilation, hereinafter AAOIFI Shari’a Standards).
28 AAOIFI Shari’a Standards, supra note 27, Shari’a Standard No. (6), Conversion of a Conventional
Bank to an Islamic Bank, para. 6/1.
Specialized Insolvency Regimes for Islamic Banks 133

PLS-based investment accounts (discussed below), which often are managed
to achieve competitiveness with conventional interest-bearing deposit ac-
counts.29 Such practices have not gone without criticism. Both from within
and outside the Islamic ﬁnance industry, Islamic banks have been accused
of mimicking conventional products, rather than providing truly Shari’ah
-compliant oﬀerings. Critics often cite the practice of benchmarking proﬁts
to interest rates as proof. Some Muslim consumers are skeptical as to the
authenticity of Islamic banking products and refrain from Islamic banking for
that reason.

Legal Landscape: Gaps and Gray Zones
Most of the jurisdictions in which Islamic banks operate, including those in
which Shari’ah is a source of law, have yet to adopt comprehensive legal frame-
works tailored to Islamic banking. Where Islamic banking contracts have been
litigated under civil law, results have been confusing and unhelpful to the
extent that litigation has not yielded Shari’ah precedent.30 Although standard-
se ing bodies such as AAOIFI and the Islamic Financial Services Board pro-
duce helpful frameworks, these frameworks are generally nonbinding and are
not always timely.31 As noted above, Islamic banks are largely self-regulating
where Shari’ah compliance is concerned: substantive decisions as to the
Shari’ah soundness of products and governance are made by Shari’ah super-
visory boards that comprise Shari’ah scholars who are recruited and remuner-
ated by the banks they supervise and whose decisions are often proprietary.

29 See, for example, V. Sundararajan, Proﬁt Sharing Investment Accounts—Measurement and
Control of Displaced Commercial Risk (DCR) in Islamic Finance, 19(1) Islamic Econ. Studies, 42
(2011) (hereinafter Sundararajan 2011) noting commercial pressures on Islamic banks to pro-
vide “market related returns that might deviate from the underlying asset returns to which
IAH are contractually entitled.” In marketing mudaraba-based accounts, some Islamic banks
indicate, but do not commit to, expected returns comparable to prevailing interest-based
returns on functionally similar conventional products. Other observations on the likeness of
Islamic and conventional banking are at, for example, Abedfar et al., supra note 12, at 10–11,
discussing ﬁndings from Malaysia that “only 0.5% of Islamic bank ﬁnance is based on PLS
principles”; from Pakistan, that mudaraba companies that “are supposed to operate in the
form of PLS mainly follow non-PLS modes of ﬁnance”; from Indonesia, where “PLS modes
of ﬁnance accounted for 35.7% in the ﬁnancing of Islamic banks . . . by the end of 2008”; and,
noting one interesting ﬁnding that “while Islamic banks appear to refrain from practicing
PLS modes of ﬁnance they face possible greater withdrawal risks than conventional banks.”
30 See, for example, Hdeel Abdelhady, Islamic Law in Secular Courts (Again): Teachable Moments
from the Journey, 18 Intl. L. News (Fall 2009), discussing Shamil Bank of Bahrain EC v. Beximco
Pharmaceuticals Ltd. (2004) All E.R. 1072; Shamil Bank of Bahrain v. Beximco Pharmaceuticals
Ltd. (2003) All E.R. (Comm.) 849; Hdeel Abdelhady, The Front Oﬃce Generates Revenue, the
Back Oﬃce Creates Value: Operational Excellence Is the Key to Unlocking Lasting Value in Islamic
Finance (ABA & Hawkamah, the Inst. of Corp. Governance [DIFC] white paper). Both pub-
lications are available at h p://www.masspointpllc.com/#!masspointnews-and-publications
/c17jc (accessed May 3, 2013).
31 For example, AAOIFI’s standard on the important subject of distribution of proﬁt from
PSIAs was issued in 2009, more than six years after AAOIFI’s Shari’ah Board decided, in
2003, to issue a standard on the subject. AAOIFI Shar’ia Standards, Shari’a Standard No. (40),
Distribution of Proﬁt in Mudarabah-Based Investment Accounts, App. A: Historical Note on
Preparation of Standard (hereinafter AAOIFI 40).
134 The World Bank Legal Review

Such deﬁcient and sometimes incongruous legal environments breed ambigu-
ity as to the rights and obligations of Islamic banks and their counterparties,
generally and at insolvency. The proﬁt-sharing investment account (PSIA), a
deposit product that yields no interest but is often managed to compete with
interest-based deposits, is discussed here as an example of the issues that ex-
ist and can arise in jurisdictions lacking clear Islamic banking regulation and
insolvency regimes.

PSIAs: A Unique “Liability” of Islamic Banks
Like their conventional counterparts, Islamic banks rely on customer deposits
as a source of core funding. However, Islamic banks do not oﬀer interest or
other ﬁxed, guaranteed returns on deposits (demand deposits32 and others),
but rather provide nonﬁnancial incentives to current account holders, such as
bill payment, checkbooks, and debit cards.33 Of interest here are PSIAs, which,
from the consumer perspective, are functionally similar to, for example, con-
ventional savings or certiﬁcate of deposit accounts.34 Based on mudaraba,35
PSIAs are of two kinds: “restricted” and “unrestricted.”36 They constitute a

32 Current (or checking) accounts are known as amanah accounts. Amanah, an Arabic term,
means, inter alia, “trust,” and its deﬁnition includes “deposited in trust” and “a deposit.”
The Hans Wehr Dictionary of Modern Wri en Arabic 35, 36 (J. Milton Cowan ed., 4th ed., Spo-
ken Language Services, Inc. 1994) (hereinafter Wehr Dictionary). From the Shari’ah perspec-
tive, Islamic banks are custodians of funds held in such accounts. Appropriately, an absolute
reserve requirement a aches to amanah accounts.
33 See, for example, Rodney Wilson, Legal, Regulatory and Governance Issues in Islamic Finance
41 (Edinburgh U. Press 2012), discussing current account services oﬀered by Dubai Islamic
Bank.
34 Mudaraba-based Islamic banking accounts are referred to by some key regulators as PSIAs,
a term that is used herein to refer only to mudaraba-based accounts. See, for example, Dubai
Financial Services Authority (DFSA), The DFSA’s Islamic Finance Regulatory Regime, available
at h p://www.dfsa.ae/Pages/DoingBusinesswithDFSA/IslamicFinance/IFRR.aspx (accessed
May 2, 2012); and Bank Negara Malaysia, Guidelines on Musharakah and Mudharabah Contracts
for Islamic Banking Institutions, available at h p://www.bnm.gov.my/guidelines/01_banking
/04_prudential_stds/15_mnm.pdf (accessed May 2, 2012). The DFSA is the regulator of ﬁnan-
cial (conventional and Islamic) and related activities in the Dubai International Financial
Centre. Bank Negara Malaysia is Malaysia’s central bank.
35 Mudaraba is a form of Islamic partnership between one or more providers of capital (rab al-
maal, pl. arbab al-maal) and one or more parties providing labor or other services, such as in-
vestment management (the mudarib). Mudaraba generally and mudaraba-based bank products
are discussed in AAOIFI Shari’a Standards, supra note 27, Shari’a Standard No. (13), Mudaraba
(hereinafter AAOIFI 13), and AAOIFI 40, supra note 31. Mudaraba-based investments also
appear on the asset side of Islamic banks’ balance sheets (with the Islamic bank as capital
provider and a third party as mudarib). Like PSIA holders, Islamic banks risk the loss of their
capital in such arrangements, which raises separate but related regulatory and insolvency
risk issues that are not discussed in this chapter.
36 Restricted mudaraba accounts typically are held by more sophisticated customers (e.g., in
the High Net Worth bracket). Unlike unrestricted accounts, restricted mudaraba transactions
are limited to certain investments (e.g., speciﬁc projects, industries) per the instruction of or
agreement with the capital provider; thus bank discretion is limited. Importantly, restricted
mudaraba accounts are not balance sheet liabilities for Islamic banks.
Specialized Insolvency Regimes for Islamic Banks 135

signiﬁcant portion of Islamic banks’ liabilities. By one estimate, more than 60
percent of Islamic banks’ funding derives from PSIAs.37
PSIAs are generally available to all classes of customers, regardless of
sophistication, and often with relatively small opening or minimum balance
requirements.38 Funds deposited are pooled with bank funds and invested by
the bank at its discretion. Proﬁts, if any, are distributed between the bank and
PSIA depositors, according to pre-agreed-on percentages. Risk between the
bank and PSIA depositors must be shared coextensively. According to AAO-
IFI:
It is not permissible for the capital provider to give the mudarib two
amounts of capital on condition that the proﬁt earned on one of the
two amounts would be taken by the mudarib while the capital pro-
vider would take the proﬁt earned on the other amount. It is not
also permissible for the capital provider to state that the proﬁt of
one ﬁnancial period would be taken by the mudarib and the capital
provider would take the proﬁt of the following ﬁnancial period.39
Similarly, it is not permissible to assign the proﬁt from a particular
transaction to the mudarib and the proﬁt from another transaction to
the capital provider.40

37 Sundararajan 2011, supra note 29, at 42. “A survey of [a]nnual [r]eports of Islamic banks in
diﬀerent countries showed that about 62% of total assets of those banks were funded, on
average, by proﬁt sharing investment accounts.” (Id., at note 1.) See also V. Sundararajan,
Risk Measurement and Disclosure in Islamic Finance and the Implications of Proﬁt Sharing Invest-
ment Accounts, Proceedings of 6th International Conference on Islamic Economics and Finance 118
(Munawar Iqbal et al. eds., Islamic Development Bank 2007) (unrestricted mudaraba accounts
represented “nearly zero to 80%” of the total deposits of some Islamic banks).
38 For example, Mashreq al Islami, the Islamic banking arm of Mashreq Bank, according to its
website, requires an initial minimum deposit amount of AED 3,000 (roughly $816 per May
2013 exchange rates) to open a mudaraba-based “savings account,” the mechanics of which
are described on the website as follows:
Under the Mudarabah (Fund management) arrangement, depositor (Rab Al-Mal) au-
thorizes the bank (Mudareb) to invest the deposit according to the unrestricted Muda-
rabah. Funds of the term investment and Savings accounts are invested according to
unrestricted Mudarabah basis in the joint investing pool between the depositors and
the shareholders and the realized proﬁts from the joint investment pool are distributed
between the depositors according to their respective shares in investment.
Mashreq al Islami, Personal Banking, Savings Accounts, available at h p://www.mashreqalislami
.com/english/personal/accounts/savings-account/#faq-47573 (accessed May 4, 2013).
39 Interestingly, however, AAOIFI provides that “when loss is incurred in one mudarabah op-
eration, it can be covered from the proﬁts of other operations, and if it exceeds the proﬁts it
should be covered from capital. What should really ma er is the ﬁnal result of the liquidation
at the end of the ﬁnancial period speciﬁed by the institution.” AAOIFI 40, supra note 31, at
para. 3/2/1. Shari’ah merits aside, this allowance should come with explicit requirements for
disclosures to PSIA depositors and regulators and policies for management and accounting.
40 AAOIFI 13, supra note 35, at para. 8/6. The Shari’ah requirement of coextensive risk is el-
emental. For example, in agricultural investment and sharecropping, the “Prophet [Muham-
mad (PBUH)] . . . prohibited speculative sharecropping arrangements, such as agreements
giving parties rights to yields from speciﬁc tracts of agricultural land or speciﬁc produce
from sharecropped land . . . [and] required that parties agree to apportion the total agri-
cultural produce, whether in percentages or by other measures.” Hdeel Abdelhady, Islamic
136 The World Bank Legal Review

Owing to their nature and objectives, PSIAs have been likened to open-
ended mutual funds and other collective investment schemes. But because
they are oﬀered by deposit-taking banks, regulatory classiﬁcation of PSIAs
varies. In the Dubai International Financial Centre, PSIAs are classiﬁed spe-
cially for regulatory purposes. In the United Kingdom, bank-oﬀered PSIAs
are treated as “deposits,” a classiﬁcation necessitated by the deposit-taking
function of the oﬀering bank but incompatible with the nature of the prod-
uct.41 AAOIFI describes PSIAs as “demand deposits” in one standard,42 and
likens the role of mudarib to an asset or fund manager in another standard.43
In theory, PSIA depositors bear the risk of loss of principal, except in cases
of bank negligence, misconduct, or breach of contract. Therefore, no reserve
requirement a aches to PSIAs.44 In reality, however, Islamic banks engage in
“return smoothing” to avoid depositor withdrawals in response to losses and
to achieve parity with returns oﬀered by conventional banks. They do this by
various means, including
• Maintaining proﬁt equalization reserve (PER) accounts and investment
risk return (IRR) accounts, essentially rainy-day funds in which excess pe-
riodic proﬁts are held to cover periodic proﬁt shortfalls and capital losses45
• Forgoing, in favor of PSIA depositors, a portion of the bank’s pre-agreed-
on percentage of proﬁts (as mudarib)

Finance as a Mechanism for Bolstering Food Security in the Middle East: Food Security Waqf, 13(1)
Sustainable Dev. L. & Policy 29, 33 (2012), available at h p://digitalcommons.wcl.american
.edu/cgi/viewcontent.cgi?article=1524&context=sdlp (accessed June 11, 2013).
41 The Islamic Bank of Britain, for example, was required by the now-defunct Financial Services
Authority to oﬀer capital certainty to PSIA depositors as a condition of oﬀering PSIA “deposit”
accounts. To bridge the gap between Shari’ah and banking regulations, the Financial Services
Authority and the Islamic Bank of Britain agreed to a two-step process whereby PSIA de-
positors were entitled, as a ma er of law, to capital certainty at the time of account opening
and thereafter could, by agreement with the Islamic Bank of Britain, forgo capital certainty.
Andrew Henderson, Islamic Financial Institutions, in Islamic Finance: Law and Practice 54, 69
(Craig R. Netherco & David M. Eisenberg eds., Oxford U. Press 2012). This two-step pro-
cess, expedient on the front end, could lead to uncertainty in the absence of explicit, eﬀective
disclosure. For example, would depositors’ waivers of capital certainty have been acceptable
and eﬀective only upon their having veriﬁably received and agreed to express disclosures
as to the nature and consequences of such waivers? Would the waivers, particularly those
given by retail customers, be enforceable against customers in the event of bank insolvency
(thus foreclosing any claims to deposit insurance)? Even if yes, would or should public policy
tolerate, or allow a repeat of, such an outcome, to the detriment of consumer conﬁdence?
42 AAOIFI 40, supra note 31, at para. 2.
43 AAOIFI 13, supra note 35, at para. 9/4. This original Shari’ah standard on mudaraba, under the
heading “Duties and Powers of the Mudarib,” states that “the mudarib must carry out all the
work that any similar asset or fund manager would be liable.”
44 See Greuning & Iqbal, supra note 26, at 19–20.
45 PER and IRR accounts are employed to further a common objective, but their mechanics dif-
fer. Excess proﬁts are reserved in PER accounts to cover future shortfalls in proﬁt. Funds are
reserved in IRR accounts to compensate for losses of principal.
Specialized Insolvency Regimes for Islamic Banks 137

• Deducting from proﬁts owed to shareholders to bolster returns to PSIA
depositors46
The transfer of proﬁts from shareholders to PSIA depositors is known as dis-
placed commercial risk, because the risk of loss is “displaced” to shareholders to
maintain a competitive position.47
PSIAs raise a number of issues for Islamic bank insolvency and supervi-
sion, not only because of the risk of loss borne by depositors, but also because
of the way these accounts are managed. The Dubai Financial Services Author-
ity (DFSA) highlighted some of these issues in its comments to the G20 Finan-
cial Stability Board on eﬀective insolvency regimes for SIFIs:
The structures used in Islamic ﬁnance raise substantial questions
[in insolvency] about depositor preference and deposit insurance.
A common structure in Islamic banking is the . . . (PSIA), which in
market terms plays a similar role to a conventional deposit account.
It is in principle an investment product, in which both return and
principal are at risk, but in practice, banks use various smoothing
mechanisms to provide a return very similar to a conventional de-
posit and often mirroring conventional interest rates in the same
market. Some regulators therefore follow the underlying principle,
and treat PSIAs as investments; others treat them as deposits. Views
in this area tend to be strongly held, and the situation is further com-
plicated by the fact that there has been no legal test of this position
in an insolvency.48
In addition to the classiﬁcation of PSIA accounts, determinations of de-
positor preference, and rights to deposit insurance (where available), im-
portant questions about PSIA depositor treatment vis-à-vis Islamic banks,
nondepositor creditors, and other PSIA depositors must be addressed.49 For
example, should less sophisticated PSIA depositors be treated more favor-
ably than their more sophisticated counterparts? Retail consumer protection
would require this result.50 Should all PSIA holders be given low or no priority

46 See, for example, Sundararajan 2011, supra note 29, at 48–49. In an extreme case, “the Interna-
tional Islamic Bank for Investment and Development in Egypt . . . distributed all of its proﬁts
to investment account holders and nothing to shareholders from the middle to late 1980s.”
Greuning & Iqbal, supra note 26, at 176–177.
47 Sundararajan 2011, supra note 29, at 48.
48 G20 Financial Stability Board, Press Release, Comments Received on the FSB Consultative Docu-
ment on Eﬀective Resolutions of SIFIs, DFSA Draft Comment Le er to the FSB (hereinafter DFSA
Comments), available at h p://www.ﬁnancialstabilityboard.org/press/c_110909t.pdf (ac-
cessed May 3, 2013).
49 A rudimentary question is whether PSIA depositors are creditors at all, particularly in the
absence of bank negligence, misconduct, or breach of contract (events that would trigger
diﬀerent kinds of claims and perhaps render them judgment creditors).
50 Consumer protection and the maintenance of market conﬁdence would justify strict dis-
closure requirements and depositor priority preferences tied to the relative sophistication
of PSIA holders, using, for example, proxy measures of “sophistication,” such as the net
worth or annual income criteria, applied to determine accredited investor status in the
138 The World Bank Legal Review

because they assumed risk of loss? If so, are prevailing standards of disclosure
suﬃcient to justify this outcome?51 If yes, would the policy objectives of con-
sumer protection and market conﬁdence outweigh a contract-based assign-
ment of responsibility at insolvency? In addition, there are insolvency-related
issues relevant to return smoothing practices. For example, are PER and IRR
accounts the property of the bank, or do PSIA holders have some claim to
those funds in insolvency? If the la er is the case, how and in what percentag-
es should PSIA depositor claims to PER and IRR accounts be ﬁxed? More im-
portant, do regulators understand return smoothing and related accounting
and distribution practices suﬃciently to isolate claims to them in insolvency?
At what point should the Islamic bank’s proﬁt for managing PSIAs be consid-
ered realized, and how does this factor into insolvency?52 And do regulators
have the information needed to determine if an insolvency is a ributable to
negligence or misconduct, which would trigger clear PSIA depositor claims?
These are just some of the questions surrounding PSIAs in insolvency. Ques-
tions about the nature of Islamic banking and the classiﬁcation and preference
of claims in insolvency are numerous and have yet to be clearly answered or
comprehensively identiﬁed.53

United States for purposes of allowing exemptions from registration requirements. See, for
example, United States Securities & Exchange Commission, Accredited Investors, available at
h p://www.sec.gov/answers/accred.htm (accessed May 3, 2013).
51 Typically, parties that contract for the least risk (e.g., secured creditors) are accorded higher
priority in bankruptcy. Shareholders, commensurate with their risk and presumed exertion
of control, have low priority. In such creditor hierarchies, PSIA depositors occupy a legal
no-man’s-land because they share risk like shareholders but have no control and are treated
as depositors but have no capital certainty.
52 Related to these questions are AAOIFI standards on the realization of distributable prof-
its, including that “realization of proﬁt in investment accounts does not take place before
protecting the capital” (AAOIFI 40, supra note 31, at para. 3/1/1); “[r]ealization of proﬁt in
investment accounts does not take place before . . . [inter alia] [l]iquidation of mudarabah
assets, which can be either actual liquidation . . . or legal liquidation” (id., at para. 3/1/2/1);
“[i]t is permissible to pay advance amounts to the holders of accounts before actual or legal
liquidations so that ﬁnal se lement can be made later on [and] [a]fter actual or legal liqui-
dation the institution is commi ed to make necessary additions to, or deductions from, the
advanced amounts so that each holder of an investment account receives his exact share of
the proﬁt” (id., at para. 5/3). As these and other mudaraba standards make clear, a ribution
of entitlement to proﬁt requires meticulous and transparent accounting and reporting that is
very speciﬁc as to, inter alia, time and ﬁnality.
53 With respect to return smoothing, neither the size of PER and IRR accounts nor the internal
policies governing their management are suﬃciently clear. What checks are in place to en-
sure that PER and IRR accounts are properly used and accurately represented in regulatory
disclosures, annual reports, and customer documentation? Publicly available information
does not facilitate ready veriﬁcation that PER and IRR funds are consistently managed and
distributed in strict accordance with PSIA account documentation, articulated policies, and
applicable standards. Could PER and IRR funds be appropriated for other purposes, such
as to raise ﬁrm value or shareholder returns? One study of Islamic banks showed that “Is-
lamic banks [generally] yield lower stock returns for their investors . . . but [yielded higher
returns] during the crisis [period of Q4-2007 and Q4-2008].” Thorsten Beck, Asli Deirguc-
Kunt, & Ouarda Merrouche, Islamic vs. Conventional Banking: Business Model, Eﬃciency and
Stability 21 (World Bank Policy Research Working Paper No. 5446, World Bank 2010). These
authors state that the “higher liquidity reserves and be er capitalization [of Islamic banks]
can explain the higher stock returns.” But it is reasonable to question what, if any, role funds
Specialized Insolvency Regimes for Islamic Banks 139

Specialized Insolvency Regimes for Islamic Banks
Insolvency regimes for Islamic banks should reﬂect the nature of Islamic
banking,54 comport with Shari’ah insolvency rules, and further Shari’ah-based
objectives for market regulation. In dual jurisdictions in which Islamic and
conventional banks operate side by side, considerations of judicial economy
are particularly relevant.55 The design of resolution regimes should compen-
sate for any general weaknesses of legal and regulatory infrastructure, such as
the inexperience or inadequacy of courts or regulators to expeditiously man-
age bank insolvencies in the absence of specialized frameworks.
In designing insolvency regimes for Islamic banks, it is not suﬃcient to
focus only on achieving convergence of Shari’ah and conventional insolvency
rules. Shari’ah insolvency rules developed and applied in the context of
single debtors, bilateral relationships, or relatively small groups are not, by
themselves, suﬃcient to inform resolution regimes for Islamic banks. Rather,
Shari’ah insolvency rules must be interpreted in accordance with, and fur-
ther the objectives of, Islamic legal and historical views of market regulation,
which require that regulators be empowered to ensure lawful market con-
duct, impose market discipline, promote transparency, and protect consum-
ers. Similarly, it is insuﬃcient to examine conventional insolvency regimes
applicable only to banks, because Islamic banking encompasses banking
and capital market activities. The remainder of this chapter focuses on some
fundamental Shari’ah insolvency rules, the nature and objectives of Shari’ah
market regulation, and an example from the United States of a substantively
harmonized, administratively managed insolvency regime.

reserved in PER and IRR accounts could play in such an atypical performance, particularly
at times in which PSIA depositor expectations for returns might be low (such as during
a ﬁnancial crisis). Although it is accepted that Islamic banks were not directly exposed to
losses incurred by conventional banks in the 2007–2008 period (an obvious explanation for
the atypically be er return to shareholders), it is also accepted that Islamic banks typically
yield lower returns to shareholders. Such issues underscore the need for robust, uniform
accounting rules and practices, meaningful reporting requirements, and eﬀective disclosure.
Without veriﬁable information, the conclusiveness of some empirical analyses of Islamic
banks’ performance (however measured) is open to doubt.
54 Regulators need to decide whether to tailor insolvency frameworks to Islamic banking as
understood in theory or as practiced, where there is divergence. As indicated above, Islamic
banking theory and practice are not always or reliably the same. Presumably, regulators
prefer that Islamic banking be truly Islamic, to justify and promote competition with and to
secure the beneﬁts of Islamic banking. But regulations must be practical. This is yet another
policy question that is crystallized by insolvency considerations.
55 The author is aware of only two wholly Islamic banking systems, one in Sudan and one in
Iran.
140 The World Bank Legal Review

Shari’ah View: Insolvency (Taﬂīs) and Regulatory
Prerogative (Hisba)
Insolvency regimes for Islamic banks must conform to, or be compatible with,
Shari’ah rules on bankruptcy (taﬂīs)56 and Shari’ah generally. But the extraction
of rules from one area of Shari’ah (bankruptcy) without consideration of other
relevant areas (market conduct and regulation) is an approach that lacks pol-
icy direction. This section discusses some of the basic elements of Shari’ah in-
solvency and market regulation, which together should inform policy choices
on ma ers such as depositor and other creditor priority in bankruptcy.

Shari’ah Foundational Principles on Insolvency
Shari’ah bankruptcy rules share common principles with what are regarded
as modern insolvency rules. The rules of taﬂīs and varying opinions of clas-
sical Shari’ah scholars were articulated not long after the advent of Islam.57
Islamic law recognizes insolvency as a legal status that triggers both creditor
standing to bring claims and judicial authority to intervene in the ﬁnancial af-
fairs of debtors.58 Classical Shari’ah jurists recognized both balance sheet and
cash ﬂow insolvency, and courts (judges) were authorized to “interdict” debt-
ors (declaring the debtor insolvent as a ma er of law) and prohibit the sale or
other disposition of assets during the pendency of insolvency proceedings.59
Shari’ah deals also with creditors’ rights and respective priorities, but there
are questions as to how those priorities would play out in contemporary prac-
tice. The DFSA has highlighted some of the issues:
[W]e note that thinking about insolvency in the context of Shari’a
law is at a relatively rudimentary level. . . . To give just one exam-
ple, traditionally creditors are only those with matured debt, which
clearly limits the ability of many who would normally be deemed
creditors to take part in insolvency proceedings. One important
feature of traditional Shari’a thinking is that all unsecured creditors
rank pari passu, which clearly limits the ability to establish a hierar-
chy of claims. More work will therefore need to be done to consider

56 The Arabic taﬂīs means bankruptcy or insolvency, or the “declaration of bankruptcy.” Wehr
Dictionary, supra note 32, at 850.
57 As evidenced by Ibn Rushd’s writing discussed here, infra note 58.
58 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2 (Bidāyat al-Mujtahid wa Nihāyat al-Muqtahid),
The Book of Taﬂīs (Insolvency; Bankruptcy), 341–352 (Imran Ahsan Khan Nyazee trans., Garnet
2000) (hereinafter Ibn Rushd). Ibn Rushd, full name Abū al-Walīd Muhammad ibn Ahmad
ibn Rushd, or Averöes, as he is referred to in Western literature, was a distinguished jurist
and a judge (qādī) in Cordova. This work is a book on khilāf (Arabic term that, in this context,
means diﬀerent views or disagreement), that is, a “discipline that records and analyzes the
diﬀerences among Muslim jurists.” (Id., at 33.) It is the equivalent of a modern treatise or
restatement of law that catalogs majority and minority views on points of Islamic law. The
purpose of the book was, in Ibn Rushd’s words, “for guidance of the (would-be) mujtahid
[jurist] in whatever he may encounter of the [legal] issues of this book.” (Id.)
59 Id., at 342–344. “The term iﬂās [bankruptcy], in the law . . . [has] two meanings. First, when
the debts completely cover the assets of the debtor, and his wealth does not suﬃce to pay his
debts. Second, when he does not have any known wealth at all.” (Id., at 341.)
Specialized Insolvency Regimes for Islamic Banks 141

how eﬀective resolution regimes can be implemented in countries
where Shari’a law is a signiﬁcant element of the legal system. There
may also be instances in Islamic ﬁnance where Shari’a may be held
to apply to particular transactions even within a common or civil
law system.60
The DFSA is correct, except that more work is needed to do more than just
“consider how eﬀective resolution regimes can be implemented in countries
where Shari’a law is a signiﬁcant element of the legal system.” More funda-
mentally, work is needed to fashion Shari’ah-compliant insolvency rules that
reﬂect the reality that Islamic banks deal with the public and intermediate on
a large scale. Shari’ah-based market regulation is instructive in this respect.

Shari’ah-Based Market Regulation: Hisba61
Islamic law and historical practice favor a strong role for regulators in se ing
binding standards of market conduct and carrying out market supervision.
The Islamic framework of government includes the oﬃce of the market su-
pervisor (al Muhtasib), the mandate of which is, broadly, “to promote good . . .
and prohibit evil.”62 Bound by law and possessing delegated authority, the
Muhtasib’s function, like that of the modern regulator, is decidedly executive
in nature.63 The Muhtasib’s powers are greatest in the areas of commerce and
trade.64 In the markets, the Muhtasib is duty-bound to promote transparency

60 DFSA Comments, supra note 48. As to creditor priority, this interpretation is not entirely rep-
resentative (and neglects Shari’ah views on market regulation, which should inﬂuence in-
terpretations as to creditor priority and other ma ers). For example, Shari’ah accords higher
priority, assuming certain conditions exist, to parties that have sold or ﬁnanced property to
a debtor but have yet to be paid in full at the time of the debtor’s insolvency. For example, “If
the corpus of the thing [the property] itself, because of which the creditor has a claim against
the insolvent, has expired, the debt exists as a liability of the insolvent. If, however, the thing
exists and has not expired, but the creditor did not take possession of the price (thaman)
. . . [some jurists held that] the owner . . . has a prior right to it, unless he relinquishes it and
participates in the liquidation.” (Id., at 341.)
61 Hisba derives from the Arabic root hasb, meaning, inter alia, “reckoning or opinion.” Simi-
larly, the terms hisāb (meaning, inter alia, “accounting”) and muhtasib (meaning “accountant,
bookkeeper, comptroller, auditor”) share the same lineage. Wehr Dictionary, supra note 32, at
205–207.
62 Abū al-Hasan Al-Māwardi, The Ordinances of Government (Al-Ahkām al-Sulhāniyya w’ al-
Wilāyāt al-Dīniyya), 260–280, 260 (Wafaa H. Wahba trans., Garnet 2000) (hereinafter, Al-
Māwardi). “The market supervision, or public morals oﬃce . . . is an injunction to promote
good if obviously forsaken, and prohibit evil if manifestly done. As God, exalt Him, says:
‘Let there be among you a nation who invite the good, enjoin kindliness, and forbid inde-
cency’ ” (citing the Qur’an 3:104).
63 Id., at 260–280, discussing the role of the Muhtasib as an oﬃcial oﬃce of the state in respect to
both public morals and the regulation and supervision of commerce in the marketplace. See
also Karen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mam-
luk Egypt (Oxford U. Press 2011), discussing historical accounts of the Muhtasib in Mamluk
Egypt (hereinafter, Stilt). The role of the Muhtasib encompasses both the oversight and regu-
lation of commercial activities and the oversight and regulation of public morals (related to
such ma ers as public prayer). This chapter is concerned only with market regulation.
64 Al-Māwardi, supra note 62, at 262.
142 The World Bank Legal Review

and market discipline, ensure lawful market conduct, maintain market conﬁ-
dence, and protect consumers65 against unlawful and deceptive practices.66 To
achieve these ends, the Muhtasib is required to formulate rules based on practi-
cal knowledge of the marketplace.67 According to one historical account of the
Muhtasib’s rule-making role during the Mamluk period in Egypt (1215–1517):
For all of their detailed rules . . . the ﬁqh [i.e., law or jurisprudence]
books did not oﬀer much guidance on how the muhtasib should
identify infractions and punish them. . . . A muhtasib needed to know
the tricks [of the market] and how to identify them, and the [Muhta-
sib’s] manuals gave very practical advice on how to detect fraud in
the various trades. On a daily basis, the muhtasib himself added an-
other layer of discretion in deciding how to approach the regulation
of the markets.”68
At the same time, the Muhtasib, consistent with the principle of freedom of
contract in Islamic law, respected market participants’ contracts, so long as
their transactions were understood by them and not harmful to others (in con-
temporary practice, this position would support, for example, strict disclosure
and the restriction of some products to sophisticated consumers).
This brief description of the Muhtasib indicates that the role of the regu-
lator, from the Shari’ah perspective, is clear, requiring practical regulation,
consumer protection, responsiveness to market realities, and respect for the
rights of qualiﬁed parties to contract as they see ﬁt. The approaches and objec-
tives of Shari’ah market regulation should be reﬂected in insolvency regimes
for Islamic banks.

Specialized Insolvency Regimes for Islamic Banks: Administrative
Management and Substantive Hybridization
Because Islamic bank operations are complex in the sense that they encom-
pass traditional banking and capital market activities, and because they oﬀer
sophisticated products to both sophisticated and unsophisticated customers,
specialized regimes for their resolution should be multifaceted, with banking
and capital market components and strong consumer protection objectives.69

65 “Consumer protection was a core part of the muhtasib’s job.” Stilt, supra note 63, at 127,
explaining that in Mamluk Egypt, “the [muhtasib’s] appointment decree from the sultan fo-
cuses almost exclusively on market-related behavior, indicating a strong interest in com-
mercial transactions. From the sultan’s perspective, ensuring that the markets were running
smoothly was more than a concern for the average person’s welfare.”
66 Al-Māwardi, supra note 62, at 261–262.
67 Id., at 279–280. “The market supervisor does not avoid reasoning based on customary prac-
tice, although he refrains from reasoning in jurisprudence.” (Id., at 279.)
68 Stilt, supra note 63, at 127.
69 Indeed, the post–ﬁnancial crisis adoption of OLA is testament to the need for timely adop-
tion of insolvency regimes that ﬁt the realities of the market and ﬁnancial ﬁrm operations.
Arguably, revisions to U.S. bankruptcy laws and processes should have been made in tan-
dem with or not long after the enactment of the Gramm Leach Bliley Act in 1999, a law that,
Specialized Insolvency Regimes for Islamic Banks 143

An instructive example of such a specialized, substantively harmonized, and
administratively managed framework is the Orderly Liquidation Authority
(OLA) regime under Dodd-Frank.70 The multiparty and multidisciplinary pro-
cess by which OLA was formulated is also instructive because the process of
designing Islamic bank insolvency regimes should include Shari’ah experts,
regulators, standard se ers, and Islamic banks.71 The remainder of this chapter
discusses aspects of the OLA framework, with a focus on some of the powers
of the FDIC as receiver (separately of deposit-taking banks and OLA-eligible
ﬁnancial companies) and the treatment of insolvent broker-dealers (also a part
of the OLA framework).

inter alia, repealed the “aﬃliation” sections of the Banking Act of 1933 (commonly known as
the Glass-Steagall Act), and thereby removed the statutory wall separating banks, securities
ﬁrms, and insurance companies in the United States and opening the door for their aﬃlia-
tion and competition. See Gramm-Leach-Blilely Act, Pub. L. No. 106-102, sec. 101, 113 Stat.
1338, 1341 (1999).
70 This chapter does not suggest that Islamic banks and OLA-eligible entities have the same
operations or are exposed to or pose the same risks. It is important to note that orderly liq-
uidation is a last resort option available only when it is determined that, inter alia, orderly
liquidation is necessary to avoid damage to the ﬁnancial system and protect public funds
from bailout scenarios. Furthermore, OLA-eligible ﬁnancial entities, particularly bank hold-
ing companies, conduct diﬀerent business lines through subsidiaries. Islamic banks conduct
traditional banking and capital market operations via a single entity, and such organization-
al diﬀerences have implications at resolution. Finally, it is worth noting that the OLA frame-
work has not been unanimously embraced; for example, doubts have been raised about the
FDIC’s ability to orderly liquidate ﬁnancial behemoths subject to OLA and the constitu-
tionality of OLA itself. See, for example, Stephen J. Lubben, The Flaws in the New Liquidation
Authority, N.Y. Times (April 18, 2012), available at h p://dealbook.nytimes.com/2012/04/18
/the-ﬂaws-in-the-new-liquidation-authority (accessed May 5, 2013); United States House
of Representatives Commi ee on Financial Services, July 9, 2013, Subcommi ee on Oversight
and Investigations Hearing titled “Examining Constitutional Deﬁciencies and Legal Uncertainties
in the Dodd Frank Act,” available at h p://ﬁnancialservices.house.gov/uploadedﬁles/070913
_oi_memo.pdf (accessed July 9, 2013). Views on the merits of OLA in the U.S. context aside,
the framework is instructive for Islamic bank insolvency design as a substantively harmo-
nized, administratively managed resolution regime. And, in any case, the components of
OLA discussed herein, for example, SIPA liquidation and FDIC resolution mechanisms, are
instructive as stand-alone features of U.S. bankruptcy and resolution regimes.
71 See, for example, Board of Governors of the Federal Reserve System, Study on the Resolution
of Financial Companies under the Bankruptcy Code, 1 (July 2011), explaining that Dodd-Frank
required the board of governors of the Federal Reserve System, in consultation with the
Administrative Oﬃce of the United States Courts, to conduct a study of various options
for a resolution framework. Multiple federal agencies, such as the Securities and Exchange
Commission and the Commodities Futures Trading Commission, which have exclusive or
shared subject-ma er authority over OLA-eligible entities, have a role in the rule-making
and orderly liquidation process.
144 The World Bank Legal Review

FDIC Resolution of Deposit-Taking Banks
The FDIC-administered resolution regime72 provides for a number of mecha-
nisms that aid in furthering three primary policy objectives:
• To maintain public conﬁdence in banks and the ﬁnancial system
• To preserve and, where practicable, maximize failed bank assets and li-
abilities by, for example, the transfer of liabilities and assets to a healthy
institution (purchase and assumption) or by establishing a bridge bank
• To minimize the cost of resolution to deposit insurance funds73
In addition, in FDIC resolution, the FDIC has the power to repudiate contracts,
disallow claims, and recover assets fraudulently transferred up to ﬁve years
before or after its appointment as receiver.74 Importantly, some of the FDIC’s
resolution powers (applicable in bank resolutions) are available, in modiﬁed
form, in orderly liquidation.75 These and other aspects of the FDIC resolution
process are a ractive for the relative ﬂexibility they provide.76
In the case of Islamic banks, receivership powers similar to those of the
FDIC, particularly the ability to repudiate contracts, transfer assets to healthy
institutions, and establish bridge banks (or bridge frameworks), are important,
particularly in cases in which Shari’ah bankruptcy rules might limit a failed
or failing bank’s ability to accelerate and recover against counterparties that
are in default at or around the time of the bank’s distress or insolvency.77 The
ability to transfer assets and liabilities to a healthy Islamic bank or to create
a bridge bank is also important given the absence of (demand) deposit insur-

72 The FDIC’s role as receiver, and not as deposit insurer, is discussed in this chapter.
73 See Federal Deposit Insurance Corporation, FDIC Resolutions Handbook 81–88, available at
h p://www.fdic.gov/bank/historical/reshandbook/ (accessed May 3, 2013) (hereinafter FDIC
Resolutions Handbook). Transfer by purchase and assumption (P&A) is the most used resolu-
tion method. Id., at 82.
74 The FDIC’s powers in some regards here are broader than those of a bankruptcy trustee
under the Bankruptcy Code (judicially managed); for example, the FDIC may repudiate
contracts without regard to type, but a bankruptcy trustee may repudiate only executory
contracts. (Id., at 67–83.)
75 In the OLA context, for example, the FDIC has the power to organize a “bridge ﬁnancial
company,” the functional equivalent of a bridge bank. Dodd-Frank, Pub. L. No. 111-203,
sec. 210(a)(1)(F) (codiﬁed at 12 U.S.C. sec. 5390(a)(1)(D)) (Lexis 2013).
76 Generally, a study of the U.S. experience in supervising and resolving banks is worth re-
view, as it reveals lessons learned (even if not always heeded). As the FDIC has stated: “The
. . . FDIC learned many lessons about resolving failing ﬁnancial institutions as it managed
the banking crisis of the 1980s and 1990s. The number of failing institutions, their varied
businesses, and asset sizes aﬀorded the FDIC a wide range of resolution experiences. Be-
cause the crisis lasted a long time, the FDIC had to conduct resolutions at all phases of vari-
ous economic cycles.” FDIC Resolutions Handbook, supra note 73, at 81.
77 In addition, prevailing Shari’ah interpretations prohibit the assessment and retention of
monetary penalties for delinquency in payment (penalties may be assessed to impose disci-
pline but may not be retained by Islamic banks, and thus must be allocated to charity or dis-
gorged if reﬂected as income to a bank). Some Islamic banks use positive incentives, such as
rebates, to encourage counterparty discipline. See, for example, Abedfar et al., supra note 12,
at 11 & note 9.
Specialized Insolvency Regimes for Islamic Banks 145

ance in most relevant jurisdictions and to facilitate the transfer of restricted
mudaraba accounts to other institutions.78
In addition to the aﬃrmative powers of the FDIC in resolving deposit-
taking institutions (and its similar powers in the OLA context), the FDIC,
as a ma er of case law and statute, has the authority to deem “improperly
documented agreements” nonbinding on failed banks, an important tool for
preserving assets and imposing market discipline.79 In the Islamic banking
context, imposition of market discipline through such authority would be par-
ticularly helpful in light of some of the suboptimal contracting practices that
have become known.80

OLA and SIPA Broker-Dealer Insolvency
The orderly liquidation framework encompasses insolvency rules and proce-
dures for failed broker-dealers, a relevant element because Islamic banks en-
gage in intermediation functions similar to those of broker-dealers that provide
full (trade and advisory) and limited (trade and incidental services only) bro-
kerage services. Some Islamic banks provide investment advisory, placement,
and incidental services in various jurisdictions, including in the capacity of a
mudarib and wakeel (agent under a wakala [agency] agreement). To the extent
that Islamic banks place client funds and provide advisory services, the treat-
ment and disposition of some customer accounts (particularly unrestricted
mudaraba and wakala) will be an issue in insolvency. In connection with this,
the United States Securities Investor Protection Act (SIPA) is relevant to the
extent that it provides for an insurance program that protects the customers
of certain insolvent broker-dealers and a specialized bankruptcy procedure
for broker-dealers.81 In bankruptcy (only Chapter 7 liquidation is available
to broker-dealers), the Securities Investor Protection Corporation (SIPC) is

78 The insurability of PSIA deposits is questionable (risk is borne in principle by PSIA deposi-
tors), but some observers have advocated for insuring PSIA depositors in some fashion. As
noted below, the SIPC’s (privately funded) insurance fund for broker-dealers is an interest-
ing model that might have relevance for Islamic banking where nondemand liabilities (i.e.,
PSIAs) are concerned. As to the ability of regulators to transfer liabilities and/or assets to
healthy ﬁrms, regulators must have access to veriﬁable information about other ﬁrms in
the market—this is yet another instance in which insolvency considerations highlight pre-
insolvency regulatory ma ers that need a ention.
79 This is a special defense of the FDIC to claims on a failed bank’s assets. As the FDIC explains:
“Like a bank regulator, the receiver must be able to rely upon the books and records of the
failed ﬁnancial institution to evaluate its assets and liabilities accurately . . . unless an agree-
ment is properly documented in the institution’s records, it cannot be enforced either in
making a claim or defending against a claim by the receiver.” FDIC Resolutions Handbook,
supra note 73, at 74.
80 For a discussion of some representative cases, see, for example, Abdelhady, Islamic Law in
Secular Courts (Again), supra note 30; and Abdelhady, The Front Oﬃce Generates Revenue, the
Back Oﬃce Creates Value, supra note 30.
81 The insurance fund, mandated by federal statute and maintained by the Securities Investor
Protection Corporation (SIPC) (the SIPC fund) is available only to customers of insolvent
SIPC members, who are required to contribute to the SIPC fund. 15 U.S.C.S. sec. 78ddd
(2013).
146 The World Bank Legal Review

authorized to intervene and initiate (with court approval) a SIPA liquidation.82
In a SIPA liquidation, the trustee (SIPC or a court-appointed trustee) is re-
quired to deliver securities (name securities) to customers of the failed broker-
dealer, to the extent practicable.83 This feature of SIPA-based insolvency
reﬂects two relevant objectives of the SIPA process: to promote continuity in
market activity and to protect consumers. Both the SIPA and the SIPA-speciﬁc
insolvency procedures for broker-dealers are worthy of consideration in the
development of insolvency regimes for Islamic banks as a component of a har-
monized resolution regime relevant to their capital market functions.

Conclusion
The story of the growth of Islamic ﬁnance and banking has been recounted
many times, with good reason. In a relatively short period, Islamic banking
has become an international industry, estimated to control more than $1 tril-
lion in assets and with stellar growth projections. The potential of Islamic
banks to contribute to economic and ﬁnancial sector development and ﬁnan-
cial inclusion is well understood. But the full potential of Islamic banking will
not be realized without adequate legal and regulatory support.
As Islamic banks continue to expand across borders and in size, the risks
associated with Islamic banking will increase as a practicality of doing busi-
ness. Islamic banking is too young to absorb the shocks of poorly managed
bank failures. But it is suﬃciently mature to be understood and eﬀectively
regulated, including in insolvency. Owing to the nature of Islamic banking
and the need for streamlined, expeditious resolution of failed banks, an ad-
ministratively managed insolvency regime that combines laws appropriate
to Islamic banks’ various lines of business is desirable. One model for such a
substantively harmonized, administratively managed regime is the orderly liq-
uidation framework in the United States. Regulators, Islamic banks, standard-
se ing bodies, and other interested parties are well advised to undertake a
collaborative process to develop and implement an insolvency regime for Is-
lamic banks now, rather than to bear the reputational and economic costs of
poorly managed bank failures in the future.

82 11 U.S.C. sec. 742 (2013).
83 11 U.S.C. sec. 78ﬀf(1)(b)(1) (2013).
The Role of Law in the Green Economy
Challenges and Opportunities for
the Liberalization of Environmental
Goods and Services

FABIANO DE ANDRADE CORREA

The green economy is a concept developed by the United Nations Environ-
ment Programme (UNEP) aimed at fostering a transition to a new kind of eco-
nomic growth for both developed and developing countries. It involves the
greening of eleven key sectors of the economy toward a less carbon-intensive
and more resource-eﬃcient development model. It is thus considered one of
the most important economic vehicles for sustainable development and a new
paradigm that can drive growth of income and jobs with less stress put on the
environment.
There are two important legal points related to the promotion of the green
economy. First, the lack of a binding deﬁnition of this concept raises criticism
regarding its scope and objectives. Second, law and regulation have an im-
portant role in promoting the implementation of these objectives, at both the
national and international levels. The liberalization of trade in environmental
goods and services (EGS), for example, is important to the greening of the
economy and to the expansion of cleaner technologies worldwide. However,
the lack of a legal deﬁnition of EGS, and of a binding timetable for their liber-
alization, hinders progress in this area.
This chapter provides a brief discussion of these issues, ﬁrst comment-
ing on the deﬁnition of the green economy and the role that trade plays in
promoting it, then examining the legal challenges facing liberalization of EGS.
Considering the lack of progress of liberalization of EGS at the multilateral
level, the chapter presents examples of forward-moving regional initiatives,
such as among the Asia-Paciﬁc Economic Cooperation (APEC) agreement par-
ties and in trade agreements signed by the European Union (EU).

Any statements of fact, opinion, or analysis expressed herein are entirely those of the author
and are not a ributable to the International Development Law Organization.
Information contained in this chapter draws partly upon work included in Fabiano de An-
drade Correa, “The Implementation of Sustainable Development in Regional Trade Agree-
ments: A Case Study on the European Union and MERCOSUR,” Ph.D. thesis defended at the
European University Institute, Florence, Italy, in June 2013.

147
148 The World Bank Legal Review

The Concept of the Green Economy
The green economy was conceived by UNEP as an economic model that
would improve human well-being and social equity while also signiﬁcantly
reducing environmental risks and ecological scarcities:
In its simplest expression, a green economy is low carbon, resource
eﬃcient, and socially inclusive. In a green economy, growth in in-
come and employment should be driven by public and private
investments that reduce carbon emissions and pollution, enhance
energy and resource eﬃciency, and prevent the loss of biodiversity
and ecosystem services. . . . The key aim for a transition to a green
economy is to eliminate the trade-oﬀs between economic growth
and investment and gains in environmental quality and social inclu-
siveness. The main hypothesis . . . is that the environmental and so-
cial goals of a green economy can also generate increases in income,
growth, and enhanced well-being.1
The green economy agenda implies a departure from many accepted
practices in key sectors of the economy, recognizing that “business as usual”
economic practices cannot respond to global challenges such as climate
change, loss of biodiversity, and the remaining worldwide inequality. The
UNEP green economy report thus proposes the greening of eleven key sectors
of the economy: agriculture, ﬁsheries, water, forests, energy, manufacturing,
waste, buildings and construction, transportation, tourism, and cities. It also
proposes innovative solutions to challenges that are fundamentally linked to
the manner in which economic development is framed and guided by policy
makers. The basic premise is that economic development combined with im-
proved human well-being and environmental protection will result in stable
economic growth. Numerous actors, especially within the private sector, have
important roles in this process of change. Governments and policy makers can
play a key role in “kick-starting” ﬁnancing for the green economy, as well as
in creating and implementing laws and policies that will guide and support
the transition in each sector.2
The concept of the green economy is both ambitious and promising in
its aim to promote sustainable development through a new economic model
based on environmental sustainability while still providing livelihood op-
portunities. In this regard, a green economy can provide a be er alternative
for international cooperation in the pursuit of sustainable development than
development aid, because the aim of a green economy is to build an economic
system that will work for the sustainable development of all nations. At the
same time, the idea of a green economy is controversial for three main rea-

1 United Nations Environment Programme (UNEP), Towards a Green Economy: Pathways to
Sustainable Development and Poverty Eradication—A Synthesis for Policy Makers (2011), avail-
able at h p://www.unep.org/greeneconomy.
2 International Development Law Organization (IDLO) & Centre for International Sustainable
Development Law (CISDL), Green Economy for Sustainable Development: Compendium of Legal
Best Practices (2012).
The Role of Law in the Green Economy 149

sons: there is no clear deﬁnition of what it means, its scope being very broad;
its relationship to sustainable development is unclear, and it consequently
provokes fears that the international community will return to focusing solely
on the economic sphere as opposed to the three-pillar model of the former;
and it engenders concern that it might lead to “green protectionism” and
new conditionalities in oﬃcial development assistance trade and investment
pa erns.3
Despite the criticism to which it is susceptible, the green economy is a
powerful concept that was cited by the United Nations during the Rio+20
summit meeting in 2012 as one of the most important tools in the pursuit
of sustainable development. Rio+20 renewed the commitment of the inter-
national community to the promotion of an “economically, socially and en-
vironmentally sustainable future for our planet and for present and future
generations,” acknowledging the need to further mainstream sustainable
development at all levels.4 The green economy in the context of sustainable
development was one of the two overarching themes of the conference, and
the outcome document of Rio+20, The Future We Want, dedicates a section to it.
Although the provisions of the document do li le to clarify the contours
of the concept of the green economy, they address the two main concerns
of most stakeholders: the conceptual ambiguity related to sustainable devel-
opment, especially regarding how it is to be a promotional tool and not a
replacement of the former; and the economic and commercial implications of
the adoption of the green economy as a main policy goal, especially regarding
the fear of green protectionism and new green conditionalities. The language
used is vague, aﬃrming that “we consider green economy in the context of
sustainable development and poverty eradication as one of the important
tools available for achieving sustainable development and that it could pro-
vide options for policymaking but should not be a rigid set of rules.” Never-
theless, it expressly states that green economy policies should be consistent
with international law, should eﬀectively avoid unwarranted conditionalities
and unilateral actions outside national jurisdiction, and should not constitute
a means of arbitrary or unjustiﬁable discrimination or disguised restriction on
international trade (paras. 56‒58).
Despite these critical issues, the outcome document supports a less impos-
ing and more cooperative approach in implementing green economy policies,
which are fundamental for dealing with key issues such as the modiﬁcation
of production and consumption pa erns, the transition to a more sustainable
lifestyle, and the participation of all relevant stakeholders from the public,
private, and civil society sectors. The main challenge is to put into practice
policies and instruments that will facilitate concrete progress toward the goals
of the green economy.

3 Holger Bär, Klaus Jacob, & Stefan Werland, Green Economy Discourses in the Run-Up to Rio
2012 (FFU Report 07-2011, Envtl. Policy Res. Ctr., Freie Universität Berlin 2011).
4 The Future We Want, UN Document A/66/L.56, UNGA 66th Session, July 24 2012. (UNCSD
outcome document), available at h p://www.uncsd2012.org/thefuturewewant.html.
150 The World Bank Legal Review

Trade and the Green Economy
Trade is considered one of the main drivers of the world economy.5 Accord-
ing to a recent UNEP report examining various trends worldwide, the sum of
world exports of goods and commercial services amounted to US$22.3 trillion
at the end of 2010, growing at an average annual rate of 5 percent between 2000
and 2011. Merchandise and commercial services exports rose from 14 percent
in 1970 to 29.3 percent in 2011. In developing countries, the rate had reached
45 percent before the ﬁnancial and economic crisis of 2008. Trade between
developing countries was the most dynamic segment of global trade in the
ﬁrst decade of the 21st century, increasing from 39.2 percent of total exports
in 2002 to 50 percent in 2010. However, despite creating economic growth,
increasing volumes of trade put additional stress on natural resources and
increased greenhouse gas emissions. Increased demands for natural resources
by emerging economies coupled with the already unsustainable levels of re-
source consumption in more developed countries led to an unprecedented
surge in resource consumption and trade in the period 1995‒2010.6
The UNEP report makes clear that to nurture sustainable development,
trade must be accompanied by regulations that can facilitate the transition to
a green economy, thereby fostering the exchange of environmentally friendly
goods and services (including environmentally sound technologies), increas-
ing resource eﬃciency, and generating economic opportunities and employ-
ment. The transition to a green economy, in turn, will have the potential to
create enhanced trade opportunities: opening new export markets for EGS, in-
creasing trade in products certiﬁed for sustainability, promoting certiﬁcation-
related services, and greening international supply chains. The adoption of
more resource- and energy-eﬃcient production methods as part of the green
economy is important in securing access to and building long-term compet-
itiveness in international markets. Consequently, a green economy will in-
creasingly be seen as a gateway to new opportunities for trade, growth, and
sustainable development.7
Yet, while a shift to more sustainable trade practices may advance eco-
nomic and social development, a number of important obstacles remain, such
as the lack of or weak regulatory frameworks and enforcement mechanisms.
Thus there is a role for law and regulation to play in the implementation of
these policies, to be addressed through concerted eﬀorts at the international,
national, regional, and local levels.

5 See, for example, Joseph Stigli , Fair Trade for All: How Trade Can Promote Development (Ox-
ford U. Press 2005).
6 UNEP, Green Economy and Trade: Trends, Challenges and Opportunities (report prepared by
the Trade, Policy and Planning Unit of UNEP, 2013), available at: h p://www.unep.org
/greeneconomy/GreenEconomyandTrade.
7 Id.
The Role of Law in the Green Economy 151

The Green Economy and the Law
The promotion of a green economy requires enabling conditions. Interna-
tional law, the international community’s main tool for achieving consensus,
determining common paths of action, and establishing national laws and
regulatory instruments, is the key component that enables the promotion
of a green economy. This chapter focuses on both the international and the
regional frameworks related to this issue.
The rationale of international law as a body of rules and norms that gov-
erns the interaction between states and other international actors has under-
gone change.8 This rationale can be explained in three diﬀerent ways: First,
international law works as the law of nations, given their interest in following
similar rules or applying like standards in their domestic legal orders, includ-
ing, for example, commercial transactions. Second, it is justiﬁed due to states’
interest in reciprocally limiting liberties so as to respect sovereignty and jus-
tify noninterference in internal ma ers; third, and more important, states have
found international law instrumental as a means of achieving common inter-
national goals.9
This three-fold justiﬁcation for the existence of international law parallels
the transformations that have occurred in international relations and to which
this system of rules a empts to respond. First, international law has changed
in regard to the actors to which it a ributes legal personality and which aﬀect
its functioning. International law is still made chieﬂy by states and focuses on
states, but it has also evolved from a system that merely safeguards the peace-
ful coexistence of states to a system that tries to guide states and other relevant
actors toward the diﬀerent objectives that emerge at the international level.
Second, international law has seen a considerable evolution in scope, which
has expanded from the safeguarding of coexistence and sovereignty to the
regulation of common objectives such as peace, human rights, security, and
environmental protection. Third, international law currently not only aims at
producing legal rules that create obligations through the traditional form of
treaty making with binding power and led by states but also works increas-
ingly through “soft law” to codify the conduct or opinion of diﬀerent actors
regarding desirable paths to follow. In such ways, these norms contribute to
solidifying the international legal order.10
These observations serve to show that international law is more than ever
a vital instrument for the international community in its a empt to regulate
the globalized, interdependent international relations that characterize the
current international scene. International conferences such as Rio+20, with its
soft-law documents and policy concepts such as the green economy, should
be seen as part of this process. However, lack of concrete progress on relevant

8 Christopher Joyner, International Law in the 21st Century: Rules for Global Governance (Row-
man and Li leﬁeld 2005).
9 Mark Janis, International Law (Wolters Kluwer, 2008).
10 Joyner, supra note 8, at 24.
152 The World Bank Legal Review

regimes for the implementation of agreed-on policy goals, including those
for the green economy, might hinder the advancement of those goals. One
example is the ﬁnalization of negotiations on relevant trade law and green
economy issues.

The Green Economy and International Trade Law
The development of new multilateral rules under the World Trade Organiza-
tion (WTO) can provide opportunities for eﬀective collective actions to solve
global problems. For example, the rules-based multilateral trading system can
provide transparency, predictability, and the necessary legal framework for
promoting the trade-related aspects of a green economy. However, the lack
of progress in the creation of new rules on important sectors within the WTO,
such as the stalled Doha negotiations, is creating a barrier for the eﬀective
contribution of trade to the green economy. One example is the liberalization
of trade in EGS.
Liberalizing trade in EGS can create new markets and export opportunities
and provide access to “green” goods and technologies at lower costs and with
greater efﬁciency. Increased deployment of cheaper and be er-quality envi-
ronmental goods helps countries pursue their national environmental policy
objectives and counter environmental degradation and climate change, facili-
tating the transition to a green economy. Moreover, EGS represents a signiﬁcant
opportunity for development: in 2006, the global market for the environmental
sector was valued at $690 billion. This ﬁgure could rise to $1.9 trillion by 2020,
with the greatest market potential in developing countries.11
Negotiations on EGS liberalization were part of the WTO Doha Round
mandate, and the Doha Declaration, in paragraph 31(iii), called for the “re-
duction or, as appropriate, elimination of tariﬀ and non-tariﬀ barriers to envi-
ronmental goods and services.” The mandate, however, deﬁned neither EGS
nor the speed or depth of liberalization to be achieved, making progress dif-
ﬁcult, as no international agreement exists on the deﬁnition of EGS. A number
of organizations have proposed unilateral deﬁnitions; the Organisation for
Economic Co-operation and Development (OECD) deﬁned EGS as “activi-
ties which produce goods and services to measure, prevent, limit, minimize
or correct environmental damage to water, air and soil as well as problems
related to waste, noise and ecosystems.” However, the lack of agreement on
how to deﬁne and categorize EGS at the multilateral level has been one of the
main barriers to progress in negotiations on liberalization of trade in such
products at the WTO, and much of the debate within the WTO negotiations
has centered on the identiﬁcation of speciﬁc environmental goods for liberal-
ization. Further, despite the Doha mandate to reduce or eliminate tariﬀ and
nontariﬀ barriers to EGS, substantial obstacles remain; it is estimated that the

11 UNEP, International Trade Centre, and International Centre for Trade and Sustainable
Development (ICTSD), Trade and Environment Brieﬁngs: Environmental Goods and Services
(ICTSD Programme on Global Econ. Policy and Institutions, Policy Brief No. 6, ICTSD).
The Role of Law in the Green Economy 153

average world tariﬀs on EGS are bound at a level of 8.7 percent, almost three
times higher than the average applied rate for all goods, considering full use
of preferences, at 3 percent.12

Regional Initiatives for the Liberalization of EGS
Regional trade agreements, if properly designed, can oﬀer signiﬁcant oppor-
tunities to promote sustainable practices and be a driver of policy reforms,
increased capacity development, strengthened environmental regulation,
and be er cooperation among relevant ministries. In light of the challenges
highlighted above, and given the relevance of liberalizing EGS trade for the
achievement of green economy and climate change objectives in the context of
sustainable development, liberalization of certain EGS through other frame-
works, such as regional or bilateral trade agreements, can be an option.

Asia-Paciﬁc Economic Cooperation
One recent example is the decision to begin liberalizing trade in environmental
goods in the Asia-Paciﬁc Economic Cooperation (APEC) agreement. In 2010,
APEC members13 adopted the Honolulu Declaration, in which they outlined
plans to develop a list of environmental goods that “directly and positively
contribute to our green growth and sustainable development objectives.” On
September 9, 2012, APEC members meeting in Vladivostok, Russia, agreed
to voluntarily liberalize tariﬀs on 54 environmental goods. The Vladivostok
Declaration signatories welcomed and endorsed the APEC list and commi ed
to reducing applied tariﬀ rates on the listed goods to 5 percent or less by the
end of 2015. The deal has been considered a political breakthrough in that it
represents the ﬁrst international agreement to liberalize trade on EGS. The 54
subheadings identiﬁed in the APEC list are subject to further reﬁnement as
so-called ex-outs (products that can be further subdivided because they serve
two or more functions), based on national tariﬀ classiﬁcations. The products
will now need to be interpreted in the individual national tariﬀ schedules of
member countries because diﬀerent APEC members may use diﬀerent tariﬀ
codes and diﬀerent product descriptions for the ex-outs.14
The APEC outcome could also have an important and positive “signal-
ing” eﬀect on the WTO as well as on other regional trade blocs that want to
undertake similar initiatives. While some observers have been critical of the
lack of enforceability of the APEC outcome, the voluntary, nonbinding nature
of APEC decisions could have been a factor in ensuring a successful environ-
mental goods agreement and likely encouraged members to be bolder than

12 Id.
13 APEC comprises 21 members: Australia; Brunei; Canada; Chile; China; Hong Kong SAR,
China; Indonesia; Japan; Malaysia; Mexico; New Zealand; Papua New Guinea; Peru; the
Philippines; Russia; Singapore; Republic of Korea; Chinese Taipei; Thailand; the United
States; and Vietnam.
14 Mahesh Sugathan & Thomas L. Brewer, APEC’s Environmental Goods Initiative: How Climate-
Friendly Is It? 6(4) Bridges Trade BioRes Rev. (Nov. 2012).
154 The World Bank Legal Review

they would have been at the WTO. Furthermore, given the political weight
behind any APEC ministerial decision, it seems unlikely that members would
a empt to raise tariﬀs once they had been lowered.15

Regional Trade Agreements of the European Union
Sustainable development is an important principle in the European Union’s
legal framework, and its guiding treaties and policies determine the pursuit of
this objective at all levels of activity.16 Based on this framework, the European
Union has increasingly sought to integrate sustainable development concerns
into its trade policy and has been including the liberalization of EGS in its
recent trade agreements, which represent an important incentive for these is-
sues to move forward.
The European Union currently has a wide array of trade agreements:17 28
in force, 9 completed but not yet in force (5 of which are economic partnership
agreements, or EPAs, with African and Paciﬁc countries), and several others
under negotiation (with partners such as MERCOSUR, Canada, India, Ma-
laysia, and the Gulf Cooperation Council; furthermore, future negotiations
are said to be starting soon with the United States, Japan, the Association of
Southeast Asian Nations (ASEAN), and Morocco.18 EU trade agreements have

15 Id.
16 The Lisbon Treaty reaﬃrmed this commitment, and in one of the provisions that it shares
with the Treaty on European Union, art. 3(3), states: “The Union shall establish an internal
market. It shall work for the sustainable development of Europe.” In addition, regarding the
external dimension, art. 3(5) states that
in its relations with the wider world, the Union shall uphold and promote its values and in-
terests and contribute to the protection of its citizens. It shall contribute to peace, security,
the sustainable development of the Earth, solidarity and mutual respect among peoples,
free and fair trade, eradication of poverty and the protection of human rights, in par-
ticular the rights of the child, as well as to the strict observance and the development
of international law, including respect for the principles of the United Nations Charter.
(Emphasis added.)
Moreover, under Title V, covering the general provisions on external actions, art. 21.2 deter-
mines that
the Union shall deﬁne and pursue common policies and actions, and shall work for a
high degree of cooperation in all ﬁelds of international relations, in order to: (d) foster
the sustainable economic, social and environmental development of developing countries, with
the primary aim of eradicating poverty; . . . (f) help develop international measures to
preserve and improve the quality of the environment and the sustainable management
of global natural resources, in order to ensure sustainable development; . . . and (h)
promote an international system based on stronger multilateral cooperation and good
global governance. (Emphasis added.)
These provisions show that sustainable development became a guiding principle of EU
policies in general, being granted a place in the constitutional treaties. Further, a “sustainable
development strategy” complements the legal framework, establishing priorities for actions
and work plans.
17 Agreements that would require notiﬁcation under either art. XXIV, GATT, or art. V, GATS.
18 European Commission, The EU’s Free Trade Agreements―Where Are We? (Mar. 25, 2013),
available at h p://ec.europa.eu/trade/creating-opportunities/bilateral-relations/agreements/
#_europe.
The Role of Law in the Green Economy 155

become not only signiﬁcant in number but also among the most sophisticated
instruments used in advancing trade liberalization, market access, and other
policy objectives. This expansion of agreements―in terms of number, depth
(i.e., the way in which the European Union seeks to deepen economic integra-
tion, to extend beyond the traditional removal of tariﬀ barriers and quotas
to regulatory policy, and beyond trade in goods to services and investment),
and breadth (i.e., the embedding of economic integration into the wider re-
lationship with the partner country or region)―is related to the many goals
pursued by the bloc through its trade policy.
These agreements can be seen as part of the framework within which
countries can move toward accession to the European Union. They provide the
core of relations between the European Union and its neighbors who are not
candidates or potential candidates; they have become a basic means for pursu-
ing EU development policy goals; and they are used for accessing markets.19
This last aspect has been emphasized in Global Europe: Competing in the World,
a communication by the European Commission’s Directorate General—Trade,
which discusses the external aspects of EU competitiveness in the context of the
European Union’s broader competitiveness agenda, presented in the Lisbon
strategy for growth and jobs.20 The commission, while claiming that “there will
be no European retreat from multilateralism,” argued the value of trade agree-
ments in furthering the European Union’s market-opening objectives, pointing
out that while the WTO provides the basic ground rules for trade relations
as well as a framework for ongoing negotiation, free trade agreements (FTAs)
can include issues not yet covered by the WTO, including investment, public
procurement, competition, and other regulatory issues. In addition, the com-
mission referred to the stalled Doha Round, and while it recognized the prob-
lems that FTA proliferation can cause for the multilateral system, it defended
the idea that under the right conditions FTAs could “build on” the WTO and
“prepare the ground” for multilateral liberalization, acting as a stepping-stone
rather than a stumbling block. Furthermore, as sustainable development has
become one of the main overarching objectives of EU policy in general, trade
agreements have progressively integrated the promotion of this goal, includ-
ing green economy‒related issues such as liberalization of EGS.
The analysis in this section focuses on four EU agreements that provide an
overview of how the above issues have been integrated: (1) the EPA concluded
with the Caribbean Forum (CARIFORUM) in 2008, the ﬁrst such agreement
to include a “trade and sustainable development” chapter; (2) the FTA signed
with the Republic of Korea, considered the European Union’s ﬂagship agree-
ment given its deep level of integration and broad coverage; (3) the associa-
tion agreement (AA) signed with the Central American countries, the ﬁrst and

19 Marise Cremona, The European Union and Regional Trade Agreements, in European Yearbook
of International Economic Law, vol. 1, part 2, 245‒268 (Christoph Herrmann & Jorg Philippe
Terhechte eds., Springer 2010).
20 Global Europe: Competing in the World: A Contribution to the EU’s Growth and Job Strategy (com-
munication, European Commission, Directorate General—Trade, Oct. 4, 2006).
156 The World Bank Legal Review

only biregional association agreement concluded thus far and among the most
advanced agreements in terms of references to sustainable development; and
(4) the FTA concluded with the Andean countries, the latest one to include a
“trade and sustainable development” chapter, with innovative references to
climate change and biodiversity. These agreements represent an innovative
form of integration of sustainable development objectives within a trade in-
strument, progressively including positive integration measures, in the sense
of using trade to promote important goals of sustainable development such as
the transition to a green economy and the ﬁght against climate change. These
measures include liberalization of trade in important sectors such as EGS, re-
newable energy, transfer of green technologies, support for certiﬁcation, and
labeling schemes aimed at making the supply chain more sustainable, such
as “fair trade” certiﬁed timber and ﬁshing schemes, among others. The fact
that these issues can be included in measures aimed at liberalization within
the trade relations of parties represents an important building block for the
establishment of a multilateral framework regulating these issues, which is
currently lacking.
The Economic Partnership Agreement with CARIFORUM. The EU-CARIFORUM
EPA21 was signed on October 15, 2008, and was the ﬁrst to be concluded among
the African, Caribbean and Paciﬁc (ACP) Group of States negotiations. One
of the main changes introduced by the agreement was the reciprocal grant-
ing of preferences by the two sides, instead of the nonreciprocal, preferential
(duty-free) market access for ACP states, which encompasses trade in goods,
services, trade-related issues, and development cooperation, with strong em-
phasis on sustainable development and regional integration. The preamble
of the EPA contains several references to sustainable development, including
“the need to promote economic and social progress for their people in a man-
ner consistent with sustainable development.”
These preamble references are reinforced in Part II of the agreement,
“Trade-Related Issues,” and chapters 4 and 5 deal with environmental and
social issues, respectively. Among the measures included is a commitment to
facilitate trade in socioenvironmentally friendly goods. Article 183 provides
for the promotion of international trade in such a way as to ensure sustain-
able and sound management of the environment, in accordance with other
undertakings in this area, including the international conventions to which
they are party and with due regard to other respective levels of development.
In this regard, the parties undertake “to facilitate” trade in goods and services
considered to be beneﬁcial to the environment, such as environmental tech-
nologies, renewable and energy-eﬃcient goods and services, and eco-labeled
goods. Article 191 recognizes the beneﬁts and importance of facilitating com-
merce in “fair and ethical trade” products.

21 Economic Partnership Agreement between the CARIFORUM States and the European Com-
munity and Its Member States, OJ L 289/I/3, 30/10/2008.
The Role of Law in the Green Economy 157

The Free Trade Agreement with South Korea. The 2006 “Global Europe” strategy
mandated the negotiation of a new generation of FTAs focusing on countries
with high potential for the EU economy. These FTAs would be ambitious in
eliminating tariﬀs as well as far-reaching in the liberalization of services and
investment, and in ﬁnding novel ways of eﬀectively tackling nontariﬀ barri-
ers. In this context, the negotiations with Korea, the European Union’s fourth-
largest trading partner outside Europe, were launched in 2007 and concluded
in 2009. The European Union‒Korea FTA22 is considered the most compre-
hensive agreement ever to have been negotiated by the European Union in
terms of trade issues, with import duties eliminated on nearly all products;
far-reaching liberalization of trade in services, including provisions on invest-
ments in both services and industrial sectors; and strong discipline applied to
the enforcement of regulations pertaining to intellectual property (including
geographical indications), public procurement, competition rules, transpar-
ency of regulation, and sustainable development.
This FTA also includes several provisions on sustainable development.
In Article 1, the parties “commit, in the recognition that sustainable develop-
ment is an overarching objective, to the development of international trade in
such a way as to contribute to the objective of sustainable development and
strive to ensure that this objective is integrated and reﬂected at every level
of the Parties’ trade relationship” (emphasis added). In this regard, a chap-
ter on “trade and sustainable development” was inserted, featuring, among
other provisions, a determination that the parties “shall strive to facilitate and
promote trade and foreign direct investment in environmental goods and ser-
vices, including environmental technologies, sustainable renewable energy,
energy eﬃcient products and services and eco-labelled goods, including
through addressing related non-tariﬀ barriers.” The nature of the sustainable
development‒related provisions in this agreement were thus very similar to
those of the CARIFORUM EPA. The diﬀerence here, however, was that all of
those measures were condensed into a “trade and sustainable development”
chapter, which was more speciﬁc in listing socioenvironmental goods whose
liberalization was to be facilitated by the parties.
The Association Agreement with Central America. The AA between the European
Union and Central America (CA) is a particularly relevant agreement for EU
external relations because it is the ﬁrst biregional AA to be ﬁnalized within
the interregional approach to international relations, which was adopted by
the European Union in the 1990s.23 The EU-CA AA24 follows a three-pillar for-
mat that includes chapters on political dialogue, cooperation, and trade. The
AA also has very comprehensive coverage of sustainable-development issues.

22 Free Trade Agreement between the European Union and Its Member States, of the One Part, and the
Republic of Korea, of the Other Part, Oﬀ. J. of the European Union (L 127/6, May 14, 2011).
23 See, in this regard, Fredrik Söderbaum & Luk Van Langenhove eds., The EU as a Global Player:
The Politics of Interregionalism (Routledge 2006).
24 Agreement Establishing an Association between the European Union and Its Member States, on the
One Hand, and Central America, on the Other, Oﬀ. J. of the European Union (May 30, 2010).
158 The World Bank Legal Review

Among other provisions is the “trade chapter,” featuring “trade and sustain-
able development” (Title IV), in which the parties explicitly express their
stance on the “beneﬁt of considering trade related social and environmental
issues as part of a global approach to trade and sustainable development.”
The trade chapter also contains trade-related provisions that go beyond
the facilitation of trade in environmental goods and services and “fair trade”
and other labeled goods, as in the Korea FTA. Article 288, “Trade Favoring
Sustainable Development,” contains recognition by the parties of the value
of international cooperation in support of trade schemes and trade practices
favoring sustainable development, and determination that the parties “shall
endeavor to” (a) facilitate and promote trade and foreign direct investment in
environmental technologies and services and renewable-energy and energy-
eﬃcient products and services, including through addressing related nontariﬀ
barriers; (b) facilitate and promote trade in products that respond to sustain-
ability considerations, including products that are the subject of schemes such
as fair and ethical trade schemes, eco-labeling, organic production, and those
involving corporate social responsibility (CSR) and accountability; (c) facili-
tate and promote the development of practices and programs aiming to foster
appropriate economic returns from the conservation and sustainable use of
the environment, such as ecotourism. Article 289 contains speciﬁc provisions
on trade in forest products, including a commitment “to work together to
improve” forest law enforcement and governance and “to promote trade in”
legal and sustainable forest products through instruments such as the use of
the Convention on International Trade on Endangered Species (CITES) with
regard to endangered timber species; and certiﬁcation schemes for sustain-
ably harvested forest products; regional or bilateral Forest Law Enforcement
Governance and Trade (FLEGT) voluntary partnership agreements. Article
290 deals with trade in ﬁsh products, addressing particular issues and mak-
ing reference to multilateral conventions that the parties undertake to adhere
to and eﬀectively implement, such as the agreement for the implementation
of the provisions of the UN Convention on the Law of the Sea relating to the
conservation and management of straddling ﬁsh stocks and highly migratory
ﬁsh stocks; cooperation to prevent illegal, unreported, and unregulated (IUU)
ﬁshing, to exchange scientiﬁc and nonconﬁdential trade data, experiences,
and best practices in the ﬁeld of sustainable ﬁsheries, and, more generally, to
promote a sustainable approach to ﬁsheries. Thus, this chapter contains not
only the liberalization of EGS but also windows of opportunity to encourage
trade in key areas such as ﬁsheries and forestry products, which are of great
relevance for the sustainability agenda. This approach has been reproduced
and enhanced in the next agreement analyzed.
The FTA with Colombia and Peru. The Colombia-Peru agreement is an FTA
signed in 2012,25 similar in structure to the Korea FTA, but including deeper
sustainability provisions, like those in the Central America AA. A “trade and

25 Trade Agreement between the European Union and Its Member States, of the One Part, and Colombia
and Peru, of the Other Part, Oﬀ. J. of the European Union (Dec. 21, 2012).
The Role of Law in the Green Economy 159

sustainable development” chapter has also been inserted, featuring trade-
related provisions that go beyond even those of the Central America AA. Ar-
ticle 271, “Trade Favoring Sustainable Development,” contains recognition
by the parties of the value of international cooperation in support of trade
schemes and trade practices favoring sustainable development, and a deter-
mination that the parties “shall strive to facilitate and promote” (a) trade and
foreign direct investment in environmental goods and services; (b) business
practices related to CSR; and (c) the development of ﬂexible, incentive-based
and voluntary schemes.
Articles 272‒275 contain speciﬁc provisions on (a) trade in biodiversity
products (Article 272), with commitments to: endeavor to jointly promote the
development of practices and programs aiming to foster economic returns from
the conservation and sustainable use of biological diversity; endeavor to create
conditions to facilitate access to genetic resources for environmentally sound
uses and not to impose restrictions that run counter to the objectives of the
United Nations Convention on Biological Diversity (CBD); conﬁrm that access
to genetic resources shall be subject to the prior informed consent of any party
providing such resources, unless otherwise determined, and to take appropri-
ate measures, in accordance with the CBD, to share the results of research and
development and the beneﬁts arising from the commercial and other utiliza-
tion of genetic resources with the party providing such resources; strengthen
the capacity of national institutions in relation to the conservation and sus-
tainable use of biological diversity; (b) trade in forest products (Article 273),
including a commitment to work together to improve forest law enforcement
and governance and to promote trade in legal and sustainable forest prod-
ucts through instruments such as CITES, with regard to endangered timber
species; the development of systems and mechanisms for veriﬁcation of the
legal origin of timber products throughout the market chain and voluntary
mechanisms for forest certiﬁcation; (c) trade in ﬁsh products (Article 274), ad-
dressing particular issues and cooperation in the context of regional ﬁsheries
management organizations of which they are parties, to revise and adjust the
ﬁshing capacity for ﬁshery resources, adopt tools for monitoring and control,
to ensure full compliance with applicable conservation measures, and adopt
actions to combat IUU ﬁshing; (d) trade and climate change issues (Article
275). The measures would include facilitating the removal of trade and invest-
ment barriers to access to innovation, development, and deployment of goods,
services, and technologies that can contribute to mitigation or adaptation, tak-
ing into account the circumstances of developing countries; and promoting
measures for energy eﬃciency and renewable energy that respond to environ-
mental and economic needs and minimize technical obstacles to trade.
The provisions contained in these trade and sustainable development
chapters have been made as a quasi-soft-law obligation, without a precise
deﬁnition of modalities or timelines. Thus, while these provisions represent
a starting point that can be used to move forward with these novel and im-
portant issues, how they will be implemented with this very diverse set of
partners remains to be seen.
160 The World Bank Legal Review

Conclusion
The analysis undertaken in this chapter allows us to conclude that law has a
relevant role in the promotion of the green economy. International law rep-
resents the instrument for the international community to agree on common
goals and paths of action, while regional and national law remain fundamen-
tal in the implementation of such goals in a more speciﬁc context. One impor-
tant area, in this regard, is trade law, given the key role played by trade in the
promotion of the green economy. However, considering the stalled negotia-
tions at the multilateral level in the WTO, the regional sphere constitutes a
valuable means to move forward with the implementation of trade and green
economy issues.
The liberalization of EGS, for instance, despite being featured as an im-
portant point within the Doha negotiations, has not progressed at the multi-
lateral level. Thus, any progress achieved in this area in the context of regional
trade agreements will represent an important building block for this issue to
move forward. The two regional initiatives discussed in this chapter show dif-
ferent aspects of this ma er.
The APEC list of environmental goods represents a ﬁrst initiative to es-
tablish a timeline for liberalization of EGS. Services, however, are not includ-
ed, and will apply only to APEC’s member-state markets. Furthermore, it is
hard to assess how signiﬁcant the eventual tariﬀ reductions will be, as it is
uncertain how individual APEC countries will implement the commitment
and how they will deﬁne the ex-outs for which they decide to reduce applied
tariﬀs in terms of their own tariﬀ schedules. The APEC decision, in any case,
remains of high political signiﬁcance, and lessons learned from this approach
can be useful in designing similar initiatives in other regional groupings, and
also at the WTO.26
The other initiative analyzed, the EU trade agreements, represent the
other side of this issue. The commitments in these agreements are broader and
would apply to the markets of both the European Union and the partner, thus
fostering the liberalization of EGS in a wider context. However, the measures
in the EU agreements are drafted as soft obligations without precise deﬁni-
tions of modalities or timelines to “facilitate,” “strive to,” and “incentivize”
the liberalization of trade in goods and services that might have a beneﬁcial
social and environmental impact, such as EGS, fair trade products, trade in
certiﬁed timber, and sustainable ﬁsheries.
These provisions represent a starting point that can be used to move for-
ward with these issues, which are fundamental to the transition to a green
economy and sustainable development but are also still left outside a mul-
tilateral framework. At the same time, most of these measures are drafted in

26 For more information, see Renee Vossenaar, The APEC List of Environmental Goods: An Analy-
sis of the Outcome and Expected Impact (Issue Paper No. 18, Intl. Ctr. Trade & Sustainable Dev.,
2013).
The Role of Law in the Green Economy 161

“soft” language and open-ended obligations. In this regard, a multilateral
framework would still be important to ensure coherence and eﬀectiveness in
relation to the wider sphere, and national measures would have an important
role to play in assuring the implementation of these provisions in an eﬀective
and appropriate way.
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PART II

JUSTICE AND RULE OF LAW REFORM
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Institutional Responses to
Social Demands
Enhancing Access to Justice in Colombia

DAVID F. VARELA AND ANNETTE PEARSON

Over the past 40 years, Colombia has made great strides in addressing is-
sues related to access to justice. The impetus for change has been multifaceted:
Colombian nongovernmental groups have demanded new social priorities;
regional social movements have pushed for improvements in the areas of hu-
man rights, land policy, and ethnic issues; international legal and political
theories regarding access to justice have come into greater focus. The stron-
gest institutional response has come from progressive constitutional devel-
opments in the administration of justice. Since the Constituent Assembly ap-
proved a new constitution in 1991, Colombia has witnessed groundbreaking
progress in jurisprudence and pronounced institutional development in many
branches of the justice sector.
Long-term strategies for the justice sector, and access to justice in parti-
cular, were recently articulated in the government’s Visión Colombia Segundo
Centenario: 2019.1 A Commission of Experts subsequently explored these
strategies to augment plans for justice reform and issued its ﬁnal report in
June 2010.2 Both of these policy documents focus on reducing the barriers that
hinder access to justice, rationalizing the use of justice services, and promot-
ing wider use of alternative (nonjudicial) justice mechanisms.

1 Departamento Nacional de Planeación, Visión Colombia Segundo Centenario: 2019; Garantizar
una justicia eﬁciente (2008). This document contains the ground rules, the aspirations, and
the guiding principles of the Colombian political system, economic model, and social de-
velopments. However, all these achievements are just the base that will enable the country
to make a qualitative and competitive leap toward the new economic, political, and social
scenarios of the 21st century. To do this, it is necessary that both the state and society take
responsibility for undertaking a great, collective planning exercise, both medium- and long-
term, that goes beyond four-year development plans.
2 The Commission of Experts for the Reform of Justice (Comisión de Expertos de Reforma a
la Justicia), was created by Presidential Decree No. 4932 in December 2009. The commission
issued its Final Report in Bogotá in June 2010 (hereinafter, Commission of Experts). The stra-
tegic areas for review included structural issues concerning the judiciary; the relationship
of the judiciary to the other branches of government and civil society; the functions of the
Ministry of Justice and the Oﬃce of the A orney General; the national coverage of judicial
services; tutela, or constitutional protection order, and other constitutional mechanisms; re-
sponsibility and judicial ethics; judicial delays; and the role of jurisprudence, disciplinary
regimes, and alternative justice. See h p://www.cej.org.co.

165
166 The World Bank Legal Review

This chapter looks at the policy of rationalization from the perspective
of access, especially for vulnerable social groups. In the Colombian context,
the term rationalization refers to the distribution of public demand for justice
services among a wide range of traditional and alternative conﬂict resolution
mechanisms that have been developed since the constitutional reforms of
1991. Following this introductory section, the next two sections of the chapter
provide background information on how the concept of access to justice has
changed in Colombia since 1991. Changes in the way access to justice was
deﬁned led to the creation of wide-ranging programs to combat a number
of barriers that reduced access, especially for poor and vulnerable groups.
The fourth section introduces the concept of rationalization, underscoring
the fact that it must go beyond the simple diversiﬁcation of formal, informal,
and administrative options for resolving legal disputes and social conﬂicts. A
pyramid model of dispute resolution alternatives is presented as a conceptual
framework for examining the challenges that this proposal poses for the ar-
ticulation of the justice sector in Colombia.
National institutions and legislative developments have progressively
charged municipalities with tasks that the justice sector previously consid-
ered national responsibilities. The ﬁfth and sixth sections identify a number of
issues related to the delegation of justice services that are not adequately con-
sidered in rationalization policies, as currently proposed by the Commission
of Experts. For that ma er, these services are not fully discussed in govern-
ment proposals that seek to expand access to justice in general.
In short, rationalization of justice services from an institutional point of
view fails to consider access barriers from a citizen´s point of view, ignores
the very limited national coverage of several signiﬁcant justice operators, and
does not diﬀerentiate between those problems that can be addressed fairly
by local, informal, or administrative justice alternatives and those problems
in which rights are not yet well recognized and for which fast-track access to
judicial forums is vital.3

Changes in the Concept of Access to Justice
The Right of Access to Justice
The Constitution of 1991 represents a critical milestone in Colombia’s trans-
formation toward a more just, peaceful, and democratic state—a social state
based on the rule of law (estado social de derecho). The constitution not only
introduced substantial reforms to overhaul the justice system but also trans-

3 This chapter focuses its discussion of rationalization and access to justice on poor house-
holds and vulnerable groups, and in particular on women. In no way is this meant to take
away from the signiﬁcant barriers faced by other vulnerable groups, such as ethnic commu-
nities, children and adolescents, people with disabilities, victims of the internal conﬂict, and
the elderly.
Institutional Responses to Social Demands 167

formed the concept of access to justice dramatically. Features of jurisprudence
under the constitution and subsequent Constitutional Court include
• Access to justice as a fundamental right
• Legal justiﬁcation for diﬀerential treatment and aﬃrmative action to pro-
mote equality for historically deprived population groups
• Special jurisdictions providing for community and ethnic-community jus-
tice systems
• Promotion of alternative dispute resolution mechanisms as options for
access to justice
This conceptual modiﬁcation made it unacceptable to deﬁne access to jus-
tice merely as access to the courts or to legal representation via public defenders
and legal aid clinics. Simpliﬁed and more user-friendly judicial mechanisms
were introduced to safeguard people’s rights and interests: a writ to order
administrative oﬃcials to fulﬁll their obligations (acción de cumplimiento); a
procedure to protect collective rights (acción popular); another to protect the
rights of speciﬁc social groups (acción de grupo); and a fast-track, citizen-initiated
action to protect fundamental rights (acción de tutela). From the public per-
spective, the most important of these measures has been the acción de tutela,
which can be availed through less formal proceedings, with minimal legal
requirements (e.g., the presence of a lawyer is not necessary), and for which
a fast judicial decision is required by law. For instance, in 2001 Decision 1195,
the Constitutional Court ruled that the right of access to justice consisted of
appropriate and eﬀective procedures to determine legal rights and
obligations; timely resolution of controversies without unjustiﬁed
delays; respect for due process; availability of a broad and suﬃcient
range of mechanisms to resolve conﬂicts; speciﬁc mechanisms to fa-
cilitate access for the poor; and national coverage of justice services.

New Institutional Actors
The Constitution of 1991 broadened the range of institutional and civilian ac-
tors involved in the administration of justice and the protection of human
rights. New entities and institutions were created, including the Constitu-
tional Court, the Public Prosecutor’s Oﬃce (Fiscalía General de la Nación;
FGN), and the Ombudsman’s Oﬃce (Defensoría del Pueblo), which includes
the public defenders system. At the community level, equity-based justice ser-
vices were created, comprising special jurisdictions for justices of the peace
(jueces de paz) and the oﬃce of the equity conciliator. Under the Colombian
constitution, Special Jurisdictions for Indigenous Communities allowed au-
thorities in indigenous communities to have jurisdiction within their terri-
tories, in accordance with their “uses and customs.” In addition, executive
and local government agencies, in cooperation with some private actors, were
charged with justice-sector duties to ensure access to national government-
provided alternative and complementary services to the court system.
168 The World Bank Legal Review

The Constitutional Court and National Agendas
Since the passage of the constitution, the Constitutional Court has become a
key proponent of ensuring access to justice. Since its inception, the court has
taken groundbreaking and progressive steps in making jurisprudence more
accessible for the protection of individual and social rights. It has protected
the rights of women, forcibly displaced populations, indigenous and Afro-
Colombian communities, children, prisoners, religious minorities, the elderly,
and the handicapped. It has upheld such social rights as the right to health
and the right to a digniﬁed dwelling. Despite some criticism, the court has as-
sumed a role that goes beyond the judicial decision itself, extending to the su-
pervision of compliance, such that “eﬀective enjoyment of rights” is realized.
Access to justice has also been included in national public policy and sector
-speciﬁc development agendas. For example, it has been mainstreamed in the
National Program to Promote Non-violent Family Relations, known as Haz
Paz, which addresses domestic violence issues, and has been incorporated into
the objectives of Red Unidos, a social protection network created to reduce ex-
treme poverty in Colombia.4 As a product of the 14th Ibero-American Judicial
Summit Meeting in March 2008, Colombia signed the Brasilia 100 Regulations
Regarding Access to Justice for Vulnerable Groups. Through these actions,
the state has recognized the importance of access to justice as a tenet of social
inclusion and citizenship.

Programs and Services to Address Access Barriers
During the past two decades, increased a ention has been placed on reducing
the barriers that citizens face, especially the poor, in securing access to justice
and pursuing legal recourse and remedies in a variety of se ings. In addition
to streamlined instruments to defend fundamental rights (e.g., tutela),5 a sig-

4 Previously known as Red Juntos, this program aims to address the multidimensional nature
of poverty and has 45 strategic objectives, 2 of which deal directly with access to justice: (1)
household members should know their rights and duties as citizens and be able to identify
their legal needs and the appropriate justice institution for resolving disputes (i.e., access to
alternative methods of conﬂict resolution are favored over the court system); and (2) house-
hold legal ma ers should receive prompt a ention from justice operators and be considered
relevant for alternative conﬂict resolution mechanisms. The World Bank‒ﬁnanced Justice
Services Strengthening Project is ﬁnancing the ﬁrst national survey of unmet basic justice
needs. See World Bank, Report No: 47338-Co, Project Appraisal Document on a Proposed
Adaptable Program Loan in the amount of US$20 million to the Republic of Colombia for
a Justice Services Strengthening Project—Phase I (APL1) in support of the First Phase of
the Justice Services Strengthening Program, November 6, 2009, Poverty Reduction and Eco-
nomic Management Sector Management Unit, Colombia and Mexico Country Management
Unit, Latin Americans and the Caribbean Region.
5 While tutela was never intended to be a grand-scale solution to the larger access to justice
problem, its widespread popularity demonstrates that reducing barriers created by judicial
procedures, judicial culture, and rules of legal representation can improve access to justice.
It may also generate externalities for regular cases that are crowded out by the priority al-
located to tutelas. The Commission of Experts for Justice Reform recognized the contribution
made by tutelas to access goals and recommended maintaining them, but proposed modi-
Institutional Responses to Social Demands 169

niﬁcant number of programs and projects have been developed at the national,
departmental, and municipal levels, sometimes in combination with other
justice objectives or national goals. These programs address barriers such as
costs and delays associated with litigation, excessive procedural formalities,
diﬃculties due to language and cultural diﬀerences, lack of information on
legal rights, and the need for legal advice and representation.
Substantial reforms have been made to civil and criminal justice systems.
A public prosecutor’s agency and a public defense system have been estab-
lished, and the number of public prosecutors and public defenders has been
increased. New administrative and community justice agencies have been set
up; the number of conciliation centers has grown; and innovative “one-stop”

Box 1. Small Claims Courts
Upon the request of the Colombian Judicial Superior Council, the World Bank has
been entrusted with the design of a management model for a proposed “small
claims court system” with jurisdiction over civil, commercial, and family ma ers.
This initiative, a follow-up on previous a empts to address concerns over the in-
ability of the current system to serve low-income users adequately, hopes to ﬁll
a vacuum that the justices of the peace and other alternative dispute resolution
mechanisms have been unable to ﬁll.
This initiative is still at the inception stage, making the feasibility of the ﬁnal
proposals unpredictable, but it is worth mentioning that an ambitious participa-
tory methodology has been accepted by both the council and the Bank. This meth-
odology will allow substantial ﬁeldwork to be conducted to create a blueprint of
a proposal that subsequently will be validated by other justice-sector participants.
The two main challenges of the design process identiﬁed so far are (1) dif-
ferentiating these “small claims courts” from the traditional municipal courts
while minimizing or eliminating any overlap or duplication; and (2) developing
a particular workﬂow that could provide a “ﬁrewall” for these courts, protecting
them against the litigious practices common in the rest of the Colombian court
system, which can potentially transform even the simplest judicial process into a
protracted set of motions and countermotions.
The international experience reviewed by the Bank team indicates that one
of the most relevant features of “small claims courts” is mandatory pro se repre-
sentation (i.e., no a orneys should be allowed to represent either party), which
would be fully consistent with the small amounts involved, the low complexity
of the issues, the low-income proﬁle of most users, and the zero-cost approach
required by these users. The optional pro se representation risks converting small
claims courts into another municipal court, as seen in the experience of São Paulo
State in Brazil, where lawyers seek to beneﬁt from the addition of a new layer of
the court system and perpetuate traditional practices.

ﬁcations when they were used against decisions made by the highest courts in the judicial
structure.
170 The World Bank Legal Review

programs―community justice houses and victim assistance centers, for ex-
ample―have been created, mainly at the municipal level. New types of judges
to deal speciﬁcally with small claims, land, agrarian, and other rural ma ers,
or who can deal with issues in multiple areas of law, were on the statute books
for years before recent developments regarding land restitution and small
claims courts with multiple jurisdiction have opened the way to innovation
within the judicial branch (see, for example, box 1).
Among the various alternative dispute resolution (ADR) methods, concil-
iation has become the most popular in Colombia because it provides prompt
and eﬀective means for dispute se lement at a relatively low cost. For instance,
conciliation can contribute to rapid contract enforcement and help solve minor
family and neighborhood conﬂicts. The private sector considers conciliation a
substitute for a slow court apparatus; however, because contract enforcement
through the judiciary is not predictable, some companies prefer to use concili-
ation even if it involves higher costs in the short term. About three hundred
formal conciliation centers operate in Colombia, and independent mediators
(most but not all of whom are lawyers) are very active. Conciliation services in
Colombia are provided via conciliación en derecho (with lawyers as conciliators
operating within the applicable legal framework; see box 2) and conciliación
en equidad (with nonlawyer conciliators deciding in equity). In marginal ar-
eas, conciliación en equidad may be the most suitable conciliation mechanism

Box 2. Conciliación de Derecho
“Conciliation based on law” is increasing in importance in Colombia. Concilia-
tors work in centers approved and supervised by the Ministry of Justice and Law
(Ministerio de Justicia y Derecho) and can be located at universities, chambers
of commerce, and centers created by private and public agencies. The number
of centers has grown from 11 in 2001 to 345 in March 2011. Between 2002 and
2009, a total of 523,232 conciliations were undertaken in these centers.
The distribution of the 25,899 conciliators associated with the centers still
privileges larger cities.
Area Number of cases Percent of total
Civil and commercial 39,711 73.77

Criminal 386 0.71

Family 12,061 22.4

Other special cases 1,672 3.1

Source: Ministerio del Interior y Justicia (MIJ), “Conciliation Based on Law” (2007).
Information on the socioeconomic status of the clients of the centers is not available;
however, based on the fees charged, it appears that low-income groups and vulnerable
sectors of the population do not use this type of mechanism. Each center is responsible
for submi ing routine reports to the MIJ on the number of requests, hearings, and cases
resolved. Based on the data observed, gender-diﬀerentiated data are not collected.
Institutional Responses to Social Demands 171

for many disputes. These claims include, for example, noncompliance with
payment of debts, rental agreements and other types of contracts, disputes be-
tween neighbors, and ma ers related to property boundaries. These reforms
and new developments have given rise to a considerable increase in the num-
ber of justice operators, both formal and informal (see table 1).6 According to
national statistics, the total number of justice-sector operators doubled from
16,073 in 2003 to 32,935 in 2008.

Table 1. Increase in the number of formal and informal justice operators*

2003 2004 2005 2006 2007 2008
Judges 3,970 4,073 4,073 4,285 4,479
Public defenders 1,015 1,138 1,369 1,795 2,011 2,257
Public prosecutors 3,638 3,640 3,640 3,640 4,051
Family defenders 513 495 513 497 527
Notary publics 613 613 613 613 856
Labor inspectors 179 179 179 179 328
Municipal personeros 1,098 1,098 1,098 1,098 1,098
Law-based conciliation centers 185 216 236 259 286 310
Potential law-based conciliators
(Public oﬃcers with
conciliation powers) 4,786 5,636 6,486 7,334 14,820
Equity conciliators 823 1,862 2,424 3,365 5,203
Elected jueces de paz ... 834 1,401 1,418 1,054
* Figures for potential law-based conciliator include municipal comisarías de familia and inspectores
de policía.
Source: Departamento Nacional de Planeación, Visión Colombia Segundo Centenario: 2019; Garantizar
una justicia eﬁciente (2008), p. 7, based on ﬁgures from the Ministry of the Interior and Justice, the
Public Prosecutor´s Oﬃce, and the Judicial Superior Council.

Understanding the Legal Needs of the Population: Initial Findings
Empirical studies of (unsatisﬁed) legal/justice needs of the population can
signiﬁcantly improve the design of public policies and the delivery of jus-
tice services.7 Legal experts and proponents of access to justice contend that
examining the complexity of justice needs helps in determining the level of
intervention necessary and contributes to the development of sound poli-
cies. A full-ﬂedged national study on the unsatisﬁed legal/justice needs of the

6 “Formal justice” is the impartial and coherent application of laws and institutional regula-
tions; “informal justice” is applied by a variety of voluntary persons who seek to strengthen
peaceful coexistence and who have been trained and authorized to assist with the handling
of certain types of citizens´ disputes.
7 This section draws on the text of Colombia—Justice Sector: Social Assessment (World Bank
Dec. 4, 2008).
172 The World Bank Legal Review

population has yet to be conducted in Colombia.8 In the past ﬁve years, how-
ever, empirical work has taken place in cities and small municipalities that
shed light on these issues.

The Corporación Excelencia en la Justicia (CEJ) Study
CEJ released the ﬁrst study in Colombia on unsatisﬁed legal needs of Colom-
bian households (June 2008).9 The purpose of the study was to learn about the
legal needs of poor households (low to medium-low income groups) in the cit-
ies of Armenia and Chía, what they did about those needs, and how satisﬁed
they were with the outcomes.10 Underpinning the rationale of the study is the
notion that justice reforms should beneﬁt the poor, and that their needs and
preferences should inform the design of interventions. Speciﬁcally, the study
argues that equal and eﬀective access to justice has the potential to empower
disadvantaged groups and reduce their vulnerability.
The study’s ﬁndings reaﬃrm the common belief that the court system
is profoundly disconnected from the lives of many Colombians. Some of the
study’s major ﬁndings:
• There is a high level of unsatisﬁed legal needs among poor households. A signiﬁ-
cant proportion of poor households facing a situation with a legal dimen-
sion did not turn to any part of the justice sector for help.
The study asserts that lack of access deepens the vulnerability of poor
households. Although the principle of access to justice is reﬂected in the
legal system, in reality, the average citizen faces signiﬁcant economic, cul-
tural, and institutional obstacles that constrain access. Of the households
surveyed in the cities of Armenia and Chía, 84 percent stated that they did
not turn to the formal court system for help to resolve a legally oriented
conﬂict.11

8 This activity is being supported under the ongoing World Bank‒ﬁnanced Justice Services
Strengthening Project (Loan No. 7824-CO) and should be ﬁnalized by the end of 2013.
9 Corporación Excelencia en la Justicia (CEJ), Estudio de necesidades jurídicas insatisfechas en las
ciudades de Armenia y Chía (CEJ 2008). The study did not assess the (unmet) legal/justice
needs of the rural population, for which poverty levels are higher, or how the presence of
armed conﬂict at the municipal level signiﬁcantly aﬀects access.
10 The study examined legal/justice needs in 13 areas: labor, family, neighborhood disputes,
housing, public services, health, education, criminal ma ers, discrimination, debt, identity
ma ers, consumer rights, and civil responsibility.
11 These ﬁndings are consistent with justice-sector data. Based on a 1997 justice survey, the CEJ
estimated that 63 percent of crimes go unreported and that 40 percent of all reported crimes
go unpunished. The 1997 survey indicated that people do not seek judicial relief because of
lack of trust in the transparency and eﬀectiveness of the system. The same survey reported
that chronic congestion, excessive delays, a complex and cumbersome procedural frame-
work, and diﬃculties in execution of judicial orders contributed signiﬁcantly to this lack of
trust (cited in DPK Consulting, Reforma de la justicia colombiana: Informe ﬁnal 10, 15 (project
report for Judicial Conﬂict Resolution Improvement Project, World Bank, Aug. 2004) (avail-
able in the World Bank project ﬁle for closed Loan No. 7081-CO, Judicial Conﬂict Resolution
Improvement Project) (hereinafter, DPK Consulting).
Institutional Responses to Social Demands 173

• The reasons people gave to stay away from the court system can be grouped as
follows: pervasive distrust in the system, lack of legal empowerment to demand
justice remedies, high opportunity costs, insuﬃcient knowledge of the justice sys-
tem, and a sense that the problem was best resolved outside the system.
In 2008, a second study of unsatisﬁed conﬂict resolution needs among
poor and nonpoor households12 found that the types of conﬂicts that most
aﬀect poor households are related to housing, health, family, and criminal
victimization. Nearly 51 percent of households sampled in Bucaramanga,
Buenaventura, and Cienaga did not turn to the justice sector to resolve their
conﬂicts. Of those that did, 27 percent turned to the formal agencies (i.e., the
judiciary, the FGN, and the police) and 13 percent to the informal mechanisms
(e.g., conciliation centers, elected jueces de paz, equity conciliators, and casas de
justicia).13
The majority of family-related and health-related disputes were taken to
casas de justicia. Only about 8 percent of the disputants sought judicial reme-
dies, of which 50 percent of claims were made through tutelas claims (of which
75 percent were related to health rights); 19 percent of the claims were made
through acciones populares, and 6 percent through class action suits.
The study compared the conﬂict resolution needs of poor households
with those of nonpoor households, as well as the steps taken to resolve such
conﬂicts. Of those households sampled, the study found that poor households
were most likely to suﬀer from an unsatisﬁed need, and at the same time the
most likely to turn to the formal or informal justice sector, in spite of their lack
of conﬁdence in sector authorities. In addition, poor households reported a
higher level of vulnerability in terms of crime and victimization than nonpoor
households.14
A major source of confusion for users is the classiﬁcation of particular
operators or programs as “formal” or “informal,” because several cross a com-
monly held but poorly conceived divider line and thereby play an important
bridging or complementary role. Furthermore, such titles imply a separation
involving a capacity or quality judgment, which is confusing for the public
and counterproductive for the justice system.
A second ma er of concern as one considers the growing dimension of the
conciliation ﬁeld is the persistent lack of precision in the number and distribu-
tion of active equity conciliators and jueces de paz. The diﬃculties inherent in
sustaining voluntary community justice services and subsidiary responsibili-
ties assigned to busy public servants belie what appears to be a very strong

12 Fedesarrollo, desarrollo de una metodología para la identiﬁcación de necesidades insatisfechas de reso-
lución de conﬂictos (2008).
13 For a description of each such informal justice mechanism, see Colombia–Justice Sector: Social
Assessment, supra note 8.
14 The ﬁndings of the two studies coincide with national-level studies conducted by the Na-
tional Planning Department that revealed high levels of victimization but low levels of resort
to the courts for redress. See DPK Consulting, supra note 11.
174 The World Bank Legal Review

presence throughout the country. Indeed, a complete list of justice and conﬂict
resolution instances and operators is not available.15
While there has been a signiﬁcant increase in the number and the types of
justice operators, there has also been signiﬁcant concentration, principally in
the main towns and cities of Colombia. The constitution and legislation guar-
antee the presence of basic judicial authorities (judges, public prosecutors, and
public defenders) in every municipality; however, budget deﬁcits; numerous,
spatially dispersed, smaller towns, with meager populations (which implies
a very low cost/beneﬁt ratio); and poor security conditions (due to ongoing
armed conﬂict and organized crime) have led to less than full compliance.
To help remedy these problems, the Consejo Superior de la Judicatura has
set up Judicial Units for Municipalities, which provide criminal justice services
by sharing justice personnel among several towns. Eighty-one such units were
operating and were providing services to 251 municipalities in 2008. Other
national justice institutions have distributed their human resources based on
similar criteria, but these were not necessarily in strict alignment with the ju-
dicial capacity. However, entities such as the Forensic Medicine Institute and
family defenders are so few in number that there is no alternative but to reas-
sign their tasks to other local oﬃcials. This creates enormous challenges at the
municipal and community levels.
Besides the lack of personnel in many parts of the country and the uncer-
tainty of the justice services available in any particular place, the absence of
an articulated justice-system model hinders eﬀective access to justice. Such a
model would identify, connect, and activate the potential of multiple justice
operators and programs in any particular location and seek to ensure their
interaction in a coherent and collaborative system.

Local Justice Services Provision: Two Mechanisms in Need
of Rationalization
As a result of the constitutional provisions for strengthening local govern-
ments, responsibility for the delivery of several types of justice services has
increasingly been delegated to municipalities. For example, the Ministry of
Justice calls on mayors to promote community conciliator programs, set up
municipal conciliation centers, and elect jueces de paz using municipal budgets.
Also coming under the responsibility of local governments have been entities
that facilitate the initial response (at least) to conﬂict resolution and peace-
ful coexistence requirements in family ma ers, disputes between neighbors,
the use of public grounds and facilities, and protection against human rights
abuses and environmental problems. These entities include the casas de justicia,
centros de convivencia, comisarías de familia, inspectores de policía–personerías. The

15 The World Bank‒ﬁnanced Justice Services Strengthening Project for Colombia (Loan No.
7824-CO) is also ﬁnancing regular updates to the Justice Ministry’s “justice map,” which is
meant to reﬂect the full range of providers of justice services.
Institutional Responses to Social Demands 175

Box 3. Casas de Justicia
The casas de justicia are multiagency venues that provide information on
rights, legal advice, and conﬂict resolution services. A variety of conciliation op-
tions are oﬀered, together with administrative and some formal justice services
(Decree 1447 of 2000). Since 1995, the Ministry of the Interior and Justice, with sup-
port from USAID, has constructed a system of casas de justicia comprising some 81
houses. Originally designed for cities with populations in excess of 100,000, casas
de justicia provide rapid solutions to everyday interpersonal disputes and neigh-
borhood conﬂicts. Other issues they address include personal identity veriﬁca-
tion, domestic and sexual violence, and criminal cases of lesser gravity. Services
for displaced populations are also provided, and ma ers of institutional abuse
are considered.
Since 2005, a regional model―consisting of a main justice house in a me-
dium-sized municipality and satellite houses in neighboring, much-smaller
towns― has been developed to reach municipalities in zones severely aﬀected by
armed conﬂict. As many as 20 of the new justice houses have adopted this model,
seeking to cooperate with government eﬀorts to reestablish a state presence in
such territories. Many of the new facilities will serve Afro-Colombian and indig-
enous communities in rural-conﬂict and post conﬂict situations, a critical step for
achieving peace in Colombia.
The purpose of the casas de justicia is to facilitate “one-stop” access to legal
help for poor people in marginalized or conﬂictive neighborhoods, and to pro-
mote peaceful-dispute resolution and social cohesion. Although they vary in de-
sign, casas de justicia incorporate local prosecutors, public defenders, municipal
human rights oﬃcers, municipal neighborhood aﬀairs units, comisarías de familia,
legal aid specialists, social workers, and psychologists in a variety of conciliation
services. Many justice houses also include other entities such as nongovernmen-
tal women’s organizations, youth mediation services, children’s playrooms, and
university law clinics, and personnel such as forensic doctors, community police
oﬃcers, and representatives for ethnic-communities.
Casas de justicia eliminate or reduce common access barriers and bring justice
closer to the people, both physically and culturally. Procedures are free of charge,
easy to arrange, and informal. Legal representation (having a lawyer present) is
not required. Disputes are resolved in a timely manner. However, the sustain-
ability of the houses is dependent on the continued participation of various insti-
tutions from the justice sector, some of which have insuﬃcient staﬀ to assign to
small town projects; municipal political will to assume justice and conﬂict resolu-
tion commitments;, and municipal budgets for justice services. Unfortunately, all
of these factors are compounded when justice houses are located in small, war-
torn areas.
176 The World Bank Legal Review

Children and Adolescent Code of 2006, for example, requires municipal op-
erators to play a subsidiary role in towns where there is no family defender.16
Similar legislation also calls on municipal operators when forensic medical
staﬀ and judicial police are not on hand in small municipalities.
These municipal-based programs provide access to justice for many peo-
ple, but simply calling for an increase in their use, or for an expansion of the
programs countrywide, is not a sound measure for improving access. Policy
makers must develop a be er understanding of the beneﬁts and current chal-
lenges from the perspectives both of the users of these systems and of the local
governments in charge of service delivery. By way of example, this section
provides an overview of the opportunities and challenges of the national jus-
tice houses (casas de justicia) program and equity, or community, conciliators
(conciliadores en equidad) (see boxes 3 and 4).
Decentralized delivery of justice services can be an important mechanism
to expand access, especially in terms of extending national coverage to smaller
municipalities and towns located in rural conﬂict areas. It also can help elimi-
nate or reduce barriers to justice by providing services that are culturally and
physically accessible and responsive to the needs of the community. How-
ever, these beneﬁts are compromised by structural problems that limit impact,
such as unclear roles or overlapping jurisdictional responsibilities, insuﬃcient
or ineﬀective institutional coordination, reduced number of professionals pre-
pared to live and work in many municipalities, lack of training and opera-
tional capacity, absence of quality controls, and undue political inﬂuence in
appointments, all coupled with severe municipal and departmental budget
limitations.17

Can the Use of Justice Services Be Rationalized?
The Proposed Strategy to Address Access Issues
The Commission of Experts for Justice Reform promoted rationalization as
part of a policy approach to deal with the crisis of judicial congestion and
case backlogs, which has worsened in the face of increasing demand for court
services. Congestion in the system contributes to delays in the se lement of
disputes, sluggish response times, higher transaction costs, and widespread
dissatisfaction with the delivery of justice services. To deal with this problem,
the commission proposed an interlinked strategy that included the develop-
ment of a strategic modernization plan, new procedural codes with an urgent

16 Article 98 of the code assigns municipal operators these responsibilities, which normally
belong to family defenders.
17 There are exceptions that should be noted, such as the undertakings of the Antioquia state
government, 2008‒2011, which has trained community conciliators, supported the creation
of municipal family disputes oﬃcers (comisarías de familia), and built nine casas de justicia.
Eﬀorts made by larger cities such as Bogotá and Medellín are also noteworthy.
Institutional Responses to Social Demands 177

Box 4. Equity (Community) Conciliators
Conciliación en equidad (equity conciliation) is a community justice mechanism whereby
an impartial third party, called the equity conciliator, helps his or her fellow community
members solve their everyday types of conﬂicts. Agreements reached are recorded in
a document called the Acta de conciliación en equidad, which has the same eﬀect as a
judicial ruling. Both law-based and equity-conciliation options are legally regulated
and are recognized as an alternative form of conﬂict resolution by Law 23 of 1991
and Law 446 of 1998. A network of community mediators and equity conciliators has
been established that receives support from civil society organizations such as Red de
Justicia Comunitaria (Community Justice Network).
Equity conciliation was ﬁrst created as a tool to reduce the caseload of the judicial
sector but has since been appreciated as having an important role in conﬂict trans-
formation and community development, especially in remote geographical areas. In
Decision C-893 2001, the Constitutional Court stated, “equity conciliation enhances de-
mocracy because it prevents conﬂict, strengthens the justice system, and allows people
to actively participate in the solution of their own conﬂicts.”18 In certain contexts, the
legitimacy of equity conciliators comes from the legal framework, and in other places,
from the community itself and community-based conﬂict resolution practices that are
based on community knowledge and traditions.
Although more than 5,800 equity conciliators have been trained, an undeter-
mined, lower number of those remain active.19 According to a USAID evaluation, the
reasons given for these desertions include “displacement by the armed conﬂict, ab-
sence of technical assistance by the Ministry of the Interior and Justice, lack of sup-
port by municipal governments, abandonment by NGOs and other supporting institu-
tions, low motivation due to the lack of institutional incentives, and poor promotion
of the practice in the host communities.”20 In some areas, an additional obstacle to
the successful development of a conciliation program is the insuﬃcient integration of
conciliation practices with community traditions and practices.21 The community and
voluntary nature of the function makes it diﬃcult to adequately monitor and evalu-
ate their work. To address this issue, some observers have proposed the use of local
coordination points. Such points could include casas de justicia, centros de convivencia,
community councils, municipal oﬃces, or any other central point within the commu-
nity. A diﬀerent initiative in this same direction is a national call center in Bogotá that
provides advice and information to conciliators and endeavors to obtain copies of the
agreements (actas) that result from the conciliators´ activities.

18 For a grassroots analysis of the impact of equity conciliation and challenges faced, see Maria
Lucia Zapata, Peacebuilding from the Grassroots: Equity Conciliation and Conﬂict Transformation
in Colombia (Mar. 2008), available at h p://www.beyondintractability.org/casestudy/zapata
-peacebuilding.
19 While community conciliators are trained and certiﬁed under the supervision of the Minis-
try of Justice, it is nearly impossible to know at any given point how many of those trained
remain active. In its 2009 report to Congress, the ministry reported that 5,700 community
conciliators were present in more than 230 municipalities. See Ministry of Justice, Annual
Report to Congress (2009).
20 Checchi and Company Consulting, Inc., Colombia Administration of Justice Program, Final Re-
port 16 (Sept. 2006).
21 See Zapata, supra note 18.
178 The World Bank Legal Review

focus on the civil procedural code, use of new technologies, rationalization of
the use of a wide range of justice services, and a short-term emergency plan to
reduce the case backlog.22
The assumption is that rationalization would enable the judicial system
to be er respond to demand by, ﬁrst, ﬁltering certain types of cases to out-of-
court forums based on the principle that not all disputes require the interven-
tion of a judge and not all clients are best served by judicial procedures, and,
second, promoting greater use of alternative justice mechanisms.23 In its re-
port, the commission identiﬁed two main beneﬁts (outcomes) of such a policy
approach: less litigation and consequently a reduction in the number of cases
ﬁled; and be er outcomes and access for users because of less delay, cost, and
procedural formalities associated with ADR.24
The key aspect of rationalization is greater use of out-of-court ADR fa-
cilities. For the commission, this means greater promotion of the beneﬁts of
ADR in general, and greater use of conciliation centers; administrative mecha-
nisms for dispute resolution, including those available at the Defensoría del
Pueblo, the Procuraduría General de la Nación (PGN), the Instituto de Bien-
estar Familiar (Law 640, 1991); community-level equity conciliation processes
(Law 23, 1991); arbitration; and an expanded use of the notary publics when
the ma er at hand is not a dispute or when no legal rights are at stake. In es-
sence, the commission envisions an extreme eﬀect of rationalization via ADR
with the court system as the last resort for conﬂict resolution.25 However,
while the National Planning Department’s Visión Colombia Segundo Centena-
rio: 2019 supports rationalization, it places greater weight on other issues that
should be factored into rationalization policies, namely, the need to promote
social harmony and peaceful coexistence.
Filtering the demand for judicial services can potentially have important
eﬃciency gains, improve access to justice, and support long-term peace build-
ing. Rationalization policies, however, must go beyond the simple diversiﬁca-
tion and growing national coverage of formal, informal, and administrative
options for legal decisions and conﬂict resolution services. If this is to serve
access to justice goals, it must also focus on the conﬂict resolution needs of
people in large cities, small towns, rural areas, and socially disadvantaged
groups.
The studies by Corporación Excelencia en la Justicia and Fedesarrollo
identiﬁed ﬁve characteristics related to unsatisﬁed conﬂict resolution and le-
gal needs in Colombian municipalities. First, poorer social classes need in-
formation and advice, oﬀered freely, by local institutions to help understand
their rights and decide how best to deal with their legal needs and conﬂicts.

22 Commission of Experts, supra note 2, at 64‒66.
23 L. 446, 1998, art. 65, and L. 640, 2001, art. 19, regulate ma ers amenable to conciliation.
24 Commission of Experts, supra note 2, at 71.
25 Id., at 129.
Institutional Responses to Social Demands 179

Second, citizens are more likely to consult lawyers who are part of an institu-
tion they trust, especially if this service is free or considered inexpensive. Such
consultations occur most frequently in connection with family problems and
criminal ma ers. Third, vulnerable population groups living in poverty condi-
tions are more likely to seek help in solving their legal problems if the barriers
limiting access and procedures prolonging solutions are reduced. Fourth, the
judicial system is not a ﬁrst option for the poor when resolving conﬂicts, al-
though the poor will seek assistance if they know it is available. They look for
help most frequently in informal and administrative se ings. Fifth, negative

Figure 1. Pyramid model for articulating dispute processing options
180 The World Bank Legal Review

perceptions of the justice system are long-standing, as the ﬁrst National Justice
Survey in 1997 demonstrated and more recent studies conﬁrm. Poor citizens
are especially dissuaded by these perceptions and avoid using institutional
mechanisms to resolve their conﬂicts.
Several experts on access to justice advocate a model known as “the pyra-
mid of dispute resolution” (see ﬁgure 1).26 The broad base of the pyramid is
made up of an array of interpersonal and social options for dealing with dis-
putes between equals. Entities such as jueces de paz, equity conciliators, neigh-
borhood action boards (juntas de acción comunal), family counselors, church
leaders, and community elders are located at this level. As one ascends the
pyramid, levels oﬀer processes that become more formal, more grounded in
legal precepts, and more institutionally controlled. Comisarías de familia, con-
ciliation centers, university law clinics, casas de justicia, local human rights of-
ﬁcers (personerías), and administrative agencies are located farther upward in
the pyramid. The top tier and more formal levels include the judicial struc-
ture, entities responsible for investigation and collecting evidence for victim
and witness protection, and arbitration centers.
If this pyramid model accurately reﬂects the desirable distribution of con-
ﬂict resolution options in a society that does not give priority to litigation in
citizens’ disputes and diﬀerences, a great deal more a ention and resources
need to be directed by the state toward developing a culture of dialogue and
conciliation. The notion of the pyramid and its broad base helps identify many
institutional challenges at the informal levels, which are the least consolidated
and documented, yet are the preferred choices of many citizens. If the vast
majority of conﬂicts are to be dealt with by community justice processes and
equity-based and conciliatory justice services, considerable eﬀort must be
made to provide adequate training opportunities, ongoing technical support,
basic standards for quality control, and, when necessary, appropriate disci-
plinary actions to maintain credibility, fairness, and a sense of justice,
The development of an inclusive pyramid model for dispute resolution
will require detailed proposals to address the link between ADR mechanisms
and community justice options within the judicial system. From an organiza-
tional perspective, the model demands a thoughtful and concerted interin-
stitutional access to justice policy building and calls for a rethinking of how
Colombian justice entities currently envision their role concerning their spe-
ciﬁc functions in promoting social harmony and peaceful coexistence in mu-
nicipalities and certain territorial regions.
A major challenge for establishing such a model in Colombia is the weak
link between ADR, on one side, and municipal and community justice options
and the courts, on the other. Because the success of rationalization rests in
large part on a system of nonjudicial mechanisms or ADR, it is critical to ask

26 R. Uprimny et al., Justicia para todos? Sistema judicial, derechos sociales y democracia en Colombia
252 (Grupo Editorial Norma 2006); and B. Sousa Santos & M. Garcia, El caleidoscopio de las
justicias en Colombia 123–32 (Siglo del Hombre Editores 2001).
Institutional Responses to Social Demands 181

basic questions about ADR itself. Are the diﬀerent ADR mechanisms meeting
the conﬂict resolution needs of citizens? Are they improving access to justice,
particularly for the poor and other vulnerable groups? How can these services
ensure follow-up of agreements to verify compliance, and what steps should
be taken by whom when this is not the case?
Programs such as municipal justice houses provide a venue for integrat-
ing legal advice and municipal and community justice services with public
prosecutors and public defenders; however, a clear path upward to the courts
for cases that cannot be se led or resolved by such entities as justice houses
has yet to be traced. Since this program plays a bridging role across alterna-
tive and formal justice options, it presents an ideal opportunity to apply the
pyramid model and test rationalization approaches. If the Center for Decen-
tralizing Judicial Services, a pilot project under way with support from the
Colombian Judicial Superior Council in the Ciudad Bolívar section of Bogotá,
achieves its goal of linking lower-level courts directly to the justice houses, a
breakthrough may be seen.
A rationalization policy would need to resolve ambiguities along the
spectrum of informal-to-formal and be er develop the roles and responsibili-
ties across diﬀerent levels. To accomplish this, the following issues need to be
explored: identifying circumstances that warrant greater legal rigor; develop-
ing clearer paths for cases that cannot be se led or resolved through primary
justice mechanisms to move upward or across to other options; and improving
the quality of and coordination between operators and organizations on the
bo om tiers while maintaining people’s direct participation and the inherent
organizational ﬂexibility and simplicity that make community options work;27
and arranging appropriate forms of institutional support and oversight.
The justice house program would be located midway up the pyramid, in-
tegrating lower-level community justice services with municipal admin-
istrative options and the ﬁrst echelons of potential judicial proceedings.
Community conciliators, however, are one of the ﬁrst points of contact for
many people, especially in rural and marginalized urban areas. Plo ing their
positions on the dispute resolution pyramid immediately suggests necessary
lines of articulation, both horizontally and vertically, which presently are
not clearly established. Rather, duplication and confusion between the roles
of equity conciliators and jueces de paz are common complaints. Interaction of
justice houses and conciliators with municipal judges is presently a largely
unmapped territory.
A plethora of legislation, municipal decrees, and national program
regulations have assigned functions, responsibilities, and conditions to an

27 Community options work when they are appropriated from and have direct eﬀect on the
community. When “national institutions” want to exercise control, ways must be found to
improve quality and coordination at the community level while still maintaining the inher-
ent local and voluntary characteristics of the community. Too much vertical institutional
control can restrict community justice initiatives to the point that they cease to work.
182 The World Bank Legal Review

ever-widening range of new justice operators, as if the policy were “the more
the be er.” This situation has given rise to duplication, uncertainty in terms
of accountability, and weak controls regarding quality, consistency, and eth-
ics. It also has created obstacles for the coordination of services. Justice-sector
leaders are aware of these challenges, some of which may be partly inevitable
in light of constitutional developments and other ADR initiatives. However,
twenty years after the reform of the constitution, there are no conceptual mod-
els or operational protocols that integrate the multitude of formal and infor-
mal justice innovations to promote user convenience or institutional eﬃciency.
What makes these considerations all the more concerning is the fact that
the variety of justice services located along the pyramid model are rarely ac-
cessible in the majority of Colombian towns. Citizens must ﬁnd entry wher-
ever they can or travel to larger municipalities to seek other services. New
technologies could help to ﬁll the gaps and shorten the distances, since Inter-
net access is deﬁnitely more widespread than justice operators.
Beyond such novel strategies, regenerating a law-based culture, access-
ing legitimate administrative justice institutions, and overcoming the popular
perception of costly, time-consuming, incomprehensible legal practices that
lead to unpredictable judicial decisions call for focused and strong aﬃrmative
action by the state to return justice options to war-stricken or otherwise less-
than-lawful Colombian municipalities (see box 5).

Box 5. Local Justice Systems in Municipalities in War-Torn
Areas of Colombia
Since 2004, the Colombian national government has strived to regain military con-
trol in 11 states seriously aﬀected by the presence, and in some cases dominance,
of illegal armed groups. Many of these areas have a history of a very limited
state presence, which has been seriously undermined by internal armed conﬂict.
An initial predominantly military intervention in these “consolidation zones”
has gradually given way to a wider institutional intervention. In 2013, led by the
Presidential Agency for Territorial Consolidation (the Unidad Administrativa de
Consolidación Territorial, UACT), 58 municipalities will be involved in the con-
solidation eﬀorts.
In 2011, the Ministry of Justice and Law funded an analysis of the adminis-
tration of justice in these regions, which gave rise to a proposal to develop “local
justice systems” that recognize formal, informal, and administrative justice opera-
tors in meeting the need to strengthen the presence of these entities. Recognized
as part of the UACT´s actions, this justice-strengthening approach has a territorial
vision that reaches beyond the urban center and places more importance on rural
se lements and populations. This proposal seeks to reduce justice barriers and
improve the eﬃciency of the administration of justice. Initial implementation has
begun in the state of Meta.
Institutional Responses to Social Demands 183

Women’s Rights and Access to Justice: A Case Study
to Illustrate the Challenges of Rationalization
Undoubtedly, mechanisms at the community and municipal levels avoid
many of the barriers that often limit access to justice, such as physical and
cultural distance, legal formalism, and costs. But such mechanisms are often
not suitable for enforcing the rights of vulnerable populations when there is
a clear imbalance of power between those involved in the conﬂict. This is the
situation in cases of violence against women and other violations of women´s
rights.
Specialized family aﬀairs oﬃces (comisarías de familia) have been created
at the municipal level to provide integrated services for family dispute situa-
tions and frequently for victims of domestic and sexual violence.28 Women’s
organizations play an integral role in service delivery in main cities, and sev-
eral networks have been developed in smaller municipalities, some of which
cover extensive regions of the country.
Protocols for coordinated a ention have been put in place in larger urban
cities of Colombia, but capacity to expand integrated service delivery to all
municipalities is greatly limited. National entities working on these issues,
such as the Ministry of the Interior, Ministry of Justice, Consejería Presiden-
cial para la Equidad de la Mujer (CPEM), and the family justice branch of
the Colombian Family Welfare Institute (ICBF), provide directives, formulate
policies, and oﬀer assistance. However, the daily responsibility for providing
justice services to victims of family violence falls in large part on the shoulders
of municipal justice and health and welfare agencies (sometimes combined
with nongovernmental actors). At the front line of service delivery, resources,
training, coverage, accountability, and institutional capacity are limited and
very unevenly spread from one town to the next.
The functions of the comisarías de familia have deepened and expanded
over time through several reforms in the legal framework and, consequently,
they are responsible for “guaranteeing, protecting, reestablishing, and repair-
ing the rights of the members of the family aﬀected by intra-family violence”
through the provision of integrated and multidisciplinary services.29 As stated
in current legislation, town councils are responsible for the establishment and
operation of comisarías de familia in all municipalities. Nevertheless, to date,
while the number of municipalities that have comisarías has increased, very

28 As in other ma ers, Colombia has moved toward the provision of integrated services rather
than relying on judicial remedies alone. An integrated response includes the delivery of so-
cial, medical, psychological, legal protection, advocacy, and legal aid/legal defense services.
29 The comisarías de familia were created in 1989 as an innovative mechanism to address family
violence. These specialized agencies were ﬁrst recognized formally in the Codigo del Menor
of 1989 and later recognized in the domestic violence laws (L. 294, 1996; L. 575, 2000; &
L. 1257, 2008) and the criminal procedure code, and in the recently passed Children and
Adolescent Code of 2006. In 2011 a study showed the precarious nature of the majority of the
1,217 comisarías de familia registered in 1,102 municipalities. See Comisarías de Familia—Linea
de Base Nacional Primera Parte (Procuraduría General de la Nación (2011).
184 The World Bank Legal Review

few have a lawyer specializing in family issues and a multidisciplinary team
of psychologists, social workers, doctors, and administrative auxiliaries. For
example, in January 2008, only half of the 125 municipalities in the depart-
ment of Antioquia had comisarías that were operating, and many of those did
not have the required multidisciplinary team. Smaller municipalities―those
located in rural areas, and especially those located in areas aﬀected by the
armed conﬂict―ﬁnd it diﬃcult to comply with the law and set up integrated
services for victims of gender-based violence. Smaller towns frequently assign
multiple responsibilities to a single municipal oﬃcer.
Family courts, as such, are few and far between;30 hence coverage limita-
tions are dealt with by transferring certain duties from family courts to comi-
sarías de familia, mixed courts, or municipal courts. This is a serious concern for
women’s rights organizations. The shift has been criticized by many women’s
rights advocates and is perceived as an orchestrated move by the judicial ap-
paratus to reduce court congestion.31 Women’s organizations argue that shift-
ing responsibility from the judiciary and the court system to the comisarías
de familia undermines access to the administration of justice for women who
are victims of family violence. In addition, they argue that justice operators
perceive domestic violence cases as having li le legal importance. Other areas
of concern include the use of conciliation in cases of domestic violence, given
the typical unequal power between male and female parties, and ineﬀective
procedures to monitor the impact of conciliation procedures on women’s
access to justice and judicial remedies. Studies such as the research under-
taken on violence against women in Pereira and Bogotá reveal a critical ten-
sion between three objectives: the need to provide easy access for women to
institutions that are located close to residential areas; the desire to lighten the
burden on the judicial system; and the need to respond to the large volume of
cases of intrafamily violence.32
Even if coverage is expanded, issues of quality of services and interin-
stitutional coordination and standards in delivery, resource availability, and
sustainability will need to be addressed. Despite 20 years of activity, a number
of institutional ma ers remain unresolved. For example, what agency estab-
lishes the standards and characteristics of due process in the comisarías de fa-
milia, and who provides oversight? What legal and access to justice principles
guide the decisions made by the comisarías? What is the responsibility of the
judicial system or the national family welfare system in terms of training, pro-
vision of an adequate work environment, and other technical assistance? As

30 The 144 family courts in Colombia are situated in the large cities. For example, there are 23
in Bogotá, 14 in Medellín, and 11 in Cali.
31 See M. Hurtado, Violencias de género y acceso a la justicia (unpublished paper presented as an
oﬃcer of the Defensoría Pública para los Derechos de la Niñez, la Juventud y la Mujer, Santa
Marta, Colombia, June 2007). Hurtado cites statistics of the Consejo Superior de la Judica-
tura regarding the tenfold increase in the number of protection orders requested in courts
between 1996 and 1998.
32 Corporación Humanas, La situación de las mujeres víctimas de violencias de genero en el sistema
penal acusatoria, Bogotá (June 2008).
Institutional Responses to Social Demands 185

these issues are sorted out, access to justice for women seeking to resolve the
multifaceted problems of family violence remains precarious, especially in
municipalities other than the larger cities of Colombia. In very few places be-
yond the state capitals do a comisaría de familia with a multidisciplinary capac-
ity, a family defender, and a family court come together to address violence,
protection orders, child custody, parental visits, matrimonial property, and
ongoing victims’ assistance issues.
While lower levels of the pyramid undoubtedly avoid many of the barri-
ers that inhibit access to justice, they are not suitable for enforcing the rights
of vulnerable populations when there is a clear imbalance of power between
those involved in the conﬂict. Be they for dealing with family violence situa-
tions, human rights violations, injustices that arise from the armed conﬂict, or
the territorial domination by organized crime, immediate-access channels to
higher justice authorities must be open and guaranteed.

Highly Vulnerable Groups Demand Special Access Options
Highly vulnerable groups, such as women forcibly displaced by internal con-
ﬂict, suﬀer severe discrimination and violence. The Public Defender’s Oﬃce
conducted a study of 2,200 displaced women who were sexually abused; 8
out of every 10 did not report the abuse because of fear, shame, or lack of ser-
vices. As of September 2008, of the total alerts issued by the Sistema de Alertas
Tempranas (SAT), 69 percent were related to sexual exploitation and assault.
As part of a project to address this issue in Magdalena state, the Procuraduría
General de la Nación (PGN) concluded that violence against women is used
pervasively as a strategy of war.33 Moreover, local women’s organizations were
not aware of the services provided by the PGN, the organizations and oﬃcials
working on the problem did not have the knowledge or the tools to provide
appropriate services, and the organizational demand for increased technical
assistance to improve the delivery of services to women victims of violence
was high. Statistics provided by government entities and NGOs show that
between 40 percent and 50 percent of the total displaced population consists
of girls and women. Female heads of households represent between 34 per-
cent and 48 percent of all displaced households.34 In addition, the Social Soli-
darity Network estimates that in 2002 almost 18 percent of the total number
of displaced persons are Afro-Colombians. According to the Human Rights
and Displacement Clinic (Spanish abbreviation: COHDES), Afro-Colombians
and indigenous groups were the most aﬀected by the armed conﬂict and dis-
placements. The indigenous population represents 8 percent of the displaced,

33 This coincides with the assessments of the IACHR, which found that violence against women
is a structural problem in Colombia, where armed actors have used women as pawns.
34 The number of women heads of households increased from 25.8 percent in 1997 to 30.9 percent
in 2003, and was higher in some urban areas. The percentage of women heads of low-income
households grew from 52 percent to 54 percent between 1992 and 2001 (DANE 2003).
186 The World Bank Legal Review

compared to 2 percent of the total population. Afro-Colombians represent
25 percent of the displaced, compared to 9 percent of the total population.35
Though important, explaining the myriad of issues aﬀecting the rights
of those displaced by Colombia’s internal conﬂict is diﬃcult and beyond the
scope of this chapter. The barriers to access to justice for many seem insur-
mountable. Yet there has been some progress on many fronts. In 2004, for
example, some 1,150 families challenged the ineﬃciency of state programs
for displaced people, and the Constitutional Court issued a decision in favor
of the rights of displaced people, including the rights of displaced women.36
The decision instructed the National Council for the Integrated Assistance of
Populations Displaced by Violence to comply with the law by March 2004.
Due to continued violations of the law and frequent injunction orders, the
Constitutional Court instructed the Executive to conduct a complete review
of the system (within a six-month period), which had to include a diﬀerential
analysis of gender, age, ethnicity, and race, among other categories.37 Govern-
ment agencies have redoubled eﬀorts to comply, though they are often unable
to adequately a end to this ever-growing problem, which seriously and dis-
proportionately aﬀects women and children.
What is even more questionable is that human rights and women’s orga-
nizations that have provided legal advice and representation for the displaced
population have been the object of criminal threats and actions in an endeavor
to further isolate these people from the institutions charged with their protec-
tion and the responsibility to address their legal rights and needs. Such access
to justice issues cannot be approached with the normal barrier and rational-
ization of services analysis and proposals.
This is also the case for other vulnerable groups that need aﬃrmative ac-
tion eﬀorts from the highest judicial authorities for establishing groundbreak-
ing legal concepts and legally binding decisions. The mainstream rationaliza-
tion policy proposed by the commission must address such issues and open
fast-track measures for exceptional situations. Rationalization will not be an
alternative for protecting particularly vulnerable population groups, such as
displaced women. Here the tutela and direct access to courts are needed to
establish jurisprudence that recognizes rights and explores how they can be
implemented.
As the discussion above illustrates, delegating to municipal and nonju-
dicial actors appears to overcome at least three access barriers by ensuring
proximity, access without a lawyer, and specialized family services. But in
reality, access to justice for women who are victims of violence is precarious
because resources, coverage, and institutional capacity remain uneven and
inadequate. If rationalization policies ignore these realities, they face the risk

35 Secretariado Nacional de Pastoral Social, Bogotá, Dec. 2001.
36 Const. Ct. Dec. in a tutela action, T-025, 2004.
37 Const. Ct. Dec. in a tutela action, T-496, May 2008.
Institutional Responses to Social Demands 187

of pu ing in place an approach that reinforces inequities. If rationalization
is pursued primarily to satisfy the needs of the court system, it will do so at
the expense of the citizen/user. More important, the real tension between ef-
ﬁciency and access to justice for vulnerable groups is a theme that will require
further dialogue in the context of a rationalization policy for the delivery of
justice services.

Conclusion
The recommendations of the Commission of Experts for Justice Reform should
be viewed as a starting point for a national dialogue on access to justice.
Rationalization of conﬂict resolution and justice services will require a
thoughtful and concerted interinstitutional policy-building process that in-
cludes the participation of civil society organizations. The pyramid model
discussed in this chapter oﬀers a systemic view of the diﬀerent venues for
conﬂict resolution, conﬂict prevention, and hence peace building in Colom-
bia and might serve as a conceptual tool for thinking through the ﬁltering or
rationalization proposal.
If rationalization is to serve the broader goal of access to justice, it must be
adapted to deal with the realities of rural areas and small towns and with the
needs of the poor and other socially vulnerable population groups. If the vari-
ety of justice services contemplated in the pyramid model only exists in large
cities, the rationalization proposal is equally limited and will not provide ac-
cess to justice to many critical areas of the country.
Does the political will exist to overcome the absence of justice services in
small towns and outlying rural areas? Can implementing innovative technol-
ogy and aﬃrmative action help the eﬀort to return to legality in the many
regions aﬀected by the armed conﬂict and other lawless conditions? Small
towns and rural areas aﬀected by the conﬂict need a disproportionate amount
of a ention to provide legal institutions with the credibility and capacity to
oﬀer legitimate conﬂict resolution and access to justice.
Local governments are positioned at a critical juncture of the pyramid
model and play an important role in access to justice. Municipal and commu-
nity instances provide essential justice services at the grassroots level and are
recognized as critical components in long-term peace building eﬀorts; how-
ever, they have the least amount of resources and institutional support. This
level brings together formal and informal systems of justice, for example, casas
de justicia, an instance that could prove to be a key component in experiences
to develop and test rationalization approaches.
Last, initiatives to improve access have focused on many of the barri-
ers that make the justice system inaccessible for everyone, but particularly
for poor and vulnerable groups. Yet, access to justice remains a signiﬁcant
challenge in Colombia, which suggests that an exclusive focus on barriers,
while necessary, is not suﬃcient. This makes a strong argument for seeking a
188 The World Bank Legal Review

be er understanding of the legal and dispute resolution needs of individuals
and groups, and of when and how people turn to formal or informal justice
options. With the support of the World Bank‒ﬁnanced project, the Ministry
of Justice and Law, in conjunction with the Bogotá Chamber of Commerce
and an expert justice NGO, Dejusticia, has undertaken a justice-needs study
in 14 Colombian cities; the ﬁnal report should be ready at the end of 2013.
A demand-focused analysis should help identify the types of cases in which
citizens in general, and more vulnerable groups in particular, would be well
served by community, administrative, and municipal justice services. The
analysis should also provide visibility for those problems that such services
are not positioned to deal with adequately.
Filtering and rationalizing the use of justice services will be an acceptable
access to justice initiative only insofar as it recognizes institutional weaknesses
that must be addressed at the lower levels of the pyramid model, with special
challenges outside the main cities. In the cases of especially vulnerable popu-
lation groups and problems in pioneering legal areas, where rights are not yet
well established and there are insuﬃcient resources to exercise them properly,
fast-track access to judicial forums is not negotiable.
To develop eﬀective justice policies for poor and vulnerable populations,
future studies must examine demand for conﬂict resolution in a diﬀerentiated
manner. Scholarly consideration must be given to diﬀerences between men
and women; social variables, such as ethnicity, race, income, and age; and
diﬀerences across geographical regions (urban/rural) and judicial districts.
Careful analysis of the demand for justice can enhance access to justice if the
analysis is accompanied by the expressed and clear commitment of the justice
sector, with a ention focused on vulnerable groups.
Transfer of justice responsibilities to municipal governments has not been
accompanied by clear implementation policies, adequate funding, or relevant
training. Nor is there national oversight to determine how municipal authori-
ties carry out their delegated justice roles. In addition, in some areas where
state institutions are present but precariously positioned, the capacity of local
government to administer justice is signiﬁcantly limited due to the presence
of illegal armed forces and organized crime groups that exercise control over
justice operations.38 Such a situation can prompt doubts about the credibility
of the rule of law and reduce respect and reliance on state institutions for per-
sonal safety, which accentuates peoples’ extreme social vulnerability.
Rationalizing the use of justice services has the potential to achieve impor-
tant eﬃciency gains, improve access to justice, and support long-term peace-
building eﬀorts, but realizing these goals will require adjustments at all levels
of the justice sector and to speciﬁc aﬃrmative action policies in small towns
and rural areas, and, particularly, for vulnerable population groups.

38 M. Villegas et al., Jueces sin estado: La justicia colombiana en zonas de conﬂicto armado (Siglo de
Hombres Editores, Dejusticia, Fundación Konrad Adenauer, John Merck Fund 2008).
The Role of Access to Information
in Promoting Development
SEAN FRASER

During the past quarter century, the right to development has gained signiﬁ-
cant traction in the ﬁeld of international human rights law. Despite major le-
gal advances and growing acceptance of the right to development as a legal
principle among scholars, and of development more generally as a pressing
political objective among states, the practical impact of this trend has been
underwhelming in comparison to its enormous potential.
An important precondition to the right to development is the free ﬂow of
information that individuals or groups can use to improve the quality of their
day-to-day lives. Public authorities often hold this kind of information, and
functioning democracies should ensure that their constituents are provided
with access to it. The failure to capitalize on the potential beneﬁts of develop-
ment initiatives is due, to some extent, to the ineﬃcient ﬂow of information
regarding the activities of public oﬃcials.
This chapter explores the role of access to information in promoting de-
velopment. In doing so, it discusses which parties bear the responsibility to
implement development initiatives and addresses the nature of the obliga-
tions incumbent upon them. Following this analysis, the chapter examines
how various courts and human rights bodies have used access to information
to encourage public participation, promote eﬃcient democratic governance,
and protect human rights, all of which contribute to development. This chap-
ter also analyzes the obstacles that inhibit the successful implementation of
access to information laws and initiatives and provides recommendations as
to how these obstacles may be overcome to increase the ﬂow of information
that can improve the lives of individuals and peoples around the world.

Development as a Global Legal Issue
Development is an increasingly important global legal issue. Over the past
quarter century, this issue has been framed as a legal right in international
law. The United Nations General Assembly has described the right to devel-
opment as “an inalienable human right by virtue of which every human per-
son and all peoples are entitled to participate in, contribute to, and enjoy eco-
nomic, social, cultural and political development, in which all human rights
and fundamental freedoms can be fully realized.”1

1 Declaration on the Right to Development, A/RES/41/28 (Dec. 4, 1986). This deﬁnition gains

189
190 The World Bank Legal Review

States hold the primary responsibility for promoting development.2 A sig-
niﬁcant conceptual divide exists between developed and developing states
on the issue of which states bear the obligation to promote development in
international law. Developing states often rely on the right to development
to advocate for support from the international community in their quest for
development. Conversely, donor states prefer to rely on the right to devel-
opment to justify their expectations that recipient governments continually
improve their domestic governance by protecting human rights and ensuring
the rule of law.3
It is obvious that both developed and developing states have a role to
play in achieving global development. Although national governments play a
role in the progressive development of people within their nation’s borders, it
would be perilous to ignore the role played by the international community in
expediting human progress.4 Building schools and hospitals, extracting natu-
ral resources while respecting environmental obligations, and providing es-
sential services such as housing, water, and electricity come at a cost. The states
with the greatest need for these facilities and services often do not have the re-
sources to provide them. Therefore, foreign donors and international economic
cooperation are essential in stimulating development. Furthermore, initiatives
such as the Millennium Development Goals illustrate how international co-
operation can expedite development by se ing important political objectives.5

support through its inclusion in several major international instruments. See 1992 Rio Dec-
laration on Environment and Development; the 1993 Vienna Declaration and Programme of
Action; the Millennium Declaration; the 2002 Monterrey Consensus; the 2005 World Summit
Outcome Document; and the 2007 Declaration on the Rights of Indigenous Peoples. Another
major instrument has adopted a separate deﬁnition; see art. 22, African Charter on Human
and Peoples’ Rights (hereinafter, African Charter), adopted June 27, 1981, OAU Doc. CAB/
LEG/67/3 rev. 521 I.L.M. 58 (1982), entered into force Oct. 21, 1986.
2 Art. 3, Declaration on the Right to Development. The Declaration on the Right to Develop-
ment provides that “States have the primary responsibility for the creation of national and
international conditions favourable to the realization of the right to development.”
3 Stephen P. Marks, Poverty, in International Human Rights Law 618 (Daniel Moeckli et al. eds.,
Oxford U. Press 2010).
4 Report of the High-Level Task Force on the Implementation of the Right to Development on Its Sixth
Session, A/HRC/15/WG.2/TF/2/Add.2. The high-level task force on the implementation of the
right to development has explained that “the responsibility for the creation of this enabling
environment encompasses three main levels: (a) States acting collectively in global and re-
gional partnerships (second preambular paragraph and art. 3); (b) States acting individually
as they adopt and implement policies that aﬀect persons not strictly within their jurisdiction
(art. 4); and (c) States acting individually as they formulate national development policies
and programmes aﬀecting persons within their jurisdiction (art. 2).”
5 Millennium Declaration, A/RES/55/2 (Sep. 8, 2000). See also Nico Schrijver, Many Roads Lead
to Rome: How to Arrive at a Legally Binding Instrument on the Right to Development? in Imple-
menting the Right to Development: The Role of International Law 127–129 (Stephen P. Marks ed.,
Friedrich-Ebert Stiftung and Program on Human Rights in Development of the Harvard
School of Public Health 2008).
The Role of Access to Information in Promoting Development 191

The Nexus between Access to Information and Development
Access to information is important not merely for its own sake, but for what it
can help achieve. As one author has suggested, “In itself, the issue of access to
information does not have a natural constituency. What is required is to con-
nect the issue with peoples’ daily pressing concerns, and ensure that people see
their right to information in the broader context of their right to development.”6
The value of information is derived from its role in facilitating the achievement
of other human rights, speciﬁcally, those related to development.
An informed populace is the backbone of participatory democracy. With-
out access to information, this form of governance is not possible. Informa-
tion creates the opportunity to discuss a range of available options, to vote
in accordance with one’s best interests and beliefs, and to take part in mean-
ingful public policy discussions and informed political debate. Information
also creates awareness among individuals and peoples of what rights they are
entitled to and when these rights are being violated. Information provides for
the possibility of evidence-based advocacy to draw a ention to causes that
members of a society feel are important. In the event that the rights of a person
or a people are infringed, information provides ammunition to present to an
independent judiciary that has the power to provide a remedy for the wrong
suﬀered.
A society that does not allow the public to access information is one that
is ripe for corruption. This situation hinders economic growth by deterring
international and domestic investment, as well as foreign aid. Corruption in
government takes the greatest toll on a nation’s most vulnerable population
by preventing the poorest members of society from helping themselves climb
out of poverty.7 Information allows the public to hold a government account-
able by creating a public awareness of the government’s conduct. By provid-
ing access to reports, policies, and laws that aﬀect the population, not only is
the monitoring of performance made possible, but public trust in the govern-
ment also grows.8
Each of these consequences of the public’s right of access to information
has a signiﬁcant impact on development. An informed populace that is aware
of its rights and the forms of recourse available in the event that those rights
are infringed is be er able to hold its government accountable. This reduces
incidents of corruption and allows even the most vulnerable members of so-
ciety to ﬂourish. When freedom of information is protected, an environment

6 John Samuel, Case Studies in Civil Society Advocacy (paper prepared for the Commonwealth
Foundation’s seminar on Civil Society and Government—Partners or Protagonists? Oct.
2002).
7 Lala Camerer, Information and the Quest for Global Accountability, in The Right to Know, The
Right to Live: Access to Information and Socio-Economic Justice xi, 139–140 (Richard Calland &
Allison Tilley eds., Open Democracy Advice Centre 2002).
8 Samuel, supra note 6.
192 The World Bank Legal Review

is created that enables the realization of civil, political, economic, social, and
cultural rights for all members of society.

How States Have Used Access to Information
to Promote Development
With information in hand, individuals and peoples are well equipped to de-
fend, promote, and exercise their rights, a process that leads to tangible human
development. Information plays a key role in determining whether a state has
fulﬁlled its obligations to comply with internationally or constitutionally pro-
tected human rights norms. This section addresses the actions taken by states
that have fostered development by enhancing access to information through the
auspices of the United Nations and regional organizations and domestically.

The UN Framework
The UN system of human rights protection can be discerned primarily from
the work of the bodies that monitor compliance with human rights treaties, the
UN Human Rights Council and the Oﬃce of the High Commissioner for Hu-
man Rights (OHCHR). Each of these bodies has diﬀerent tools to promote hu-
man rights, including the right of access to information. However, each could
do more to liberalize access to information that might assist in promoting de-
velopment. In addition, treaties that are established under the UN framework
that relate to speciﬁc subject ma er deliver a unique opportunity to provide
the general public with access to information that relates to issues addressed
by that treaty. This section discusses various aspects of the UN framework
that have speciﬁcally tackled the right to information. Mechanisms that do not
have an ample body of material available that relates to the right to informa-
tion are beyond the scope of this chapter and are not discussed.

UN Treaty Bodies
Article 19 of the Universal Declaration of Human Rights (UDHR) recognizes
the importance of the right to access information when it states, “Everyone has
the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart infor-
mation and ideas through any media and regardless of frontiers.”9 When the
UDHR was adopted in 1948, the expectation was that further treaties would
be required to create binding obligations with respect to the human rights
contained therein. Since then, nine core instruments have been adopted. The
International Covenant on Civil and Political Rights (ICCPR) addresses the
right to access public information in Article 19(2), which provides that “every-
one shall have the right to freedom of expression; this right shall include free-
dom to seek, receive and impart information and ideas of all kinds, regardless

9 Art. 19, Universal Declaration of Human Rights of the UN General Assembly A/RES/217 A
(III) (Dec. 10, 1948).
The Role of Access to Information in Promoting Development 193

of frontiers, either orally, in writing or in print, in the form of art, or through
any another media of his choice.”10
This discussion addresses the various mechanisms by which UN treaty
bodies use Article 19(2) of the ICCPR and other laws that provide for access
to information as a means of promoting development around the globe. These
mechanisms include general comments of the various treaty bodies, state re-
porting obligations, and complaints procedures. Examples of how each of these
tools have been used to promote access to information are presented below.
General Comments. Most treaty bodies issue general comments, which are ad-
opted by consensus and provide guidance on the general treaty obligations
of state parties to the relevant instrument and outline the scope of the rights
contained therein.11 Although general comments are not legally binding, they
are often cited by states and complainants in the context of state reporting ob-
ligations, during the applicable complaints process, or even in the judgments
of domestic courts.12
The Human Rights Commi ee provided some guidance on the right to
information in General Comment No. 34. That document points out that “Ar-
ticle 19, paragraph 2 [of the ICCPR] embraces a right of access to information
held by public bodies” and that the right of access to such information applies
regardless of how the information is stored and impacts private parties that
carry out a public function. General Comment No. 34 also states:
To give eﬀect to the right of access to information, States parties
should proactively put in the public domain Government informa-
tion of public interest. States parties should make every eﬀort to en-
sure easy, prompt, eﬀective and practical access to such information.
States parties should also enact the necessary procedures, whereby
one may gain access to information, such as by means of freedom of
information legislation.13
General Comment No. 34 also establishes that individuals are entitled to
know what personal data are stored by public entities and which individuals
or bodies control their ﬁles. If those ﬁles contain incorrect data or were col-
lected in violation of the law, the right to access personal information includes
a right to have personal records rectiﬁed. In previous general comments, the
Human Rights Commi ee has shed light on the kinds of information to which
persons accused of a criminal oﬀense are entitled,14 and the entitlement to in-
formation about other rights under the ICCPR in general.15

10 Art. 19(2), International Covenant on Civil and Political Rights, A/RES/2200 (Dec. 16, 1966).
11 Markus Schmidt, United Nations, in International Human Rights Law 408–409 (Daniel Moeckli
et al. eds., Oxford U. Press 2010).
12 See Secretary of Security v. Sakthevel Prabakar, 1 Hong Kong L. Rpts. & Dig. (2005) 289.
13 General Comment No. 34, CCPR/C/GC/34 (Sep. 12, 2011), at paras. 18–19.
14 General Comment No. 32, CCPR/C/GC/32 (Aug. 23, 2007).
15 General Comment No. 31, CCPR/C/21/Rev.1/Add. 13 (May 26, 2004).
194 The World Bank Legal Review

State Reporting Obligations. Parties to the core human rights instruments are
required to submit regular reports to the commi ee responsible for oversee-
ing the relevant treaty. These reports must outline how the state has imple-
mented the treaty nationally and are subsequently examined by the treaty
body, which designates a country rapporteur to prepare a list of issues that is
addressed by the state in the form of an updated report.
The examination of state reports takes place in public and in the presence
of a delegation from the state party concerned. The public nature of this ex-
amination is beneﬁcial in that it represents a proactive approach by the treaty
bodies to disseminating information related to human rights and, thus, de-
velopment. Following the examination, the treaty bodies adopt concluding
observations or comments that identify areas of progress for the state as well
as problems that persist. Speciﬁc recommendations as to how these problems
may be resolved are made, and follow-up mechanisms monitor whether prog-
ress is in fact being made.16
The UN Human Rights Commi ee expressed unease in relation to Iran’s
violation of the right to freedom of expression under the ICCPR.17 The com-
mi ee was concerned about the government’s eﬀorts to stiﬂe the media and
in some instances detain them, particularly following the 2009 presidential
elections. These eﬀorts represent an infringement of the right to expression of
the various media entities and persons in Iran and a violation of the Iranian
population’s right to seek and receive information. In response to these con-
cerns, the commi ee recommended:
The State party should [. . .] ensure that journalists can exercise their
profession without fear of being brought before courts. The State
party should release, rehabilitate and provide eﬀective judicial re-
dress and compensation for journalists that were imprisoned in
contravention of articles 9 and 19 of the Covenant. The State party
should also ensure that the monitoring of Internet use does not vio-
late the rights to freedom of expression and privacy as deﬁned in the
Covenant.
Interestingly, the concluding observations of other treaty bodies do not
refer to Article 19 of the ICCPR because their assessment of a state report is
limited to the provisions of the treaty for which they have assumed responsi-
bility. However, various treaty bodies have referred to the need for greater ac-
cess to information in their concluding observations, which serves as evidence
of the relationship between information and other human rights.

16 Report on the Current Working Methods of the Treaty Bodies, HRI/MC/2009/4 (June 24, 2009), at
paras. 75–82. State parties are typically invited to report back to describe what steps have
been taken after one year of the examination, and special rapporteurs are routinely appoint-
ed for this purpose.
17 Concluding Observations of the Human Rights Commi ee: Islamic Republic of Iran, CCPR/C/
IRN/CO/3, available at h p://iranhrdc.org/ﬁles/pdf_en/UN_Reports/CCPR.C.IRN.CO.3.pdf
(accessed May 29, 2013).
The Role of Access to Information in Promoting Development 195

For example, the Commi ee on the Rights of the Child, in its concluding
observations in relation to the state report of Timor-Leste, was encouraged
by the eﬀorts of Timor-Leste in cooperating with the UN in disseminating
information and providing human rights training relating to children’s rights
to government agencies, civil society, teachers, judicial oﬃcers, and other
relevant professional groups, and recommended that this practice be contin-
ued.18 The concluding observations also recommended that the state improve
children’s access to appropriate information from a diversity of sources, es-
pecially those aimed at the promotion of a child’s social, spiritual, and moral
well-being and physical and mental health.19
The Commi ee on the Protection of the Rights of All Migrant Workers and
Members of Their Families expressed disappointment in the lack of informa-
tion provided to migrant workers in Rwanda.20 The commi ee recommended
that Rwanda intensify its eﬀorts to ensure that migrant workers and members
of their families have eﬀective access to information about their rights under
the convention and under immigration law, in particular their rights to have
access to basic social services, to join trade unions, and to the same treatment
as nationals of the state party in respect to conditions of work.21
In examining issues relating to women’s health in Paraguay, the Com-
mi ee on the Elimination of Discrimination Against Women drew a ention,
in its concluding observations, to reproductive rights and the high mortality
rate that is a consequence of unsafe abortions in that nation.22 Among other
things, the commi ee recommended that Paraguay adopt a patient privacy
policy to safeguard doctor-patient conﬁdentiality speciﬁcally when treating
women for abortion complications, and that it “strengthen institutional health-
care capacity and the implementation of programmes and policies aimed at
providing eﬀective access for women to health-care information and services,
in particular regarding reproductive health and aﬀordable contraceptive
methods, with the aim of preventing clandestine abortions.”
The process of state reporting is robust but ineﬃcient. It can lead to the
implementation of expert recommendations, but both the system and par-
ticipating states are overburdened.23 If the system is to operate eﬃciently, it
must have the necessary human resources to do so and would beneﬁt from

18 Concluding Observations of the Commi ee on the Rights of the Child: Timor Leste, CRC/C/TLS/
CO/1 (Feb. 14, 2008), at paras. 22–23.
19 Id., at paras. 37–38.
20 Concluding Observations of the Commi ee on the Protection of the Rights of All Migrant Work-
ers and Members of Their Families on the Initial Periodic Report of Rwanda, CMW/C/RWA/CO/1
(Oct. 10, 2012).
21 Id., at paras. 35–36.
22 Concluding Observations of the Commi ee on the Elimination of Discrimination Against Women:
Paraguay, CEDAW/C/PRY/CO/6 (Nov. 8, 2011).
23 Schmidt, supra note 11, at 406. Many treaty bodies face backlogs that delay their examination
of state reports by up to two years after their submission, and some states are more than a
decade behind in their reporting obligations.
196 The World Bank Legal Review

implementing a more selective approach toward the information it considers
from stakeholders other than the state.24 A streamlined approach to reporting
would also assist in this regard.25 There has been progress in the form of
treaty body harmonization, which has simpliﬁed the process somewhat26 and
should be continued to accelerate the process of state reporting that could lead
to increased implementation of access to information laws and initiatives on
a timely basis.
Complaints Procedures through Treaty Bodies. Various human rights treaty bod-
ies provide a mechanism that is designed to hear complaints that human
rights have been violated. For example, the ﬁrst Optional Protocol to the
ICCPR provides a complaints procedure for violations under the ICCPR.27
This instrument allows both states and individuals to commence claims
against parties to the ﬁrst Optional Protocol before the Human Rights Com-
mi ee, although to date, the focus has been almost entirely on individual, as
opposed to interstate, complaints.
After considering an allegation of the violation of rights, the relevant com-
mi ee provides “views” or “opinions” that assess the merits of the complaint.
These views have shown that the right to information includes a right whereby
the media has access to information on public aﬀairs28 and the right of the
general public to receive media output.29 Other views have demonstrated that
prisoners are entitled to access their medical records while incarcerated,30 and

24 Id., at 407–408. Notably, the majority of treaty bodies provide for participation of NGOs in
the reporting process, which contributes greatly to the quality of the examination. However,
the experience of some commi ees is that having too many NGOs with diﬀering points of
view can slow the process or lead to inconsistencies in the information provided on a par-
ticular issue to the point that no meaningful discussion takes place.
25 Id., at note 11. This is particularly evident when one considers that many states are required
to submit reports with overlapping issues to a number of diﬀerent oversight bodies. In deal-
ing with states that have delayed excessively in submi ing their reports, the relevant com-
mi ee may conduct a review of the country on the basis of information it has from existing
stakeholders. Provisional concluding observations are then prepared and circulated to the
state, but the relevant commi ee will only publish its provisional concluding observations
in the absence of a response from the state.
26 Id., at 415–417. Unfortunately, the recommendation that a single report be submi ed made
by the UN secretary-general in 2002 was rejected on the basis of the logistical challenges it
presented to states. (Secretary-General, Strengthening the United Nations: An Agenda for Fur-
ther Change, A/57/387 [Sep. 9, 2002], at paras. 52–54.) However, the treaty body reporting
requirements did lead to harmonized reporting guidelines under each of the core instru-
ments, which are expected to result in be er compliance with reporting obligations of states.
(Secretary-General, Eﬀective Implementation of International Instruments on Human Rights,
Including Reporting Obligations under International Instruments on Human Rights, A/63/280
[Aug. 13, 2008] Annex, at para. 42(d)).
27 Optional Protocol to the International Covenant on Civil and Political Rights, adopted by
UN General Assembly Resolution 2200A (XXI), 21 UN GAOR Supp. (no. 16) at 59, UN Doc.
A/6316 (1966), 999 U.N.T.S. 302, (Mar. 23, 1976).
28 See communication no. 633/95, Gauthier v. Canada (May 5, 1999).
29 See communication no. 1334/2004, Mavlonov and Sa’di v. Uzbekistan (Mar. 19, 2009).
30 See communication no. 726/1996, Zheludkov v. Ukraine (Oct. 29, 2002).
The Role of Access to Information in Promoting Development 197

that a state’s decisions that may impact the way of life and culture of minori-
ties should be accompanied by a process of information sharing and consulta-
tion with aﬀected communities.31 These cases demonstrate that the complaints
process under the rubric of the UN Human Rights Commi ee has led to useful
commentary on the role of access to information in promoting development.
Regre ably, several key weaknesses prevent the treaty bodies’ complaints
procedures from reaching their full potential. The single greatest problem with
treaty bodies’ complaints procedures is that the views or opinions they release
are not legally binding and cannot be strictly enforced.32 Although follow-ups
conducted by various treaty bodies have been encouraging in some instances,
they do not have the eﬀect of a formal judgment that can be enforced against
the assets of a perpetrator of human rights violations.33 Access to legal counsel
presents another problem in extending the reach of the complaints process
to victims. There is currently no requirement that a complainant retain legal
counsel, and the procedural intricacies of the complaints process make the
process challenging for an individual who does not have representation or
who is illiterate. Accordingly, the process is weakened by the absence of a
legal aid system that could serve impecunious complainants.34

UN Human Rights Council
The primary duties of the UN Human Rights Council are outlined in Gen-
eral Assembly Resolution 60/251.35 Among these duties are promoting human
rights education and learning, serving as a forum for dialogue on thematic
issues, making recommendations to the General Assembly on developing new
human rights standards, preventing human rights violations through dialogue
and cooperation, and responding promptly to human rights emergencies.
Accordingly, the Human Rights Council is positioned to widely circulate in-
formation that is useful in promoting development, rather than providing an
aggrieved party with a remedy for the violation of its right to information.

31 See communication no. 1457/2006, Poma v. Peru (Mar. 27, 2009).
32 General Comment No. 33, CCPR/C/GC/33 (Nov. 5, 2008) at para. 11. The Human Rights
Commi ee has stated that, although its views and opinions are not binding, they do “exhibit
some important characteristics of a judicial decision.” Moreover, “cross-fertilization” of hu-
man rights jurisprudence has been characterized by the recognition of treaty body case law
before regional human rights bodies and domestic courts, and vice-versa (Schmidt, supra
note 11, at 415). This development is a positive one in that it avoids legal fragmentation by
crafting, albeit slowly, a harmonious body of human rights jurisprudence. (Schmidt, Vers une
jurisprudence international en matière des droits de l’homme: L’expérience du Comité des droits de
l’homme de l’ONU, in Les juridictions internationales: Complémentarité ou concurrence? 163–168
(Olivier Delas et al. eds., Bruylant 2005).
33 Schmidt, supra note 11, at 413. With the exception of in Colombia, no enabling legislation
has been passed that would allow the views or opinions of a UN treaty body to be treated
similarly to domestic judicial decisions.
34 Id., at 410–411.
35 UN General Assembly Resolution A/RES/60/251 (Apr. 3, 2006), at para. 5.
198 The World Bank Legal Review

The Universal Periodic Review. The Human Rights Council is obligated to un-
dertake a universal periodic review (UPR), a peer review mechanism that
addresses each state’s fulﬁllment of its human rights obligations to ensure
universal coverage and equal treatment.36 The UPR has been the source of cau-
tious optimism by human rights experts in that it has shown positive results
in terms of implementing change.37 Since 2008, the UPR has been used by re-
viewing states to make recommendations to improve access to information on
at least 28 occasions. The UPR has led to recommendations that states “intro-
duce and seek prompt passage of access to information legislation”;38 “strictly
uphold freedom of the press, including public access to information, and en-
sure that the complaints made in this regard are properly investigated”;39 and
“take measures to guarantee eﬀective access for women and girls to informa-
tion and services regarding sexual and reproductive health.”40 Twenty-seven
of the 28 states in receipt of such recommendations have supported the recom-
mendation provided.41
Special Procedures. The Human Rights Council also provides for certain special
procedures that are designed to address either “country speciﬁc situations
or thematic issues that concern all states.”42 Mandate holders, such as special
rapporteurs, undertake country visits and fact-ﬁnding missions and examine
complaints, report to the media, and publish their ﬁndings. The special rap-
porteur on the promotion and protection of the right to freedom of opinion
and expression released a report on the “right of individuals to seek, receive
and impart information and ideas of all kinds through the Internet.”43
This report outlines the importance of Internet access in spreading infor-
mation that promotes human rights, including the right to development, and
stated in its recommendations:
Unlike any other medium, the Internet enables individuals to seek,
receive and impart information and ideas of all kinds instantaneously
and inexpensively across national borders. By vastly expanding the

36 Id., at para. 5(e).
37 Elvira Dominguez Redondo, The Universal Periodic Review of the UN Human Rights Council:
An Assessment of the First Session, 7(13) Chinese J. of Intl. L. 721–734 (2008).
38 Report of the Working Group on the Universal Periodic Review: Vietnam, A/HRC/12/11 (UPR
2009), at para. 99.
39 Report of the Working Group on the Universal Periodic Review: Georgia, A/HRC/17/11 (UPR,
2011), at para. 105.
40 Report of the Working Group on the Universal Periodic Review: Bosnia and Herzegovina, A/
HRC/14/16 (UPR, 2010), at para. 106.
41 Report of the Working Group on the Universal Periodic Review: Serbia Addendum, A/HRC/10/78
Add.1 (UPR, 2009), at para. 9. Only Serbia refused to support such a recommendation, but it
did not reject it outright.
42 Schmidt, supra note 11, at 398.
43 Report of the Special Rapporteur on Key Trends and Challenges to the Right of All Individuals to
Seek, Receive and Impart Information and Ideas of All Kinds through the Internet, A/HRC/17/27
(May 16, 2011).
The Role of Access to Information in Promoting Development 199

capacity of individuals to enjoy their right to freedom of opinion and
expression, which is an “enabler” of other human rights, the Internet
boosts economic, social and political development, and contributes
to the progress of humankind as a whole.44
The report also discusses many of the challenges faced in widely dissemi-
nating information online as a result of certain states actively taking steps to
restrict information. For example, the special rapporteur found that “China,
which has in place one of the most sophisticated and extensive systems for
controlling information on the Internet, has adopted extensive ﬁltering sys-
tems that block access to websites containing key terms such as ‘democracy’
and ‘human rights.’ ”45 The Human Rights Council has created a signiﬁcant
awareness of human rights issues, including access to information, among
various stakeholders, which has led to valuable changes in policy, adoption of
legislation, and increased protection of human rights.

Ofﬁce of the High Commissioner for Human Rights
The UN Oﬃce of the High Commissioner for Human Rights (OHCHR) has
the responsibility of promoting and protecting the eﬀective enjoyment by all
of all human rights.46 This body cooperates with other UN entities and issues
recommendations on how to be er promote and protect human rights and
improve the UN mechanisms relating to human rights. Among the priorities
of the OHCHR is the coordination of UN education and public human rights
information programs and the promotion of the realization of the right to
development.
Knowledge of human rights is an essential precondition to their eﬀective
exercise, yet many developing countries have problematic rates of illiteracy,
and individuals in all states remain unaware of international human rights
standards.47 These phenomena make the exercise of human rights diﬃcult and
necessitate the dissemination of information. It is in this regard that the UN
human rights education program seeks to assist. The OHCHR contributes sig-
niﬁcantly to UN educational activities. It publishes various materials about
human rights, including the right to development, and disseminates these
publications widely by paper and by electronic means. The OHCHR relies on
its many ﬁeld oﬃces for the production, translation, and distribution of mate-
rials and information in furtherance of human rights education initiatives and
in training local oﬃcials and members of civil society.
Although these educational and training initiatives contribute to a gen-
eral trend of human rights awareness, measuring their inﬂuence is challeng-
ing because the initiatives are rarely tied to speciﬁc measurable outcomes.

44 Id., at para. 67.
45 Id., at para. 29.
46 General Assembly Resolution on the High Commissioner for the Promotion and Protection of All Hu-
man Rights, A/RES/48/141 (Jan. 7, 1994).
47 Schmidt, supra note 11, at 420.
200 The World Bank Legal Review

Moreover, their eﬀectiveness is largely dependent on a cooperative local
government that is not opposed to the promotion of human rights within its
borders. The aﬃliations that the OHCHR has with domestic human rights
bodies around the world are helpful in this respect, although these relation-
ships cannot completely address, for example, access to information in a state
where the reigning government does not have the political will to implement
meaningful human rights initiatives.

Issue-Speciﬁc Conventions
The adoption of international treaties that deal with speciﬁc subject ma er is
another tool that can be used to liberalize access to information laws under
the UN framework. The Aarhus Convention is one such example; it creates
a linkage between the substantive right to a clean environment and proce-
dural rights, including a right to information.48 The convention entitles the
general public to information regarding the state of the environment, public
health, and other factors impacting the environment. The convention codiﬁes
the right to request and receive information49 and imposes a duty on states
to collect and disseminate information.50 The right to information under this
convention has been widely implemented by its parties.51
The drafting and adoption of treaties on speciﬁc topics and issues is
bound to continue, and the UN framework provides states with a forum for
doing so for the foreseeable future. States should take the opportunity that
these instruments provide to bolster the public’s right of access to informa-
tion in relation to issues that impact the public interest. Doing so would allow
groups and individuals who are aﬀected by the issues dealt with in a given
treaty to protect their own rights or seek help in doing so. This would be a
signiﬁcant step in expediting development initiatives, as the stakeholders on
a given topic would be be er able to take part in informed debate on ma ers
of public importance.

Regional Organizations
The American Convention on Human Rights (ACHR),52 the European Con-
vention on Human Rights (ECHR),53 and the African Charter54 protect the
right to information. These instruments have established human rights bodies

48 United Nations Economic Commission for Europe Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental Ma ers
(June 25, 1998). Approved by Council Decision 2005/370/EC (Feb. 17, 2005).
49 Id., at art. 4.
50 Id., at art. 5.
51 Malgosia Fi maurice, Environmental Degradation, in International Human Rights Law 637
(Daniel Moeckli et al. eds., Oxford U. Press 2010).
52 Art. 13, American Convention on Human Rights (1969).
53 Art. 10, European Convention on Human Rights (1950).
54 Art. 9, African Charter, supra note 1.
The Role of Access to Information in Promoting Development 201

that issue wri en decisions involving the role of access to information in pro-
tecting human rights and thus promoting development. In addition, regional
bodies can assist in the development of access to information legislation by
adopting conventions or model laws that increase public participation, im-
prove eﬃciency in government, and assist in protecting human rights.

Jurisprudence of Regional Human Rights Bodies
The case of Claude Reyes and Others v. Chile was the ﬁrst holding by an interna-
tional tribunal that the right to freedom of expression includes a right to seek
and receive information held by the government.55 The applicants in this case re-
quested information regarding a deforestation project on the Rio Condor from
Chile’s Foreign Investment Commi ee. The Chilean courts provided no accept-
able reasons for the commi ee’s refusal to release the information, so the Inter-
American Court found that the applicants’ right to information under
Article 13 of the ACHR was violated. In the wake of this decision, Chile ad-
opted access to information legislation and began training public oﬃcials in
how to properly administer access to information requests pursuant to the
Inter-American Court’s direction and supervision.
K.H. and Others v. Slovakia was the ﬁrst in a series of cases before the Eu-
ropean Court of Human Rights that involved the issue of forced sterilization
of Roma women from Slovakia.56 Eight women suspected that they were ster-
ilized without their consent while in Slovakian hospitals to give birth. The
women sought copies of their medical records to determine their health status
and to protect the integrity of the evidence contained therein for the purpose
of potential litigation. The European Court of Human Rights found that Slo-
vakia’s refusal to provide access to medical records constituted a violation of
the ECHR. The court took the view that Article 8, which deals with the right to
respect for one’s private and family life, includes informational rights related
to health and health status. In addition, the court found that Article 6, which
provides a right of access to justice, was violated as a result of the failure to
share the information in question.
In Társaság a Szabadságjogokért (Hungarian Civil Liberties Union) v. Hungary,
the European Court of Human Rights dealt with a request by the Hungarian
Civil Liberties Union, a civil rights NGO, to access a copy of a complaint ﬁled
with the Constitutional Court by a member of Parliament.57 The complaint
sought a review of amendments to national drug legislation, which was an
area of interest for the NGO. The Constitutional Court denied the NGO’s re-
quest to access the complaint on the basis that it contained personal data and
could only be shared with the consent of the author. The court found that the
activities of NGOs are essential contributions to an informed public debate

55 Claude Reyes and Others v. Chile, IACtHR Series C No. 151 (Sep. 19, 2006).
56 K.H. and Others v. Slovakia, ECHR 2009/13 (Apr. 28, 2009), no. 32881/04 (4th sec.).
57 Társaság a Szabadságjogokért (Hungarian Civil Liberties Union) v. Hungary, App. No. 37374/05,
judgment of Apr. 14, 2009.
202 The World Bank Legal Review

and warrant similar protection as that aﬀorded to the media. The court ruled
that by interfering with the NGO’s ability to gather information on ma ers
of public importance, Hungarian authorities violated the applicant’s right of
access to information.
In SERAC and Others v. Nigeria, the African Commission examined a case
involving the exploitation of Ogoniland in Nigeria by a subsidiary of Shell
Oil Co. and the Nigerian National Petroleum Company.58 The exploitation
was done in a manner that caused signiﬁcant degradation of the environment,
as well as harm to the health of local residents. A group of local and inter-
national NGOs launched a complaint to the African Commission, claiming
that the Nigerian government was responsible for human rights violations.
In rendering a decision, the commission highlighted the importance of infor-
mation in promoting the right to a healthy environment by ﬁnding that the
government should have aﬀorded the public an opportunity to participate in
decision making through a public consultation process before commencing
the project.59 Among other things, the commission ordered the government to
conduct environmental and social impact assessments and to provide infor-
mation on health and environmental risks to communities that are likely to be
aﬀected by oil operations in the future.60

Regional Instruments and Model Laws
In addition to the dispute resolution mechanism for international human
rights bodies, the political organs of regional organizations can improve the
ﬂow of information by adopting conventions that guarantee access to informa-
tion. The Council of Europe did precisely that when it passed the Convention
on Access to Oﬃcial Documents.61 This is the ﬁrst binding international legal
instrument that recognizes a general right of access to oﬃcial documents held
by public authorities. In summarizing the treaty, the Council of Europe stated:
Transparency of public authorities is a key feature of good gover-
nance and an indicator of whether or not a society is genuinely dem-
ocratic and pluralist, opposed to all forms of corruption, capable of
criticising those who govern it, and open to enlightened participa-
tion of citizens in ma ers of public interest. The right of access to
oﬃcial documents is also essential to the self-development of people
and to the exercise of fundamental human rights. It also strengthens
public authorities’ legitimacy in the eyes of the public, and its con-
ﬁdence in them.62

58 The Social and Economic Rights Action Center and the Center for Economic and Social Rights v.
Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96
(2001).
59 Id.
60 Id.
61 Council of Europe Convention on Access to Oﬃcial Documents, CETS No. 205 (June 18, 2009).
62 Summary available at h p://www.conventions.coe.int/Treaty/EN/Summaries/Html/205.htm
(accessed May 29, 2013).
The Role of Access to Information in Promoting Development 203

The instrument establishes a right of access to oﬃcial documents and
sets out certain permissible limitations on the disclosure of information. It is
designed as a set of minimum standards to be applied in the processing of
requests for access to oﬃcial documents and allows for states to build on its
contents by passing domestic laws that provide more robust access to oﬃcial
documents.
The African Charter establishes a right of access to information63 that is
elaborated on by the Declaration of Principles on Freedom of Expression in
Africa.64 These instruments guarantee “the right of access to information as
a fundamental inalienable human right and as an indispensable component
of democracy and development, including socio-economic development.”65
Notwithstanding the recognition by African states that access to informa-
tion can lead to extensive development, there is a dearth of domestic legisla-
tion that provides substance or procedure to the right to information on the
continent.66
In response to the need for implementation of domestic legislation in Af-
rica, the African Commission adopted the Model Law on Access to Informa-
tion in Africa.67 The model law is formulated “as a guide for the development,
adoption or review of access to information legislation by African states.”68 The
African Commission, as well as civil society organizations that contributed
to the eﬀort, should be commended for their work in adopting this model
law, which is an important development that other regional human rights
bodies should note. Not only African states suﬀer from an absence of access
to information legislation or lack of eﬀective legislation. Other regional or-
ganizations should take steps to oﬀer similar guidelines to states that wish
to implement or improve legislation on access to information by adopting a
model law or convention that is tailored to the needs of member states. These
documents should be regularly reviewed and kept up-to-date.

63 Art. 9, African Charter, supra note 1.
64 Declaration of Principles on Freedom of Expression in Africa, African Commission on Hu-
man and Peoples’ Rights, 32nd session (Oct. 17–23, 2002).
65 Preamble, Model Law on Access to Information for Africa, African Commission on Human
and Peoples’ Rights, 53rd session (Apr. 11, 2013) (hereinafter, Model Law).
66 As of 2013, only 11 states had adopted access to information legislation: South Africa (Pro-
motion of Access to Information Act in 2000); Angola (Freedom of Information Law in 2002);
Zimbabwe (Access to Information and Protection of Privacy Act in 2002); Uganda (Access to
Information Act in 2005); Ethiopia (Freedom of Information and Mass Media Law in 2008);
Liberia (Freedom of Information Act in 2010); Guinea (Organic Law on the Right of Access to
Public Information in 2010); Nigeria (Freedom of Information Law in 2011); Tunisia (Decree
on Access to the Administrative Documents of Public Authorities of Tunisia in 2011); Niger
(Charter on Access to Public and Administrative Documents in 2011); and Rwanda (Law
Relating to Access to Information in 2013).
67 Model Law, supra note 65.
68 Id., at 14.
204 The World Bank Legal Review

Domestic Access to Information Legal Regimes
Aside from any obligations that arise in international law, the right to freedom
of information is embedded in the constitutions of many states and given con-
tent in legislation in at least 95 states around the world.69 When addressing
freedom of information in domestic jurisdictions, the relevant legal regimes
are typically characterized by the guarantee of access to data held by the state,
and on occasion by private bodies, subject to certain classes of exemptions that
justify the government’s refusal to disclose information to the requesting party.
This form of access to information is important in the context of the right to
development because it promotes transparent and accountable governance,
which is essential to a functioning democracy.
In discussing the essential components of domestic access to information
legislation, the UN Human Rights Commi ee’s General Comment No. 34 pro-
vides a description of appropriate legislation on access to information when
it states:
The procedures should provide for the timely processing of requests
for information according to clear rules that are compatible with the
Covenant. Fees for requests for information should not be such as
to constitute an unreasonable impediment to access to information.
Authorities should provide reasons for any refusal to provide access
to information. Arrangements should be put in place for appeals
from refusals to provide access to information as well as in cases of
failure to respond to requests.70
In some circumstances, where public oﬃcials refuse to provide informa-
tion through the process contemplated by law, a requester can seek recourse
through the courts, which determine whether the relevant legislation prohib-
its the disclosure of information. This section draws on the decisions of vari-
ous domestic courts to illustrate how a constitution or legislative regime pro-
vides a right of access to information that can enhance development within
national borders.

Domestic Jurisprudence on Access to Information
CCII Systems Ltd. v. S. A. Fakie NO and Others was the ﬁrst major case decided by
the courts under the South African Promotion of Access to Information Act.71
It involved the acquisition of a strategic defense package for approximately
R 30 billion (approximately US$3 billion). This arms deal has been tarnished by
allegations of corruption and secrecy that continue today. A private company
that provides defense-related software and computer systems sought access
to the draft version of a report that was subsequently altered and accepted by
Parliament. The complainant wished to use the report to determine whether

69 Art. 19, Freedom of Information, available at h p://www.article19.org/pages/en/freedom-of
-information-more.html (accessed May 1, 2013).
70 General Comment No. 34, supra note 13, at para. 19.
71 CCII Systems Ltd. v. S. A. Fakie NO and Others, High Court of South Africa, Case No.4636/2002.
The Role of Access to Information in Promoting Development 205

it had been unfairly excluded from the transaction due to political pressure or
impropriety, as opposed to the merits of its bid. The court ordered that a vari-
ety of documents relating to the arms deal, including the draft report, must be
produced. In this case, access to information legislation was used to promote
transparency in government, which is essential to development because of the
role transparency plays in preventing corrupt practices.
In Union for Civil Liberties (PUCL) and Another v. Union of India and Another,
the Supreme Court of India dealt with an a empt by the government to over-
rule one of its prior decisions by implementing legislation.72 The prior decision
held that Indian citizens are entitled to know certain information about public
oﬃcials and candidates for public oﬃce, including their assets, criminal rec-
ords, and educational backgrounds, as a result of the constitutional right to
freedom of expression.73 Subsequently, the Indian Parliament amended the
Representation of the People Act such that candidates would not be required
to make information available that related to their educational qualiﬁcations
or assets “notwithstanding anything contained in the judgment of any court
or directions issued by the Election Commission.”74 The Union for Civil Lib-
erties challenged the constitutionality of the legislation, and the court held
that the right to freedom of expression includes voters’ “fundamental right
to know relevant antecedents of the candidate contesting the elections”75 and
deemed the relevant portions of the legislation to be “illegal, null and void.”76
In Greenwatch (U) Ltd v. A orney General of Uganda and Uganda Electric-
ity Transmission Co. Ltd, an environmental NGO used Uganda’s constitutional
right of access to information to prevent the construction of the World Bank–
funded Bujagali dam.77 Greenwatch Ltd. had requested documents relating
to the project that both the Ugandan government and the World Bank ini-
tially refused to release. The government alleged that the documents being
sought did not exist, and later it argued that the disclosure of the requested
records would threaten national security. The Uganda High Court did not
accept these submissions and concluded that the records being sought were
public documents to which Ugandan citizens were entitled access. Although
the documents were not released to Greenwatch Ltd. on the basis that it had
not adduced evidence as to its status as a citizen, the documents were subse-
quently made public and were reviewed by the International River Network,
which concluded that Ugandans would pay excessive costs if the dam project

72 Union for Civil Liberties (PUCL) and Another v. Union of India and Another, AIR [2003] SC 2363.
73 Union of India v. Association for Democratic Reforms and Another (2002), AIR 2112; 2002 (3)
SCR 294.
74 S. 33(b) of Amended Representation of the People Act.
75 Union for Civil Liberties, supra note 73, at 9.
76 Id., at p. 41.
77 Greenwatch (U) Ltd v. A orney General of Uganda and Uganda Electricity Transmission Co. Ltd
(2002), HCT-00-CV-MC-0139, High Ct. of Uganda.
206 The World Bank Legal Review

were to proceed according to the plan at the time.78 Moreover, it was revealed
that a government minister had received a payment from the subsidiary of the
project’s main contractor.79 This led the World Bank to suspend its payments
for the dam project, which avoided the consequence of excessive payments
from Ugandan citizens.

Obstacles to and Recommendations for Promoting Development
through Domestic Access to Information Legislation
The Information Abyss: An Absence of a Legal Regime Governing Access to Informa-
tion. Although many states have implemented legal regimes that govern ac-
cess to information,80 the majority have not adopted similar legal frameworks.
The absence of a legislative framework that regulates access to information
presents obvious problems for the achievement of freedom of information. To
begin with, without explicit implementation of legislation or a constitutional
provision that conﬁrms the existence of a right of access in a given state, indi-
viduals seeking information have li le legal authority on which they can rely
that would persuade a government that is reluctant to share what is being
sought. Additionally, where a right to information is protected in a state’s
constitution or bill of rights, there may be no procedure for accessing public
records to provide the scope of the right’s content. Without a legal process that
provides for the means to access information, it can be extremely challenging
to identify when a violation of the right occurs or to seek recourse if a violation
is established.
The obvious solution for states without a legal regime that governs ac-
cess to information is to adopt one. However, for most states, that is no small
task and cannot be achieved without serious political will.81 As discussed
previously, some institutions have produced model laws or binding interna-
tional covenants that can serve as guidelines when it comes to creating or
improving legal regimes on access to information that would be of assistance
to states without appropriate legislation. It is essential to recognize that even
without freedom of information laws, information can be used to promote
development. While a government is taking steps toward the implementation
of appropriate legislation, it can disseminate information to the public. For
example, a government that does not have access to information legislation
may provide public access to libraries, work toward increasing enrollment in
schools, protect freedom of expression in the media, expand Internet access to

78 Transparency International Kenya, FOI in Kenya: The Value of the Right to Information, 58 Adili
Newsle er (2004).
79 D. Pallister, Africa Dam’s Passage “Eased by Bribes,” The Guardian (Nov. 3, 2003), available at
h p://www.guardian.co.uk/uk/2003/nov/03/davidpallister.
80 Art. 19, Freedom of Information supra note 69.
81 See h p://www.globalintegrity.org/node/512 (accessed May 1, 2013). Global Integrity, an
NGO based out of South Africa and the United States, has reported that Ghana’s failure to
present the access to information bill to parliament, a bill that has been pending since 2002,
is due to a lack of political will on the part of the government.
The Role of Access to Information in Promoting Development 207

areas that do not have it, or implement any one of a number of other measures
that improve the circulation of human knowledge.
Insuﬃcient or Inappropriate Domestic Legal Regimes. Access to information re-
gimes may hamper freedom of information, either by having insuﬃcient pro-
visions that regulate the entitlement of the public to information or through
the presence of legislation that is speciﬁcally designed to limit the spread of
information. Assessing the adequacy of an access to information regime on
an ongoing basis is as important as ensuring that the framework is appropri-
ate at the time of adoption. Without continually improving the legal regime
governing access to information, even states that were once praised for their
progressive legislation will eventually be left with archaic laws.
On some occasions, the problems with existing laws are not limited to the
inadequacy of the legislation governing access to information but pertain to
instances where the law may have come into existence with the goal of limit-
ing the public’s access to information.82 When seeking to improve access to in-
formation legislation, states should look to existing model laws, conduct wide
public consultations in good faith, and seek input from other stakeholders or
experts, including the media, interested NGOs, and academics. By gathering
input from these parties on an ongoing basis, states can ensure that the needs
of their population are best served by the laws in place.
Good Law Gone Bad: Insuﬃcient Implementation of Existing Legal Regimes. The
failure, or inability, to implement access to information laws that are other-
wise commendable is a signiﬁcant problem that stiﬂes the ﬂow of information
and represents a disservice to the population that is subject to the law. One
source of this problem is the insuﬃcient number of personnel in government
departments who are allocated to work in freedom of information. Solving the
dilemma of insuﬃcient human resources requires a rebalancing of the priori-
ties of government departments. It is not enough to say that more funds must
be allocated to freedom of information without recognizing that those funds
must be taken from another area. Identifying which department’s funds must
be cut in order to boost the capacity for compliance with freedom of infor-
mation laws must be the prerogative of the individual government, which is
in a position to understand the most pressing priorities of its constituency.

82 The Commonwealth Human Rights Initiative, an international NGO that seeks to ensure
the protection of human rights within the commonwealth, has been critical of Zimbabwe for
this reason. This NGO explained that although Zimbabwe’s constitution protects the right
to receive and impart ideas and information (Art. 20, Constitution of Zimbabwe, published
as a schedule to the Zimbabwe Constitution Order 1979 [S.I. 1979/1600 of the United King-
dom] and as amended to No. 19 of Feb. 13, 2009), the Access to Information and Protection
to Privacy Act in that country “provides only very limited provisions on access and privacy,
and the main thrust of the Act is to give the government more powers for media censor-
ship and control.” See h p://www.humanrightsinitiative.org/programs/ai/rti/international
/laws_&_papers.htm (accessed May 1, 2013). Furthermore, under the Oﬃcial Secrets Act,
any communication of oﬃcial information is unauthorized, unless disclosure to the person
seeking the information is explicitly authorized.
208 The World Bank Legal Review

However, a dedicated portion of a government’s budget must be assigned to
comply with freedom of information legislation.83
An additional problem associated with implementing good law is poor
record keeping. Although this may be a consequence of inadequate funding,
it also may be due to the absence of an eﬀective system. Establishing eﬀec-
tive record-keeping systems is important for every government department
and would dramatically reduce the number of mysterious disappearances of
government records. It is important to recognize that diﬀerent government
departments deal with diﬀerent kinds of records. Thus, the system ought to be
tailored to the needs of the relevant department. As technology increasingly
inﬁltrates all aspects of human life, it would be preferable, where possible,
to include an electronic record-keeping system that complements the use of
hard copies. Electronic records would also promote eﬃciency within the gov-
ernment department by making the search for, and production of, requested
documents less complicated.
The lack of adequate training provided to government oﬃcials is a ma-
jor hurdle for the improvement of access to information. Training must be
provided to employees who are designated to work in access to information
as well as front-line employees. The information provided to government
employees in training of this kind, including the up-to-date contact informa-
tion of the relevant person within departments, should be consolidated in a
manual that is made readily available to all employees.
A ﬁnal consideration that detracts from the successful implementation of
an otherwise impressive legislative regime is the lack of a capacity to make
requests by groups that could beneﬁt most from information. There are many
reasons why this problem may arise. For example, a group may not be aware
of its right to access to information. In situations where there is an awareness
of a right to information, the group may not understand the connection be-
tween holding information and bringing about tangible beneﬁts to personal
lives or the community, or there may not be an understanding of the process
of ﬁling a request. In some situations, the requester may understand the pro-
cess completely, but due to other considerations, such as the lack of an Inter-
net connection or ﬁnancial constraints, the requestor may not be able to ﬁle the
request in the method contemplated by the legislation.
Civil society organizations have a signiﬁcant role to play in assisting with
these issues. By providing training to community leaders or representatives
from other sectors of the population, groups can be educated on their right to
know, the process through which they can exercise that right, and the beneﬁts
associated with obtaining information. As well, civil society organizations can

83 The Open Democracy Advice Centre has recommended that 0.5 percent of an information
holder’s annual budget be dedicated to implementing South Africa’s access to information
legislation. See PAIA Civil Society Network Shadow Report 2011, available at h p://www.saha
.org.za/news/2011/September/paia_civil_society_network_releases_shadow_report.htm
(accessed May 1, 2013).
The Role of Access to Information in Promoting Development 209

assist by providing the capacity to ﬁle requests to the appropriate government
bodies on behalf of the person or group seeking information.

Conclusion
Development is a major issue on the global political and legal landscape and
is being increasingly recognized and implemented by states as they strive
to provide citizens with the opportunity to lead meaningful and fulﬁlling
lives. Despite the increasing recognition of development as a legal right
and political goal, much of the world remains plagued by poverty, disease,
illiteracy, and other indices that suggest that development initiatives have
not reached their potential. A major stumbling block in implementing de-
velopment programs has been the failure to eﬀectively disseminate informa-
tion that would allow groups and individuals to meaningfully participate in
democratic governance.
Information allows individuals and groups a full measure of participation
in public life, promotes eﬃcient democratic governance, and protects human
rights. Although a signiﬁcant number of states have taken steps to implement
the public right of access to information, many have no law that gives con-
text to the international or constitutional legal right to seek and receive public
information. Given that freedom of information is inextricably linked to the
promotion of human rights, including the right to development, the failure
to implement freedom of information laws at either the international or the
domestic level is unacceptable.
The United Nations, regional organizations, and many national govern-
ments have taken steps to increase the ﬂow of information, which is a laudable
objective, although the results have been mixed. There has been signiﬁcant
progress in raising awareness of the right to information and drawing a en-
tion to violations of that right. In addition, dispute resolution mechanisms
have been established that provide remedies for the victims of a violation of
their right to information. However, the systems that deliver the beneﬁts are
often ineﬃcient and their reach is not universal. If states, acting collectively or
unilaterally, can muster the political will to continually monitor and improve
access to information by global citizens, they can expect to witness expedited
progress as a result of investments in development initiatives.
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The Search for Opportunity and Inclusion
Insecurity and Migration

EMILIO C. VIANO

In the aftermath of the terrorist a acks that shook the United States on Sep-
tember 11, 2001, and then Spain, the United Kingdom, India, many Middle
Eastern countries, and many other places worldwide, extraordinary measures
have been taken to control and limit migration. Migration has become strong-
ly “securitized.” Among other things, this means that the perspectives, analy-
ses, policies, and legislation related to migration are now mostly framed from
the point of view of the security of the state and not so much in terms of the
security of the migrants. Indeed, the security of many migrants is endangered
from the moment they decide to migrate, and that danger grows more acute
as they take a perilous journey that may lead to their victimization, enslave-
ment, and even death. Even prior to migration, the decision to migrate is often
related to the insecurity of their environment, racked by conﬂict, ethnic or
religious strife, economic crisis, criminal violence, and fear.1
In many developing countries, the violence of development itself is at the
root of a score of insecurities that cause people to move away, because they are
forced, at times at gunpoint, to leave, or because they are in search of a more
just and favorable environment. In a special issue of the journal Development,
Arturo Escobar2 underlines the point that violence is essential to development
and strongly connected to displacement, an aspect of modernization that has
become so common that it is taken for granted and overlooked.3 One of the
many glaring current examples of this dynamic is the construction of the Belo
Monte Dam on the river Xingu in the state of Parà in Brazil. This massive proj-
ect involves the building of water deviation canals, the ﬂooding of thousands
of acres of Amazonian forest, and the creation of a lake of some 500 square
kilometers (50,000 hectares), making it very diﬃcult and at times impossible
for the indigenous populations to use altered ﬂuvial routes for ﬁshing and
navigation in a region without roads. The project will uproot and displace
indigenous tribes from their tribal lands and have serious negative eﬀects on
ﬂora, fauna, and the climate of the region. Violence and the heavy intervention
of the Brazilian military police to forcibly remove indigenous tribes accompany

1 Ibrahim Sirkeci, Conﬂict, the Environment of Human Insecurity and Migration in Iraq in the Af-
termath of 2003, in Rethinking Global Migration: Practices, Policies and Discourses in the European
Neighbourhood 161‒175 (H. Ri ersberger-Tilic ed., KORA 2008).
2 Arturo Escobar, Development, Violence and the New Imperial Order, 47(1) Dev. 15‒21 (2004).
3 Marianne Marchand, The Violence of Development and the Migration/Insecurity Nexus: Labour
Migration in a North American Context, 29(7) Third World Q. 1375‒1388 (2008).

211
212 The World Bank Legal Review

the construction of Belo Monte, along with drug and human traﬃcking, pros-
titution, land grabs, and the uprooting of the existing communities.
Similar events are taking place in the Omo River region, one of Africa’s―
and the world’s―last, great undiscovered places, home to the so-called van-
ishing tribes of Ethiopia. The massive Gilgel Gibe III Dam is scheduled to
begin operations several hundred miles upriver from where the tribes live.
While the controversial project will more than double electrical output in Ethi-
opia, it will destroy a fragile environment and displace as many as 200,000
indigenous people who rely on the Omo’s natural ﬂood cycles to produce
their crops, and whose land may now go dry. Not only were the tribes not
consulted; most locals are reportedly unaware that these changes are coming.
The dam will have catastrophic consequences for the eight diﬀerent tribes of
the Omo River, who already live a marginal life in this dry and very challeng-
ing area. That the end is near in a region once inhabited by some of our earliest
ancestors (Australopithecus walked these very river banks) not only is sad but
also points out the violent displacement and life-threatening insecurity that
“development” engenders.
The same is true with farmers forced oﬀ their land in various parts of
China; with ﬁshing communities losing their livelihood because of devastat-
ing pollution aﬀecting marine life in the Great Barrier Reef area of Australia
due to massive mining and shipping of minerals and the concomitant port
construction and expansion of ship traﬃc; with other indigenous people los-
ing their land and way of life to powerful and well-connected entrepreneurs
expanding their landholdings to raise ca le or to engage in open-air mining
in the “Triple Frontier” region shared by Brazil, Paraguay, and Argentina, an
area until recently considered impenetrable. Some 20 indigenous groups in
the area, including a totally isolated group in Paraguay believed never to have
had contact with “modern” people, have been abused, forcibly displaced, and
reduced to a life of homelessness, poverty, begging, alcoholism, and resort-
ing to prostitution and pe y crime for survival.4 The Mapuche in southern
Chile and the descendants of the Maya in Chiapas, Mexico, have faced and are
still confronted with similar depredations, displacement, and insecurity, often
with the connivance of the state and the weight of the law.
The insecurity at the root of migration and the violence that accompanies
it are diﬀerent in nature, intensity, and aftermath, depending on the gender of
the migrant. Although often unrecognized, there are diverse types of insecu-
rity and violence for men and women that stem from their diﬀerent social and
economic status, their access to power and control, and the equation of power
between them.5

4 Sentencia Final, Tribunal del Juicio Ético a las Transnacionales (Nov. 11, 2011), available at
h p://juicioalastransnacionales.org/2011/11/sentencia-ﬁnal-del-tribunal-del-juicio-etico-a
-las-transnacionales/.
5 Marchand, supra note 3; and Ibrahim Sirkeci, Jeﬀrey Cohen, & Pinar Yazgan, The Turkish Cul-
ture of Migration: Flows between Turkey and Germany, Socio-economic Development and Conﬂict,
9(1) Migration Le ers 33‒46 (2012).
The Search for Opportunity and Inclusion 213

Security for the State or for the Migrant?
Since the terrorist a acks in the United States and various other countries, the
issues of migration and security have become inextricably linked in current
political theory and debate. What “security” means varies largely, of course,
depending on who is using the term and why.
A framework for envisioning the relationship between cross-border mi-
gration and security, developed by Fiona Adamson,6 posits three central areas
in which migration and the interests of the state may intersect: the sovereignty
of the state, the balance of power among the states, and the nature of violent
conﬂict in the international system. One could add other key areas such as
the social, cultural, or religious identity of the core inhabitants; the ultimate
control over natural, human, and cultural resources, including the language
spoken; and the social mores, customs, and legal tenets steeped in a particu-
lar tradition and understanding of reality. While migration is generally con-
nected to the security of the state, it is less often linked to individual or human
security. Adamson7 also stresses the fundamental diﬀerence in perspective,
and therefore in analysis, when one links migration to national security or to
human security. While “not necessarily . . . diametrically opposed,” the per-
spectives represent diﬀerent analytical lenses through which one can assess
the security impact of international migration.8
Thanks to today’s wide and live coverage of world events, there is con-
siderable awareness and appreciation of the hardships and perils of all stages
of migration. The migrants themselves recounting their experience; the visual
documentation of their suﬀering made possible by widely available ﬁlming
technology; the scholarly and action-oriented analysis of what the migrants
went through―all these sources support viewing migration as presenting
considerable, and at times lethal, challenges to human security. Moreover,
the policies and actions taken, mostly by the state, but at times also by indi-
viduals, vigilantes, or nonoﬃcial groups, constitute an additional major threat
to migrants. Consequently, it seems correct to “[reconceptualize] security in
multidimensional and multilevel terms.”9
In other words, given the plight of many migrants, and the policies and
actions of the countries and people they may encounter on their journey or
upon reaching their destination, it is justiﬁed, indeed necessary, to view the
relationship between migration and security above and beyond the dangers
that migration may generate for the state, including those stemming from the
state’s response to it. This change of the lens through which migration is seen

6 Fiona Adamson, Crossing Borders: International Migration and National Security, 31(1) Intl. Sec.
165‒199 (2006).
7 Id.
8 Id., at 167.
9 J. Ann Tickner, Gender in International Relations 128 (Columbia U. Press 1992).
214 The World Bank Legal Review

provides considerable advantages for a realistic understanding of what “mi-
gration and security” means “from below,” for those directly involved in it
and who, most often, are not asked.10 This applies especially to the dynamics
and relations of cultural, linguistic, legal, and ﬁnancial dominance and con-
trol. The resulting chasms and insecurities need to be recognized and stressed.
Shining a light on contextually dependent interactions, relationships, and ac-
tions is very helpful in analyzing and understanding migration. Recognizing,
valuing, and analyzing how marginalized people live and what they experi-
ence, especially women and children, is indispensable to gaining a deeper un-
derstanding of the connection between apparently common daily events and
experiences and the seemingly far-distant issues of international politics and
economics.11 For example, there are strong commonalities between the experi-
ences of Sub-Saharan migrants a empting to get to Europe through North Af-
rica and those trying to get to the United States through Mexico, to Australia
through Indonesia and Timor, to Malaysia through Thailand from Myanmar/
Burma, and so on, worldwide.
There is no question that migration is a major political, human, and ﬁnan-
cial challenge facing especially the developed countries today but aﬀecting
almost every country, oﬀering a glimpse of hope and a be er life to those who
live generally in more desperate situations. Poverty, after all, is a relative con-
cept. Even a slight improvement in earnings, obtaining employment, receiv-
ing be er health and education services, or providing a springboard to a yet
be er country is enough of a reason for people to face countless hardships to
move, at times just “next door.”

Technology, the Economy, and the Ebbs and Flows of Migration
The technological advances that make it so much easier and cheaper to travel
internationally, communicate with visual contact (e.g., through Skype), send
and receive money, move back and forth depending on needs and on the sea-
son, and maintain linguistic, religious, cultural, and aﬀective ties have led to
an unstoppable surge of migratory movements that characterize much of the
international political, labor, and ﬁnancial sectors of the world today. This
surge is most visible where there are land bridges that permit easier contacts,
such as between Mexico and Central America and the United States or be-
tween western and eastern Europe. The continuous and unabated series of
armed conﬂicts in the world, whether international or domestic, has also gen-
erated in many parts of the world massive movements of people seeking to
escape mayhem, death, and destruction. From the mass migrations of princi-
pally Eastern Europeans after World War II, which led to the creation of the
United Nations High Commission for Refugees (UNHCR), to those ﬂeeing

10 Gunhild Jorgensen & Kirsti Stuvoy, Gender, Resistance and Human Security, 37(2) Sec. Dia-
logue 207‒228 (2006); Jane Freedman, Analysing the Gendered Insecurities of Migration, 14(1)
Intl. Feminist J. Pol. 36‒55 (2012).
11 Jorgensen & Stuvoy, supra note 10, at 223; Freedman, supra note 10, at 38.
The Search for Opportunity and Inclusion 215

conﬂict related to the partition of India and other episodes of decolonization
in Asia and Africa, to people escaping war, killings, and destruction in South
Asia, Central America, East Timor, Darfur and South Sudan, Liberia, Sierra
Leone, the Democratic Republic of Congo, Iraq, Afghanistan, Turkey, Burma,
and most recently Syria, one can clearly correlate insecurity at home with the
quest for security elsewhere.12
Even in the case of ﬁnancial and political turmoil, which does not nec-
essarily involve armed conﬂict, the ease and low cost of communications
awareness of other lifestyles and opportunities abroad through the media,
and historical and cultural ties can spur considerable emigration. Thus, many
people from South American countries undergoing deep political change and
economic uncertainty―such as Argentina, Peru, Bolivia, Ecuador, Venezuela,
Nicaragua, Honduras, and El Salvador―migrated during the past 20 years,
especially to countries such as Italy or Spain. They have now begun to return
to their original countries in response to the economic turmoil and downturn
experienced in those European (and other) nations to which they emigrated.
Ironically, their countries of origin now oﬀer increased opportunities and at-
tractive possibilities. And even some of the European natives from those same
emigrant-destination countries might now migrate abroad. Thus, a country
of immigration can become quite rapidly a country of emigration, and vice
versa. For example, recent data show that in 2011 the number of Spanish citi-
zens leaving Spain to reside abroad grew 8.2 percent and in 2012 6.3 percent
(in 2012, the number was 114,413 persons, 44,000 of them born in Spain). The
majority of Spanish citizens living abroad reside in South America, especially
Argentina and Brazil, and in Cuba. In relative terms, the countries that in 2012
experienced the most signiﬁcant increase of Spanish immigrants were Ecua-
dor, Chile, and Peru.13 Most of the migrants from Spain are naturalized immi-
grants who are returning to their country of birth.14
Ireland, too, can be seen as a country where immigration and emigration
fairly often and quickly change direction. Since 1700, and especially because
of the Great Famine of 1840, Ireland has been an exporter of millions of emi-
grants, creating what is called the Irish Diaspora. Presently, it is estimated that
80 million people worldwide could claim some Irish descent, with 50 million
of them resident in the United States. Ten percent of British citizens have at
least one Irish grandparent.15 In the 1990s, however, Ireland’s economic boom
transformed the country into one of “net immigration,” with signiﬁcant num-
bers of immigrants arriving from outside the European Union. Many Irish

12 Sirkeci, supra note 1.
13 20minutos.es, El numero de españoles en el extranjero crece un 6.3% en un año y roza los dos
millones (Mar. 20, 2013).
14 RTVE.es, El numero de españoles residentes en el extranjero creció en más de 114.000 en 2012 (Mar.
20, 2013).
15 Owen Bowco , More Britons Applying for Irish Passports, Guardian (Manchester, Sept. 13,
2006).
216 The World Bank Legal Review

nationals also returned to Ireland from abroad. The enlargement of the Euro-
pean Union to encompass eastern European countries generated a major im-
migration wave from those countries into Ireland as recently as 2004‒2008.16
Now, with the economic crisis and unemployment hovering around 15 per-
cent, Ireland is once more a country of emigration. Reportedly, between April
2011 and April 2012, 87,000 people left the country looking for a job elsewhere.
The data on emigration from Ireland in 2012 show a 240 percent increase from
the low number of 2002. The concurrent moving in and out of Ireland by mi-
grants during the past 10 years or so is a dramatic and vivid testament to the
unprecedented ﬂuctuations that can take place today at short notice.17 These
drastic changes reﬂect, and in turn generate, strong feelings and a reality of
insecurity and vulnerability.
Additionally, the fact that wealth inequality is falling in most of the world,
but rising in the West, foretells new tides of migration, away from the tradi-
tional countries of immigration and toward the countries once considered the
major source of emigration. Not only is extreme poverty disappearing but
also the world as a whole is being transformed into a more equal place, with
the developed countries actually going against that trend. This will no doubt
profoundly aﬀect current pa erns of dominance and of perceived superiority,
and alter worldwide migratory currents.

Migration, Terrorism, and Securing the Border
Making migration, and particularly irregular migration, a priority policy is-
sue, especially in the European Union and the United States, is no doubt re-
lated to the vast eﬀort to “securitize” it. The expression “irregular migration”
mostly covers the cross-border movement of people who enter a country lack-
ing that country’s permission to do so. A “regular” or “legal” migrant can
become “irregular” as well; for example, the migrant might violate the terms
of her visa, overstay his visa, or commit a crime. There is an ample vocabulary
referring to this phenomenon. In English, the most common term is “illegal”
migrant, while, for example, in French, it is “irregular” migrant or “sans pa-
piers.” For many reasons, including disagreements on its deﬁnition, there are
no ﬁrm data on irregular migration. Because it is an underground phenome-
non, it is not recorded. Consequently, it is not possible to measure it accurately
or reliably. It is estimated.
Irregular migration is increasingly seen as primarily a security problem.
For this reason, current eﬀorts to reform immigration laws in the United
States, for example, are prefaced, ﬁrst and foremost, by “securing the border”

16 Martin Ruhs, Ireland: From Rapid Immigration to Recession (country proﬁle, Migration Info.,
Source, Migration Info. Inst., Sept. 2009).
17 Mary Gilmartin, The Changing Landscape of Irish Migration, 2000‒2012 (Working Paper No. 69,
Natl. Inst. for Regl. & Spatial Analysis, Natl. U. of Ireland); Ibrahim Sirkeci, Philip L. Martin,
& Eugen Stark, Editorial: Migration and Development: Comparing Mexico‒US and Turkey‒Eu-
rope, 9(1) Migration Le ers 1–10 (2012).
The Search for Opportunity and Inclusion 217

to make the subject politically palatable. Among the most salient measures
taken to demonstrate the government’s commitment to security are the con-
struction of a wall hundreds of kilometers long; the use of increased land
and air patrols; the deployment of drones to patrol the border nonstop; the
use of sensory and night-vision devices to detect movement in remote areas,
especially at night; the enlistment of locals to help patrol, spot movement, and
report it, and even confront irregular migrants; and making it a crime to pro-
vide assistance, food, or water to irregular immigrants crossing the vast des-
ert between Mexico and the United States.18 In the United States, sealing the
border is considered an indispensable prerequisite to regularizing the status
of the irregular immigrants who are already in the country, as if this would
be a permanent solution and the end of the irregular immigration for years
to come.
“Irregular” immigration has been seen and depicted as a threat to the na-
tional economy, to the labor market, to decent wages, to gains in compensa-
tion and beneﬁts, and to the national heritage, culture, religion, and language.
Above all, it has been tied to the menace of international terrorism.19 Irregular
immigration is considered by many to be the major method of entry for for-
eign terrorists, who can then take advantage of the weaknesses of the system
and inﬁltrate the nation, establishing criminal and terrorist cells in neighbor-
hoods dominated by their ethnic group, and subsequently create havoc and
destruction. This perspective has gained a lot of currency, especially after the
a acks in Madrid in March 2004 and in London in July 2005; the failed a acks
against U.S. airlines by the so-called shoe bomber, Richard Reid, in 2001 and
by the so-called underwear bomber, Umar Farouk Abdulmutallab, in 2009;
and the continuing perceived threat posed by some immigrant militants in
EU countries.20

Terrorism, Securitization, and the European Union
In Europe, these terrorist or a empted terrorist events have been used to justify
an increased securitization of migration, especially from Africa. The continuing
arrival of migrants from Africa has been described as a crisis that must be
controlled. This perception was considerably strengthened when thousands
of Libyans, Tunisians, and Sub-Saharan Africans arrived on the shores of Italy
and Spain in the aftermath of the so-called Arab Spring in 2011. The small
Italian island of Pantelleria has been virtually overrun by large groups of mi-
grants faced with a bleak situation upon arrival because of lack of resources

18 In France, for example, according to a law approved on December 27, 1994, it is illegal to
help or assist an irregular or undocumented immigrant, for example, by providing shelter
or food.
19 Derek Lu erbeck, Policing Migration in the Mediterranean, 11(1) Mediterranean Pol. 59‒82
(2006); Freedman, supra note 10, at 39.
20 Hein De Haas, The Myth of Invasion: Irregular Migration from West Africa to the Maghreb and the
European Union (research report, Intl. Migration Inst., Oxford U. Oct. 2007).
218 The World Bank Legal Review

on the island and the distance from the mainland. From August 1, 2012, to Au-
gust 10, 2013, 24,227 immigrants arrived on this tiny island, which until then
had a permanent population of 7,679.
The same happened in the Canary Islands oﬀ the coast of the Western Sa-
hara, Morocco, and Mauritania. Greece’s porous frontiers have also been used
by thousands of migrants from Africa, the Middle East, and points beyond
to easily enter the European Union. The lack of a coherent and uniﬁed policy
and the nonexistence of a federal enforcement agency or group protecting the
borders of the European Union have allowed this vast movement of people to
continue unabated.
The Cotonou Agreement of 2000 between the European Union and various
African countries requires, in its Article 13.5, countries of the ACP (Africa, Ca-
ribbean, and Paciﬁc) region to take back their citizens caught residing illegally
in the European Union, along with other nationals who crossed those countries
on their journey toward the European Union. Since the 1990s, a readmission
clause has been routinely included in partnership and cooperation agreements
between the European Union and various countries, including Ukraine, Mol-
dova, and Kazakhstan, and in the Euro-Mediterranean association agreements
of 2000 with Morocco, Algeria, and Tunisia. In June 2002, the European Union
began requiring the readmission clause to be included in any cooperation, as-
sociation, or equivalent agreement that it signs with any country.
Linking economic and trade policies with developmental assistance and
trying to control migration ﬂows through bilateral agreements is practiced not
just by the European Union. Member states of the European Union have en-
tered into similar bilateral agreements with Mediterranean countries: France,
Italy, and Spain in particular have bilateral agreements to control migration
ﬂows. There have been several expulsions also between Mali and Algeria,
Mali and Mauritania, Morocco and Algeria, Morocco and the Western Sahara.
Moreover, the EU member states closest to North Africa have increased their
naval patrols, even beyond territorial waters, and new border control mea-
sures have been steadily introduced by the European Union’s External Bor-
ders Agency. The European Union has also used “the carrot” to motivate
African countries to control migration. Considerable amounts of funds for
development in the countries of origin of the migrants and for migration-re-
lated programs have been made available. Also, a new thematic program on
migration and asylum has been funded.21 However, it is actually estimated
that there are about 4 million irregular migrants in the European Union, with
the United Kingdom and Italy having the largest number.22 As a consequence
of the turmoil in the Islamic world, especially the wars in Iraq and Afghani-
stan, and in the aftermath of the Arab Spring, in the ﬁrst quarter of 2011 there

21 European Commission, Migration and Asylum (2012), available at h p://ec.europa.eu/europe
aid/what/migration-asylum/ .
22 Anil Dawar, Scandal of UK’s 863,000 Illegal Immigrants, One in Four of the EU’s Total, Daily
& Sunday Express (Dec. 18, 2012), available at h p://www.express.co.uk/news/uk/365637
/Scandal-of-UK-s-863-000, citing the 2008 European Union study, Clandestino.
The Search for Opportunity and Inclusion 219

was a signiﬁcant increase in known illegal crossings of the sea frontiers of the
European Union, the largest number of any ﬁrst quarter in recent years.23
Thus, all these EU approaches and policies have not succeeded in diminishing
or stopping irregular migration into the European Union.

Increased State Controls and Increased Journey Insecurity
The most immediate eﬀect of eﬀorts to control and discourage migration is to
make it more diﬃcult and dangerous for regular migrants to reach their des-
tinations. Put diﬀerently, the insecurity of the migrant journey has increased
considerably. More rugged, more isolated, less patrolled routes, or less guarded
points of entry must be chosen to reach the desired destination. This increases
the cost of the journey, leading to increased indentured servitude on the part
of the migrant, who often must pay back those costs with the meager earnings
of his or her work abroad. It also increases the possibility of injury or death,
given the more inhospitable terrain or longer route; the potential of experienc-
ing violence along the way; and dependency on the guides leading the group,
with consequent increased fees, exploitation, and mistreatment.
Ironically, the countermeasures adopted by the European Union, the
United States, and other countries have increased the market for, and the im-
portance of, smugglers and traﬃckers, thus making the migrants more vulner-
able and more insecure. These increased power imbalances are often opera-
tionalized in the form of ﬁnancial or sexual exploitation carried out by various
actors, ranging from the “coyotes” or “snakeheads” guiding the group, to fel-
low travelers, to border patrol agents or police, to vigilantes capturing the
migrants.24 Migration increases and strengthens power diﬀerentials―often
linked to gender, status, national origin, or race―that already existed and
functioned before the migration took place. Thus the state’s enhanced policies
and interventions, meant to discourage and eliminate irregular migration, not
only fail to mitigate or discourage it but also often have the negative eﬀect of
increasing it, and magnifying the violence and exploitation that accompany
it. Amnesty International’s report In Hostile Terrain: Human Rights Violations
in Immigration Enforcement in the US Southwest25 examines the human rights
violations associated with immigration enforcement at the border and in the
interior of the United States. Among its ﬁndings is that recent immigration
policy in certain border areas has pushed undocumented immigrants into us-
ing dangerous routes through Mexican and U.S. deserts. Hundreds of people
die each year as a result.

23 Christal Morehouse & Michael Blomﬁeld, Irregular Migration in Europe 6 (Transatlantic
Council on Migration 2011).
24 De Haas, supra note 20.
25 Published Mar. 28, 2012; available at h p://www.amnesty.org/en/library/asset/AMR51
/018/2012/en/4905b8cd-8d5b-41b9-a301-3121fca2e1cd/amr510182012en.pdf.
220 The World Bank Legal Review

The Feminization of Migration and Insecurity
Migration is becoming increasingly feminized. In the classic model of migra-
tion, the migrant was a man, leaving behind his family for his wife to care for,
until his return. Traveling in the company of Algerian lawyers in late 1980s
from Batna, Algeria, to an oasis in the Sahara, we passed a mountain range
with small villages carved out on ledges. The guide pointed them out and
mentioned that those villages were full of “white widows,” women left be-
hind by emigrating husbands. That pa ern has changed considerably in the
past 20 years. While the percentage of women among migrants has always
been signiﬁcant, the number of women migrants has increased steadily since
1965 and they presently constitute about half of all international migrants, or
an estimated 100 million international migrants.26 By 2005, with the exception
of Asia and Africa, women migrants slightly outnumbered men.27
The most dramatic change in female migration has been that women are
increasingly emigrating on their own in search of work, instead of moving
abroad with their husbands or reuniting with them there.28 A major reason for
the growth of the woman migrant on her own has been the increased prosper-
ity in the world, which has generated a growing demand for services, the ﬁeld
in which the majority of women migrants ﬁnd employment. For example, the
growing wealth of Brazil means that fewer Brazilian women need to work
in private homes as maids and caretakers with low pay and long hours. This
eventually generates a demand for irregular immigrants from neighboring
South American countries to take over those jobs, most often at even lower
wages and with no beneﬁts.
Also important has been the aging of the developed countries versus the
youthfulness of the developing ones. Increasing employment opportunities
and the availability and low cost of transportation and communication (e.g.,
Internet, cell phones, and Skype) are other important factors behind the seem-
ingly unstoppable ﬂow of migrants.
Eastern European women, especially Romanians, are a good example.
Many Romanian women have emigrated on their own, often leaving behind
children and husbands, to enter the service sector in Italy, especially caring
for the elderly, children, and the sick. In a country like Italy, where the family
has traditionally taken primary responsibility for caring for the elderly parent
or the infant, la badante (“the helper” or “the a endant”) has now become a
ﬁxture in the socioeconomic life of Italians.

26 United Nations Population Division, Human Development Report, Overcoming Barriers: Human
Mobility and Development (Palgrave McMillan 2009).
27 United Nations Population Fund, A Passage to Hope: Women and International Migration 23
(State of World Population series, 2006).
28 Gloria Moreno-Fontes Chammartin, Female Migrant Workers’ Situation in the Labour Market
(paper presented at the Thematic Rev. Seminar of the Mutual Learning Programme of the
European Empl. Strategy, Brussels, Apr. 29, 2008); Reﬂections on Domestic Work and the Femi-
nization of Migration, 31(1) Campbell Law Review 67 (Fall 2008).
The Search for Opportunity and Inclusion 221

The feminization of migration is also fueled by two other major recent so-
cioeconomic pa erns: the feminization of poverty and of work.29 Other causes
range from economic and social crises in particular regions of the world to
employment and career discrimination against women in general but espe-
cially against divorced and widowed women, single mothers, and unmarried
women past a certain age.30

The Woman Migrant and Her Security
Until the end of the 20th century, migration studies by and large overlooked
the woman migrant. Women were invisible. The assumption was that all mi-
grants were men and that women were simply “dependents” who, if they left
home, followed their husbands or fathers. Thus, if women were discussed,
they were included only as wives, daughters, and dependents of the male em-
igrant. However, this was not always so. Especially during the past 30 years,
women have started to be recognized as migrants on their own, as breadwin-
ners, and as the principal providers for the economic needs of their families.
There is no question that men and women relate to migration in very dif-
ferent ways: they exhibit diﬀerent pa erns and behaviors, they react diﬀerently
to diverse opportunities, they face disparate obstacles and challenges, and they
have to deal with diﬀerent security issues. In human health issues, it has been
found that studying only men and extrapolating the ﬁndings to include wom-
en does not work. That same knowledge should apply to migration and secu-
rity issues related to women. Like health, diet, exercise, and almost every other
issue, migration is not gender neutral. Women face their own, very speciﬁc rea-
sons to leave, their own risks, challenges, and vulnerabilities, such as violations
of their human rights, discrimination, exploitation, and health-related issues.
The migration-insecurity link can be at work in all stages of migration.31
From a security standpoint, women very often decide to migrate to escape
situations of abuse, denigration, and exploitation. Child abuse, sexual abuse,
spouse abuse, forced marriages, servitude, and ﬁnancial exploitation are often
at the root of a woman’s decision to leave. In regard to health issues, women
choose to leave for various reasons, including being subject to female genital
mutilation, child marriage, early sexual activity and pregnancies, overall pow-
erlessness in sexual relations leading to multiple pregnancies, risk of contract-
ing HIV/AIDS and other sexually transmi ed diseases, and early aging due to
serial pregnancies and backbreaking, incessant work.

29 Sally Baden & Kirsti Milward, Gender Inequality and Poverty: Trends, Linkages, Analysis and
Poverty Implications (unpublished report, BRIDGE 2000); BRIDGE Development—Gender,
Brieﬁng Paper on the “Feminization of Poverty” (Sussex Inst. Dev. Stud. Apr. 2001); Fiona
Adamson & Sally Baden, Gender, Governance and the “Feminisation of Poverty” (unpublished
report, 2nd version, BRIDGE 1999).
30 Jeﬀrey Cohen & Ibrahim Sirkeci, Centuries of Migration: The Global Nature of Contemporary
Mobility (U. of Texas Press 2013).
31 Freedman, supra note 10.
222 The World Bank Legal Review

These concerns can be exacerbated by patriarchal values and power hier-
archies that deny women basic freedoms, important choices, and a minimum
of autonomy. It must not be overlooked that women are also discriminated
against ﬁnancially: in earnings, in their capacity to support and maintain their
families, and in starting or managing a business. Thus, a woman’s decision to
migrate is usually rather complex rather than simple, stemming from a variety
of factors, many of them gender speciﬁc. Poverty results not just from limited
or no income but also from lack of or restricted access to opportunity and
choice.32
Unfortunately, the values and a itudes mentioned above often accom-
pany women when they ﬁnally migrate. The risk of violence is high for all
migrants but more so for women, especially when it comes to sexual violence.
In many cultures, a woman’s appearance in a public space is such a depar-
ture from accepted norms that it is often considered equivalent to availability
for and even an invitation to a sexual encounter. The men interacting with a
woman traveling by herself see her being there without male protection as an
invitation, a statement of availability, a permission to approach her for sexual
activity or force her into it. These values surfaced recently in March 2013 in
the context of the gang rape of a Swiss woman tourist traveling by bicycle
and camping overnight with her husband in Central India. According to the
BBC, local oﬃcials reportedly questioned why the woman, even though with
her husband, would make herself vulnerable to the point of “asking for it”
by camping overnight in a dense forest. Thus, her being there, camping in
the open, was seen as her implicitly giving permission for, even inviting, the
group of men to a ack her sexually. The same a itude was apparently at work
when, in March 2013, a British woman tourist in Agra, India, decided to jump
out of the second-ﬂoor window of her hotel room to escape an a empted rape
by the hotel owner and another employee who entered her room at 3:45 a.m.
as she was sleeping. A group of Japanese tourists had previously complained
that the same hotel’s staﬀ had behaved obscenely toward the women in their
group.33 Women migrants know only too well that they are often seen as re-
sponsible and guilty for men’s violent sexual behavior.
Women’s dependence on a male guide during some migration journeys
also makes them vulnerable to violent a acks, exploitation, and rape. During
a journey, while crossing a desert or unknown territory, the threat of being
left behind or excluded from the group can be used to force a woman into
unwanted sexual activity with the guide or other men on the journey. Thus,
sexual violence against migrant women becomes “normalized”; it becomes
part of the journey.34 This reality is frequently experienced by women who
do not have the ﬁnancial resources to pay the high fees asked by smugglers.

32 Sylvia Chant , Gender, Generation and Poverty: Exploring the “Feminisation of Poverty” in Africa,
Asia and Latin America (Edgar Elver 2007); Freedman, supra note 10.
33 British Woman Jumps oﬀ Hotel Room to Escape Rape Bid; Hotel Owner Held, Times of India
(Mar. 20, 2013).
34 Freedman, supra note 10, at 46.
The Search for Opportunity and Inclusion 223

Moreover, once the journey is under way, the smuggler may extort more mon-
ey from everyone because the migrants are now under his control and highly
dependent on him for their survival. For some women, agreeing to sexual
activity may be the only way to meet aggressive demands for more money.35
This “sexual-economic” type of transaction is reportedly quite frequent and
“normal” in irregular migration. This so-called survival sex on the migrants’
route is similar to that of displaced women in refugee camps where sexual
favors or agreeing to prostitution may be extorted if a woman wants to obtain
food, water, or some measure of protection for herself and her children in
chaotic and mob-like situations.36

Other Aspects of Insecurity for Women Migrants
It goes without saying that other serious aspects of insecurity are present in
these situations when the woman has very li le, if any, power to control the
situation, negotiate compensation, or control the type and manner of sexual
encounter, including whether safe sex will be practiced.37 Insecurity, especially
for women, also arises if a traveling group is a acked by one of the bands that
regularly prey on irregular migrants making their way through isolated areas.
These violent groups rob migrants of their valuables, at times beat or even
kill some of them, steal their food, and often rape women or abduct them and
hold them for forced labor, including sexual services.
In the vast, lawless, and isolated no-man’s land that some migrants must
cross, anything can happen, especially to a woman. It has been reported that
at times even a woman’s intimate parts may be searched for hidden cash be-
fore she is raped. In an a empt to protect themselves from a ack, migrant
women may be under pressure to ﬁnd a male as a travel companion and tra-
ditional protector. The outcome may unfortunately be for the woman to ﬁnd
herself in an insecure situation at the hands of the male she thought would
protect her, but who, instead, is violent and exploitative, taking advantage of
the uneven power situation.
Thus, sexual assault and exploitation are frequent ingredients in the dy-
namics of domination by one gender, most often male, over the other, the

35 Joe Doezema, Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichotomy, in
Global Sex Workers: Rights, Resistance and Redeﬁnition (Kamala Kempadoo & Joe Doezema
eds., Routledge 1998).
36 Freedman, supra note 10, at 46; U.N. General Assembly, Investigating into Sexual Exploitation
of Refugees by Aid Workers in West Africa, Note by the Secretary General, A/57/465 (Oct. 11, 2002);
and U.N. General Assembly, A Comprehensive Strategy to Eliminate Future Sexual Exploitation
and Abuse in U.N. Peacekeeping Operations, Le er dated 24 March 2003 from the Secretary General
to the President of the General Assembly, A/59/710 (Mar. 24, 2005).
37 Diane O o, Making Sense of Zero Tolerance Policies in Peacekeeping Sexual Economies, in Sexual-
ity and the Law (Vanessa Munro & Carl Stychin eds., Routledge Cavendish 2010); Melissa
Petro, Selling Sex: Women’s Participation in the Sex Industry, in Sex Work Ma ers: Exploring
Money, Power and Intimacy in the Sex Industry 155‒170 (Melissa Ditmore, Antonia Levy, &
Alys Willman eds., Zed 2010).
224 The World Bank Legal Review

migrant female in a vulnerable situation. Like rape in war, forced or exploit-
ative sex in irregular migration is used to express and reinforce a general cul-
ture and pa ern of domination to frighten and demean women and to impose
male superiority and exercise the so-called man’s privilege.
It must be stressed that it is not only men who are involved in irregular
migration, especially in the traﬃcking of women for sexual and labor exploita-
tion abroad. For example, in Nigeria, women manage the process of recruiting
Nigerian women for exploitation. They recruit the young victims in Nigeria
and also control them once they reach their country of destination. However,
men generally supervise and control transporting the “goods” from one coun-
try to another and delivering them to their destination.38

The State’s Use and Abuse of Power: More Insecurity for Migrants
As mentioned previously, the state can make irregular migration much more
insecure when it takes more measures to combat, deter, and stiﬂe it. Doing so
makes it much more diﬃcult and perilous to migrate, in that migrants must
take alternative out-of-the-way routes, often more rugged, arduous, and iso-
lated, with considerable obstacles. The increased “security” measures by the
state often also mean more aggressive enforcement, raids, roundups, arrests,
incarceration, deportations, human rights abuses, use of excessive force, po-
lice abuses, and even death or injury. Thus, one could say that the state and
its oﬃcials often become more visible and prominent as agents of insecurity
for the irregular migrant. Here, too, women bear the brunt of the state’s inter-
vention. Women migrants are often treated diﬀerently than their male coun-
terparts. Moreover, the failure of the state to recognize and acknowledge the
special situation of women in regard to lack of equality and security―treating
women in the same manner as men―adds to the diﬃculties and challenges
that women migrants face. It actually exacerbates their precarious situation
and exposes them to the danger of continued humiliation, exploitation, and
victimization. There are no provisions in place for taking into account the
special concerns for their health and the special need that they have to be
protected from predatory and exploitative behavior. Children and pregnant
women are treated no diﬀerently than other irregular migrants; they must en-
dure the same level of brutality and aggression as others. Pregnant women at
times even lose their baby due to the rough and uncaring treatment by border
protection forces.39
The establishment and activities of groups that target undocumented
migrants, both during their journeys and afterward, seem to be encouraged
and even justiﬁed by the enactment of laws that criminalize the daily lives of

38 Eugenia Bone i, The Strength of Networking between Countries of Origin and Destination (paper
presented at “Consultation against Commercial Sexual Exploitation” conference, Winnipeg,
Nov. 3‒5, 2006).
39 Mehdi Lahlou, Claire Escoﬃer, & Najia Hajji, Evaluation de la situation de la mobilité et du VIH
au Maroc (UNAIDS & Ministère de la Santé Publique 2007).
The Search for Opportunity and Inclusion 225

migrants. Such laws discourage irregular migrants from reporting their vic-
timization and seeking justice. Even worse is the situation of those migrants
and traﬃcked or enslaved persons who go to the police to seek protection and
justice and are instead returned to their victimizer and exploiter. Hardened
immigration and border control policies do have an impact, increasing the
risks that irregular migrants must deal with on their journey and after arrival.
They also make it much more diﬃcult and dangerous for community-based
networks to provide support and ensure safe journeys.
For example, the criminalization of Latinos and Latino migrants by the
state of Arizona through its law SB1070 has had a dramatic eﬀect on the exer-
cise of human and civil rights in that state, especially in the case of communi-
ties along the U.S.-Mexico frontier.40 The expansion of police powers to stop
and search people in public places under numerous laws and court decisions
is especially connected to the search for irregular migrants and is often driven
by racial and socioeconomic stereotyping. The use of these powers is often
disproportionate and is a clear expression of unlawful racial and ethnic dis-
crimination, often aﬀecting U.S.-born and naturalized citizens as well, simply
because of their appearance. It is clearly a form of institutional racism justiﬁed
by concerns about irregular migration.41
In mid-March 2013, ten lawsuits were ﬁled in the United States alleging
unlawful conduct by Customs and Border Protection (CBP) in northern and
southern states of the country. The cases ﬁled are meant to demonstrate how
CBP agents routinely overstep their statutory mandate by conducting enforce-
ment activities outside border regions, making racially motivated arrests, em-
ploying derogatory and coercive interrogation tactics, and imprisoning arrest-
ees under inhumane conditions. The cases include claims of unlawful search
and seizure, false imprisonment, intentional inﬂiction of emotional distress,
assault, and ba ery. These cases also highlight the culture of impunity that
permeates the behavior of law enforcement oﬃcers, vigilantes, and other anti-
immigration groups.42
Amnesty International’s In Hostile Terrain report43 highlights the link be-
tween violations of immigrants’ rights in the southwestern states of Texas and

40 For an archive of articles, commentary, and information related to law SB1070 in Arizona, see
Times Topics at the New York Times website, available at topic.nytimes.com/top/reference/…
/Arizona…sb_1070. See also Mike Sacks, On SB 1070: Supreme Court Appears to Favor Arizona
on Controversial Immigration Law, Huﬃngton Post (Apr. 25, 2012), available at h p://www
.huffingtonpost.com/2012/04/25/sb-1070-supreme-court-arizona-immigration-law_n
_1451622.html; Mary Romero & Gabriella Sanchez, Critical Issues Faced by Latino Defendants,”
in Hispanics in the U.S. Criminal Justice System: The New American Demography (Martin Urbina
ed., Charles C. Thomas 2012)
41 Anna Souhami, Institutional Racism and Police Reform: An Empirical Critique, Policing & Socy.
1‒21 (2012).
42 Northwest Immigrant Rights Project, Widespread Abuse by U.S. Customs and Border Protection
Documented in National Wave of Complaints (Mar. 13, 2013), available at h p://www.nwirp
.org/news/viewmediarelease/54.
43 Supra note 25.
226 The World Bank Legal Review

Arizona and the failure of federal, state, and local authorities to enforce immi-
gration laws on the basis of nondiscrimination. The report shows that commu-
nities living along the border―particularly Latinos and individuals perceived
to be of Latino origin, and indigenous communities―are disproportionately
aﬀected by a range of immigration control measures, resulting in a pa ern
of human rights violations. These unlawful practices are not limited to the
United States.
Canada, which is often seen as a global leader with respect to refugee
protection, is, like many other countries, creating more barriers for people
seeking safety and security. The Protecting Canada’s Immigration System Act
(Bill C-31) received Royal Assent on June 29, 2012. This new law presents a
signiﬁcant change for people who come to Canada in search of safety. The
law includes a policy of long-term detention with inadequate review for des-
ignated persons, based solely on the manner in which they arrive in Canada.
It allows for the creation of “safe countries of origin” and bars access to the
Refugee Appeal Division for some groups of refugees. The law also allows for
the detention of children and their families and creates barriers to the timely
reuniﬁcation of families, even for some individuals who are found to be refu-
gees according to the 1954 UN Convention Relating to the Status of Refugees
as amended by the 1967 Protocol.44
Research shows widespread abuse of police powers in other jurisdictions,
such as the United Kingdom,45 the Netherlands,46 and Japan,47 and globally.48
There is no doubt that immigration enforcement has become an often-used
justiﬁcation for expanding police powers to “stop and search” in the United
States and elsewhere.49 Various countries are trying to apprehend and expel ir-
regular immigrants, often within a framework of racism, discrimination, and
stereotyping.

44 See Refugees and Migrants section of the Canadian Amnesty International website, available
at h p://www.amnesty.ca/our-work/issues/refugees-and-migrants.
45 Ben Bowling & Core a Phillips, Disproportionate and Discriminatory: Reviewing the Evidence
on Police Stop and Search, 70(6) Modern L. Rev. 936‒951 (2007); Rebekah Delson & Michael
Shiner, Regulating Stop and Search: A Challenge for Police and Community Relations in England
and Wales, 14(3) Critical Criminology 241‒263 (2006); Jenny Bourne, The Life and Times of In-
stitutional Racism, 43(2) Race & Class 7‒22 (2001).
46 Joanne P. Van der Leun & Maartje A. H. van der Woude, Ethnic Proﬁling in the Netherlands?
A Reﬂection on Expanding Preventive Powers in Arizona, 21(4) Policing & Socy. 480‒488 (2011).
47 Mitsuru Namba, “War on Illegal Immigrants,” National Narratives, and Globalisation: Japanese
Policy and Practice of Police Stop and Question in Global Perspective, 21(4) Policing & Socy.
432‒433 (2011).
48 Ben Bowling & Leanne Weber, Stop and Search in Global Context: Overview, 21(4) Policing &
Socy. 480‒488 (2011).
49 A federal judge ruled on August 12, 2013, that the stop-and-frisk tactics of the New York
Police Department violated the constitutional rights of minorities in the city. The judge,
Shira A. Scheindlin, found that the Police Department resorted to a “policy of indirect racial
proﬁling” as it increased the number of stops in minority communities. That has led to of-
ﬁcers’ routinely stopping “blacks and Hispanics who would not have been stopped if they
were white.” See New York Times, August 13, 2013, N.Y./Region.
The Search for Opportunity and Inclusion 227

Unlawful and Excessive Force by Law Enforcement
Practices that are unlawful or unconstitutional, or that exceed what is allowed
or authorized by law, often stem from a variety of factors. Among these are
police practices inimical to immigrants and racial minorities, such as proﬁl-
ing and stereotyping;50 shrill political discourse and scare tactics; the federal
or central government’s deportation eﬀorts; and a generalized fear of crime
and disorder that leads many people to blame “outsiders” for troubles. These
factors make possible and legitimize enforcement policies and practices that
“(1) blend techniques of control used on the border with those used in interior
enforcement; (2) mix criminal and administrative approaches to apprehen-
sion, detention and deportation; (3) invoke national security as a rationale for
strict, uncompromising enforcement; and (4) hype the violence aspect of bor-
der crossing to support more aggressive interior enforcement.”51 The resulting
law enforcement way of operating is thus characterized by ethnic and racial
proﬁling, aggressive surveillance, intrusive stops, excessive searches, unjusti-
ﬁed detention of those suspected of being irregular immigrants, and frequent
violation of human and civil rights.52
These overly aggressive, humiliating practices are incarnated in Arizona in
the policies and actions of Sheriﬀ Joe Arpaio, who, since 1992 has been elected
and reelected sheriﬀ of Maricopa County, which includes Phoenix, the capital
and largest city of Arizona. Maricopa County has almost 4 million inhabitants.
Arpaio often conducts sweeping and abusive searches for irregular immi-
grants on the streets of certain neighborhoods in the county. People arrested
are often housed in a controversial jail in the desert where inmates sleep in
tents and males are required to wear pink underwear, an obvious a empt to
denigrate and humiliate them. Arpaio recently oﬀered to detain in his tent jail
irregular immigrants to be released in Arizona by the federal government be-
cause of budget problems.53 The negative eﬀect of Arpaio’s pronouncements
and practices on the irregular immigrant community is substantial and makes
it very diﬃcult, if not impossible, for these immigrants―especially abused,
traﬃcked, and raped women―to seek justice.54

50 Id.
51 Doris Marie Provine & Gabriella Sanchez, Suspecting Immigrants: Exploring Links between Ra-
cialized Anxieties and Expanded Police Powers in Arizona, 21(4) Policing & Socy. 468‒479 (2011).
See also Doris Marie Provine & Roxanne Lynn Doty, The Criminalization of Immigrants as a
Racial Project, 27(3) J. Contemporary Crim. Just. 261‒277 (2011).
52 Amnesty International’s report Jailed without Justice exposes the immigrant detention system
in the United States as broken and unnecessarily costly. The report focuses on the human
rights violations associated with the dramatic increase in the use of detention by the United
States as an immigration enforcement mechanism. According to the report, in just over a de-
cade, immigration detention tripled. In 1996, immigration authorities had a daily detention
capacity of less than 10,000. Ten years later, more than 30,000 men, women, and children were
detained by U.S. immigration authorities each day. The 2009 report is available at h p://
www.amnestyusa.org/pdfs/JailedWithoutJustice.pdf.
53 Kevin Cirilli, Sheriﬀ Joe Arpaio Oﬀers to Detain Illegal Immigrants, Politico (Feb. 28, 2013).
54 For an archive of articles, commentary, and information related to Sheriﬀ Joe Arpaio, see
Times Topics at the New York Times website, available at h p://topics.nytimes.com/topics
228 The World Bank Legal Review

It is hard to envision exploited and mistreated irregular workers seeking
redress from the police and the government when a itudes, pronouncements,
and practices similar to Sheriﬀ Arpaio’s permeate the oﬃcial justice system.
These practices conﬁrm to the immigrant that the police in their “new” coun-
try are no be er than the vicious, corrupt, and abusive police they tried to
escape from in their country of origin. Also, the exploitation and maltreat-
ment of domestic workers in various forms are not uncommon and often go
unreported or ignored, especially when profound socioeconomic, religious,
and racial diﬀerences play a role in fueling prejudice and lack of caring and
basic respect for the immigrant.55 Reports of women who have escaped from
situations of slavery and exploitation and who have sought refuge at police
stations only to be returned to their exploiters and tormentors instead of re-
ceiving help are sadly not rare in the anecdotal and research literature.56

Conclusion
Although the word “security” is frequently mentioned when countries de-
velop policies, laws, administrative rules, and enforcement practices to keep
migrants out, the security of the migrants is often overlooked and not even
considered an issue.57 Ironically, stronger and tougher security measures
adopted by a country often make the journey of irregular migrants more dan-
gerous, costly, and open to exploitation and victimization. Migrant insecurity
continues and even increases after arriving in the destination country. Even
in the best of circumstances, when police are trustworthy and not corrupt, the
irregular migrant—quite possibly a victim of exploitation or enslavement—
ﬁnds it very diﬃcult to seek protection and receive justice because of a lack
of training for police; language barriers; cross-cultural problems, even with
face recognition and identiﬁcation; poor communication between local law
enforcement and victim assistance organizations; and the hidden nature of
the crime. The threat of deportation, at times considered a solution to the situ-
ation, is an added obstacle to the migrant seeking the security that should be
provided by the state.
The ubiquitous discourse on security and the policies enacted to enhance
the security of the state need to take into account the security of migrants as
well. The best approach to addressing the link between migration and insecu-
rity would be, ﬁrst, to recognize the existence of the problem, and then to com-
mit to addressing and remedying it. Steps to protect women migrants and to

/reference/…/a/Joseph…arpaio/Index/html.
55 Human Rights Watch, Swept under the Rug: Abuses against Domestic Workers around the World
(2006).
56 Jackie Sheehan, Human Traﬃcking between China and the UK (Discussion Paper No. 54, China
Policy Inst., U. of No ingham 2009); and Robert Moossy, Sex Traﬃcking: Identifying Cases and
Victims, 262 (Natl. Inst. of Just. J. 2009).
57 Jef Huysmans, Security: What Do You Mean? From Concept to Thick Signiﬁer, 4(2) European J.
Intl. Rel. 226‒255 (1998).
The Search for Opportunity and Inclusion 229

help them protect themselves are especially important. In a male-dominated
world, it is vital to make women aware of their rights, help them strategize
how best to assert those rights, and provide an eﬀective network of assistance
and support. Human rights and gender-sensitive training for border guards,
police, and security personnel should be oﬀered and required. Securing bor-
ders and developing eﬀective control approaches while minimizing the mi-
grants’ exposure to risk58 also requires taking into account gender diﬀerences
in vulnerability and potential for victimization and exploitation. Unless it
takes such measures, the state will be unable to safeguard both its own secu-
rity and the security of migrants.

58 Jørgen Carling & María Hernandez-Carretero, Protecting Europe and Protecting Migrants?
Strategies for Managing Unauthorised Migration from Africa, 13 British J. Pol. & Intl. Rel. 42‒58
(2011).
The World Bank’s copyright over this chapter is limited to English language only. See the
copyright page for more information.
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Toward a National Framework Law
on Water for India
N. R. MADHAVA MENON

The existing method of water resource management in India is unsystematic
at best. In early 2012, the Ministry of Water Resources of the Government of
India published a policy document on water that highlights concerns regard-
ing the management of water resources and seeks the adoption of a compre-
hensive, coordinated national framework law containing principles binding
on central, state, and local governments.1 At the same time that this report was
being prepared, a Working Group appointed by the Planning Commission
for preparing the XIIth Five-Year Plan came up with a Draft National Water
Framework Bill for water governance in India.2 In 2010, the Commission on
Centre-State Relations3 had recommended a decentralized, participative legal
regime in view of the size of the country, the multiple stakeholders involved,
and the constitutional scheme on water use and regulation.4 This report pre-
sents a consensual policy model on water to guide both the central government
and the states in legislating water management. It recommends that state acts
reﬂect national policy. Following these initiatives of three diﬀerent ministries,
the Ministry of Water Resources constituted a commi ee in 2012 to prepare a
legislative proposal at the national level incorporating the binding principles
and developing institutional mechanisms for management of water resources
in the future.5
This chapter argues that a national water policy informed by scientiﬁc
data and measurable outcomes can sustain the availability of water for life,
livelihood, and food security in India. Given the division of legislative and ad-
ministrative powers among the three levels of government in respect to water
use and management, the only way to avoid conﬂicts, costs, and ineﬃciency
is to mandate that all levels of government be obliged to abide by a national
framework law. Integrated watershed management is the best strategy to ad-
vance such a policy in a cost-eﬀective and eﬃcient federal arrangement. The
chapter explores the principles, concerns, and functions of a national frame-
work law on water management in India.

1 Ministry of Water Resources, Government of India, Draft National Water Policy (Jan. 2012).
2 Planning Commission, Draft National Water Framework Act: An Explanatory Note (2011).
3 Ministry of Home Aﬀairs, Government of India, Report of the Commission on Centre-State Rela-
tions, vol. 6 (Mar. 2010).
4 Draft National Water Framework Act, supra note 2.
5 The commi ee submi ed its report in May 2013. The author is a member of this commi ee.

231
232 The World Bank Legal Review

Facts and Figures in Perspective
Water is a fundamental element of life on earth. Despite the fact that more than
70 percent of the planet’s surface is covered by water, only 3 percent is non-
saline—that is, distributed in glaciers, rivers, and lakes and as groundwater.
According to an Asian Development Bank study, the quantity of water avail-
able per person in South Asia has declined by more than 80 percent between
1951 and 2011.6 India has access to one-eighth of the average amount of fresh
water available per capita globally each year and is thus near the threshold of
a chronic water shortage. In other words, India is a water-stressed nation, with
per capita availability of water falling from 5,177 cubic meters in 1951 to 1,544
cubic meters in 2011.
According to the State of the Environment Report—India, the repository of
surface water in India is the 12 major river systems that cross the subconti-
nent.7 These form a catchment area of 253 million hectares. Almost half the an-
nual rainfall in India occurs during a period of two to three weeks, and almost
90 percent of river ﬂows (i.e., the total quantity of water ﬂowing through the
rivers) occur in four months. More than 70 percent of the water in the rivers
drains into the Bay of Bengal, and 20 percent drains into the Arabian Sea.
Only 10 percent drains into interior basins and a few natural lakes. The esti-
mated utilizable surface water is 690 billion cubic meters. With the annually
replenishable groundwater potential,8 the total available is 1.122 trillion cubic
meters. Indians are unable to conserve water for the oﬀ-season because water
conservation methods and techniques have not been adequately adopted in
India, allowing most of the rainwater to ﬂow into the water basins and the sea.
In terms of water use in India, agriculture receives the largest share—
92 percent—most of it in the form of irrigation. Of this, groundwater accounts
for 39 percent. Unfortunately, up to 63 percent of the water used in agriculture
is lost through evaporation or runoﬀ. The demand for industrial and energy
production, which is 63 billion cubic meters, is expected to grow at 4.2 percent
per year. Domestic demand, which is 25 billion cubic meters, is also expected
to grow with the projected increase in population. It is estimated that by 2025,
the total annual water demand of 1.050 trillion cubic meters will be close to
the utilizable potential of 1.122 trillion cubic meters. With 70 percent of surface
water contaminated by biologic, toxic, organic, and inorganic pollutants, the
challenge India faces is how to meet demand in terms of quantity and quality
given the constraints of geography and rainfall pa erns.9

6 Tomislav Delinic & Marcel Schepp, Water for South Asia 110 (Intl. Reports 28, Konrad-
Adenauer-Stiftung, 2012), available at h p://www.kas.de/wf/doc/kas_32769-1522-2-30
.pdf?121116134456.
7 Ministry of Environment and Forests, Government of India, State of Environment Report—
India (2009) (hereinafter State of Environment Report).
8 Replenishable groundwater is essentially a dynamic resource that is replenished annually
or periodically by precipitation, irrigation return ﬂow, canal seepage, tank seepage, inﬂuent
seepage, etc.
9 Report of the Commission on Centre-State Relations, supra note 3, at 32.
Toward a National Framework Law 233
on Water for India

The State of the Environment Report—India concludes that “the core chal-
lenge of water resources development and management in India is one of
governance.”10 The focus of governance, the report proposes, should be in-
tegrated water resource management, or the quantitatively and qualitatively
sustainable management of interlinked surface waters, aquifers, and coastal
waters in a manner that supports social and economic development and
strengthens the eﬃciency of the ecosystem. The core idea of integrated water
resource management is that water supply is not an isolated problem but an
issue embedded in a larger political, economic, and social context. The main
criteria for water use should be the requirements of nature and people as well
as the inclusion of aﬀected stakeholders at all levels.

Water and Human Rights Jurisprudence
In 1992, the Dublin International Conference on Water and the Environment
stated the core principle on water supply as follows: “The use of water, un-
derstood both as a ﬁnite resource and an economic asset, inevitably has to
be managed by means of a participatory and inclusive approach to ensure a
sustainable supply for the entire world population.”11 The idea of the right
to water is included in a variety of international agreements, including the
Convention on Women’s and Children’s Rights and the Convention on Eco-
nomic, Social, and Cultural Rights approved by the UN General Assembly in
December 1966, which states: “The human right to water is indispensable for
leading a life in human dignity. It is prerequisite for the realization of other
human rights.”
The Supreme Court of India has interpreted the fundamental right to wa-
ter as part of the right to life that is enshrined in Article 21 of the Constitution
of India.12 This interpretation puts an obligation on each state to provide un-
polluted drinking water to the people. Many states do have legislation regard-
ing water supply to urban areas, and government schemes acknowledge this
right in relation to rural areas.13 In the 2000 judgment on the Sardar Sarovar
project, in supporting the construction of the dam, the Supreme Court relied
on the fact that the dam would contribute to meeting the water needs of indi-
viduals residing in the area.14 Yet, there is no explicit legislation at the central
or state level that gives content and meaning to the right to water. Even policy
declarations are vague in this regard.

10 State of Environment Report, supra note 7, at 112.
11 International Conference on Water and the Environment, The Dublin Statement and Report of
the Conference, Dublin 4 (World Meteorological Org. 1992).
12 Subhash Kumar v. State of Bihar, AIR (1991) SC 420.
13 The Accelerated Rural Water Supply Programme declared 40 liters per capita per day as the
basic minimum level of water for an individual.
14 Narmada Bachao Andolan v. Union of India, AIR (2000) SC 3751.
234 The World Bank Legal Review

The Expert Commi ee of the Water Resources Ministry revisited the Draft
National Water Framework Bill, prepared by the Working Group on the XIIth
Five-Year Plan. The Expert Commi ee has proposed recognizing the right to
water in the following words:15
(i) Every individual has a right to a minimum quantity of potable water
for essential health and hygiene and within easy reach of the house-
hold at an aﬀordable price.
(ii) The minimum quantity of potable water shall be prescribed by the
appropriate government after expert examination and public consul-
tation, provided that the minimum quantity of potable water shall not
be less than 25 liters per capita per day.
(iii) The right to water for life shall take precedence over water rights, if
any, for other uses including agricultural, industrial, and recreational
uses.
(iv) The state’s responsibility for ensuring people’s right to water shall
remain despite corporatization or privatization of water services.
(v) The appropriate government shall specify the quality standards of
water supply speciﬁed for diﬀerent uses, such as drinking, other do-
mestic uses, livestock, irrigation, industries etc., and shall ensure that
these standards are fully complied with.
Realization of the right to water as a universal entitlement in India will
require legislative and administrative measures at all levels of government
(federal, state, and local), for which a national framework law binding gov-
ernments at all three levels is necessary. In a fundamental rights context, the
right to water is par with the right to education. This argument is used to resist
privatization and corporatization in India and to maintain management of
the water supply in the public sector. Because universal entitlement translates
into a claim for universal free water, economic reform should not dictate the
shape of the right to water.16
In a study of how the right to water has developed in India, Philippe Cullet
concludes:17
The government is under an obligation to ensure either by itself or
through legislation that water laws reﬂect and conform to the fun-
damental right. Indeed, one of the important issues that arises in the
context of water law is the sectoral manner in which it has devel-
oped, thus ensuring that there is not even a common set of principles
governing all of water uses and all water bodies. In addition, there is
only limited integration of water law with legislation related, for in-
stance, to the environment, food and health. . . . The legislation will

15 Unpublished draft proposals under consideration of the Expert Commi ee.
16 Philippe Cullet, Rethinking the Right to Water to Ensure Its Realization for All, 54 J. Indian L.
Intl. 38 (2012).
17 Id., at 42.
Toward a National Framework Law 235
on Water for India

also need to address the question of the responsibility of the various
actors involved in water supply. . . . The Constitution provides for
devolution of water supply to Panchayats and Municipalities at [the]
local level.
Water jurisprudence in India has thus changed drastically since the Su-
preme Court elevated the right to water to a constitutionally guaranteed fun-
damental right in 1991. Because the right to clean drinking water is part of the
right to life and liberty under Article 21 of the Indian Constitution, the state
has no choice but to ensure by legislation or executive schemes that water is
available to every citizen in the country irrespective of economic or other dis-
abilities. However, at present, clean water is a statutory right only for citizens
who live within municipal or corporation bounds and who therefore must pay
charges ﬁxed by the municipality for that right. The 1991 interpretation of wa-
ter as a human right put distinct responsibilities on all levels of governments
to take water justice seriously; the Supreme Court can intervene if the govern-
ment does not ensure the right to water when petitioned by aggrieved citizens.
To ensure access to water as a fundamental right, a common legal framework
must enunciate principles for central, state, and local governments to follow.

Water Resource Management and Center-State Relations
The Commission on Centre-State Relations examined the issue of the division
of legislative powers in relation to water and integrated water resource man-
agement. The commission reported:18
The constitution provides a role for the Centre, States and Local
Bodies in the management of water. However it is apparent that the
primacy in the ma er is accorded to the States. Entry 17 in List II—
State List of the Seventh Schedule states as follows:
“Water, that is to say, water supplies, irrigation and canals, drainage
and embankments, water storage, and water power subject to the
provisions of entry 56 of List I.”
Entry 56 of List I of the 7th Schedule of the 1950 constitution provides that
“regulation and development of inter-State rivers and river valleys to the ex-
tent to which such regulation and development under the control of the Union
is declared by Parliament by law to be expedient in the public interest.”19 Stem-
ming from this entry, and recognizing that disputes may arise in the use, dis-
tribution, or control of waters of an interstate river or river valley, Article 262,
provides for parliamentary law in the ma er of adjudication of such disputes.
Article 262 also states that if Parliament so enacts a law, then neither the

18 Report of the Commission on Centre-State Relations, supra note 3, at 33–35.
19 The entries are part of the 1950 Constitution of India, which, as of now, has 12 schedules, the
seventh of which contains three lists: a Union List, a Concurrent List, and a State List, each
containing several entries. The Union has the power to legislate on the entries in the Union
and Concurrent Lists; the State has the power to legislate on the State and Concurrent Lists.
236 The World Bank Legal Review

Supreme Court nor any other court may exercise jurisdiction in respect to any
dispute or complaint.
This central role in water management has evolved over the past century.
In preindependence India, the government centralized control over irriga-
tion projects, and the credo was optimum utilization irrespective of political
boundaries. The Montague-Chelmsford Reforms of 1919 classiﬁed irrigation
as a provincial subject, but it was placed in a category “reserved” for central
government legislation; hence, there was a measure of control. However, the
Government of India Act of 1935 handed control over to the provinces, except
in the ma er of interstate disputes for which there was a provision to resolve
disputes through the aegis of expert investigatory commissions and central
executive decisions.
As a consequence of the 73rd and 74th Constitution Amendment Acts and
the insertion of the 11th and 12th Schedules, panchayats and municipalities are
now empowered with the management of water. Item 3 of the 11th Schedule
speaks of a role for panchayats in “minor irrigation, water management and
watershed development.” Item 11 confers on them responsibilities for “drink-
ing water,” Item 13 speaks, inter alia, of “waterways” as a means of communi-
cation, and Item 29 mentions the “maintenance of community assets.” In the
case of municipalities, the 12th Schedule includes under Item 5, “water supply
for domestic, industrial, and commercial purposes,” and under Item 8, inter
alia, the “protection of the environment and promotion of ecological aspects.”
The central government exercised its jurisdiction in the ma er of inter-
state rivers by enacting the River Boards Act of 1956, under which central
management of any interstate river basin is accomplished either through spe-
ciﬁc legislation for that basin or by se ing up a board to oversee it. In practice,
however, the central government has not exercised either route to create a
speciﬁc river basin organization. (It is interesting to note that the Ganga Basin
Authority was set up in 2009 under the Environment Protection Act.) The reasons
for this have generally been ascribed to the reluctance of states to politically
come to agreement in this regard.
In addition to constitutional provisions, central intervention in issues con-
cerning water has been the result of court rulings. In 1977, the Supreme Court
directed the central government to set up an authority at the central level to
deal with indiscriminate extraction of groundwater.20 The central government
set up the Central Groundwater Authority and prepared draft model ground-
water bills in 1970, 1972, 1992, 1996, and 2005. The court upheld this author-
ity’s legitimacy under Section 3(2) of the Environment Protection Act of 1986.
Similarly, under the Coastal Regulation Zone notiﬁcation of 1991, harvesting
of groundwater within 200 meters of the high-tide line is prohibited. Consid-
ering that the Environment Protection Act was passed by virtue of Article 253,21

20 M. C. Mehta v. Union of India (1977) 11 SCC 312.
21 Article 253 of the Constitution of India reads: “Legislation for giving eﬀect to international
agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parlia-
Toward a National Framework Law 237
on Water for India

many scholars question the way that central government jurisdiction has been
expanded in what essentially is a state jurisdiction. Similarly, the courts have
directed the central government and states about the interlinking of rivers
(which in eﬀect means the transfer of water from one basin to another).22
Central government initiatives regarding the management of water have
resulted in the establishment of a National Water Resources Council in 1983
and a National Water Policy in 2002 and 2012. The council is presided over
by the prime minister and includes chief ministers and union ministers as its
members. The 2012 National Water Policy Statement calls for the establish-
ment of a National Water Informatics Centre to collect and collate hydrologic
data from all over the country to facilitate the development of a database for
informed decision making in the management of water. It lays down certain
essential principles based on equity and sustainability for water governance
employing the public trust doctrine. The National Water Policy Statement pri-
oritizes the uses of water, recognizing the essential needs of all citizens by
giving primacy to drinking water. It proposes enhancing the water available
for use by promoting watershed development activities, practicing water sav-
ing in irrigation use, adopting ﬂood control measures, conserving water, and
encouraging stakeholder participation in the management of water resources.
The 2012 National Water Policy Statement also proposes institutional arrange-
ments such as a water regulatory authority at the state level, a permanent
water dispute tribunal at the central level, and an integrated water resources
management system based on river basin‒subbasin as the unit for the plan-
ning, development, and management of water resources. The 2012 National
Water Policy Statement envisaged a national water framework law that estab-
lishes general principles on a statutory basis and decentralizes water gover-
nance in every state to the lower tiers of government.
Besides the policy on internal waters, the central government must enter
into international agreements with neighboring countries regarding interna-
tional rivers (Ganga, Brahmaputra, Indus) not only in the utilization of such
waters but also for exchange of hydrological data of international rivers. To
that end, treaties have been entered into with Pakistan, Bangladesh, and Nepal
and memorandums of understanding (MOUs) have been signed with China.

ment has power to make any law for the whole or any part of the territory of India for imple-
menting any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association or other body.” The Environment
Protection Act of 1986 was passed in lieu of the decisions made at the UN Conference on Hu-
man Environment, held at Stockholm in 1972, to which India was a participant.
22 Networking of Rivers in re (2004) 11 SCC 360.
238 The World Bank Legal Review

States and Water Management
States have enacted laws regulating surface water and groundwater, with em-
phasis on irrigation and other economic activities. The Northern India Canal
and Drainage Act of 1873, the Bengal Irrigation Act of 1876, and the Bombay
Irrigation Act of 1879 guided the irrigation legislation of most states. Farm-
ers’ right to water is not legally recognized under these laws. These acts do
not provide for farmer participation in irrigation management or for transfer
of funds to water users for undertaking repairs. Farmers remain dependent
on state governments and the irrigation bureaucracy for supply and mainte-
nance. The canal oﬃcer, an oﬃce created under the Indian Irrigation Act, has
all the power, and departmental oﬃcers are not accountable to water users.
There is a lack of transparency and participation in the management of irriga-
tion systems.
The Irrigation Acts continue to regulate the development and use of sur-
face water within state territories. Rules govern cropping pa erns, be erment
levies, water charges, and schedules when water will be made available. Out-
side the Irrigation Acts, the Indian Easements Act of 1882 links land owner-
ship and the regulation of groundwater use. Of late, some states have passed
legislation to regulate the use of groundwater and thus control overexploita-
tion and misuse.
The jurisdiction of panchayats and municipalities to deal with water-related
issues is not enshrined in the 11th and 12th Schedules of the constitution. Pan-
chayats and municipalities are dependent on the enactment of legislation by
states on the devolution of functions through executive action. Most preinde-
pendence legislation listed water supply as an obligatory function of munici-
palities. However, today water supply is regarded as a function delegated from
state governments to parastatals. In some local body legislation, water supply
in municipal area limits is treated as an obligation of the local body. However,
legislation permits local bodies to provide this service on payment of reason-
able cost, ﬁxed under municipal regulations. Most municipal acts have made it
obligatory for the harvesting of rainwater as part of a building plan.
The empowerment of local bodies is envisaged in Article 243-ZD of the
constitution, relating to district planning commi ees, and Article 243-ZE, re-
lating to metropolitan planning commi ees. In both these articles, it is obliga-
tory for local bodies to prepare draft plans with regard to “sharing of water
and other physical and natural resources.” However, the only constitutional
provision that has the potential of enabling water to be viewed as a common
resource in a coordinated manner, albeit at local levels, has not been given due
a ention.23
In 1999, Integrated Water Resource Development: A Plan of Action recom-
mended that all state Irrigation Acts be amended to incorporate provision for
the formation of farmers’ associations to take responsibility for the manage-

23 Report of the Commission on Centre-State Relations, supra note 3, at 37.
Toward a National Framework Law 239
on Water for India

ment of water.24 As a result, several states amended these Acts to accommo-
date farmers’ participation in water management. Water commi ees, water
users’ associations, and beneﬁciary farmers associations have been included
in canal commi ees and command area development programs.
A people-oriented participatory irrigation management scheme is slowly
but steadily evolving in the states. Andhra Pradesh passed a Farmers’ Man-
agement of Irrigation Act of 1997, providing for a three-tiered system of water
management and distribution. The ﬁrst level is at the primary level (minor
canal level). A distributory commi ee represents the secondary level, and a
project commi ee is the third level. Water user associations are entrusted with
preparing a plan of action for maintenance of the system, carrying out the
maintenance works in their area of operation, regulating the use of water ac-
cording to a schedule, monitoring the ﬂow of water, assisting the revenue
department in preparing the demand and collection of water rates, and even
resolving disputes between members.
At least half the states have either enacted exclusive legislation or amended
the Irrigation Acts to provide for participation, though the new regimes vary
widely in structure and function. These laws provide for overall control by the
state either directly or through regulatory authorities. State authorities deter-
mine the command area and can change the jurisdiction of various water user
associations (WUAs). In spite of the beneﬁcial eﬀects of such arrangements,
criticism has been leveled that WUAs are gender discriminatory and not rep-
resentative of the entire community. Although women have played a crucial
role in household water management and participate in all agricultural activ-
ity, they have li le say in WUAs, which are male dominated. Membership
rules that provide for landholders or heads of households preclude women
from becoming members. The relationship between WUAs and panchayati
raj institutions (PRIs) is not clear. They exist alongside each other, and their
powers overlap. The devolution of power to PRIs is tardy, due to states’ reluc-
tance to part with powers to panchayats, and the constitution of WUAs fur-
ther complicates the issue of local management of water resources. The PRIs
are more inclusive (with mandatory inclusion of women, Scheduled Castes
and Scheduled Tribes), whereas WUAs represent only landholder interests.
These inclusionary diﬀerences have raised issues regarding the institutional
inability of WUAs to be instruments for equitable use of the water resources
of the community.
A marriage of sorts between PRIs and control over water resources oc-
curred with the provisions of the Panchayats (Extension of Scheduled Areas)
Act of 1996. This Act gives powers to gram sabhas and panchayats in respect
to minor water bodies, especially access to and control over them by tribal
communities, as minor water bodies are considered (along with forests) a nat-
ural resource base on which people depend for sustenance.

24 Ministry of Water Resources, Government of India, Integrated Water Resource Development: A
Plan of Action, vol. 1 (Sept. 1999).
240 The World Bank Legal Review

Thus, the water management scenario in states is a complex institutional
arrangement in which the central government, the state, the PRIs, the WUAs,
civil society, and the private sector are all involved in the use and manage-
ment of water resources. Although the Gujarat Infrastructure Act of 1999 pro-
vides for private sector participation in water supply and sanitation projects,
the Karnataka Municipal Corporation’s (Water Supply) Rules give a role to
the private sector in urban water delivery systems.
If water is managed in terms of watersheds, then the implication is that the
legal regime must facilitate a decentralized and participative arrangement for
the management of water. However, considering the size of the country and
the presence of multiple stakeholders, the issues in India are so complex that
it is not possible for any one tier of government to manage water resources,
and a joint eﬀort is the only feasible way forward. “The management of eq-
uitable distribution and proper use of this natural resource,” the Report of the
Commission on Centre-State Relations observes,
by a large population in a country, where rainfall is largely seasonal
(with most of the precipitation in a limited number of days), and
whose geography is characterized by varied topographical, geologi-
cal and ecological features is a very complex task. . . . What is ground
water at some stage becomes surface water at another and vice versa.
. . . In such diverse forms water is not a mere economic resource
which can be allocated unidimensionally. It has a societal relevance
much beyond the economic, and is a ma er of life, livelihood and
cultural pa erns. Since the stakeholders are so many a legalistic ap-
proach to conﬂict resolution is diﬃcult. . . . It is now acknowledged
by most experts that water harvesting and land management be-
come key elements of water management and that these can be most
eﬃciently performed by adopting the watershed approach. If water
has to be so managed in terms of watersheds then it follows that the
legal regime must facilitate a decentralized and participative regime
considering the size of the country and multiple stakeholders.25
No one model can satisfy all the demands for this scarce resource in In-
dia. Stakeholders need to agree on principles based on equity and inclusion,
conservation, and participation. On the basis of these principles, ﬂexibility
needs to be given to local administration to manage water use from all avail-
able sources. This pa ern of decentralized governance is consistent with the
federal formula of subsidiarity and eﬃciency. A template to refer to is the
management of forests that has been adopted by Parliament. However, while
states without forests can be equal participants in federal governance, states
without suﬃcient water resources cannot survive unless their needs are met
from states that have water. This is where the federal government can play a
role, using a framework law.

25 Report of the Commission on Centre-State Relations, supra note 3, at 42–43.
Toward a National Framework Law 241
on Water for India

In recent years, there has been a concerted move to a uniﬁed and planned
approach to conserving all available sources of water and managing the rivers
to maximum beneﬁt under the control of the central government. The inter-
linking of interstate rivers was recommended by technical commi ees and the
judiciary.26 However, because of opposition from the states, the initiative was
abandoned, and it is unlikely that a constitutional amendment on this topic
would get the necessary parliamentary support any time soon.
Expressing its disagreement with the view that water should be shifted
from the State List (List-II) to the Concurrent List (List-III) the Commission
on Centre-State Relations observed that nothing in the present arrangement
prevents the central government or the states from doing what they need to
do to promote a participatory approach. The constitution gives a direct re-
sponsibility to the states to legislate on the subject of water, and through parts
IX and IX(A) enjoins the states to proceed with a further set of devolutions
to local bodies. This, the commission concluded, is the appropriate path to a
decentralized management of water resources. According to the Commission
on Centre-State Relations,
the Constitutional provisions as they stand are suﬃcient to address
the issues of water use and management. A national consensus must
emerge on water policy and this in turn should guide the legislations
of the Centre under Entry 56 of List-I and those of the States under
Entry 17 of List-II. . . . A hierarchical but co-ordinated set of water-
shed agencies need to be set up by joint action of the Centre and States
and participation of local bodies with inter-State basins as the focus.
The concept of River Basin Organizations has been tried out suc-
cessfully in several countries including neighbouring China. . . . The
European Union has issued the Water Framework Directive which
aims at sustainable management of water. It requires all member
States to establish water laws conforming to common hydrological
principles, which need to be applied on a river basin basis with the
active participation of citizens. . . . In India, although no River Board
or River Basin Organization has been constituted under the River
Boards Act, 1956, a success story is available in the form of planning
of the Damodar River system and operation through the Damodar
Valley Corporation. Similarly, Bhakra-Beas Management Board,
although set up for the limited purpose of power generation, also
provides a successful example of integrated management. Similarly,
the limited role of maintenance and regulation of the Tungabhadra
Reservoir by the Tungabhadra Board for operation and maintenance
of Dam and regulation of the ﬂow, establishes the eﬃciency of inte-
grated management.27

26 See Irrigation Commission, Report of the Irrigation Commission, 1972 (Ministry of Irrigation
and Power 1972); Ministry of Irrigation, National Perspective for Water Development (1980).
27 Report of the Commission on Centre-State Relations, supra note 3, at 45.
242 The World Bank Legal Review

In short, the scheme of integrated water management proposed by the
2010 Centre-State Relations Commission involves the following:
• The development of a national water policy containing principles and di-
rectives for all stakeholders to follow in legislative and administrative ac-
tion and including watershed management.
• Both the central government and state agencies will follow the mutually
agreed-to provisions of the national water policy, which includes inte-
grated watershed management.
• All states will establish river basin organizations for the planned develop-
ment and management of a river basin as a whole or subbasins wherever
necessary. The scope and powers of the river basin organizations will be
decided by the basin states themselves.
• The central government will create interstate river basin authorities,
whose responsibilities will be to oversee major engineering issues and al-
locations, and not the implementation of schemes or user participation.
• Local bodies, such as of civil society (as in watershed management), us-
ers associations (as in irrigation), and joint management groups (as in
forestry) will play an active role in all water-related initiatives.
This proposal represents a major shift from an a empt at coordination
through a large number of schemes implemented by numerous departments
covering large areas (but not necessarily identiﬁed watersheds) to a legisla-
tively ordained integration of coordinating authorities responsible for the in-
terstate river basins and identiﬁed watersheds, set up by the central, state, and
local authorities. The overall responsibility for coordination would be that of
the interstate river basin authority set up by the central government under the
River Boards Act.

Conclusions
Between 1976–80 and 2001–03, subsidies to agriculture grew from 3 percent
of farm output to 7 percent. Over the same periods, government investment
in farming was reduced from 4 percent to 2 percent of agriculture GDP. Most
of the subsidies are for fertilizers, power, and irrigation water, and these have
contributed to the degradation of natural resources.28
The costs of the monsoons in India are well-known. The average drop in
grain output in a drought year is 11 percent. India’s experience with drought
is a set of ready policy responses in which the ﬁrst approach is to draw down
grain stocks to feed the poor, lower taxes on food imports, pay more for farm
produce, and ensure the availability of power for irrigation. An alternate ap-
proach involves rehabilitating water delivery systems; this approach is not
popular with the political class or the bureaucracy. Overexploitation of wells

28 Eleventh Five Year Plan (2007–2012), Agriculture, Rural Development, Industry, Services and Phys-
ical Infrastructure, vol. 3, 7 (Plan. Commn., Govt. of India).
Toward a National Framework Law 243
on Water for India

and excessive use of groundwater for irrigation supported by a policy of sub-
sidizing power and diesel for farmers’ water pumps are leading to distortions
in water delivery systems and their sustainability. Nothing short of a national
consensus on integrated water management supported by a participatory le-
gal regime can prevent a catastrophe that is waiting to happen.
This page intentionally left blank
Targeting Justice Sector Services
to Promote Equity and Inclusion
for the Poor in Jordan
PAUL PRETTITORE

The justice sector provides a number of direct services to citizens. Those ser-
vices implemented by governments are frequently focused on court proceed-
ings involving criminal, civil, and family law cases. As with other public sec-
tor services, services in the justice sector are often diﬃcult for poor persons to
access. Obstacles include a lack of awareness of available services and the pro-
cedures to access them, overly complicated procedures for proving eligibility
and accessing services, and the relatively high costs of fees. Far too often, ser-
vices, especially those targeted to the poor, exist on paper but not in practice.
Eﬀorts to develop policy to improve services are undermined by a lack of
data on demand, as well as on the extent and quality of existing service provi-
sion. The lack of a comprehensive policy leads to contradictory approaches
to reform; for example, at the same time that enhanced access for the poor is
prioritized, fees associated with court procedures are raised and lawyers are
required for cases with smaller ﬁnancial value.
When designed and implemented eﬀectively, justice sector services can
play a role in promoting equality and inclusion for poor communities. They
can provide mechanisms for individuals to exercise their fundamental rights,
thus promoting equality, and for individuals to challenge detrimental govern-
ment actions or inactions, thus promoting greater inclusion. When targeted
properly to the poor, services can provide tools to ensure that the poor are
aware of the rules that aﬀect them and are able to enforce these rules in an
eﬃcient and eﬀective manner.1 Such services may include legal aid (informa-
tion, counseling, and representation), waiver or deferment of court fees, and
special procedures to simplify and expedite services that have a signiﬁcant
impact on the poor, such as alimony and child support. Legal aid itself is a
“gateway” service, ultimately allowing beneﬁciaries to access other vital ser-
vices, for example, court proceedings or entitlements such as social protection
beneﬁts.

1 The World Bank has advocated for more than a decade for reforms in the justice sector as a
means to address poverty. The World Development Report 2000/2001: A acking Poverty (World
Bank 2000) associates the rule of law, of which the justice sector is a key component, with cre-
ating a predictable and secure environment for economic transactions and leading to be er
overall economic performance and poverty reduction. The rule of law has been deﬁned as an
environment in which the formal rules are publicly known and enforced in a predictable way
through transparent mechanisms, such that rules apply to all persons as well as to the state.

245
246 The World Bank Legal Review

Jordan, like other countries in the Middle East, has struggled with the de-
sign and implementation of services directed at the poor, namely legal aid ser-
vices and deferment of court fees. The result is that these services are highly
underutilized. The government of Jordan has taken steps to improve service
delivery, which could positively impact on equality and inclusion for poor
communities. Through a series of legislative amendments, existing services
have been improved and new ones have been introduced that, if not aimed di-
rectly toward the poor, should beneﬁt them nonetheless. These reforms have
focused on key issues such as alimony, child support, and inheritance. The
government of Jordan has also provided space for civil society organizations
(CSOs) to develop legal aid services in a comprehensive manner. The ﬁrst
widespread survey focusing solely on justice sector issues was conducted by
the Department of Statistics in 2011, and the resulting data provide a basis for
policy development and reforms that will beneﬁt poor users of court, lawyer,
and legal aid services in that country.

Policy Development in the Justice Sector to Promote
Equity and Inclusion
Issues of poverty reduction, equity, and inclusion have been addressed in nu-
merous policies and strategies developed by the government of Jordan. How-
ever, the justice sector has rarely been linked to eﬀorts in these areas. Past
justice sector reform strategies focused on the institutional development of
justice sector bodies and the improvement of general service delivery, which,
if implemented adequately, would beneﬁt all users of justice sector services
but leave many of the unique obstacles faced by the poor in accessing services
unaddressed. At present, there is no single entity in Jordan responsible for
developing, coordinating, and implementing policy to improve services most
impacting the poor. In this vacuum, the development of services will continue
in an ad hoc manner, with limited ability to consolidate and build on speciﬁc
improvements. Policy development needs to be more comprehensively linked
to data and analysis concerning the quality and extent of current delivery of
services, as well as the demand side from poor communities.
Recent reforms in the justice sector commenced with the establishment
of the Royal Commi ee for Judicial Upgrading, mandated with assessing the
justice sector and developing recommendations to build capacity to reﬂect in-
ternational good practices. This commi ee made recommendations on a num-
ber of reforms, focused primarily on court administration.2 The Ministry of
Justice subsequently launched the Jordan Judicial Upgrading Strategy (JUST)
2004–2006 as a follow-up to the work of the royal commi ee. JUST 2004–
2006 focused on improving general service delivery and capacity building for

2 The recommendations of the Royal Commi ee for Judicial Upgrading included increasing
the number of judges; automating case management procedures; amending legislation to
accelerate and simplify court proceedings; and establishing a division within the courts to
supervise management of civil cases.
Targeting Justice Sector Services to Promote Equity 247
and Inclusion for the Poor in Jordan

justice sector stakeholders, including the ministry itself, the Jordan Bar As-
sociation, and law faculties.3 Due to the limited monitoring and evaluation of
strategy implementation, the impact of these strategies is not well understood.
More recently, strategies have shifted to focus on issues of equality and
social justice and have begun to link these issues with justice sector reforms.
The We Are All Jordan strategy issued in 2006 promoted enhanced social
justice,4 whereas the National Agenda (2006–2015) promoted the achievement
of justice and equality.5 The concepts of equality and inclusion were linked
with the justice sector through the Judicial Upgrading Strategy launched in
2010 (JUST 2010–2012). This strategy included the enhancement of access to
justice as a component of the overall plan.6
In combination, these strategies have led to a number of achievements in
the past decade, including the automation of case management procedures
in civil and criminal courts (Mizan); the development of the Ministry of Jus-
tice website to provide information to the public on services, procedures for
accessing services, and relevant legislation; the automation of functions of
the Ministry of Justice (Masaq); the introduction of legislative amendments
to streamline procedures (Landlord-Tenant Law, Criminal Procedure Code,
Court Formation Law, misdemeanor cases); the introduction of the e-clearance
certiﬁcate; and the establishment of specialized judicial chambers for the civil
and criminal courts to promote the specialization of judges. A number of spe-
cialized judicial chambers were also established, including those covering in-
tellectual property, companies, bankruptcy, commercial agencies, contracts,
le ers of credit, and maritime law.
These achievements should improve the quality of services for the general
population, but they are unlikely to translate into enhanced equity and inclu-
sion for poor communities if they are not linked with be er-targeted services.
For example, although JUST 2010–2012 referenced access to justice, no con-
crete activities were implemented and no real resources were made available
to pursue this policy objective. Although a number of special court chambers
were established that will likely beneﬁt the private sector, none were estab-
lished that cover the types of cases most likely to impact the poor, such as
landlord-tenant disputes, consumer complaints, and disputes involving small

3 The recommendations of JUST 2004–2006 included improving service delivery, with a focus
on eﬃciency and streamlining procedures; reducing demand for court services; strengthen-
ing inspection and monitoring; improving court infrastructure; automating judicial proceed-
ings; improving eﬃciency of human resource systems; and enhancing service delivery of the
public prosecution, notary public, and execution and notiﬁcation departments.
4 The We Are All Jordan policy initiative promoted the principles of enforcing the rule of law
and ensuring social justice.
5 The National Agenda (2006–2015) promotes the aims of enhancing the judicial and legisla-
tive systems to improve the rule of law and institutions, achieve justice and equality, and
ensure fundamental freedoms, human rights, and democracy.
6 JUST 2010–2012 built on the priorities of JUST 2004–2006, focusing on improving court auto-
mation, information technology development, and court infrastructure, and enhancing the
services of the execution and notary departments.
248 The World Bank Legal Review

ﬁnancial claims. Most reforms implemented with donor funding, including
the case management automation programs, were not extended to cover the
sharia courts, which have jurisdiction over family-related cases, which are of
prime importance to the poor. And lowering the monetary threshold above
which a lawyer must represent the parties in court could result in the exclu-
sion of poorer persons from pursuing such cases, especially because access to
legal aid remains a serious problem in civil cases.7

Targeting Services Based on Demand
Understanding the demands and priorities of poor communities is vital to
eﬀectively targeting services. The government of Jordan took a considerable
step in deﬁning needs through a household survey on the justice sector—the
ﬁrst of its kind in Jordan. In 2011, the Department of Statistics conducted the
Statistical Survey on the Volume of Demand for Legal Aid (Justice Sector
Household Survey), a survey of 10,000 households administered in rural and
urban areas throughout the country. The survey covered a number of key
issues important to assessing access to justice, including the most common
types of legal cases; the costs of accessing courts and lawyers and knowledge
of services provided; access to and familiarity with legal aid services; and the
economic characteristics of families and individuals with legal disputes. Data
based on gender and the monthly expenditure levels of respondents provide
valuable information on the types of issues most aﬀecting poor women and
the steps they take to address them. In assessing access to services for the
poor, it is important to consider the role of gender, given the unique obstacles
faced by poor women, as identiﬁed in the Justice Sector Household Survey,
and the fact poor women seem to need considerable assistance in accessing
courts and lawyers, as demonstrated by an analysis of the caseload of the Jus-
tice Center for Legal Aid, which shows women account for nearly 70 percent
of legal aid beneﬁciaries.
But data gaps on demand and the extent of service delivery remain. At-
tempts to be er understand demand through analysis of existing service de-
livery are limited, despite the availability of basic data from key institutions
such as the Ministry of Justice, the Ministry of Interior, the Ministry of Labor
(Labor Courts), and the Complaints Management Unit of the Ministry of Pub-
lic Sector Development. These data are not routinely compiled into usable
formats or analyzed to shed light on demand and inform service delivery im-
provement in terms of access to justice for women. Public sector data are not
routinely made available to other stakeholders, such as CSOs and academics.
Nor are they easily available through the access to information framework
currently in place, which suﬀers from a weak administrative framework.

7 In civil cases worth more than JD 1,000, parties are required to be represented by a lawyer;
Law of Peace Courts No. 15 (1952) (Qanoun Mahakem al-Solh), art. 9, para 2.
Targeting Justice Sector Services to Promote Equity 249
and Inclusion for the Poor in Jordan

Analysis of the Justice Sector Household Survey

Justice Sector Services and Poverty
The Justice Sector Household Survey provides valuable data on the types
of disputes encountered by poor persons and how they address disputes
through formal institutions. An analysis of that data (undertaken by the au-
thor) reveals several signiﬁcant features of the ways in which the poor use
justice sector services.
Higher Demand, but More Limited Access. The families more likely to report ac-
tionable legal issues—68 percent of respondents—fall into the two lowest cat-
egories of expenditure levels (less than JD 250 per month and JD 250–499 per
month),8 with only 6 percent falling within the highest expenditure category
(more than JD 1,000 per month). Yet, poorer families are more likely to avoid
court procedures when they have a dispute, and when they do go to court,
they are less likely to have the assistance of a lawyer due to ﬁnancial restraints
(see ﬁgure 1). Forty-one percent of families that reported an actionable legal
issue and are recipients of the National Aid Fund went to court without a law-
yer because they could not aﬀord one.9 Of those respondents reporting a dis-
pute but not accessing courts because of a lack of ﬁnancial resources, a large
majority reported willingness to ﬁle complaints in court if they could receive
the following support: lawyer fees, court fees, and associated expenses such
as transportation (87 percent); lawyer and court fees (85 percent); and lawyer
fees (83 percent).
Figure 1. Use of courts and lawyers, by percentage

8 The categories of expenditure levels per month used in the survey are less than JD 250;
JD 250–499; JD 500–999; and more than JD 1,000.
9 National Aid Fund Law of 1986 (Qanoun Sandouk al-Maoune al-Watanie li-sanet). The Na-
tional Aid Fund, under the authority of the Ministry of Social Development, administers a
number of programs to support vulnerable persons. Its largest program, in terms of scope,
provides cash support to the poor and others in need. Thus, its beneﬁciaries represent some
of the most vulnerable persons in Jordan.
250 The World Bank Legal Review

Diﬀerent Priorities. The most frequent types of cases reported vary by the expen-
diture levels of respondents. Poorer persons are more likely to be involved in
personal-status disputes than in criminal disputes, while the reverse is true for
those with higher expenditure levels. The greatest variation between respon-
dents of diﬀerent expenditure levels is observed in the category of personal-
status cases (see the right-hand column in ﬁgure 2).

Figure 2. Frequency of case type by expenditure category

This trend is also reﬂected in an analysis of the caseload of the legal aid
centers of the Justice Center for Legal Aid (JCLA), a Jordanian CSO that is
the largest single provider of legal aid services in Jordan. In 2012, JCLA car-
ried out 1,419 consultations and 1,014 legal representations for poor persons.
Seventy-one percent of cases involved personal-status issues (see table 1).

Table 1. JCLA caseload analysis, 2012*

Case Type Legal Consultations Legal Representations

Personal status 1,008 71% 719 71%

Civil 254 18% 106 11%

Criminal 111 8% 103 10%

Noncourt procedures
46 3% 86 8%
(administrative)†

Total 1,419 1,014

* Assessment of cases by the six legal aid centers of the Justice Center for Legal Aid in Amman,
Madaba, and Zarqa.
† For example, drafting contracts and powers of a orney and ﬁling administrative paperwork.
Targeting Justice Sector Services to Promote Equity 251
and Inclusion for the Poor in Jordan

Within the category of personal-status issues, there is additional varia-
tion in terms of the most common types of cases (see ﬁgure 3). Alimony and
inheritance cases are of more importance to poorer persons, whereas divorce
and access to dowries are more important for persons with more resources.

Figure 3. Breakdown of personal-status cases, by expenditure level

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)!+
(!+

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%!+

$!+

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"!+
!+

#&! #&!%** &!!*** "!!!

Overall, poorer persons form the bulk of respondents aﬀected by legal
disputes involving personal-status cases (see ﬁgure 4). There are several pos-
sible reasons for this trend. Economic assets falling under personal status—
alimony, inheritance, child support, and dowries—may constitute a consider-
able portion of the overall assets of poor persons, particularly poor women,
and are therefore worth ﬁghting for. For those with more ﬁnancial resources,
the obstacles associated with court proceedings may outweigh the ﬁnancial
rewards. They may also have greater access to noncourt procedures such as
negotiation through lawyers and mediation.

Figure 4. Frequency of personal-status case categories, by expenditure level

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%!
$&

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#&

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&
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252 The World Bank Legal Review

Lack of Knowledge of, and Access to, Special Services. Individuals who did not
access courts because of costs expressed willingness to do so if they could
receive assistance in covering certain costs, for example, through legal aid ser-
vices. However, 98 percent of survey respondents were unaware of existing
legal aid providers. And of the 2 percent who were aware of services, only
17 percent had tried to access them. The primary reasons for not accessing
legal aid services were lack of knowledge of how to reach service providers
(35 percent), not actually needing legal aid assistance (33 percent), and com-
plicated procedures for securing services (27 percent). Of those a empting to
access legal aid services, 78 percent were able to secure them.
The survey did not measure awareness of, and access to, services covering
the deferment of court fees for poor persons involved in court proceedings.
But anecdotal evidence suggests these services are rarely provided, primarily
due to the lack of awareness of services by poor persons and justice sector of-
ﬁcials, as well as complicated procedures for accessing them.

Justice Sector Services and Gender
There are no legislative or regulatory impediments to women bringing dis-
putes to courts or other dispute resolution bodies in Jordan. However, anec-
dotal evidence suggests that women face societal pressures to avoid pursu-
ing disputes, particularly in relation to personal-status issues and domestic or
sexual violence. Social pressure may also steer women away from initiating
claims directly with formal institutions—according to the JCLA, more than
70 percent of requests for assistance come from women. The household sur-
vey sheds light on the types of disputes women and men report and how they
use court and lawyer services to address disputes.
The survey found that men were much more likely to report having had
legal disputes. As individuals, men were three times as likely as women
(75 percent for men versus 25 percent for women) to report having had a legal
dispute in the past ﬁve years. Of the households reporting disputes, 92 per-
cent were headed by men and 8 percent were headed by women. The extent
to which men, in general, have more legal disputes or are simply more likely
to report them is unclear. The reality is likely a combination of both, given
the traditional and legal role of men as family guardians, requiring them to
undertake more transactions and exposing them to more potential disputes,
and the societal pressures on women to avoid raising disputes through formal
mechanisms.
Women tend to experience diﬀerent types of disputes than men do. Personal-
status issues are of prime importance. Of respondents claiming to have experi-
enced a legal dispute, women were nearly four times as likely as men to have
an issue related to personal-status law—41 percent of women versus 11 per-
cent of men. Women were less likely than men to report legal disputes related
to criminal or civil law (see ﬁgure 5).
Targeting Justice Sector Services to Promote Equity 253
and Inclusion for the Poor in Jordan

Figure 5. Categories of reported disputes, by gender

There are variations in the types of disputes men and women will bring
to court (see ﬁgure 6). Women are more likely than men to avoid going to
court for criminal and civil disputes, but not for personal-status cases, which
suggests that personal-status issues are viewed by women as more critically
impacting their lives. This might be partly explained by the fact that personal-
status cases involve access to economic assets that are exclusively available to
women (alimony and child support) or primarily available to women (dow-
ries) and represent a considerable source of economic interests for women
with limited access to assets (inheritance).
Figure 6. Respondents with actionable disputes who do not bring cases to court,
by case type

254 The World Bank Legal Review

Access to ﬁnancial resources for addressing disputes is more of a con-
straint for women than for men, and even more so for female-headed house-
holds. The data from the survey demonstrate that women and female-headed
households are more likely to avoid ﬁling claims in court because of lack of
ﬁnancial resources and are more likely to proceed to court without a lawyer
because of an inability to pay lawyer fees (see ﬁgure 7). Thus, the lack of ef-
fective systems for providing free legal representation and waiving of court
fees has a considerable negative impact on poor women who wish to enforce
their rights.

Figure 7. Nonuse of courts and lawyers due to ﬁnancial constraints, by gender

What State-Sponsored Services Are Targeted to the Poor?
Legal Aid Services
Legal aid services encompass information and counseling activities and le-
gal representation by a lawyer. In addition to being services themselves, they
serve as gateway services that ultimately allow beneﬁciaries to access other
services, for example, court proceedings and entitlements such as alimony,
child support, and social welfare beneﬁts. Legal aid can provide tools to en-
sure that poor persons are aware of the rules that aﬀect them and aid them in
enforcing these rules in an eﬃcient and eﬀective manner. Not only can such
an approach help address poverty—as recommended by the World Bank10—it
can also aid in promoting equity and inclusion for poor communities.

10 See supra note 1, which associates the rule of law, of which the justice sector is a key compo-
nent, with be er overall economic performance and poverty reduction by creating a predict-
able and secure environment for economic transactions.
Targeting Justice Sector Services to Promote Equity 255
and Inclusion for the Poor in Jordan

The government of Jordan has focused resources on legal representation,
which can be provided through the courts,11 the Jordan Bar Association,12 or
CSOs. Lawyers are paid to provide legal aid services when appointed through
the courts or CSOs, although at a rate lower than they would normally be
paid. Legal assistance through the Jordan Bar Association can involve pay-
ment from the government or be provided by the lawyer on a pro bono basis.

Deferment of Court Fees
Poor persons involved in court proceedings can request deferment of court
fees until the case is resolved. Given the relatively high court fees, including
fees for oﬃcial stamps, this service could provide considerable relief for those
unable to aﬀord court proceedings.13 However, the associated procedures are
overly complicated. Applicants must provide numerous documents in a mo-
tion to the chief judge of the court for which fees would be deferred.14 They
must also produce witnesses or certiﬁcation from local oﬃcials to a est to
their poverty, although there are no set criteria for ascertaining poverty. Col-
lecting numerous documents is burdensome for poor applicants, and review
of documents is not the most eﬀective use of the time of senior judges. If the
party for whom the fees have been deferred wins the case, fees must be paid
at the time the decision is issued, not when it is enforced. Thus, persons are
required to pay fees before receiving a ﬁnancial award.

Specialized Services for Personal-Status Cases
Personal-status cases in Jordan involve family law issues, including mar-
riage, divorce, alimony, child custody and support, inheritance, and dow-
ries. They aﬀect a large segment of the population and, as demonstrated
by the Justice Sector Household Survey and the analysis of the JCLA case-
load, are of considerable importance to the poor. For example, alimony,
child support, and inheritance may be the only considerable economic as-
sets of a poor woman. Personal-status issues are under the jurisdiction of
religious courts—sharia courts for Muslims and ecclesiastical courts for
Christians—which form part of the formal judicial system but are admin-
istered separately from the civil and criminal courts. The National Agenda
(2006–2015) includes a recommendation to develop the work of the sharia

11 Code of Civil Procedure of 1988 (Qanoun Ousoul Mohakamat Madanie li-sanet).
12 Law of the Regular A orneys Association of 1972 (Qanoun Nakbaet al-Mohameen al-
Nizamieen li-sanet).
13 Based on the indicator “enforcement of contracts” in the World Bank’s Doing Business Report
2012: Doing Business in a More Transparent World (World Bank 2011). The court costs, as a per-
centage of the value of the claim, are as follows: Jordan, 8 percent; Syria, 4.5 percent; Leba-
non, 3 percent; Iraq, 2.3 percent; West Bank and Gaza, 2.2 percent; and Egypt, 1.3 percent.
14 The required documentation includes certiﬁcates from the Department of Land and Survey,
stating the applicant does not own land; the Department of Vehicles and Licenses, stating
the applicant does not own a vehicle; and the Department of Social Security, stating the ap-
plicant has a limited salary or no salary. The chief judge of the relevant court can request
additional documentation.
256 The World Bank Legal Review

courts, which has led to a strategy on reform developed by the Supreme
Judicial Council of the sharia courts. Courts were requested to establish
guidelines, including outlining the procedures and documents required for
each service, with the guidelines to be posted prominently within court facili-
ties. The sharia courts have also begun work on a strategy to automate proce-
dures of the Supreme Judicial Council and courts.
In 2010, major revisions were made to the Personal Status Code that re-
sulted in the enhancement of existing services and the introduction of new
services in the sharia courts.15 These new services include expedited alimony
and child support procedures, direct alimony payments made through an ali-
mony fund, and protections related to the inheritance rights of women (see
table 2). They were designed to address current gaps in service delivery. Al-
though not necessarily directly targeted to poor persons, these reforms, if im-
plemented properly, should provide additional tools for the poor to level the
playing ﬁeld in using court services to exercise their rights and access beneﬁts
to which they are entitled.

Table 2. Improving services for personal-status issues
Expedited alimony/child support payments
• Alimony can be requested • Addresses the fact that divorce proceedings can
at the time of ﬁling take years to ﬁnalize, during which time women did
for divorce, rather not have access to alimony payments, which has a
than waiting for the particularly negative impact on poor women.
ﬁnalization of the divorce.
• Alimony can be paid • Addresses the fact that divorce proceedings can take
immediately upon request years to ﬁnalize, which has a negative impact on poor
rather than waiting for a women.
court decision awarding
alimony—“expedited • Two conditions must be met: a guarantor is provided
alimony.” to guarantee repayment of alimony sums if the
subsequent court decision does not provide for
alimony; and a witness states that the applicant is
able to repay alimony payments if necessary. Similar
procedures allow for expedited child custody.
Alimony fund
• Alimony is paid directly • Enforcement of judicial decisions remains
by the sharia courts to problematic; ensuring payment of alimony from
women in cases in which courts directly to women will aid poor women for
husbands fail to pay whom alimony is a considerable economic asset.
alimony according to
court decisions. • Poor women will not incur the added expense of
repeatedly requesting courts for enforcement of
alimony decisions.
• Sharia court personnel
are responsible for initiat- • Payments will be made electronically to bank
ing proceedings against accounts, instead of forcing women to report to court
husbands who fail to monthly to receive payments.
make alimony payments.

15 Provisional Law No. 36/2010, issued by the Council of Ministers (Sept. 26, 2010).
Targeting Justice Sector Services to Promote Equity 257
and Inclusion for the Poor in Jordan

Access to inheritance
• Revisions of the process • Address the societal pressure women face in
of takharoj so that a renouncing inheritance rights in favor of male
female heir must wait relatives, which has a particularly negative impact on
12 months after being poor women, because inheritance may be the primary
awarded inheritance means of transferring wealth.
rights before such rights
can be renounced and
transferred to other heirs.

• Alternatively, rights to
land can be transferred
through the Department
of Land and Survey
after rights have been
registered in the name of
the female heir, so that
a female heir is aware
of her rights before
renouncing them.

Are State-Sponsored Services Targeted Accurately
and Delivered Effectively?
There are a number of gaps in service delivery related to the provision of ser-
vices targeted to the poor.

Legal Aid Services
There are a number of weaknesses in the targeting of legal aid services. The
right to legal aid services exists only for serious criminal cases involving capi-
tal punishment or life imprisonment. Yet, data from both the Justice Sector
Household Survey and the analysis of the JCLA caseload demonstrate that
poor persons have considerable need for assistance related to personal-status
and civil cases, a ﬁnding consistent with demand globally. Nearly 80 percent
of those reporting personal-status disputes fell into the two lowest quartiles of
expenditure levels in the Justice Sector Household Survey. And more than 70
percent of cases involving legal consultations and representation by JCLA in-
volved personal-status issues, whereas 18 percent of counseling services and
11 percent of representation services involved civil law issues. Criminal issues
accounted for less than 10 percent of services. Extending state-supported legal
aid services to personal-status and civil issues would beneﬁt women, who
were four times as likely to report personal-status disputes and less likely to
have access to a lawyer than men, according to the household survey.
Legal aid services are heavily focused on legal representation by lawyers.
However, analysis of the JCLA caseload shows that legal representation is
necessary only in about 30 percent of their cases. The vast majority of cases can
be addressed through information and counseling. Yet, the government of Jor-
dan has not initiated any comprehensive plan to support public information
258 The World Bank Legal Review

and awareness, leaving it up to CSOs to a empt to ﬁll the gaps. There is no
publicly funded counseling mechanism regarding legal issues.
Providing such services to the poor serves a number of purposes. Both
public information and counseling can reach a larger number of beneﬁcia-
ries than legal representation can because they require less time from service
providers per beneﬁciary and can be targeted to communities or groups as
opposed to individuals. They are also cheaper to provide per beneﬁciary be-
cause they require li le to no time on the part of lawyers. Establishing public
information kiosks or desks or information hotlines could help address needs.
There are numerous gaps in the eﬀective delivery of legal aid. The system
for implementing state-sponsored legal aid remains ineﬀective and underuti-
lized, with very few instances of legal aid granted through either the courts
or the bar association. Each mechanism for delivering services faces shortfalls.
The process for assigning lawyers by courts is not always clear, and there is no
established list of eligible lawyers kept by the court from which assignments
can be made. Instead, judges might assign a lawyer present at the courthouse
and pay fees that are too low to ensure quality. There are no wri en proce-
dures for the Jordan Bar Association to follow in assigning lawyers to provide
pro bono services, nor is any training or oversight provided to lawyers. Al-
though CSOs have begun to ﬁll the gap in legal aid services, their activities
are highly dependent on funding from foreign donors, and the government of
Jordan has not yet acted to integrate services.
There is limited use of nonlawyers (local experts, law students, appren-
tice lawyers) who could provide assistance on legal awareness, information
and counseling, or development of pro bono programs for lawyers to provide
representation when needed. Monitoring and evaluation of what services are
provided are lacking, further negatively impacting the quality of services. For
example, an impact evaluation of a legal aid program in Ecuador found posi-
tive correlations between the provision of legal aid and access to child support
payments and reductions in domestic violence.16 Experimenting with unbun-
dling services so that lawyers are hired only for the procedures for which
they are necessary, and developing pro se representation mechanisms, such as
online information and self-help desks, could improve the quality and reach
of services. The la er may be particularly beneﬁcial in sharia courts, where
parties are not required to have legal representation, and a model may already
exist with the informal kiosks established outside court facilities to provide
information on forms and procedures for small fees.
Determining eligibility for services is also ineﬃcient, with no clear criteria
for determining poverty and cumbersome procedures placed on applicants

16 See World Bank, Impact of Legal Aid: Ecuador (Rpt. No. 26915, Feb. 2003). For a broader dis-
cussion of the economic impact of legal aid services, see Bruce M. Owen & Jorge Portillo,
Legal Reform, Externalities and Economic Development: Measuring the Impact of Legal Aid on Poor
Women in Ecuador (Stanford Inst. for Econ. Policy Research Discussion Paper No. 02-32, May
2003).
Targeting Justice Sector Services to Promote Equity 259
and Inclusion for the Poor in Jordan

and oﬃcials responsible for reviewing applications. Eligibility guidelines de-
veloped by CSOs could serve as a model. Due to institutional weaknesses,
there is limited ability to provide services outside Amman, especially to poor,
rural areas. And funding for legal aid services is not yet sustainable, with the
majority of funding provided by international donors. Development of a le-
gal aid fund, as is under discussion to cover criminal cases, or a sliding scale
of payments for services could help address ﬁnancial sustainability issues.
A longer-term strategy for provision of services that balances needs with re-
sources could enhance sustainability.

Deferment of Court Fees
Deferment of court fees is perhaps be er targeted to the needs of the poor
than state-sponsored legal aid services. Given that court costs in Jordan are
relatively high, providing deferment of fees in civil cases will beneﬁt the poor
facing cases involving issues such as employment, housing, and consumer af-
fairs, as well as social beneﬁts. If fees are deferred for a party, they are required
to be repaid only if the party wins the case. But repayment is supposed to be
made at the time the judgment in the case is issued, not upon enforcement.
This in particular presents a considerable burden for the poor because they are
required to make a payment before receiving their ﬁnancial award, especially
considering the weakness in enforcement of judicial decisions in Jordan and
the length of time that might be required for enforcement procedures.
There are no available data on the frequency with which deferment of
court fees is requested and awarded, but anecdotal evidence suggests it is
provided only rarely. This is due to several factors. There is a general lack of
awareness among the public, and even among judges and court staﬀ, that this
service exists. Although the Justice Sector Household Survey did not measure
the awareness of deferment of court fee services, it did show that roughly
98 percent of respondents were unaware of legal aid services in general; simi-
lar ﬁndings would likely apply to deferment services. When there is aware-
ness, there is often limited knowledge of the relevant procedures, and po-
tential beneﬁciaries may be deterred by the overly complicated nature of the
procedures. The process for proving eligibility and implementing relevant
procedures requires assembling a number of oﬃcial documents from diﬀerent
government agencies and the production of witnesses, providing a consider-
able disincentive for intended beneﬁciaries to apply.

Special Services for Personal-Status Issues
Recent legislative and regulatory amendments have reformed existing services
and introduced new services related to several personal-status issues that are
of prime importance to the poor, including access to alimony, child support,
and inheritance. Based on the ﬁndings of the Justice Sector Household Survey
and the analysis of the JCLA caseload, these reforms should result in more ac-
curate targeting of services to the poor, especially poor women. These reforms
also have the potential for positive impacts on social and economic develop-
ment by increasing the economic assets of poor women, which can in turn
260 The World Bank Legal Review

improve women’s agency.17 The results could be be er equity and inclusion,
particularly for poor women.
A number of policy initiatives are aimed at improving the targeting to
poor users of court services and promoting greater equality and inclusion, es-
pecially for poor women. Expedited alimony and child support services have
been introduced to address the fact that divorce proceedings can drag on for
years, during which women may not receive any support. For poor women,
given the low rates of female labor force participation, this time lag may mean
the elimination of the sole means of ﬁnancial support.18 Direct alimony pay-
ments by the sharia courts through an alimony fund are designed to compen-
sate for the overall poor enforcement of judicial decisions. Special protections
for inheritance rights of women are meant to provide a means for women to
counter societal pressure to renounce inheritance rights guaranteed them by
law in favor of male relatives.
Traditionally, sharia courts have been more ﬁnancially accessible to poor
persons than criminal and civil courts because court-related costs, such as ﬁl-
ing fees and fees for powers of a orney, are lower or nonexistent and parties
are not obligated to be represented by a lawyer, thus reducing legal costs. Un-
fortunately, the same cannot be said for the ecclesiastical courts, where proce-
dures and costs are not clearly framed in legislation and regulations, resulting
in ad hoc service delivery.19 The Justice Sector Household Survey found that
average lawyer costs for personal-status issues—roughly JD 542—are consid-
erably lower than for civil (JD 902) and criminal (JD 958) cases.
However, navigation through issues and procedures related to disputes
over alimony, child support, and inheritance are complicated, and legal ad-
vice may be necessary in order for parties to make informed decisions. For
example, division of inheritance is set in law, but the amounts awarded for
alimony and child support are negotiable and need to be ﬁrmly established
through court procedures. Sixty-four percent of household survey respon-
dents found the presence of a lawyer useful for their case.
Mediation services, which for many disputes are obligatory as a ﬁrst step,
are oﬀered free of charge and provide another lower-cost mechanism for the
poor. Regulations that support implementation of the alimony fund have
been drafted, and once adopted by the Council of Ministers and implemented
eﬀectively, the fund could have considerable impact on the social and eco-

17 For a more thorough discussion of the agency, access to justice, and development for women
in Jordan, see World Bank, Agency, Equality and Access to Justice, in Hashemite Kingdom of Jor-
dan, Jordan Country Gender Assessment: Economic Participation, Agency and Access to Justice in
Jordan, ch. 3 (Report No. ACS5158, July 2013) (hereinafter, Jordan Country Gender Assessment).
18 For an assessment of women’s labor force participation, see Jordan Country Gender Assess-
ment, ch. 2, Women’s Economic Participation.
19 See Amal Haddadin, Good Practices and Lessons Learned in Realizing Women’s Rights to Produc-
tive Resources: The Case of Jordan (Jordanian Natl. Commn. for Women, June 2012), available
at h p://www.unwomen.org/wp-content/uploads/2012/07/EP-Good-practices-and-lessons
-learned-in-realizing-womens-right-to-productive-reources-the-case-of-Jordan.pdf.
Targeting Justice Sector Services to Promote Equity 261
and Inclusion for the Poor in Jordan

nomic development of poor women by providing them access to an important
economic asset.

Conclusion
Literature on the impact of justice sector services in the promotion of equity
and inclusion is minimal. Instead, analytical work has focused primarily on
economic impacts without necessarily drawing on links to improved equity
and inclusion. Anecdotally, the links seem strong. Equality is a constitutional
right in Jordan, and the justice sector plays a role in ensuring that this right
can be exercised by vulnerable groups most likely to be faced with inequality,
including the poor and women. Improving service delivery to the poor will
help level the playing ﬁeld in the justice sector, which is often tilted in favor
of those with more ﬁnancial resources. If the poor have greater recourse to
the justice sector, they will have increased ability to hold public sector entities
accountable for nondelivery of services and nonenforcement of rights, which
can translate into greater inclusion.
The government of Jordan’s approach to improving delivery of justice
sector services to the poor has thus far demonstrated mixed results. Justice
sector services are underutilized by the intended beneﬁciaries for a myriad of
reasons related to the lack of comprehensive policy, institutional weaknesses,
and legislative gaps. Targeting of legal aid services, in particular, is not con-
sistent with the priorities of the poor. Targeting of court deferment services
in civil cases is more accurate in terms of addressing an obstacle faced by the
poor in accessing courts, but lack of awareness and burdensome procedures
to prove eligibility leave the majority of the targeted beneﬁciaries outside the
scope of these services. Special services related to personal status are well tar-
geted to the priority needs of the poor, but because the services have only re-
cently been introduced, it remains to be seen how eﬀective they are in practice.
The Justice Sector Household Survey and the analysis of the JCLA case-
load provide three key conclusions in terms of gaps in targeting and imple-
menting services in Jordan:
• Poor persons are more aﬀected by legal disputes, but are less able to access
services provided by courts and lawyers, than those with more resources.
• Poor persons are primarily aﬀected by a diﬀerent set of issues than per-
sons with more resources—poorer persons are disproportionately aﬀected
by personal-status cases.
• State-sponsored services that focus on criminal issues and court proceed-
ings are not well aligned with the needs of poorer persons, and awareness
of services among targeted beneﬁciaries remains weak.
Other sources of data can be developed, including the automated case
management system of the Ministry of Justice and the Public Sector Com-
plaints Hotline of the Ministry of Public Sector Development, as well as the
caseloads of the Ombudsman Bureau, the Anticorruption Commission, and
262 The World Bank Legal Review

the National Aid Fund. Together, these data could serve as the basis for data-
informed reforms to services.
At present, it is diﬃcult to measure the eﬀect of justice sector services on
equity and inclusion. Thus, determining the impact of services on the promo-
tion of equity and inclusion of the poor, perhaps complementing a system for
measuring impact on poverty, is an important next step for the government
of Jordan. Such an assessment will aid in the regular monitoring and evalu-
ation of the quality and reach of existing services, which will guide reforms
of existing services to ensure more accurate targeting to poor beneﬁciaries, in
particular in regard to legal aid services. It will also, in combination with data
on the demand side of services within poor communities, inform the develop-
ment of new services aimed at addressing the priorities of the poor within the
justice sector. And it can aid in ﬁlling a data gap in linking the justice sector
with improved equity and inclusion outcomes for the poor.
Serving the Justice Needs of the People
Adopting an Access to Justice Approach
in Somalia’s Rule of Law Reform

NICHOLAS JOSEPH

Access to justice has gained predominance in rule of law reform eﬀorts in
postconﬂict societies and countries transitioning from authoritarian to demo-
cratic rule. Since Western nations began to engage in major rule of law in-
terventions, scholars and practitioners have focused their eﬀorts on under-
standing and implementing the most appropriate ways to make the law serve
the needs of the people, to enable the people to enforce and uphold their hu-
man rights, and to ensure that the law advances people’s economic and social
development.
Since the adoption of the Provisional Constitution on August 1, 2012, So-
malia has embarked on its own rule of law reform process. Having learned
from the lessons of previous rule of law reform eﬀorts, as well as more nu-
anced and innovative approaches to justice development and reform, the cur-
rent Somali government and justice institutions can implement rule of law
reforms that contribute directly to the empowerment and economic develop-
ment of the people of Somalia.
This chapter maps the history of access to justice theory from early inter-
ventions in the la er half of the 20th century to current theories and practice
aimed at furthering people’s access to their legal systems. It then traces the
legal, social, and political context of Somalia from the beginnings of postco-
lonialism to the present. In doing so, it illustrates how justice has interacted
with the ordinary citizen in Somalia, presenting evidence that the law has
extensively failed to serve Somalis’ needs throughout history. Based on this
examination of previous rule of law reform in Somalia, the ﬁnal section of
this chapter draws on lessons learned from innovative practices of rule of law
reform in recent years and proposes ways in which decision makers can eﬀec-
tively inﬂuence the trajectory of Somalia’s law reform, to ensure that people
are aware that they can avail their rights and know how to do so; and to en-
sure that there are adequate channels for citizens to seek justice and ﬁnd rem-
edies for any wrongs they have suﬀered.

Any statements of fact, opinion, or analysis expressed herein are entirely those of the author
and are not a ributable to the International Development Law Organization. The author
would like to thank Ilary Ranalli for her valuable thoughts and comments on this chapter.

263
264 The World Bank Legal Review

Access to Justice and Rule of Law Reform
It can be asserted that, regardless of the methodology of law reform, all eﬀorts
led by international interventions have been for a single purpose: “a commit-
ment to increasing access to legal institutions and the quality of ‘justice’ deliv-
ered by those institutions.”1 Whether through traditional rule of law eﬀorts,
which center on the capacity development of lawyers and judges, or the more
innovative approaches that emphasize the empowerment of the people to bet-
ter their lives through the law, all eﬀorts converge on the single aim to enable
the “ability of people to seek and obtain a remedy through formal or informal
institutions of justice, and in conformity with human rights standards.”2
The best way to analyze the evolving methods of ensuring access to justice
is to understand the context in which individual citizens struggle to gain ac-
cess to justice in the formal justice systems. Wojkowska3 and Barendrecht et
al.4 list several problems that limit access to formal justice systems: nonexist-
ing procedures for the protection of speciﬁc rights, limited resources available
to the claimants to access expensive services, mistrust of the law, intimidation
by authorities and resulting fear among claimants, language diﬃculties, lack
of understanding of formal procedures and court atmosphere, unequal power
relations, and lengthy periods for handling cases. In addition, formal systems
may lack legitimacy if they have previously created conﬂict and/or been per-
ceived as corrupt. Most people in poor countries do not seek justice from for-
mal courts because of these barriers.5
With the above contextual understanding, this section will next look at
the evolution of rule of law reform, from the earliest tradition of reform in the
1970s, which focused on institutional strengthening of the state justice infra-
structure, to the emergence of legal empowerment theories, which place the
impoverished directly at the center of rule of law reform considerations.

Early Rule of Law Reform Projects
In the earliest rule of law reform projects, the emphasis was on improving
the quality and competency of the judiciary and the legal profession through
training for judges and improved legal education for lawyers. The theory be-
hind supporting this “top-down” approach to rule of law reform was pre-

1 Byron M. Sheldrick, Access to Justice and Legal Empowerment as Vehicles of Poverty Alleviation:
Governance Challenges to Linking Legal Structures to Social Change 2 (Legal Working Paper Se-
ries on Leg. Empowerment for Sustainable Dev., Ctr. for Intl. Sustainable Dev. L., 2012).
2 Programming for Justice: Access for All—A Practitioner’s Guide to a Human Rights–Based Approach
to Access to Justice 5 (UNDP, Bangkok 2005).
3 Ewa Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (UNDP, Oslo
Governance Ctr. 2006).
4 Maurits Barendrecht, José Mulder, & Ivo Giesen, How to Measure the Price and Quality of
Access to Justice? (working paper, 2006), available at h p://papers.ssrn.com/sol3/papers
.cfm?abstract_id=949209.
5 Dan Banik, Rights, Legal Empowerment and Poverty: An Overview of the Issues, in Rights and
Legal Empowerment in Eradicating Poverty 15 (Dan Banik ed., Ashgate 2008).
Serving the Justice Needs of the People 265

mised on the belief that with the establishment of a functioning, competent,
and independent judiciary and legal profession, individual citizens within the
country would have an incentive to use formal channels of justice to avail
their rights. In socioeconomic development thinking, the use of the courts and
the formal legal system leads to eﬃcient and eﬀective business and thus pro-
motes business within the country and increases the appetite for international
investors to invest and operate within the jurisdiction. Rule of law theorists
believed that, in turn, a trickle-down eﬀect would bring economic prosperity
to others within the country, even though they were not necessarily direct
users of the reformed justice system. The problems of this theory, however,
were evident after the ﬁrst wave of large-scale law reform eﬀorts concluded.
Building eﬀective, eﬃcient, and uncorrupt legal and judicial systems from the
ground up―or worse, trying to challenge the entrenched practices and pro-
cedures of a largely inept judicial corps―was a task more diﬃcult than origi-
nally fathomed. Although millions of dollars were poured into legal educa-
tion and training programs, judiciaries are still seen as lacking independence
and largely biased.6
It could be said that the initial eﬀorts of law reform did beneﬁt some―
mainly the elite. However, although measures of GDP or other indicators may
have shown a positive correlation in rule of law reform eﬀorts, the multiplier
eﬀect originally envisioned, whereby ordinary citizens would see their own
economic and social development through reformed judicial infrastructure,
was largely unfounded. For many people in these countries, the courts con-
tinue to be viewed with distrust and suspicion, and therefore it is fair to con-
clude that these traditional interventions have not raised the developmental
well-being of the many they were intended to serve.7
As the global neoliberal agenda grew throughout the 1980s, and with the
collapse of the Soviet Union beginning at the end of that decade, rule of law
reform eﬀorts moved toward trade liberalization and developing domestic
commercial laws capable of bringing a country’s economic, and therefore le-
gal, regime into line with the global economic expansion under way in much
of the Western world. The successes of such eﬀorts were limited and, again,
served the interests of the economic elite. In addition, a global shift to discon-
tent of neoliberal policies meant that elected oﬃcials and development agen-
cies were increasingly under a ack to change their approaches to the treat-
ment of developing countries in the globalized world.8

The Emergence of the Legal Empowerment Paradigm
A new thinking was needed for various governments’ approaches to interna-
tional cooperation in the ﬁeld of rule of law reform. The Commission on Legal

6 Sheldrick, supra note 1, at 3.
7 Brian Tamanaha, The Primacy of Society and the Failures of Law and Development (Leg. Stud.
Research Paper No. 09-0172, St. John’s U. School of Law, July 2009).
8 Sheldrick, supra note 1, at 3.
266 The World Bank Legal Review

Empowerment of the Poor (CLEP) was launched in 2005, comprising mem-
bers from Denmark, Finland, Iceland, Norway, Sweden, Canada, Egypt, Gua-
temala, Tanzania, and the United Kingdom.9 Headed by economist Hernando
de Soto and former U.S. secretary of state Madeleine Albright, the commission
emphasized the importance of various elements vital to successful law reform
for economic development. Property rights, access to justice and the rule of
law, and business and labor rights were high on the agenda. More important
for the discussion in this chapter, the commission paid due regard to bo om-
up and pro-poor approaches. In addition, the commission recognized that the
informal and customary justice mechanisms present within countries could
act as enablers for access to justice for ordinary citizens.10 Legal empower-
ment was aptly deﬁned by the commission as a process of “systemic change
through which the poor and excluded become able to use the law, the legal
system, and legal services to protect and advance their rights and interests as
citizens and economic actors.”11
An interesting point to note regarding legal empowerment theory is that
it focuses on the “legal,” that is, the codiﬁcation and promotion of individual
property rights, business rights, and employment rights. However, in addi-
tion to the need to ensure the reform of laws adequate to protect the funda-
mental rights of individuals and their economic interests, the concept of legal
empowerment also emphasizes the importance of the “nonlegal.” This is in
the sense that the nonlegal recognizes “related activities”12 that complement
legal services but that in themselves are not inherently law oriented. These
related activities include community organizing, group formation, political
mobilization, and use of the media. Legal services can, in and of themselves,
constitute and produce legal empowerment, although the greater eﬃciency
of the use of the law is often improved when tied with these related activities.

Historical Perspectives of Justice in Somalia
In proposing solutions to the appropriate rule of law reform program that
Somali decision makers and international donors might consider, it is neces-
sary to look at the history of the legal, political, and social context of Somalia.
In keeping with the legal empowerment theory, it is necessary to understand
how power dynamics aﬀect legal reform eﬀorts and give some insight into
the success of any proposed intervention and the obstacles that a rule of law

9 Making the Law Work for Everyone, vol. 1: Report of the Commission on Legal Empowerment of the
Poor (Commn. on Leg. Empowerment of the Poor, UNDP 2008) (hereinafter, CLEP Report).
10 Id., at 21.
11 Banik, supra note 5, at 12; CLEP Report, supra note 9, at 3.
12 Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative 26 (Carnegie
Endowment Working Paper No. 41, R. of L. Ser., Democracy and R. of L. Project 3, Carnegie
Endowment for Intl. Peace 2002).
Serving the Justice Needs of the People 267

intervention may face. As Michael Anderson states: “Constitutionalism and
the rule of law depend upon sustained political support.”13
This section highlights how the political, social, and legal context of So-
malia has enhanced or hindered people’s access to justice. Such a sociopoliti-
cal background will provide further insight into how to incorporate various
access to justice and legal empowerment approaches into proposed solutions
to Somalia’s rule of law reform eﬀorts over the coming years. This section
addresses three issues that, it can be argued,14 have hindered access to justice
up to the present. The ﬁrst issue regards how the plurality of legal systems―
civil and common statutory law, customary xeer law, and sharia law―have
brought about a tangle of legal systems oﬀering varying degrees of access
while simultaneously creating winners and losers in terms of providing ac-
cess; among the la er: women, minority groups, and the impoverished. The
second issue is Somalia’s fallout with colonialism and its struggle to imple-
ment eﬀective law reform eﬀorts. The third issue is Somalia’s period of dicta-
torship under the Siad Barre regime, the regime’s approach to the rule of law,
and the authoritarian and autocratic regime’s role in depleting the culture of
justice and the rule of law among elites and ordinary citizens in Somalia.

Background of Somalia
Somalia has lacked an eﬀective national government since 1991, when the gov-
ernment collapsed following the ousting of President Mohamed Siad Barre.
Over the past two decades, various armed groups have vied for political dom-
inance in South Central Somalia, the most recent of which is Al Shabab, an Al
Qaeda‒linked armed group that has opposed the federal government and its
eﬀorts to put in place a new provisional constitution for Somalia. However,
the situation in Somalia has been improving from both a political and a secu-
rity perspective. A relatively peaceful political transition took place alongside
the adoption, on August 1, 2012, of the Provisional Constitution of Somalia,
the ﬁrst oﬃcial new national constitution in 52 years, which currently awaits
a popular referendum. Furthermore, Mogadishu is now under the direct con-
trol of the Somali government, with assistance from African Union troops.
Major cities in the south of Somalia, including Kismayo, have been recovered
from Al Shabab control.
Justice and security are also necessary for Somalia’s economic and social
development, and vital for the protection of human rights. The current insti-
tutions and organizations that make up the security and justice sectors (such
as the police, armed forces, and judiciary) are often unable to provide people
with adequate services. In the past two decades, donor investment in the area

13 Michael R. Anderson, Access to Justice and Legal Process: Making Legal Institutions Responsive to
Poor People in LDCs 12 (IDS Working Paper No. 178, Inst. of Dev. Stud. 2003).
14 Much of the primary research to ﬁnd this evidence was undertaken by the Centre for Hu-
manitarian Dialogue in partnership with the UNDP Rule of Law and Security (ROLS) project
and is presented in a report: Andre Le Sage, Stateless Justice in Somalia: Formal and Informal
Rule of Law Initiatives (Ctr. for Humanitarian Dialogue 2005).
268 The World Bank Legal Review

of justice has been minimal, which has led to a paucity of qualiﬁed justice
professionals in the three zones of Somalia: Somaliland, Puntland, and South
Central Somalia. The la er zone receives less investment than the other two
areas, which currently enjoy relative peace.

The Plurality of Legal Systems

Xeer
Given the total collapse of the state in the early 1990s, it is perhaps not surpris-
ing that traditional forms of dispute resolution have ﬂourished and are now the
primary form of justice in Somalia. Somali customary law, xeer, covers issues
ranging from clan relations to personal injuries, including the spectrum from
death to minor injuries, penalties for which are paid in livestock. It also covers
issues relating broadly to property ma ers, family law, and territory. The sys-
tem is not simple or arbitrary. Community elders, charged with adjudicating to
reach conclusions over any given case, use procedures and rules of precedent.
Xeer has been highly successful, for example, in se ling land disputes and
returning property to persons displaced during Somalia’s wars. Nonetheless,
the system has ﬂaws, including potentially unfair or discriminatory results,
in which clans are judged as unequal in standing, and the rejection of clan
laws by returning expatriates, among other issues. Perhaps most problematic
is the treatment of women under xeer. Forced marriage is one of the issues
facing women, including the possibility of forcing a rape victim to marry her
a acker. Women are also forbidden by xeer to inherit certain capital assets.15

Sharia
Sharia has historically been applied in Somalia by the civil courts of ﬁrst in-
stance, particularly regarding issues of family law and inheritance. With the
collapse of the state, however, sharia courts began to appear throughout the
country and began to focus on both criminal and civil cases, including the
apprehension and detention of criminals. These courts also dealt extensively
with commercial disputes. The use of sharia law has a number of beneﬁts,
most notably the fact that its jurisdiction is unquestioned by all Somalis. How-
ever, most of the judges in the sharia courts lack formal training, and religious
leaders within clans have tended not to support them.16

Statute-Based Justice System
The legislatively mandated structure of the judiciary in Somalia is well de-
ﬁned on paper.17At the apex of the formal judiciary is a Judicial Service Coun-

15 Id., at 32‒38.
16 Id., at 38‒47.
17 Two enactments govern the details of the Somali formal judiciary: Law No. 3, June 12,
1962, and Law No. 34, Aug. 11, 1974. Available at h p://www.so.undp.org/docs/Somali%20
%20Judiciary%20Organization%20Law%20No%203%20of%2012%20June%201962.pdf.
Serving the Justice Needs of the People 269

cil, which supervises the entire judiciary. Legislation to date has established
a Supreme Court, constituted as the Constitutional Court or High Court of
Justice.18 Beneath the Supreme Court, there is a Court of Appeal,19 and beneath
that, two courts of ﬁrst instance, the District Court20 and the Regional Court.21
The district courts are further divided into criminal (for minor oﬀenses)22 and
civil divisions;23 and the civil divisions are further divided into family and
ordinary sections.24 The regional courts are also divided into civil and criminal
sections, with the civil section further subdivided into ordinary, administra-
tive, and labor sections. 25
The current statutory justice system, however, lacks qualiﬁed legal profes-
sionals. Courts are largely based solely in regional capitals, leaving the rural
poor li le access to these systems due to economic and logistical constraints.
Judges and lawyers lack suﬃcient knowledge of existing laws. The weakness
of the legislatures across the regions of Somalia indicates that there are not
enough laws enacted to deal with changing social conditions. Physical infra-
structure and resources are dilapidated, such that even if there were lawyers
and judges suﬃciently trained to present and adjudicate on a case, the lack of
resources could cause severe delays for the claimants or keep the case from
being concluded.26

Depleted Culture of Justice
Owing to Somalia’s history of colonialism under British and Italian rule and
the law reform initiated by Siad Barre in the la er years of his administration,
Somalia and Somali people are faced with a number of laws and legal systems
that have li le resonance with their day-to-day lives, their historical and cul-
tural background, and their entrenched beliefs and values.
At independence in 1960, when British Somaliland and Italian Somalia
were united to form the Somali Republic, four distinct legal traditions―Brit-
ish Common Law, Italian (Continental) law, Islamic sharia, and Somali cus-
tomary law―were in simultaneous operation.27 To simplify this amalgam of

Much of this section is based on Tahlil Haji Ahmed, Follow-Up Assessment of TFG Judiciary in
Mogadishu, secs. 1.6.1‒1.6.4 (UNDP, Somalia 2011).
18 Law No. 3, June 12, 1962, arts. 5‒6.
19 Id., at art. 4.
20 Id., at art. 2.
21 Id., at art. 3.
22 Id., at art. 2(4).
23 Id., at art. 2(3).
24 Id., at art. 2(3), which details the District Court’s jurisdiction over sharia and customary law.
25 Id., at art. 3(3)(a), which confers jurisdiction to the Regional Court concerning all ma ers not
conferred to district courts.
26 Le Sage, supra note 14, at 32, and evidenced in the Somalia Justice Sector Action Plan,
2013‒2015, on ﬁle with the author.
27 Id., at 18.
270 The World Bank Legal Review

laws, the Somali government established a Consultative Commi ee for In-
tegration of the Legal Systems to recommend how to create a uniﬁed justice
system. The Law on the Organization of the Judiciary was the outcome of the
deliberations, and in 1962 the Somali Parliament enacted the law, with civil
and penal codes based on the Italian legal system, and criminal procedure
based on the Indian Code.28 Despite these reforms, or perhaps due to the lack
of clarity on jurisdictional issues that this very law was supposed to provide,
judges and lawyers continued to apply laws in accordance with their region’s
legal history.
Shortly after the military coup initiated by General Mohamed Siad Barre,
the regime sought swiftly to reform the Somali legal system to reﬂect the re-
gime’s political alignment with the Soviet Union. The regime made a series of
changes that largely eliminated the legal provisions or jurisprudence of the
sharia and xeer legal systems. In addition, the regime signiﬁcantly modiﬁed
existing Italian codes to suit the requirements of authoritarian rule. Law No. 1
(October 21, 1969) prescribed authority for all judicial functions, as well as
absolute executive and legislative powers, to the regime. In addition to this,
Barre operated beyond the rule of law and issued decrees beyond the conﬁnes
of any legal mandate. The corruption and repressive practices of the dictator-
ship left negative public perceptions of the formal legal and judicial systems
that persist to this day.29

Going Forward: Somalia’s Rule of Law Reform
Applying contemporary thinking to rule of law reform on the global scale, this
section proposes access to justice approaches and innovative legal empower-
ment processes for Somalia. Noting Stephen Golub’s theory of the “nexus”30
approach that legal empowerment adopts, this section draws on opportuni-
ties in which Somalia can look beyond the traditional rule of law approaches
to more innovative solutions that put the ordinary citizen―the poor, the dis-
advantaged, or the minority individual―at the center of such rule of law re-
form eﬀorts.
As noted in the original deﬁnition of access to justice, the “ability of peo-
ple to seek and obtain a remedy through formal or informal institutions of
justice, and in conformity with human rights standards,”31 the options pro-
posed highlight the use of mechanisms that directly target enhancing the abil-
ity of individuals to ﬁnd a remedy for their grievances. This section ﬁrst looks
at contemporary models used in the formal justice system. The International
Development Law Organization (IDLO), under its land-titling initiative, ex-
perimented with a number of models to support diﬀerent communities’ ef-

28 Id.
29 Id., at 20.
30 Golub, supra note 12, at 27.
31 UNDP, supra note 2.
Serving the Justice Needs of the People 271

forts in legally titling their land. Of importance for the discussion here was the
eﬀective use of paralegals in reaching this goal. Second, a ention will be given
to the use of civil society as an agent of change, to be able to build the rule of
law among communities and to bring about a culture of justice. Third, the re-
port of a recent IDLO study on the involvement of customary and traditional
justice in bringing about improved access to justice for rural communities will
be assessed. Law reform is also a vital component of improving individuals’
access to justice. This section illustrates how the review of the Somalia Provi-
sional Constitution over the next term of Parliament could provide an oppor-
tunity to strengthen the law-making process and to ensure that constitutional
and legislative reform and implementation comply with the principles of ac-
cess to justice, primarily that individuals be adequately equipped and have
the incentive to seek remedy for wrongs commi ed against them.

Paralegals
Paralegals signify the opportunity to provide innovative bo om-up ap-
proaches to rule of law reform. Paralegals are not trained lawyers, but one of
their strengths is that they are often drawn from the very community they are
intended to serve. Following their recruitment, they receive specialized legal
training and they are then charged to return to their communities to provide
civic awareness and education on various rule of law issues, legal advice, and
legal assistance to those in need. The beneﬁts of using this approach, as op-
posed to the traditional top-down development of lawyers and the traditional
legal profession, are severalfold, as illustrated by the work of IDLO and the
NGO Namati, discussed below.
In response to the injustices associated with national governments of de-
veloping countries granting vast amounts of land to domestic and interna-
tional investors, recent moves have been made in various countries to enable
rural communities to legally title their land and protect it from being sold. In
2009, IDLO and Namati, an organization with its mandate focused speciﬁcally
on legal empowerment, supported the implementation in these nations of the
laws passed to enable rural communities to register their lands as a single le-
gal entity and act as decentralized land administration and management bod-
ies.32 The Community Land Titling Initiative, which launched a randomized,
controlled trial in Liberia, Uganda, and Mozambique to support the commu-
nities’ eﬀorts, produced a number of lessons learned that can be applied to the
current context of Somalia’s rule of law reform.
The experimental trials adopted for the initiative tested three models
for facilitating community land protection: a full legal services approach, in
which communities had direct assistance from lawyers; a pared-down rights-
education approach, where information was provided and li le else; and
a middle-path, community-paralegal approach, in which a community

32 Executive Summary, in Protecting Community Lands and Resources: Evidence from Liberia, Mo-
zambique and Uganda 3 (Rachel Knight et al. eds., Namati & Intl. Dev. L. Org. 2012).
272 The World Bank Legal Review

representative was trained and supported in driving the process forward.
What proved interesting in the ﬁndings of this experiment was that commu-
nities receiving full legal services tended to rely on the outside professionals
to be able to undertake the land registration process, while communities with
paralegals tended to take greater ownership over the process. Additionally,
the paralegals’ inside knowledge of community issues enabled them to be er
assist community members in successfully completing the land registration
process and securing rights over their communal land. In contrast, state law-
yers’ lack of understanding of local dynamics largely resulted in their add-
ing li le value to the process.33 The evidence, although directly linked to land
registration processes, serves as a valuable tool to scale up and transpose onto
other areas of rule of law reform.
Considering the deep distrust of the traditional formal justice system,
mentioned earlier in this chapter, the positive eﬀects of using paralegals to
serve the justice needs of rural communities, the socially and culturally dis-
advantaged, and the poor could be put to good use in Somalia. The Somali
people have long been at the hands of top-down, or externally driven, legal
regimes and have often been at the mostly disadvantaged, receiving end of
legal processes. The use of paralegals in law reform eﬀorts in Somalia presents
an innovative opportunity to take ownership of legal reform processes. In ad-
dition, the fact that paralegals are drawn from the local community―unlike
lawyers, who are sent from regional capitals―to provide legal representation
indicates that paralegals will be be er equipped to navigate through localized
political and social obstacles to reach the desired legal outcome.

Civil Society
It has been noted that civil society plays a central role for legal empowerment
in rule of law reform processes.34 In practice, civil society organizations under-
take the most detailed research in acute and nuanced areas of law and justice
and are thus equipped with the knowledge and capacity to devise a number
of innovative reform and development programs. This is in addition to the
traditional roles of awareness and advocacy played under past and present
rule of law programs, such as the ongoing initiatives under the USAID Gover-
nance and Democracy program.35 Civil society should act as the driving wheel
of advocating for appropriate and eﬀective justice reform because it is placed
more centrally to those reform processes, being the implementer of justice re-
form itself.
Although a large-scale civil society community in Somalia is a recent phe-
nomenon, there have been a number of successful projects carried out by the

33 Main Report, in Protecting Community Lands and Resources: Evidence from Liberia, Mozambique
and Uganda 10 (Rachel Knight et al. eds., Namati & Intl. Dev. L. Org. 2012).
34 Golub, supra note 12, at 28.
35 See, generally, h p://www.usaid.gov/democracy/index.html.
Serving the Justice Needs of the People 273

NGO community in Somalia.36 If empowered to act as the representative of
community interests in advocating for change in government, civil society
could become strong enough to lead the agenda in analyzing, researching,
and devising rule of law reform projects within Somalia. In Somalia’s upcom-
ing justice reform eﬀorts, actors should pay due regard to allocating suﬃcient
time and ﬁnancial investment to the development of civil society.

Customary and Traditional Justice
As noted previously in this chapter, traditional justice has become the pre-
dominant justice mechanism for individuals to address their interests and
grievances in Somalia. The xeer system is a developed system, is cost-eﬀective,
and is the most logistically accessible form of justice for the vast majority of So-
malis. Other reform eﬀorts may have placed minimal emphasis on traditional
systems of justice, yet these few eﬀorts rarely if ever succeeded in displacing
traditional dispute resolution mechanisms for more formal, statutory systems
in serving the justice needs of the majority population.37 As noted in a Depart-
ment for International Development report, “in many developing countries,
traditional or customary legal systems account for 80% of total cases.”38
There have been some engagements with traditional justice systems in So-
malia, most notably by the Danish Refugee Council (DRC) in 2003. The DRC
was engaged by elders of a rural community in the Togdheer region in So-
maliland seeking support in their a empts to gain insight into how xeer might
be revised to align more closely with both sharia and human rights standards.
A series of dialogues was initiated with 100 elders from ﬁve clans of the Togd-
heer region, in which elders were asked to identify pressing issues and dis-
putes and to come to a uniﬁed and workable agreement between the clans.
The substantive issues raised in the dialogues included the protection of the
accused by community elders; ensuring the statutory prosecution of violent
crimes; fair treatment of women, orphans, and minority groups; ensuring that
victims of gender-based violence received adequate redress; problems associ-
ated with diya, or “blood-money,” payment and collective punishment; and
property rights. The decisions regarding the issues raised were subsequently
formulated into an agreement between the elders, or the “National Declara-
tion,” as it was called, which was disseminated by the members throughout
their communities.

36 Such projects are detailed in Le Sage, supra note 14, at 51‒53.
37 Afghanistan neither incorporated nor prohibited customary law in its 2004 national con-
stitution. For a critique of formal rule of law reform, see Kirsti Samuels, Rule of Law Reform
in Post-conﬂict Countries: Operational Initiatives and Lessons Learnt (Soc. Dev. Papers: Conﬂict
Prevention & Reconstruction, No. 37, World Bank 2006); and Laurel Miller & Robert Pertito,
Establishing the Rule of Law in Afghanistan (USIP Special Report, United States Institute of
Peace Mar. 2004).
38 Department for International Development, Safety, Security and Accessible Justice: PuĴing
Policy into Practice 58 (July 2002).
274 The World Bank Legal Review

The outcomes of the initiative undertaken were assessed by IDLO in 2011.39
It was found that removing the traditional protection of the accused was re-
solved as the elders’ views of the practice were challenged and perceptions
of how to deal with the accused were improved. IDLO reported that elders
understood that serious criminal oﬀenses should be referred to the statutory
courts. However, achieving the fair treatment of women and resolving gender-
based violence through statutory court systems were less successful. Another
important lesson learned was that the elders and the statutory judiciary began
to work together to assist in implementing each other’s respective tasks and re-
sponding together to the challenges faced by the justice system in responding
to the people’s needs. Additionally, community elders themselves were placed
at the center of any reform or harmonization of customary law with the statu-
tory system and international human rights standards. As the linking point
between the formal justice system and the customary system, through which
most people gain access to justice, the elders were made agents of change in
the process and took ownership of the change rather than opposing another
form of top-down imposition of reform of the traditional justice system.
From the evidence gained in IDLO’s report on engaging with traditional
justice systems in Somalia, it is evident that undertaking bo om-up approaches
to reforming justice systems serves the needs of the Somali people in a more
eﬀective way. Interveners in the Somali rule of law reform process will be able
to see how this approach of engaging with nonstatutory forms of justice is an
eﬀective tool in serving the access to justice agenda in Somalia while ensuring
that the state has suﬃcient monitoring and intervention capacity when the
traditional justice mechanism may serve as an injustice to select individuals.

Constitutional and Legislative Reform
As the constitutional review process continues over the ﬁrst term of Parlia-
ment, and perhaps in future terms,40 and as the legislative implementation
of a number of provisions in the new constitution takes place, an access to
justice approach can be adopted with regard to future decision making by
the bodies charged with carrying out these functions. Unlike the constitutions
that were built in Europe or the United States, whereby the articles are largely
a list of rules and principles for legislators to abide by when enacting new
laws, modern constitutions, designed after the fall of authoritarian regimes
or after transitions from conﬂict to peace, tend to provide more detailed pre-
scriptions for the conduct of social aﬀairs under the law.41 In keeping with this
modern approach to constitution making, the Somali constitution, through

39 Maria Vargas Simojoki, Unlikely Allies: Working with Traditional Leaders to Reform Customary
Law in Somalia (IDLO Working Paper Series: Enhancing Leg. Empowerment: Working with
Customary Justice Systems: Post-conﬂict & Fragile States, Intl. Dev. L. Org. 2011).
40 The constitutional review process is detailed in ch. 15 of the Provisional Constitution.
41 For example, the U.S. constitution lists only seven articles, while the South African constitu-
tion lists 243 articles.
Serving the Justice Needs of the People 275

subsequent iterations over the coming years, could ensure that any legislation
implementing its provisions will comply with the theories of access to justice.
At the core of the legislators’ thinking should be the consideration of how
such a law can serve the needs of the individual seeking justice. Referring
back to the original deﬁnition of access to justice,42 the constitution could pre-
scribe checks to ensure that laws provide incentives for individuals to access
the justice system. There should be real remedies for claimants addressing the
courts. For example, criminal laws that emphasize sanctions for the perpetra-
tor but oﬀer no remedy for the victim will result in apathy on the part of the
victim with regard to accessing a court. Legislators must also consider the
priority laws required to be put in place. The Somalia Justice Sector Action
Plan, presented at the Somalia Conference in London on May 7, 2013, em-
phasizes the necessity to implement priority laws that will serve the needs of
access to justice. The plan looks at the reform of criminal and civil codes, legal
aid laws, and police and prison laws, among other instruments. However, it
must be emphasized that policy making and legislating do not prioritize haste
over comprehensiveness. Reforms of civil codes should be citizen focused and
enabled for the poor to use the law to serve their development needs, and
should incorporate the speciﬁc justice needs of women, socially and culturally
marginalized groups, and minority groups.

Conclusion
Somalia’s rule of law reform over the coming years will be an ambitious and
challenging experience. The country’s long-standing history of conﬂict and its
experience of top-down, authoritarian, and abusive legal regimes have fueled
a lack of trust in statutory justice systems. Furthermore, individuals lack the
awareness or ability to avail their rights or seek remedies for wrongs that they
have suﬀered.
This chapter addresses the newly emerging ﬁelds of law reform, which
are designed to put the individual citizen―including the poor and margin-
alized―at the center of rule of law reform eﬀorts, and oﬀers opportunities
that Somali reformers can adopt and incorporate into future reform programs.
The bo om-up approaches detailed in this chapter, as well as the evidence
displayed in several successful rule of law reform eﬀorts within Somalia and
abroad, can be adopted to increase individuals’ belief, trust, and ability to ac-
cess formal and informal legal systems to ﬁnd solutions to their justice needs,
uphold their individual rights and freedoms, and be er their social and eco-
nomic situations.

42 UNDP, supra note 2.
The International Development Law Organization has copyright over this chapter. Not-
withstanding, the World Bank has permission to include this chapter in the book and
make it available under the CC BY license. See the copyright page for more information.
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PART III

ENVIRONMENTAL AND
NATURAL RESOURCES LAW
This page intentionally left blank
The Challenges of Reforming the Urban
Legal Framework
A Critical Assessment of Brazil’s City Statute
Ten Years Later

EDESIO FERNANDES

Legal scholars and urban researchers are increasingly acknowledging that the
dominant pa ern of combined sociospatial segregation and informality that
marks urban development globally has resulted from the exclusionary nature
of the urban legal systems prevailing in most developing and transitional
countries. Indeed, the legal order has been one of the main factors determin-
ing urban informality.1
In this context, policy makers, urban managers, and social movements
commi ed to the urban reform agenda have been asking a fundamental ques-
tion: What does it take to turn national and local urban legal systems into ef-
fective factors of sociospatial inclusion? A growing international sociopolitical
movement has vigorously argued that the promotion of legal reform is nec-
essary to support any signiﬁcant a empts at urban reform. As a result, new
urban laws governing land rights and management, territorial organization,
planning, and housing have been enacted in several countries and cities in
recent years, and a serious investment has been made by several nongovern-
mental and governmental institutions in formulating inclusive legal systems
in rapidly urbanizing countries.2
But what, exactly, can be expected of these new urban laws? What is
required for them to be fully enforced and socially eﬀective? What are the
nature, possibilities, and constraints of progressive urban laws vis-à-vis the
broader sociopolitical process?
This chapter discusses such general questions through a critical assess-
ment of Brazil’s national urban policy law—the 2001 City Statute—which
is regarded as a groundbreaking eﬀort to conceive a regulatory framework
conducive to providing adequate legal support to governmental and social

1 See, among other sources, the general analyses and national case studies collected in Edesio
Fernandes & Ann Varley eds., Illegal Cities: Law and Urban Change in Developing Countries
(Zed Books 1998) (hereinafter, Illegal Cities).
2 Several of the national laws recently enacted in Latin American countries have been dis-
cussed in three special issues of Revista Fórum de Direito Urbano e Ambiental, coedited by
Edesio Fernandes & Betânia Alfonsin. See Revista Fórum de Direito Urbano e Ambiental,
9(54) (2011); 10(57) (2011); and 11(61) (2012) (hereinafter, Revista Fórum).

279
280 The World Bank Legal Review

a empts to promote urban reform. The City Statute was approved following
12 years of intense discussion and ﬁerce disputes within and outside the Na-
tional Congress. Since its adoption, it has been acclaimed internationally, and
in 2006, Brazil won UN-HABITAT’s Scroll of Honour for having approved it.
Envied by policy makers and public administrators in several countries, the
ambitious City Statute has been proposed by the Cities Alliance as a paradigm
to be considered internationally.
However, more than 10 years since its approval, there are signiﬁcant de-
bates about its eﬃcacy. This chapter provides a critical assessment of the con-
ditions of its enforcement as the basis for a more general discussion on the
growing expectations around newly approved urban laws in other countries.

A New Urban Land Governance Framework
The 2001 federal law was largely the result of a nationwide process of social
mobilization. The City Statute regulated the urban policy introduced by the
1988 federal constitution, which had itself been preceded by an unparalleled
process of sociopolitical mobilization, especially through the formulation of
the Popular Amendment on Urban Reform, the document produced as a re-
sult of a national popular movement that deﬁned the main elements of the
debate on urban reform to be considered by the Constituent Assembly.3
Both the constitutional chapter and the City Statute are discussed in detail
elsewhere;4 for the purposes of this paper, the main dimensions of the City
Statute are as follow:
• It ﬁrmly replaced the traditional legal deﬁnition of unqualiﬁed individual
property rights with the notion of the social function of property so as to
support the democratization of access to urban land and housing.
• It deﬁned the main articulated principles of land, urban, and housing pol-
icy to be observed in Brazil.
• It created several processes, mechanisms, instruments, and resources
aimed at rendering urban management viable, with emphasis placed on
capturing for the community some of the surplus value generated by state
actions that had been traditionally fully appropriated by land and prop-
erty owners.
• It proposed a largely decentralized and democratized urban governance
system in which intergovernmental institutions as well as state partner-

3 For an analysis of the law-making process, see José Roberto Bassul, City Statute: Building a
Law, in The City Statute of Brazil: A Commentary (Celso Santos Carvalho & Anaclaudia Ross-
bach eds., Cities Alliance 2010).
4 See especially Edesio Fernandes, Law and Urban Change in Brazil (Avebury 1995); Edesio Fer-
nandes, Constructing the “Right to the City” in Brazil, 16 Soc. & Leg. Stud. (2007); Edesio Fer-
nandes, Implementing the Urban Reform Agenda in Brazil: Possibilities, Challenges, and Lessons,
22 Urb. Forum (2011); Revista Fórum, supra note 2; and Edesio Fernandes & Raquel Rolnik,
Law and Urban Change in Brazil, in Illegal Cities, supra note 1.
The Challenges of Reforming the Urban Legal Framework 281

ships with the private, community, and voluntary sectors are articulated
with several forms of popular participation in the decision- and law-mak-
ing process.
• It recognized the collective rights of residents in consolidated, informal
se lements to legal security of land tenure as well as to the sustainable
regularization of their se lements.
These intertwined dimensions of the City Statute constituted a new urban
land governance framework in Brazil.
Given the highly decentralized nature of the Brazilian federative sys-
tem, the materialization of this legal framework was placed in the hands of
the municipal administrations through the formulation of Municipal Master
Plans (MMPs). Prior to the enactment of the new law, the vast majority of
municipalities did not have an adequate regulatory framework in place to
govern the processes of land use, development, preservation, construction,
and regularization. Most towns and cities also lacked basic information such
as maps, photos, and other relevant materials. Of 1,700 municipalities that had
a legal obligation to approve such MMPs to apply the City Statute, a remark-
able 1,450 had done so by 2013.
However, since the enactment of the City Statute, Brazilian cities have
undergone signiﬁcant changes. Rates of urban growth have decreased, but
they are still relatively high, especially in midsize and small cities, which has
led to the formation of new metropolitan regions—30 such regions have been
oﬃcially recognized. Economic development and the emergence of a so-called
new middle class, or precarious working class, have aggravated the long-
standing urban problems of transportation, mobility, environmental impact,
and violence. Infrastructure and energy-provision problems have increased,
and the public administration ﬁscal crisis is widespread, especially at the mu-
nicipal level.5
Above all, the long-existing land and housing crisis has escalated. The
housing deﬁcit is still enormous (between six and seven million units), and,
despite the impressive number of units already built or contracted, the My
House, My Life national housing program has not fully reached the poorest
families and has been criticized for reinforcing long-standing processes of so-
ciospatial segregation. Although the levels of land, property, rental apprecia-
tion, and, especially, speculation have broken historical records, there is an
enormous stock of vacant serviced land, abandoned or underutilized proper-
ties (calculated as 5.5 million units), and public land and property without a
social function.6

5 Detailed oﬃcial data on urban realities and processes in Brazil are regularly provided, or-
ganized, and analyzed by IBGE Cidades, available at h p://www.ibge.gov.br/cidadesat
/topwindow.htm?1, and IPEA, available at h p://www.ipea.gov.br/portal/.
6 For oﬃcial information on the housing program, see h p://www.cidades.gov.br/index.php
/minha-casa-minha-vida.
282 The World Bank Legal Review

Informal development rates are still high, with the densiﬁcation and ver-
ticalization of old se lements and the formation of new se lements, usually
in peripheral areas; development also has taken new shapes, in the form of
backyarders and informal rental transactions, for example. The proliferation
of gated communities in peripheral areas and other metropolitan municipali-
ties means that for the ﬁrst time rich and poor are competing for the same
space. Urban development in new economic frontiers—especially in the Ama-
zon—has largely taken place through informal processes, which have been
accompanied by a growing number of land disputes and socioenvironmental
conﬂicts throughout the country.
Over the past two decades, an enormous amount of public resources—
land, ﬁscal incentives, all types of credit, tax exemptions, building, and de-
velopment rights—has been given to land developers, urban promoters, and
builders, usually within the context of urban renewal or revitalization pro-
grams; rehabilitation of downtown areas or historic centers; large-scale proj-
ects; modernization of harbors, ports, and infrastructure; and global events
such as the World Cup and the Olympic Games. The number of resulting
forced evictions is staggering, not only in Rio de Janeiro and São Paulo but in
municipalities such as Belo Horizonte and Porto Alegre, which had long been
commi ed to the urban reform process. This urban reform process, which
was highly visible in the 1980s and 1990s, and was instrumental in the enact-
ment of the 2001 City Statute, seems to have lost momentum; stakeholders
have been asking, “Which cities, and for whom?” and have demanded to know
who has actually beneﬁted from the enormous transfer of public resources.
What has happened to the City Statute, then? Has it failed, as a growing
number of skeptical groups seem to believe? Rather than contributing to the
promotion of sociospatial inclusion, has it perversely contributed to the esca-
lating commodiﬁcation of Brazilian cities—and to the further peripheraliza-
tion of the urban poor—as some have argued?
More than 10 years since the City Statute was enacted, a comprehensive
and critical assessment of the urban land governance framework that it pro-
posed, and especially of the municipal initiatives aimed at implementing it—
is urgently needed. This is a moment for reﬂection, which requires reassessing
the main ideas, debates, and experiences around the enactment of the federal
law, as well as reaﬃrming the law’s historical principles and objectives. Pro-
moting a critique of the role of all involved stakeholders is fundamental to cor-
recting mistakes, changing courses, and advancing the urban reform agenda.
Some important surveys and comparative studies have already been
published.7 There are also several published case studies, and a “Bank of

7 See especially Renato Cymbalista & Paula Freire Santoro eds., Planos diretores: Processos e
aprendizados (Instituto Polis 2009); Orlando Alves Santos, Jr. & Daniel Todtmann Montandon
eds., Os planos diretores municipais pos-estatuto da cidade: Balanco critico e perspectivas (Obser-
vatorio das Metropoles/Letra Capital 2011); and Sandra I. Momm Schult, Claudia Silbert, &
The Challenges of Reforming the Urban Legal Framework 283

Experiences” has been created by the Ministry of Cities.8
Still, more critical assessment is necessary: to determine if and how the
generation of MMPs has eﬀectively translated the general principles of the
City Statute into rules and actions, and to identify the main legal and social
obstacles to the full implementation of the national law. In addressing these
issues, this chapter discusses if and how Brazilian society has made eﬀective
use of the many legal possibilities available for recognizing the range of social
rights created by the new legal-urban order.

Growing Gaps between the Progressive New Legal Order
and the Exclusionary Urban and Institutional Realities
The City Statute—Federal Law 10.257/2001—belongs within the context of a
broader legal-urban reform process that has been taking place in Brazil for
three decades. Its main direct antecedents were Federal Law 6.766/1979 (ur-
ban land subdivision); Federal Law 7.347/1985 (civil public action); the 1988
Federal Constitution (especially Articles 182 and 183, on urban policy); Fed-
eral Law 9.790/1999 (civil society organizations of public interest); and Consti-
tutional Amendment 26 (recognizing the social right to housing).
Since the City Statute was enacted, the federal legal order has been com-
plemented by several other important laws: Provisional Measure 2.220/2001
(special concession of use for housing purposes); Federal Law 11.079/2004
(public-private partnerships); Federal Law 10.931/2004 (land and property
credit and registration); Federal Law 11.107/2005 (public consortia); Federal
Law 11.124/2005 (passed by popular initiative, it created the National Fund
for Social Interest Housing); Federal Law 11.445/2007 (sanitation); Federal
Law 11.481/2007 (federal land and property); Federal Law 11.888/2008 (techni-
cal assistance to communities); Federal Law 11.977/2009 (My House, My Life
national housing program and regularization of informal se lements); Fed-
eral Law 11.952/2009 (“Legal Amazon”); Federal Law 12.305/2010 (solid-waste
control), and Federal Law 12.608/2012 (national policy for civil protection).9
All of these federal laws are currently in force, as well as several interna-
tional conventions and treaties signed and ratiﬁed by the National Congress
(notably on housing rights) and federal laws on the environment, national heri-
tage, expropriation, and registration. Bills being discussed include one on land
subdivision and one known as the “Metropolitan Statute”; white paper topics
include the resolution of land conﬂicts. Also under consideration are countless
decrees and resolutions of the National Council of Cities and the National

Luiz Alberto Souza eds., Experiencias em planejamento e gestao urbana: Planos diretores participa-
tivos e regularizacao fundiaria (Edifurb 2010).
8 See h p://www.cidades.gov.br/index.php/planejamento-urbano/392-banco-de-experiencias.
9 For the texts of the federal laws, see http://www2.camara.leg.br/atividade-legislativa
/legislacao.
284 The World Bank Legal Review

Environmental Council, as well as numerous directives of the public bank
Caixa Econômica Federal.
A new legal-urban order—sophisticated, articulated, and comprehen-
sive—has thus been established, bolstered by constitutional recognition of ur-
ban law as a ﬁeld of Brazilian public law, replete with its own paradigmatic
principles: the socioenvironmental functions of property and of the city, and
the democratic management of the city. The collective right to sustainable cit-
ies has been explicitly recognized, reﬂecting the legal system’s clear commit-
ment to the urban reform agenda.
These signiﬁcant and structural legal changes have been expanded at all
government levels—in the federated states and, especially, in the municipali-
ties, particularly through the approval of more than 1,400 MMPs.
This comprehensive new legal-urban order has been supported by the
creation of a new institutional order at the federal level. The Ministry of Cit-
ies was created in 2003; national conferences have been held every two years
since then. The National Council of Cities meets regularly; Caixa Econômi-
ca Federal—the world’s largest public bank—has promoted several federal
plans and projects, especially the Plan to Accelerate Growth (PAC) and the My
House, My Life national housing program (the PMCMV), which, combined,
amount to the largest social programs in the history of Latin America.10
These changes in the legal and institutional orders are fundamentally so-
cial conquests, having largely resulted from a historical process of sociopo-
litical mobilization involving thousands of stakeholders―associations, non-
governmental organizations (NGOs), churches, unions, political parties, and
sectors of land and property capital—which, since the late 1970s, have worked
for the constitutional recognition of land, urban, and housing issues, as well as
for the decentralization and democratization of, and popular participation in,
law- and decision-making processes.11
At the same time, however, over the past decade, several stakeholders
have increasingly denounced the growth of property speculation in Brazil;
the elitist utilization of the enormous amount of ﬁnancial resources gener-
ated, especially through the sale of building and development rights in pub-
lic auctions; the manner in which the so-called unlocking of land values by
large projects and events has reinforced sociospatial segregation; the recurrent
abuse of legal arguments based on public interest and urgency; and the huge
socioenvironmental impact of federal and other programs.12

10 For detailed oﬃcial information on PAC, see its website, h p://www.pac.gov.br/.
11 For an analysis of the sociopolitical process, see Evaniza Rodrigues & Benedito Roberto Bar-
bosa, Popular Movements and the City Statute, in The City Statute of Brazil: A Commentary (Celso
Santos Carvalho & Anaclaudia Rossbach eds., Cities Alliance 2010).
12 For a critical assessment of the broader context in which the City Statute was enacted, see
Erminia Maricato, The Statute of the Peripheral City, in The City Statute of Brazil: A Commentary
(Celso Santos Carvalho & Anaclaudia Rossbach eds., Cities Alliance 2010).
The Challenges of Reforming the Urban Legal Framework 285

Growing land conﬂicts, rental prices, urban informality, evictions and re-
movals; the worsening of transportation, mobility, and sanitation problems;
and especially the increasing commodiﬁcation of Brazilian cities as they have
become at once both the venues and the objects of postindustrial capitalist
production, now at the global level given the aggressive penetration of inter-
national land and property capital. Such is the new stage of urban develop-
ment in Brazil, a stage that has required the strengthening of the individualist
and patrimonial legal culture that had long prevailed prior to the enactment
of the City Statute: property viewed merely as a commodity; consideration
of exchange values but not of use values; the right to use, enjoy, and dispose
of property, which often means the right not to use, enjoy, or dispose of—in
other words, to freely speculate.
What has happened to the urban reform process? How can the enormous
legal and institutional gaps existing in Brazil be explained?
Indeed, there is an enormous gap between the legal-urban order and urban
and social realities. The legal-urban order is still largely unknown by jurists
and society when not the object of legal and/or sociopolitical disputes. Imple-
menting this order, and thereby giving it legal and social eﬃcacy, amounts to
a massive challenge.
There is also a huge gap between the institutional order and urban and
social realities. The Ministry of Cities has often been emptied of money and
power or bypassed by the federal budget or by other ministries; the National
Council of Cities has often been emptied or bypassed by the Ministry of Cities
or other ministries, having had diﬃculties renewing levels of social mobiliza-
tion. When there is not a lack of projects, duplicity, ineﬃciency, waste, lack of
continuity, and especially bo omless corruption have marked Brazil’s frag-
mented urban management at all government levels.
It is in this context that skepticism regarding the City Statute has grown
among planners, managers, academics, and, most of all, society.13 The 2001
federal law has been demonized by those who have blamed it for the recent
occurrence of sociospatial segregation. In fact, new urban management tools
have been appropriated by conservative sectors, and new forms of old pro-
cesses of socialization of costs and privatization of beneﬁts have emerged with
the reconcentration of public services and equipment.

Is the Critique Legitimate?
Any fair assessment of the City Statute requires rescuing the historical prin-
ciples and objectives of the legal-urban order that it consolidated.

13 For a discussion on the disputes regarding the City Statute, see Raquel Rolnik, Ten Years of the
City Statute in Brazil: From the Struggle for Urban Reform to the World Cup Cities, 5(1) Intl. J. of
Sustainable Dev. (2013).
286 The World Bank Legal Review

First, the City Statute fully embraced a new paradigm on the ma er of
property rights; the fulﬁllment of a social function was to be a primary condi-
tion for the recognition of private property rights. Social functions were to be
determined by master plans and other urban and environmental laws―espe-
cially those formulated at the local level―with clear deﬁnitions not only of
individual but also of collective and social rights, as well as of social responsi-
bilities and obligations that result from land and property ownership. While
the City Statute aﬃrmed the separation between property and building rights,
the legal-urban order it symbolized held that the principle of social functions
entailed not only administrative restrictions to property rights but also the le-
gal power of public administrations to oblige individual and collective behav-
iors, especially through compulsory orders. More than discussing property
rights, then, the City Statute addresses the right to property, as property has no
predetermined content and comprises both exchange and use values.
Second, the City Statute clearly expressed the notion that land and prop-
erty ma ers are fundamentally ma ers of contemporary public law, with
the “public order” being larger than the “state order.” The legal order has
incorporated a set of collective rights to territorial organization, environmen-
tal preservation, participation in decentralized processes, and the regulariza-
tion of informal se lements. It has also recognized the social right to adequate
housing. Access to the judicial system, to defend collective rights and diﬀuse
interests, has been opened to individuals, groups, NGOs, and the Ministerio
Publico. To date, a solid discussion has not been promoted in Brazil on the
legal meaning and implications of the constitutional expression “social func-
tions of the city,” and only recently has the debate begun to discuss the need
for a fourth dimension, territorial responsibility, to be added to the tradition-
ally accepted forms of legal responsibility―political, administrative, and ﬁscal
―of public administrations.
Third, the City Statute gave a profoundly diﬀerent meaning to the legal
nature of territorial and urban planning, which is no longer merely a discre-
tional policy but an obligation of public authorities, with the failure to act
leading to legal liability. Consequently, some Brazilian mayors have already
lost their jobs. Together with its traditional regulatory power, urban planning
also involves powers to intervene directly in the dynamics of land and prop-
erty markets, especially to enable vacant land and underutilized properties to
serve a social function. It should also recognize all forms of legal tenure and
possession, not just of individual property, as well as aﬃrm the social function
of public property.
Fourth, as a direct consequence of this socially oriented approach to prop-
erty rights, the City Statute confronted a long neglected question: who pays
the bill and how is it paid for the ﬁnancing of urban development? Based
on the principle of the fair distribution of costs and beneﬁts of urbanization,
the City Statute determined the onerous granting of use and building rights;
recognized diﬀerent categories of expropriation; allowed for the capture of
The Challenges of Reforming the Urban Legal Framework 287

surplus value and the social management of land and property value appreci-
ation; and proposed that there should be no acquired rights on urban ma ers.
Fifth, the nature of urban management was also signiﬁcantly altered, with
the requirement of popular participation as a criterion of legal validity of ur-
ban laws and policies, and not merely as a stamp of sociopolitical legitimiza-
tion. Some MMPs, including São Paulo’s, have been annulled due to lack of
adequate participation. It should be stressed that all the new tools, mecha-
nisms, and processes should be used within the context of a clearly deﬁned
“sociopolitical project for the city,” with the city viewed as the sociospatial
expression of a sociopolitical pact. For that reason, the Ministry of Cities has
launched and promoted a Campaign for Participatory Master Plans.
All in all, law and planning, under the new legal-urban order consolidated
by the City Statute, were placed where they had always been: in the heart of
the sociopolitical process, especially at the local level. Consequently, it is the
very quality of this sociopolitical process that will both determine the mean-
ing of and give concrete meaning to the notion of the social function of prop-
erty at both the national and municipal levels.
It is unquestionable that, for all its sophistication and successive devel-
opments, the legal-urban order still has signiﬁcant limits: there are several
bo lenecks in the judicial system, including the length and cost of judicial
procedures; diﬃculties with the registration system remain challenging;
MMPs have not been articulated with an adequate urban management sys-
tem; municipalism in Brazil is exaggerated and often artiﬁcial, and there is not
a properly deﬁned metropolitan/regional dimension; the diﬀerent realities of
middle-size and small municipalities, and especially the diﬀerent realities
of north and northeast, have not yet been properly contemplated by the legal
order.
Nonetheless, the progress of the legal-urban order is undeniable.
It is in this context that one should ask: Is the federal law the real prob-
lem shaping the current urban development processes? Or perhaps, instead,
one should ask if there has been an adequate understanding of the new legal-
urban order by lawyers, urban planners, public managers, and, of course,
society. Have the newly created legal and politico-institutional spaces been
occupied? Have the new legal principles been translated into urban policies?
Have the new legal rights been claimed by the population? Have the new legal
principles been defended by the judicial courts?
Before going any further, it is important to stress that there are many
deeply ingrained cultural, sociopolitical, and historical factors inﬂuencing the
growing skepticism surrounding the federal law that deserve proper a ention
and in-depth analyses, but for the purposes of this study will only be brieﬂy
mentioned:
• There is in Brazil a strong cultural perception of the law―and the legal
system―that borders on the messianic, with the law viewed merely as a
288 The World Bank Legal Review

technical instrument to resolve conﬂicts and the legal system as objective,
neutral, and ahistorical, not as an open-ended sociopolitical process/arena
where diverging claims can be disputed, compared, and discussed.
• Critics of the federal law are often moved by a sense of “short-termism,”
which is understandable when one considers the volume and gravity of
the accumulated urban problems in the country but which ignores the
long history of neglect of the urban question and the need for more time―
and continuity of public actions―to confront such accumulated urban
problems.
• There is a traditional perception of the state throughout Brazilian soci-
ety―resulting from the dominant culture of representative democracy, le-
gal positivism, and excessive formalism―which among other eﬀects has
fueled a tradition of patronage, clientelistic sociopolitical dynamics, and
excessive dependence on state action, and reduced the “public sphere” to
the “state sphere.”
• There is a dominant technocratic perception of urban planning as the sole
spatial narrative, expressing a technical, apolitical rationality, and as such
unrelated to the dynamics of land and property markets.

An Assessment of the MMPs
What has actually happened, then, with the new generation of MMPs?
The existing studies, mentioned earlier in this chapter, have clearly shown
that there has been progress on many fronts:
• The general discourse of urban reform has been adopted by most MMPs.
• Speciﬁc sectors―the environment and cultural heritage, for example―
have been addressed.
• There has been a widespread creation of “special zones of social interest”
corresponding to the areas occupied by existing informal se lements.
• Whatever the variations, which naturally express the diﬀerent political
realities in Brazilian municipalities, the participatory nature of the discus-
sion of the MMPs has been remarkable.
Perhaps, though, the main achievement has been the unprecedented pro-
duction of data and a wide variety of information about Brazilian cities.
Still, there are several problems of legal eﬃcacy undermining the new
MMPs:
• Excessive formalism and bureaucracy of municipal laws still exist.
• Further regulation, in the form of subsequent laws, is needed for full en-
forcement.
The Challenges of Reforming the Urban Legal Framework 289

• Punctual changes have been promoted without participation.
• Obscure legal language and imprecise technical legal writing (urban laws
are rarely wri en by legal professionals) have widened the scope for legal
and sociopolitical disputes.
There are also several problems of social eﬃcacy undermining the new
MMPs:
• Most plans remain traditional plans―that is, they are merely technical
and regulatory―and often fail to territorialize proposals and intentions,
and to intervene in the land structure and land and property markets.
• The emphasis placed on the new tools created by the City Statute lacks a
clearly deﬁned project for the city.
• The vast majority of MMPs have failed to recapture any surplus value
resulting from state and collective action, and when this has happened,
there has been limited or no social redistribution of the newly generated
ﬁnancial resources.
Furthermore, most MMPs have placed limited or no emphasis on social
housing in central areas, having failed to earmark central, serviced vacant
land for social housing. Generally speaking, there are no speciﬁc criteria for
the expansion of urban zones, public land and property have not been given
a social function, and there has been no clearly articulated socioenvironmen-
tal approach. Large projects have often bypassed the MMPs, and presumed
collective eviction. Most importantly, policies dealing with land, urban is-
sues, housing, environmental conditions, and ﬁscal and budgetary ma ers
have not been integrated, and the regularization of informal se lements is still
largely viewed as an isolated policy, with most MMPs imposing enormous
technical diﬃculties on the legalization of informal se lements. Bureaucratic
management and technical complexity have also meant that there has been
a widespread lack of administrative capacity to act at the municipal level.
Many MMPs are mere copies of models promoted by an “industry” of con-
sultants. Obscure planning language has been as problematic as obscure legal
language.
At the other government levels, the precarious institutional systems have
experienced several problems. At the federal level, sectoral policies have not
been integrated, within or outside the Ministry of Cities; urban policy has
not been articulated with environmental policy; and there is no national
urban-metropolitan policy or system of cities, and no national territorial pol-
icy generally, but especially in regard to the Amazon. The institutional and
legal actions of the federated states have been very limited.
Eminently, at all government levels, there is a profound lack of under-
standing that cities should be concerned about not only social policy and in-
frastructure for economic development but also the economy itself.
290 The World Bank Legal Review

Conclusion
Plus ça change, plus c’est la même chose?
The analysis of the Brazilian case shows that the long-standing disputes
leading to the sociopolitical mobilization calling for the approval of the new
law have not been automatically abolished by the mere formal enactment of
the law. If anything, the disputes have worsened and taken on new dimen-
sions, resulting in a new phase for interested stakeholders, that of disputes
over the enforcement of the law.
The rules of the game have been fundamentally altered, but the game is
still being played according to the old, elitist, and exclusionary rules. There
are many reasons for this development, but only through the promotion of
signiﬁcant changes in the country’s legal and planning culture will further
progress be possible.
The reaﬃrmation of old sociospatial segregation processes by all levels of
the Brazilian government has occurred despite the legal possibilities for signif-
icantly changing the course of things through the formulation of profoundly
diﬀerent and inclusive MMPs. Instead, the events that have unfolded seem
to demonstrate that―with the support of lawyers―urban planners and pub-
lic managers remain, seemingly to a greater extent, hostages to exclusionary
land and property markets that they created and developed, and continue to
provoke segregation through the public policies that they have implemented.
To break with this perverse logic, and put an end to the renewed legal and
political disputes over urban land and property ma ers, a concentrated ef-
fort urgently needs to be promoted to provide more information to planners,
legal professionals, and society as a whole on the nature and possibilities of
the new legal-urban order symbolized best by the City Statute. The education
and training of planners, as well as of legal professionals, judges, prosecutors,
and registry oﬃcers, is of utmost importance. If judicial courts need to follow
public law‒urban law principles when interpreting property-related conﬂicts,
rather than embracing obsolete unqualiﬁed private law ideas, Brazilian civil
society needs to call for more recognition of social and collective rights.
Brazil’s legal-urban order has signiﬁcantly changed, but have the jurists
understood that? Has the nature of urban planning been changed accordingly?
Have urban managers assimilated the new principles? Has civil society awak-
ened to the new legal realities? To play the game according to the new rules
is a fundamental step in the collective construction of sustainable and fairer
cities for the present generation and for future ones.
In this context, all things considered, a very cautious optimism can be pro-
posed. Even with due consideration given to its shortcomings and constraints,
the law is not the problem. The City Statute has created the most appealing,
enabling environment policy makers and managers could dream of in their
a empts to promote urban reform.
The Challenges of Reforming the Urban Legal Framework 291

That said, in the last analysis, to advance urban reform nationally, the fu-
ture of the City Statute and the new urban-legal order it symbolizes urgently
need a thorough renewal of sociopolitical mobilization centered on land, ur-
ban, housing, and environmental ma ers.
It is the task of all progressive stakeholders to defend the City Statute
from the proposed (essentially negative) changes being discussed in the Na-
tional Congress, to overcome the existing obstacles and improve the legal or-
der, and, above all, to ﬁght for the full implementation of the City Statute.
The Brazilian case makes it clear that “bad laws” can make it diﬃcult
to obtain collective and social rights and to formulate inclusive public poli-
cies. It follows, then, that “good laws” per se do not change urban and social
realities, even when they express principles of sociospatial inclusion and so-
cioenvironmental justice, or even, as is the rare case of the City Statute, when
the legal recognition of progressive principles and rights is supported by the
introduction of the processes, mechanisms, tools, and resources necessary for
their materialization.
If decades of sociopolitical disputes were necessary for the reform of the
legal-urban order, and for the enactment of the City Statute, a new historical
phase has been open since, namely, that of sociopolitical disputes at all govern-
ment levels, within and outside the state apparatus, for its full implementation.
The fact is that Brazil, and Brazilians, have not yet done justice to the City
Statute.
There are many important lessons here for scholars, policy makers, man-
agers, and activists.
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Innovative Legal Measures for Climate
Change Response in the Green Economy
Integrating Opportunity, Inclusion, and Equity

MARIE-CLAIRE CORDONIER SEGGER AND YOLANDA SAITO

There is a pressing need to respond more eﬀectively to the growing impacts
of climate change, and to the opportunities of climate ﬁnance. This response
takes place in the context of a global transition to a new “green economy,” a
transition that holds great potential to achieve the sustainable development
goals of many countries. However, critics have expressed concern that the
emerging green economy agenda fails to ensure respect for human rights and
social development goals and may undermine the rights of poor and margin-
alized communities. How to respond to climate change and facilitate access
to the beneﬁts of a greener economy―for poverty eradication and sustainable
development―in a manner that is truly inclusive and equitable? What is the
role of legal and institutional reform in facilitating these important objectives?
As noted in the Stern Review, the potential costs of climate-related dam-
age, globally, are likely as high as 20 percent of the world’s GDP, while the
costs of mitigation and adaptation might be as low as 2 percent.1 At national
and international levels, countries continue to struggle to develop adequate
responses to the challenge of climate-compatible development. International
eﬀorts are guided by the 1992 United Nations Framework Convention on
Climate Change (UNFCCC)2 with its 1997 Kyoto Protocol3 and many other
related arrangements, some of which are still under negotiation in the Dur-
ban Plan for Enhanced Action. Under the UNFCCC, states commit to both
environmental protection and sustainable development objectives.4 The treaty
regime consistently emphasizes the importance of opening new opportu-
nities for sustainable economic development, especially for the more than

Any statements of fact, opinion, or analysis expressed herein are entirely those of the authors
and are not a ributable to the International Development Law Organization. The authors
would like to thank Patrick Reynaud, Caroline Haywood, and Daniela Cuellar for their valu-
able insights and assistance.
1 Nicholas Stern, Stern Review on the Economics of Climate Change (Cambridge U. Press 2007).
2 United Nations Framework Convention on Climate Change (May 9, 1992), 31 I.L.M. 849
(hereinafter, UN Framework Convention on Climate Change).
3 The UNFCCC Kyoto Protocol Status of Ratiﬁcation can be found at h p://unfccc.int/ﬁles
/essential_background/kyoto_protocol/application/pdf/kpstats.pdf.
4 Marie-Claire Cordonier Segger & Ashfaq Khalfan, Sustainable Development Law: Principles,
Practices and Prospects (Oxford U. Press 2004).

293
294 The World Bank Legal Review

140 developing countries that are parties to UNFCCC.5 Under the UNFCCC,
a complex matrix of international rules has emerged to guide policies to miti-
gate climate change in this direction, encouraging the development of sustain-
able practices in the energy, forestry, transportation, industrial, food and ag-
riculture, housing, and infrastructure sectors; assisting adaptation for coastal,
desert, rural agricultural, and other vulnerable people; and supporting new
carbon markets and climate ﬁnance.6 However, a great deal remains to be
done, especially at the national and local levels.7
The Outcome Document of the 2012 Rio+20 United Nations Conference
on Sustainable Development (UNCSD), “The Future We Want,” calls for bold
action toward a transition to a new green economy.8 Global action toward
the green economy is intended to improve resilience to climate change and
other threats; secure sources of food, water, and energy; enhance the natural
resource base; contribute to poverty eradication; and support be er livelihood
options. Growth in a green economy must be “sustained, inclusive and equita-
ble,” prioritizing the need to be “people-centered and inclusive, providing op-
portunities and beneﬁts for all citizens and all countries.”9 Essentially, coun-
tries have agreed―in global “soft law”―that responses to climate change and
the green economy should be an opportunity for all and a threat to none.10
In spite of these nuanced and incremental global law and policy develop-
ments, concerns remain. The emerging green economy agenda, if it fails to en-
sure respect for human rights and social justice, for equity and inclusion, may
in fact undermine the development process for the poorest and most margin-
alized communities.11 In essence, climate change law and policy initiatives,
even those taken in the context of building a global green economy, may have
important human rights implications. Realizing a just, equitable, and sustain-
able green economy will require international commitment to the balanced
integration of the social, economic, and environmental aspects of sustainable

5 Malcolm Dowden, Climate Change and Sustainable Development: Law, Policy and Practice 56 (EG
Books 2008).
6 David Freestone & Charlo e Streck eds., Legal Aspects of Implementing the Kyoto Protocol
Mechanisms: Making Kyoto Work (Oxford U. Press 2005) (hereinafter, Legal Aspects of Kyoto
Protocol Mechanisms); David Freestone & Charlo e Streck eds., Legal Aspects of Carbon Trad-
ing: Kyoto, Copenhagen, and Beyond (Oxford U. Press 2009) (hereinafter, Legal Aspects of Carbon
Trading).
7 United Nations Environment Programme (UNEP), 10 Years after Rio: The UNEP Assessment
(UNEP 2002).
8 United Nations Conference on Sustainable Development, The Future We Want, UN Doc.
A/66/L.56, UNGA 66th Session, July 24, 2012, para. 12 (hereinafter, 2012 UNCSD Declara-
tion), available at h p://www.uncsd2012.org/thefuturewewant.html.
9 Id., at para. 25.
10 Id.
11 See, for example, Statement of Indigenous Peoples at the UN Conference on Sustainable Development,
May 18, 2010, available at h p://www.indigenousportal.com/Economic-Development/1st
-UN-Conference-on-Sustainable-Development-A-Green-Economy-in-the-Context-of-Sustain
able-Development.html.
Innovative Legal Measures for Climate Change Response 295
in the Green Economy

development. The post-2015 sustainable development agenda provides an im-
portant opportunity to link sustainable development with global justice.12 Its
call for a green economy represents a call for change, however, and this im-
plies risk.13 Many countries are debating new regulatory measures: to reduce
the greenhouse gas emissions that cause climate change; to encourage adapta-
tion, as part of a broader commitment to adopt new laws to promote the green
economy; and to foster more sustainable development.14 Both the 1992 UN-
FCCC, through a series of Conferences of the Parties (COPs),15 and the 2012
UNCSD Declaration16 encourage countries to ensure inclusiveness and trans-
parency in the design of climate and green economy measures and to enact
complementary measures that protect poor and vulnerable groups. However,
li le concrete guidance is available on how this can actually be done.
This chapter suggests that many developing countries are already leading
the way, designing and implementing domestic laws, institutions, and strate-
gies to successfully transition to a green economy that respects human rights
for equity and inclusion. Examples of good practice can build conﬁdence and
spur innovation, showing that the green economy can be and, in fact, is being
built through bold actions by commi ed nations. Such national policy mea-
sures and regulatory and institutional innovations are key to ensuring that,
in accessing the beneﬁts of a growing green economy, responses to climate
change are both inclusive and equitable, contributing more broadly to just and
sustainable development outcomes.
Motivated by the enormity and signiﬁcance of this global challenge, and
by these inspiring national practices, this chapter provides an overview of
the legal aspects of the green economy, discusses their human rights implica-
tions, and highlights innovative legal practices that respond to climate change
while contributing to the sustainable development of a global green economy
through equity and inclusion.17

12 Keynote address by Elizabeth Thompson at the International Development Law Organiza-
tion (IDLO)–UN Department of Economic and Social Aﬀairs (DESA) high-level event Contri-
butions of Law to the Rio+20 Agenda, held April 19, 2012, at UN Headquarters in New York.
13 Id.
14 IDLO/CISDL, Compendium of Legal Best Practices on Climate Law and Policy (IDLO 2010). See
also UNFCCC COP 19, The Doha Climate Gateway, 2012.
15 UNFCCC COP 19, The Doha Climate Gateway, 2012; UNFCCC COP 18, Durban Outcomes,
2011; UNFCCC COP 17, Cancun Agreements.
16 2012 UNCSD Declaration, supra note 8, at para. 76.
17 Id., as envisioned in para. 4. This analysis builds on outcomes of the IDLO–UN DESA Legal
Experts Panel held at the UN Headquarters in New York, on April 19, 2012 (see note 12), and
the IDLO Side Event on Legal Preparedness for the Green Economy at the Rio+20 UNCSD in
Rio de Janiero on June 18, 2012, as well as subsequent legal research and analysis.
296 The World Bank Legal Review

Climate Change, the Green Economy,
and Sustainable Development
To date, multilateral eﬀorts to reduce global greenhouse gas emissions and
to facilitate a global economy have proceeded largely along separate tracks.18
The international economic system is deﬁned by the treaties establishing the
World Trade Organization (WTO), the treaties’ annexes, and other arrange-
ments under negotiation since the 2001 Doha Round was launched, as well as
over 3,500 regional and bilateral trade and investment treaties.19 The global cli-
mate regime is shaped by the 1992 UNFCCC, its 1997 Kyoto Protocol, and nu-
merous related arrangements. Although these systems of international rules
share a sustainable development objective, the relationship between the two
has been fraught with challenges.20
In the context of a global green economy, international climate and eco-
nomic instruments might be mutually supportive instead, if rule of law can
assure equity and inclusion. As noted in Article 3(4) of the UNFCCC, each
party, when considering which policies would be appropriate for protecting
the climate system, should “tak[e] into account that economic development is
essential for adopting measures to address climate change.”21 Further, in the
UNFCCC, parties commit to “cooperate to promote a supportive and open
international economic system,” which, it was believed, would “lead to sus-
tainable economic growth and development in all Parties, particularly devel-
oping country Parties, thus enabling them be er to address the problems of
climate change.”22 While climate laws and policies might restrict or constrain
certain kinds of economic development, they can also provide incentives for
new kinds of development. Indeed, many innovative national climate change
measures can be characterized as economic laws themselves. For instance,
new policies and regulations are being set in place to establish emissions
trading schemes (ETSs), which aim to reduce greenhouse gas emissions by
stimulating trade in emission reduction units (ERUs), supporting adoption of
and transfer to renewable-energy technologies, and encouraging investment

18 Steve Charnovi , Trade and Climate: Potential Conﬂicts and Synergies, in Beyond Kyoto: Advanc-
ing the International Eﬀort against Climate Change 141 (Joseph E. Aldy et al. eds, policy report,
Pew Ctr. on Global Climate Change, Dec. 2003). See also Markus Gehring & Marie-Claire
Cordonier Segger, Trade and Investment Implications of Carbon Trading for Sustainable Develop-
ment, in Legal Aspects of Carbon Trading, supra note 6.
19 See also General Agreement on Tariﬀs and Trade (adopted Oct. 30, 1947, provisionally en-
tered into force Jan. 1, 1948), 55 U.N.T.S. 194, C.T.S. No. 31 (1948) (GATT); General Agreement
on Trade in Services (adopted Apr. 15, 1994, entered into force Jan. 1, 1995) 1869 U.N.T.S. 183;
Michael Trebilcock & Robert Howse, Regulation of International Trade 336 (3d ed., Routledge
2005); Markus Gehring, Jarrod Hepburn, & Marie-Claire Cordonier Segger, World Trade Law
in Practice 17 (Globe Law & Business 2006).
20 Christina Voigt, Sustainable Development as a Principle of International Law: Resolving Conﬂicts
between Climate Measures and WTO Law (Martinus Nijhoﬀ 2009).
21 UN Framework Convention on Climate Change, 1771 U.N.T.S. 107 (UNFCCC), art. 3(4).
22 Id., at art. 3(5).
Innovative Legal Measures for Climate Change Response 297
in the Green Economy

in ﬁrms adhering to more-sustainable, low-carbon-producing standards.23 In
certain circumstances, an ETS may even provide incentives for the transfer
of new sustainable development technologies to developing countries―if an
emission rights purchase agreement (ERPA) provides for such transfer―in
the context of global carbon markets or climate ﬁnance. And in Article 2(3),
Annex I (developed country) parties agree to “strive to implement policies
and measures . . . in such a way as to minimize adverse eﬀects, including the
adverse eﬀects of climate change, eﬀects on international trade, and social,
environmental and economic impacts on other Parties, especially developing
country Parties.”24 This recognizes that states may need to balance their adop-
tion of new measures to respond to climate change with economic and social
imperatives. Indeed, participants in international climate change negotiations
have made strong political commitments to the green economy, including ﬁ-
nancing25 and programming initiatives.26
This global focus on the opportunities inherent in a new green economy,
particularly in the context of the response to climate change, is not surprising.
Awareness has grown of the link between the environment and development
goals, as well as between ecosystem health and the economy.27 The 2008 global
ﬁnancial crisis triggered reconsideration of traditional growth models, and
the G20 in 2009 reaﬃrmed a commitment to “move toward greener, more sus-
tainable growth.”28 The concept of a green economy has emerged as a means

23 Legal Aspects of Kyoto Protocol Mechanisms, supra note 6, at sec. 7.
24 Kyoto Protocol to the UNFCCC (adopted Dec. 10, 1997, entered into force Feb. 16, 2005), 37
I.L.M. 22 (Kyoto Protocol), art. 2(2).
25 COP 16 (the 16th session of the Conference of the Parties) proved to be a real culmination of the
increasingly robust discussions that began with the Bali Action Plan, which established pillars
for the implementation of the UNFCCC, and were scheduled to conclude with the Copen-
hagen Accord. Most notable was the binding pledge from developed nations of US$30 billion
for the period 2010‒2012 and of US$100 billion per year by 2020 for climate ﬁnancing.
26 In addition, the parties came to new agreements, collectively known as the Cancun Agree-
ments, on nationally appropriate mitigation actions (NAMA): the reduction of emissions
from deforestation and forest degradation (REDD+); the Clean Development Mechanism
(CDM); the Cancun Adaptation Framework (CAF); the Technology Mechanism; and the
Green Climate Fund. These initiatives all have hallmarks of green economy initiatives.
REDD+, for example, “a empts to create a ﬁnancial value for the carbon stored in forests,
oﬀering incentives for developing countries to reduce emissions from forested lands and in-
vest in low-carbon paths to sustainable development” while also encouraging conservation,
sustainable management of forests, and enhancement of forest carbon stocks.
27 The concept was introduced in the book Blueprint for a Green Economy, popularly known as
“The Pearce Report.” One of the key underlying themes in the early years was that the price
systems of the day were resulting in an allocation of resources in the economy that was
biased against the environment. Environmental assets and services, which were supports
for economic and social systems but also inputs in production, were being undervalued.
This would result in ineﬃcient consumption of resources and, ultimately, environmental
degradation. David William Pearce, Anil Markandya, & Edward Barbier, Blueprint for a Green
Economy (Earthscan 1989). See also David LeBlanc, Introduction, 35(3) Natural Resources Fo-
rum 151, 151 (2011).
28 Steven Stone, UNEP chief of the Economics and Trade Branch, The Role of the Green Economy
in Sustainable Development (presentation, Ad Hoc Meeting on the Green Economy: Trade and
298 The World Bank Legal Review

to achieve such growth by establishing the environment and social develop-
ment as determining factors, rather than externalities, of economic produc-
tion, value, stability, and long-term prosperity.29
Several leading texts released in recent years have made signiﬁcant strides
in moving the green economy concept from theory into practice. The 2008
Green Jobs Report, released by the International Labour Organization (ILO)
and partners, identiﬁed strategies for “greening jobs” across several sec-
tors, including forestry, food and agriculture, and industry.30 The 2010 TEEB
(The Economics of Ecosystems and Biodiversity) reports focused on build-
ing a business case for biodiversity and ecosystem services and deﬁning how
such natural assets contribute to national economic bo om lines.31 The 2011
United Nations Environment Programme (UNEP) report, “Towards a Green
Economy,”32 emphasized the need for strong, enabling frameworks to achieve
the integrated human rights, social equity, and environmental objectives of
the green economy.33
The 2012 UNCSD Declaration states that a green economy should be “people-
centered and inclusive, providing opportunities and beneﬁts for all citizens
and all countries.”34 A people-centered approach cannot be achieved without
proper human rights frameworks in place. A rights-based approach to devel-
opment is one that is participatory, empowering, accountable, nondiscrimi-
natory, and based on universal, inalienable human rights and freedoms.35 It
must be tailored to the individual situation of each nation to ensure that the
unique needs of all people―especially members of oppressed and marginal-
ized groups―are taken into account and addressed in a meaningful way.

Sustainable Development Implications, Palais de Nations, Geneva, Oct. 7–8, 2010).
29 See Frequently Asked Questions, at the UNEP Green Economy website, h p://www.unep.org
/greeneconomy/AboutGEI/ FrequentlyAskedQuestions/.
30 International Labour Organization et al., Green Jobs: Towards Decent Work in a Sustainable,
Low-Carbon World (report prepared with the cooperation of UNEP, Intl. Org. Employers,
& Intl. Trade Union Confederation, Sept. 2008), available at h p://www.unep.org/labour
_environment/features/greenjobs.asp.
31 See the TEEB in Business and Enterprise Report and the TEEB Synthesis Report, Mainstreaming
the Economics of Nature, available at h p://www.teebweb.org.
32 UNEP, Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradica-
tion―A Synthesis for Policy Makers (UNEP 2011) (hereinafter, UNEP Green Economy Report),
available at h p://www.unep.org/greeneconomy.
33 The UNEP Green Economy Report deﬁnes the green economy as “one that results in im-
proved human well-being and social equity, while signiﬁcantly reducing environmental
risks and ecological scarcities. In its simplest expression, a green economy can be thought
of as one which is low carbon, resource eﬃcient and socially inclusive . . . [in which] growth
in income and employment is driven by public and private investments that reduce carbon
emissions and pollution, enhance energy and resource eﬃciency, and prevent the loss of
biodiversity and ecosystem services.” Id., at 2.
34 2012 UNCSD Declaration, supra note 8, at para. 56.
35 United Nations Oﬃce of the High Commissioner for Human Rights, Development and Rights:
The Undeniable Nexus (speech delivered on June 26, 2000, by Mary Robinson, UN High Com-
missioner for Human Rights) (hereinafter, Development and Rights).
Innovative Legal Measures for Climate Change Response 299
in the Green Economy

Green economy initiatives can not only respect human rights and the en-
vironment but also contribute to their strengthening and growth.36 Unfortu-
nately, however, human rights have not always been at the forefront in dia-
logues on economic development.37 And in relation to environmental law and
policy, human rights have not always received the a ention warranted, often
being relegated to vague generalities and conditionalities.38
The Cancun Agreements heralded a step forward for the synergy between
human rights and development by recognizing, for the ﬁrst time, that par-
ties should fully respect human rights in all climate change‒related actions.39
Pressure from civil society and forward-looking UNFCCC parties continues
to ensure that the momentum from the human rights acknowledgment in the
Cancun Agreements is not slowed. Initiatives such as green jobs, sustainable
procurement, payment for ecosystem services, internalization of ecological
externalities, elimination of perverse subsidies, creation of new carbon taxes,
and measures to support trade and investment in green goods and services
all trigger important human rights and environmental implications. There is
an inherent recognition that the green economy can have an impact on a full
range of human rights, including the rights to life, health, food, water, hous-
ing, and culture.40 International debates on climate change are now clearly
recognizing certain key human rights in relation to sustainable development
and related green economy initiatives.
For example, the right to consultation for indigenous communities was clearly
recognized in the Cancun Agreements in relation to REDD+.41 This formal
notice is based on ILO Convention 169 and the United Nations Declaration
on the Rights of Indigenous Peoples, which seek to protect the culture, prop-
erty, and land rights of indigenous peoples, including the right not to be forc-
ibly removed from lands or territories.42 It follows from Principle 22 of the
Rio Declaration, which recognizes the vital role indigenous people have in

36 See Sébastien Jodoin, Rights-Based Frameworks for Climate Finance (Leg. Working Paper, Ctr.
Intl. Sustainable Dev. L., 2010), available at h p://www.idlo.int/Publications/4_JodoinS
%C3%A9bastien%20_RightsBasedFrameworksforClimateFinance.pdf.
37 Develoment and Rights, supra note 35.
38 See, for example, Sébastien Jodoin, From Copenhagen to Cancun: A Changing Climate for Human
Rights in the UNFCCC?; see also Development and Rights, supra note 35.
39 Cancun Agreements, para. 8. Jodoin notes, however, the stronger “shall” was dropped from
the negotiating text and replaced with the lesser “should.” See Jodoin, supra note 38, at 4.
40 Alyssa Johl & Yves Lador, A Human Rights Based Approach to Climate Finance, in Dialogue
on Globalization 2 (Friedrich-Ebert-Stiftung ed., Friedich-Ebert-Stiftung 2012), available at
h p://www.ciel.org/Publications/ClimateFinance_Feb2012.pdf.
41 Appendix I. Parties are called to promote and support “respect for the knowledge and rights
of indigenous peoples and members of local communities, by taking into account relevant
international obligations, national circumstances and laws, and noting that the United Na-
tions General Assembly has adopted the United Nations Declaration on the Rights of Indig-
enous Peoples,” as well as the full and eﬀective participation of relevant stakeholders, in
particular indigenous peoples and local communities.
42 Lee Swepston, New Step in the International Law on Indigenous and Tribal Peoples: ILO Conven-
tion No. 169 of 1989, 15 Okla. City U. L. Rev. 677 (1990).
300 The World Bank Legal Review

environmental management and development, and also in the UNFCCC
“companion treaty,” the 1992 United Nations Convention on Biological Di-
versity (UNCBD). This treaty speciﬁcally compels parties to
respect, preserve and maintain knowledge, innovations and prac-
tices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of biolog-
ical diversity and promote their wider application with the approval
and involvement of the holders of such knowledge, innovations and
practices and encourage the equitable sharing of the beneﬁts arising
from the utilization of such knowledge, innovations and practices.43
Similarly, in terms of livelihood and labor rights, there are inherent synergies.
Green economy initiatives necessarily mean “green jobs,” which engage live-
lihood and labor rights not only for new employment opportunities but also
in the context of jobs and methods of livelihood that may be displaced. The
International Covenant on Civil and Political Rights recognizes the right to
self-determination, including the ability for peoples to pursue their economic,
social, and cultural goals, and to manage and dispose of their own resources.
In addition, it recognizes a negative right not to be deprived of means of
subsistence.44 The International Covenant on Economic, Social and Cultural
Rights also recognizes that negative right, as well as, inter alia, labor rights.45
In addition, rights to participation, access, and beneﬁts sharing may be directly
relevant for climate change responses in the context of the green economy.
Tangible principles and mechanisms to secure access to information and pub-
lic participation are perhaps best reﬂected in the terms of the Aarhus Conven-
tion, which guarantees access to information, public participation, and justice
in environmental ma ers.46 In climate change debates, the right to information
and equitable participation, as well as access to justice and tangible remedies,
has also been recognized as applicable not only to indigenous groups but
to all aﬀected stakeholders.47 Equity and inclusion rights are, perhaps, most
clearly noted in the 1992 UNCBD, with its third objective concerning the fair
and equitable sharing of the beneﬁts arising out of the utilization of genetic
resources.48 Access to genetic resources, where granted, shall be on mutually

43 United Nations Convention on Biological Diversity (UNCBD), 1760 U.N.T.S. 79; 31 I.L.M.
818 (1992), art. 8(j), available at h p://www.cbd.int/doc/legal/cbd-un-en.pdf.
44 Id., at art. 1.2.
45 Id. at arts. 1.2, 6, 7, 8.
46 Svitlana Kravchenko, The Aarhus Convention and Innovations in Compliance with Multilateral
Environmental Agreements, 18(1) Colo. J. Intl. Env. L. & Policy (2007).
47 Jodoin, supra note 38, at 4. See also Alyssa Johl & Yves Lado, A Human Rights–Based Approach
to Climate Finance, Friedrich-Ebert-Stiftung, available at h p://www.ciel.org/Publications
/ClimateFinance_ Feb2012.pdf. Also, the Cancun Agreements have recognized this to some
extent, requiring that REDD+ programs now be implemented in phases, beginning with the
development of national action plans and capacity building. These action plans must ad-
dress substantive legal issues such as land tenure, forest governance, gender considerations,
and the rights of indigenous peoples and ensure full stakeholder input.
48 UNCBD, supra note 43, at art 1.
Innovative Legal Measures for Climate Change Response 301
in the Green Economy

agreed-on terms and shall be subject to prior informed consent of the contract-
ing party providing the resources.49 For climate change and the green econo-
my more broadly, these concepts have very important implications, especially
for any initiatives that involve the use of natural resources, such as forestry,
ﬁshing, and mining.
However, explicit recognition of other key human rights remains sparse
in international texts related to sustainable development, and li le practical
guidance is available on ways to respect and protect human rights.50

National Legal Frameworks for Green Economy Initiatives
While international instruments provide important guidance, rights-based
frameworks need to be implemented eﬀectively on the ground at the national
and local levels. A purely top-down approach will not be eﬀective; human
rights must be maintained by national and subnational frameworks that ad-
dress the speciﬁc situations of individual states. Well-designed regulatory
frameworks can not only protect and foster human rights but also create in-
centives for individual groups that “drive green economic activity, remove
barriers to green investments, and regulate the most harmful forms of un-
sustainable behavior, either by creating minimum standards or prohibiting
certain activities entirely.”51
The establishment of these frameworks often would require not a com-
plete overhaul but rather a realignment of existing laws, regulations, and stan-
dards to be er promote and maintain rights within green economy initiatives.
Coordination and cooperation across public, private, and government sectors
will be necessary to ensure a cohesive approach that does not see the policies
and programs of one area contradict or undercut those of another.52 Innova-
tions can be found in all sectors, and therefore states may also look to nongov-
ernmental organizations and private actors for collaboration in developing
innovative legal practices.
The 2012 UNCSD encourages states to develop their own green economy
strategies through “a transparent process of multi-stakeholder consultation”
and recognizes that “strong governance at local, national, regional and global

49 Id., at art. 15.
50 Jodoin, supra note 38, at 4.
51 UNEP, Enabling Conditions Supporting the Transition to a Global Green Economy 20 (UNEP
Green Economy Report 2011).
52 See, for example, IDLO-FAO (Sarah Mason-Case), Legal Preparedness for REDD+ in Zambia:
Country Study (2011), which discusses, inter alia, Zambia’s governance framework and exist-
ing laws and institutions and highlights the challenges that the country faces in implementing
REDD+ initiatives. It also focuses on innovative legal and institutional reforms that will di-
rectly and indirectly aﬀect REDD+ in Zambia. Available at h p://www.idlo.int/Publications
/LegalPreparednessREDDZambiapdf.
302 The World Bank Legal Review

levels is critical for advancing sustainable development.”53 In order to build
capacity in these areas, states need more guidance about how to promote na-
tional and subnational legislative eﬀorts. The challenge lies not in establishing
the principles but in implementing them on the ground to ensure that the
needs of all groups, particularly the most poor and vulnerable, are taken into
account.54

Country Innovations: Human Rights Principles in Practice
Several innovative nations are leading the way in implementing green econ-
omy initiatives that incorporate the recognition of human rights despite the
lack of concrete guidance from international texts. A study of the leading le-
gal best practices can provide a framework from which means and indicators
for transitioning to a just, inclusive, and equitable green economy can be dis-
cussed and deﬁned in the Rio+20 negotiations.
The government of Vietnam has pioneered the application of free and
prior informed consent (FPIC) as a prerequisite for the implementation of its
REDD+ climate-ﬁnance pilot projects and is the ﬁrst country to pilot FPIC.55
The FPIC pilot projects involve a nine-step process that includes awareness
raising, recruitment and training of interlocutors, preparing and conducting
village meetings, recording decisions on consent, documenting decisions, and
independently evaluating and verifying the FPIC process.56 The process is cru-
cial in safeguarding human rights and prioritizes the rights of participation
and inclusion as guiding principles in green economy projects.
Uganda has taken steps in the past ﬁve years to transform conventional
agriculture production into an organic farming system as a means not only to
combat climate change but also to eradicate poverty among the nation’s small-
scale farmers. In 2009, the government released the Draft Uganda Organic
Agriculture Policy. The strategy put in place to implement this policy focuses
on nine key areas, including the generation of information, knowledge, and
skills through education and training and the participation of special interest
groups such as women, youth, and the poor and vulnerable.57
The Mexican government has passed the Ley General de Desarrollo Fo-
restal Sustentable (Ley General),58 which will inform the country’s approach

53 2012 UNCSD Declaration, supra note 8, arts. 38, 44.
54 Jodoin, supra note 38.
55 IDLO-FAO, Legal Preparedness for REDD+ in Vietnam: Country Study (2011).
56 RECOFTC, Evaluation and Veriﬁcation of the Free, Prior and Informed Consent Process un-
der the UN-REDD Programme: Lam Dong Province, Vietnam (2010); see also IDLO/MONRE,
Legal Preparedness for Climate Change in Vietnam (MONRE/IDLO 2013)
57 UNEP, Green Economy: Developing Countries Success Stories 12–13 (UNEP 2010) (hereinafter,
Green Economy: Success Stories).
58 General Law on Sustainable Forest Development.
Innovative Legal Measures for Climate Change Response 303
in the Green Economy

to climate change and, more speciﬁcally, to REDD+ initiatives.59 The Ley Gen-
eral declares that the conservation, protection, and restoration of forest eco-
systems, as well as the development of environmental goods and services, are
of public beneﬁt and speciﬁcally states as an objective the respect and right of
use and preferential beneﬁt of forest resources by indigenous communities.60
This recognition, coupled with awareness and institutional strengthening pro-
grams and access to climate ﬁnance, holds potential to provide greater equity
and inclusion for indigenous peoples in voluntary and government-led cli-
mate mitigation activities.61
The municipal government in Dhaka, Bangladesh, has established a com-
posting market ﬁnanced through public-private partnerships and carbon
credits through the Clean Development Mechanism.62 The municipal govern-
ment granted a concession to a private company―WWR Bio Fertilizer Bangla-
desh Ltd.―to collect and process organic waste and sell the compost for proﬁt.
Community members beneﬁt not only by being able to purchase the cheaper,
high-quality compost for their ﬁelds but also by having new livelihood op-
tions that respect their labor rights. New entrepreneurship opportunities are
available for community members to negotiate with fertilizer companies to
purchase the bio-fertilizers and market them nationally, opening the potential
for inclusion in the green economy.63
Community-based resource management (CBRM) laws and policies have
been implemented in Botswana to promote sustainable tourism business
within local populations.64 Legally recognized community-based organiza-
tions (CBOs) can apply for a permit to engage in commercial activities. This
permit grants the CBO control over the natural resources, and the authority
to negotiate hunting contracts and other tourism activities. The program of-
fers incentives for communities to implement sustainable-use practices in a
communal fashion while providing important locally generated resources to
support eﬀorts to adapt to climate change and other vulnerabilities.65

59 For a more in-depth discussion of Mexico’s approach, see Frederic Perron-Welch, Reducing
Emissions from Deforestation and Forest Degradation, Forest Biodiversity Conservation and Respect
for Human Rights: Mexico’s Approach (Sustainable Dev. L. on Climate Change Working Paper
No. 10, IDLO, Mar. 2011).
60 Ley General de Desarrollo Forestal Sustentable, at art. 2(V), available at h p://www.diputados
.gob.mx/LeyesBiblio/pdf/259.pdf.
61 OECD, OECD Environmental Performance Review: Mexico 2013, available at h p://www.oecd
.org/env/country-reviews/mexico2013.htm.
62 IDLO, Compendium of Legal Best Practices on the Green Economy (forthcoming).
63 UN-HABITAT, Solid Waste Management in the World’s Cities: Water and Sanitation in the
World’s Cities 2010, available at: h p://www.unhabitat.org/pmss/listItemDetails.aspx?pub
licationID=2918.
64 Id., at 60.
65 Bruce Campbell, Eva Wollenberg, & David Edmunds, Devolution and Community-Based Natu-
ral Resource Management: Creating Space for Local People to Participate and Beneﬁt? (Overseas
Dev. Inst. 2002).
304 The World Bank Legal Review

The Brazilian National School Feeding Programme was decentralized and
localized in an eﬀort to increase food security and improve the nutritional
quality of school meals. Underpinning this movement was the promotion of
the procurement of local produce, with each municipality obliged to spend
30 percent of its budget for the program on produce grown by family-based
farmers. This entire process, made possible because of the belief that good-
quality food is a basic right, has encouraged a wider national debate on food
security and agrarian development, which is connected to the current promo-
tion of food sovereignty in sustainable agricultural interventions.66 In terms of
adaptation to climate change, food security is one of the most serious concerns
for developing countries. Programs addressing this concern, backed by local
regulations, can make a signiﬁcant contribution to human rights and dignity,
meeting basic needs of smallholder famers and the urban poor.67
The primary goal of India’s National Rural Employment Guarantee Act
is to supplement wage employment in impoverished areas, but it has the
secondary beneﬁt of strengthening resource management by ﬁnancing rural
projects that address causes of drought, deforestation, and soil erosion, “thus
restoring the natural capital base on which rural livelihoods depend.”68 The
act has aided in increasing the average wage of agricultural laborers by
25 percent over a three-year period, thereby empowering poor and margin-
alized groups while also promoting the restoration of ecological infrastruc-
ture.69 Such measures hold the potential to assist in improving resilience and
adapting to climate change and contribute to a broader green economy in a
way that respects equity and inclusion.70

Conclusion
The green economy has emerged from theory to become policy and prac-
tice. With strong international support, the green economy can be a means to
achieve the goals of sustainable development. New climate change response
measures, in the context of building a green economy at the local and global
levels, must inherently recognize and preserve human rights and social devel-
opment goals. Making this a reality, however, will require more than a mere
recognition of human rights in international texts. Practical policy and guide-
lines for regulatory and institutional reforms, built on the actual experiences

66 Kei Otsuki, Sustainable Partnerships for a Green Economy: A Case Study of Public Procurement for
Homegrown School Feeding, 35(3) Natural Resources Forum 213, 220 (2011).
67 Leah M. Ashe & Roberta Sonnino, At the Crossroads: New Paradigms of Food Security, Public
Health Nutrition and School Food, 1(1) Pub. Health Nutrition 1‒8 (2012).
68 Green Economy: Success Stories, supra note 57, at 17.
69 Id.
70 Pradosh K. Nath & Bhagirath Behera, A Critical Review of Impact of and Adaptation to Cli-
mate Change in Developed and Developing Economies, 13(1) Env., Dev. & Sustainability 141‒162
(2011).
Innovative Legal Measures for Climate Change Response 305
in the Green Economy

and successes of leading countries, are necessary for countries to accomplish
their capacity building goals.
This chapter has outlined how many developing and developed nations
are leading the way in deﬁning national and subnational innovations for
incorporating human rights principles into climate change policies, laws, and
programs for a more inclusive and equitable green economy. The chapter has
brieﬂy surveyed leading legal innovations that respond to climate change
and build on green economy opportunities that also provide for equity and
inclusion.
Beyond examples, tailored legal, regulatory, and institutional assess-
ments; capacity building; and technical assistance are also needed to aid coun-
tries as they develop new regulatory frameworks and implement changes in
legal practice on the ground. Monitoring and sharing of legal innovations
will contribute to the achievement of sustainable development goals. But a
start has been made, and it should be encouraged to grow. From national
legislation down to programming at the local level, inspiring examples of the
synergy between climate change, green economy measures, and meaning-
ful human rights frameworks have begun to emerge. These initial innovative
legal practices show country eﬀorts moving away from commonalities and
platitudes about human rights and instead undertaking tangible regulatory
reforms, inspiring new practices toward an equitable, inclusive, and funda-
mentally more-just green economy.

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The Constitutional Basis
of Public Participation
in Environmental Governance
Framing Equitable Opportunities at National
and County Government Levels in Kenya

ROBERT KIBUGI

The journey to a ain eﬀective public participation in Kenyan governance
gained traction when democratic space was cut back shortly after the 1982
failed military coup. The public interest and (negative) landmark 1989 judicial
decision in Wangari Maathai v. Kenya Times Media Trust,1 a dispute over the il-
legitimate annexation of a public open space in Nairobi, marked a dark phase,
but also the beginning of the end of political repression. The constitutional
court then ruled that only the a orney general could represent the public in-
terest in court. This was reversed through Section 3 of the 1999 Environmen-
tal Management and Coordination Act (EMCA), which created liberal legal
standing (access to justice) for anyone bringing an environmental action. The
heterogeneous concept of public participation, however, extends beyond lib-
eral judicial standing to include public representation and consultation dur-
ing decision making, access to information, and civic education to enhance
public awareness on environmental decision making.
The EMCA provides for public consultation as part of its environmen-
tal impact assessment (EIA) procedures.2 Many natural resource‒sector laws
have followed this lead, internalizing various forms of public participation,
especially consultation and representation. The Forests Act permits participa-
tory forestry management, wherein forest communities constitute community
forest associations (CFA) and engage in economic and conservation activities

This chapter is builds on an earlier (2012) research report by this author entitled “Ensuring
Eﬀective Public Participation in Natural Resources Management through Devolved Gov-
ernments in Kenya.” It was a part of a cluster of research themes under a general heading,
“Pu ing People at the Centre: Enhancing Public Participation in Decision Making,” com-
missioned by the Institute for Law and Environmental Governance (ILEG). This chapter has
been adapted with the consent of ILEG. The author wishes to thank Kevin Mugenya and
Mary Ondiek, who were part of the research team, and Pauline Makutsa, who managed the
research. Great thanks also to the peer reviewers and participants in the various review and
validation workshops.
1 Kenya Law Reports (Env. & Land) 166‒171 (2007).
2 See The Environmental (impact assessment and audit) Regulations (2003).

307
308 The World Bank Legal Review

in protected forests.3 The 2002 Water Act provides for the creation of water
resource users associations by residents in river catchments; these associations
engage in water resource management, which includes taking a role in the ap-
proval of surface water abstraction permits.4
These legal mechanisms, although restricted in the scope of public partici-
pation, have magniﬁed the equitable role of citizens in environmental decision
making. They could set the pace for further innovative legal and practical mech-
anisms. Such an opportunity for Kenya has been availed by the 2010 Const-
itution of Kenya. This basic law, promulgated on August 27, 2010, if interpreted
innovatively, will expand the space for public participation in environmental
decision making for Kenya. This chapter examines this possible outcome.
In undertaking this analysis, the chapter adapts as a normative framework
the principles of international environmental law found in Principle 10 of the
1992 Rio Declaration, which identiﬁes the basic concepts for subsidiarity in
performance of environmental functions. The conclusion suggests a number
of possible legal and/or administrative steps that could further enhance the
equitable role of public participation.

Tracing the Constitutional Basis of Public Participation in Kenya
Provisions of the 2010 constitution clearly show that any role citizens may
play in governance is based on the sovereign power that citizens hold, both as
individuals and as a collective group. This sovereign power may be exercised
directly or through elected representatives; in Kenya, it is delegated to the
various organs of government at the national and the county levels.5 The pre-
amble reﬂects how the sovereign power of the people of Kenya was exercised
at the time the constitution was adopted—by emphasizing the ﬁrm basis of
public participation in governance:
We, the People of Kenya . . . exercising our sovereign and inalienable
right to determine the form of governance of our country and having
participated fully in the making of this Constitution . . . adopt, enact
and give this Constitution to ourselves and to our future generations.
Article 10 of the Kenyan constitution identiﬁes speciﬁc national values and
principles of governance that are binding to every state organ, state oﬃcer,
public oﬃcer, and all other persons engaged in applying or interpreting the
constitution, in enacting or applying any law, and in making any public policy
or decision. These governance values and principles include democracy, public
participation, sustainable development, the sharing and devolution of power,
transparency, and accountability. Constitutionally, it is apparent that public
participation and sustainable development form the backbone of governance

3 Forests Act 7 (2005). See part IV, Community Participation.
4 Water Act, sec. 15(5) (2002); see also Water Resource Management Rules, sec. 10 (2007).
5 Kenyan Const. (2010), art. 1 (hereinafter Kenyan Const.).
The Constitutional Basis of Public Participation 309
in Environmental Governance

in Kenya. Constitutional fundamental rights frame further bases of public par-
ticipation; these include the right to make political choices and to participate
in free and fair elections based on universal suﬀrage.6 The procedural rights
of access to justice, to fair administrative action,7 and to information8 comple-
ment the realization of environmental, economic, and social rights.
The 2010 constitution introduced a system of devolved government, where-
by Kenya has a national government that shares functions with 47 distinctive
county governments. Each level of government has functions that are deﬁned
in the fourth schedule to the constitution. Public participation is a principal
object of devolution, as articulated in Article 174, “(c) to give powers of self-
governance to the people and enhance the participation of the people in the
exercise of the powers of the State and in making decisions aﬀecting them.”
Article 174 further suggests that devolution is intended to realize the prin-
ciple of subsidiarity, akin to similar provisions in Principle 10 of the Rio Dec-
laration, by recognizing “the right of communities to manage their own af-
fairs and to further their development.” These provisions are the basis for the
enhanced role of the public; they reinforce the need to innovatively interpret
constitutional provisions to ensure that all elements of public participation
play an eﬀective role on the threshold of environmental decision making.

International Law and the Normative Content
of Public Participation in Environmental Governance
Treaty law and soft law have set the basis for general and speciﬁc elements
of public participation in environmental decision making, as seen in the soft
law principles in various environmental law declarations and publications.
The 1972 Stockholm Declaration called for the “acceptance of responsibility
by citizens and communities and by enterprises and institutions at every level,
all sharing equitably in common eﬀorts”9 to achieve environmental goals. It
stated that individuals and organizations in all walks of life would shape the
world environment of the future, both by their values and by the sum of their
actions. In 1987, the report of the World Commission on Environment and
Development, entitled Our Common Future,10 concurred, arguing in part that
the law principally needs community knowledge and support, which entails
greater public participation in the decisions that aﬀect the environment.

6 Id., at art. 38.
7 Id., at arts. 47‒48.
8 Id., at art. 35.
9 Preamble to the 1972 Stockholm Declaration on the Human Environment, UN Doc. A/Conf.48/14/
Rev. 1(1973), para. 7.
10 World Commission on Environment and Development, Our Common Future (Oxford U.
Press 1987) (hereinafter Our Common Future).
310 The World Bank Legal Review

The ideal object of public participation in environmental decision making
would be the a ainment of sustainable development. Deﬁned as “develop-
ment that meets the needs of the present without compromising the ability of
future generations to meet their own needs,”11 sustainable development con-
cerns the welfare of both the people and the environment. An imperative in
practical implementation of sustainable development through law and policy
is the concept of integration.12 Integration necessarily implies having a legal
basis or process that requires and facilitates consideration of socioeconomic
(developmental) and environmental factors to secure a balance of interests.13
To secure this balance of interests, it is necessary to fulﬁll the socioeconomic
needs of the people and to protect the environment, for both ecological and
human beneﬁt. Integration, or the balance of interests, therefore confers a re-
sponsibility on people to participate in making decisions in the management
of natural resources.
Public participation in environmental governance is a well-articulated
general concept in environmental law treaties, conventions, and protocols.
Kenya is party to various international treaties that elucidate public participa-
tion in environmental governance. These include the United Nations (UN)
Convention to Combat Desertiﬁcation,14 which stipulates obligations for
aﬀected-country parties to “promote awareness and facilitate the participa-
tion of local populations, particularly women and youth, with the support
of nongovernmental organizations, in eﬀorts to combat desertiﬁcation and
mitigate the eﬀects of drought.”15 The UN Framework Convention on Climate
Change, dealing with the very complex challenge of adapting to and mitigat-
ing climate change, calls on all parties to “promote and cooperate in educa-
tion, training and public awareness related to climate change and encourage
the widest participation in this process, including that of non-governmental
organizations.”16
Principle 10 of the Rio Declaration, as earlier pointed out, provides useful
guidance on a normative content of public participation, stating that “envi-
ronmental issues are best handled with participation of all concerned citizens,
at the relevant level.”17 This principle instructively breaks down elements of

11 Id., at 43.
12 Id., at para. 48.
13 See Dire Tladi, Sustainable Development in International Law: An Analysis of Key Enviro-Economic
Instruments (Pretoria U. L. Press 2007).
14 See United Nations Convention to Combat Desertiﬁcation, 33 Intl. Leg. Materials 1328 (1994).
15 Id., at art. 5(d).
16 See art. 4, United Nations Framework Convention on Climate Change, 31 Intl. Leg. Materials 849
(1992).
17 The normative content set out in Principle 10 of the Rio Declaration amounts to soft interna-
tional law for lack of binding character on states, as opposed to when the same normative
content is crystallized within binding obligations through treaty law, as evident through
the Aarhus Convention, in infra note 19. The 2006 East African Community Protocol on En-
vironmental and Natural Resource Management, to which Kenya is a state party, similarly
The Constitutional Basis of Public Participation 311
in Environmental Governance

public participation that are key to developing a normative content for practi-
cal implementation through national law in Kenya. The four elements of pub-
lic participation in environmental governance are outlined below.

Public Opportunity to Participate in Decision-Making Processes
This element suggests that the public should participate in all phases of de-
cision making, from designing environmental law, to implementing legal
provisions, to ensuring that the intended objectives are fulﬁlled through the
representation, consultation, and actions of all individuals.18 The nature of
this public participation in the environmental decision- and policy-making
process is, for instance, exhorted in the Aarhus Convention.19 This treaty, al-
though not applicable to Kenya, illustrates various platforms through which
meaningful participation can be realized. These include public involvement in
decision making on speciﬁc projects requiring permits, such as public consul-
tations during EIAs; participation in the development of programs and plans
aﬀecting the environment; and participation in the development of regula-
tions, policy, or laws.20 This “participation of the public in decision-making on
ma ers with a potentially signiﬁcant environmental impact” is also framed
as a procedural right by the 2003 African Convention on the Conservation of
Nature and Natural Resources.21

Access to Information Concerning the Environment
The right of people to access information that is held by public authorities
and private entities makes it easier for the public to participate in administra-
tive and judicial processes. It helps promote more rational, informed decision
making and it fosters transparent and accountable decision making.22 Eﬀec-
tive access to meaningful information is the ﬁrst step in empowering citizens
to exercise a degree of control over resources and institutions.23 This right to
access information draws its legal foundation from, among other instruments,

crystallizes elements of public participation in environmental management into hard law.
Both soft and hard international law play signiﬁcant roles in conceptual justiﬁcations and
content of municipal laws.
18 Sally Eden, Public Participation in Environmental Policy: Considering Scientiﬁc, Counter-Scientiﬁc
and Non-scientiﬁc Contributions, 5 Pub. Understanding Sci. 183, 184 (1996).
19 See Aarhus Convention on Access to Information, Public Participation in Decision Making and Ac-
cess to Justice in Environmental Ma ers, 38 Intl. Leg. Materials 517 (1999) (hereinafter Aarhus
Convention).
20 Id., at arts. 6‒8.
21 See African Convention on the Conservation of Nature and Natural Resources (Revised) (July 11,
2003), reprinted in Compendium of Key Human Rights Documents of the African Union 95 (Chris-
topher Heyns & Magnus Killander eds., Pretoria U. L. Press 2010).
22 Benjamin Richardson & Jona Razzaque, Public Participation in Environmental Decision-Making
181 (Benjamin Richardson & Stepan Wood eds., Hart 2006).
23 See Christoph Schwarte, Access to Environmental Information in Uganda Forestry and Oil Pro-
duction (Intl. Inst. Env. & Dev. 2008).
312 The World Bank Legal Review

the International Covenant on Civil and Political Rights (ICPR).24 The ICPR
provisions on freedom of expression include the freedom of everyone to seek,
receive, and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing, in print, in the form of art, or through any other me-
dia of choice.25 This right to receive information is similarly guaranteed by the
African Charter,26 which is binding on Kenya.

Obligation to Facilitate and Encourage Public Awareness
In 1987, Our Common Future expressed its concern with people and changes
in human a itudes, noting that these changes depend on an urgent and vast
campaign of education, debate, and public participation.27 This view is rein-
forced by the 1992 Agenda 21, a nonbinding action plan on sustainable devel-
opment agreed on by UN member states during the Conference on Environ-
ment and Development in Rio de Janeiro, Brazil. In Chapter 36, Agenda 21
makes provisions for education and public awareness, and training with re-
gard to implementation of sustainable development. Education, including
formal education, public awareness, and training are highlighted as critical
for achieving environmental and ethical awareness; for developing values, at-
titudes, skills, and behaviors consistent with sustainable development; and for
encouraging eﬀective public participation in decision making.28 Education is
therefore a foundational element of public participation, and through training
and public awareness it can enhance public sensitivity to environment and
development problems. It also can strengthen public involvement in seeking
solutions and, particularly, foster a sense of personal environmental responsi-
bility and commitment toward sustainable development.29
Formal and nonformal educational systems stand to play a key role. For-
mal education implies school- or institution-based education, ranging from
basic primary education to tertiary institutional or university training. Public
awareness of formal education is particularly important because achievement
of universal primary education is the second Millennium Development Goal.
Enrolling and retaining children in primary schools to receive a basic educa-
tion was enacted as a special basic right for every child in Kenya by Article
53 of the constitution. Kenya has had a system of universal and free primary
school education since 2003. Using formal primary-, secondary-, and tertiary-
level education to impart values, knowledge, and awareness of sustainable
development is instrumental in realizing intergenerational equity, enabling

24 International Covenant on Civil and Political Rights, 6 Intl. Leg. Materials 368 (1967).
25 Id., at art. 19.
26 Id., at art. 9.
27 Our Common Future, at para. 107.
28 See Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3‒14
June 1992, vol. 1: Resolutions Adopted by the Conference, res. 1, annexes I and II, para. 36.3 (UN,
Sales No. E.93.I.8 and corrigenda) (hereinafter UN Conference on Environment and Develop-
ment).
29 Id., at para 36.8.
The Constitutional Basis of Public Participation 313
in Environmental Governance

younger generations to internalize these values. The concept of education for
sustainable development (ESD) provides a ready-to-use mechanism.
With Resolution 59/237, the UN General Assembly adopted the Decade
of Education for Sustainable Development (DESD), which extends from 2005
to 2014. The resolution called on national governments to “consider the inclu-
sion . . . of measures to implement the Decade in their respective educational
systems and strategies and, where appropriate, national development plans.”
According to UNESCO, the basic vision of ESD rests on the principle of using
education―formal, nonformal, and informal―as an eﬀective vector to bring
about change in values, a itudes, and lifestyles to ensure a sustainable fu-
ture.30 The objectives of the ESD program are to improve access to quality
basic education, reorient existing education programs, develop public under-
standing and awareness, and provide training.31 These are reiterated as the
key strategic objectives for implementing the ESD strategy for Kenya,32 which
is discussed later in this chapter.

Access to Judicial and Administrative Proceedings,
Including Redress and Remedy
Access to justice, according to Connie Ngondi-Houghton,33 is conceptualized
not as an end result but as a continuum that begins with inclusion of rights
in the law, awareness of and understanding of the law, easy availability of
information pertinent to one’s rights, the right to the protection of one’s rights
by the legal enforcement agencies, easy entry into the judicial justice system,
a conducive environment within the judicial system, timely processing of
claims, and timely enforcement of judicial decisions. Principle 10 of the Rio
Declaration calls on states to provide eﬀective access to judicial and admin-
istrative proceedings, including redress and remedy. In this sense, the legal
system of any country should ensure that judicial institutions and any ad-
ministrative mechanisms are eﬀective in order to enhance access to environ-
mental justice for the public.34 Any proceedings in these mechanisms should
be expeditious and inexpensive, and the rules on legal standing should be
liberal, with the objective of giving the public concerned wide access to jus-
tice.35 Additionally, the outcomes of the access to justice mechanisms should
be binding on public authorities.

30 UNESCO, The UN Decade of Education for Sustainable Development (DESD 2005‒2014): The First
Two Years 5 (UNESCO 2007).
31 Id., at 6.
32 Kenya: Education for Sustainable Development Implementation Strategy 14 (Natl. Env. Mgt. Auth.
2008) (hereinafter Kenya: Education).
33 Connie Ngondi-Houghton, Access to Justice and the Rule of Law in Kenya 4‒5 (research paper
prepared for the Commission for the Empowerment of the Poor, 2006).
34 Robert Kibugi, Enhanced Access to Environmental Justice in Kenya 159‒160 (Jamie Benidickson
& Ben Boer eds., Edward Elgar 2011).
35 Id.
314 The World Bank Legal Review

Interpreting Constitutional Provisions as Opportunities for
Enhanced Public Participation in Environmental Decision Making
It is clear that, through Article 10, the Kenyan constitution boldly pronounces
the central role of public participation. The constitution is a framework law, so
this chapter reviews the speciﬁc provisions that could be molded to reﬂect a
normative content for public participation that is consistent with Principle 10
of the Rio Declaration. The output of this analysis will articulate the oppor-
tunities available in Kenyan law for practical implementation of public par-
ticipation in environmental decision making through law and administrative
regulations.

Deriving the Basis of Public Participation from Constitutional
Environmental Right and Duty
The constitution, through Article 42 (part of the Bill of Rights), grants a speciﬁc
right to a clean and healthy environment to every person. The implementation
of this right, analyzed below, provides opportunities for public participation.

Foundation of Proactive Public Participation
Article 42 provides that the environmental right shall be realized through
legislative and other measures, particularly those contemplated in Article 69,
which highlights two sets of obligations. The ﬁrst set, in Article 69(1), out-
lines obligations mandatory on the Kenyan state. Four of these obligations are
notable, requiring the state to (1) ensure sustainable exploitation, utilization,
management, and conservation of the environment and natural resources; (2)
work to achieve and maintain a tree cover of at least 10 percent of the land area
of Kenya; (3) protect and enhance intellectual property in, and indigenous
knowledge of, biodiversity and the genetic resources of the communities; and
(4) encourage public participation in the management, protection, and conser-
vation of the environment.
The second set of obligations, in Article 69(2), outlines a duty on every
person to cooperate with state organs and other persons “to protect and con-
serve the environment and ensure ecologically sustainable development and
use of natural resources.” This environmental duty on citizens of Kenya mani-
fests three arms: (1) a speciﬁc obligation on each individual to protect and
conserve the environment; (2) a speciﬁc obligation on every individual to co-
operate with the state organs, and other people, to protect and conserve the
environment; and (3) an overall obligation on people, working together and
with the state, to conserve the environment, ensure ecologically sustainable
development, and use natural resources.
A textual reading reveals that the duty in Article 69(2) casts the mold for
proactive public participation, including collaboration with public agencies
and oﬃcers and other members of the public, in fulﬁllment of the constitutional
duty on citizens. The explicit output of this proactive public-participation ob-
ligation is clearly set out as “ensuring ecologically sustainable development,
The Constitutional Basis of Public Participation 315
in Environmental Governance

and use of natural resources.” Arguably, Article 69(2), through the environ-
mental duty, sets the foundational basis for public participation in environ-
mental decision making, with sustainable development as a clear output.

Equity in Public Participation
The constitutional environmental right, which is implemented through leg-
islative and other measures set out in Article 69, includes an entitlement to
have the environment protected for present and future generations. It is an
explicit linkage of the right with sustainable development, which concerns
both intra- and intergenerational equity. The la er concepts of equity inher-
ently require the ensuring of representation or participation of both genders36
in a reasonable proportion, and ascertaining that there is adequate represen-
tation of younger people for generational succession. Gender equity is a core
value of the 2010 Constitution of Kenya, which stipulates that not more than
two-thirds of members of elective or appointive bodies shall be of one gen-
der.37 It is particularly applicable when public representation or consultation
is conducted through statutory bodies such as commi ees created through
legislation.
The roles through which the public can take part in environmental deci-
sion making could, through legal provisions, take the form of representation
in key organs or commi ees, or being consulted over particular ma ers, de-
cisions, and projects (such as through EIAs) or proposed laws, policies, and
programs. Even when such mechanisms for representation and consultations
exist, there are pervading concerns over their eﬀectiveness, or whether they
are mere formalities. Arguably, the aim of these mechanisms should be to
have public representation and consultations resulting in positive eﬀects on
the threshold and direction of decision making. The socioeconomic diversity
of society suggests that in order for public representation to accommodate eq-
uity, the law should develop criteria for representation to ensure that the con-
cerns of all, from the poorest to the wealthiest, members of the community are
articulated. In public participation through representation in decision making
forums (such as commi ees), questions often arise regarding the manner in
which representatives are chosen. Are they democratically elected by fellow
citizens, or appointed by public oﬃcials?

The Right of Access to Information

The Original Constitutional Position on Access to Information in Kenya
Section 79 of the now-repealed constitution38 did contain provisions akin to
guarantees of access to information but those provisions featured a number

36 Principle 20 of the Rio Declaration recognizes that women have a vital role in environmental
management and development and notes that the full participation of women is essential to
achieve sustainable development.
37 Kenyan Const., supra note 5, at art. 27.
38 Kenyan Const. (1994) Rev. 2008 (repealed Aug. 27, 2010).
316 The World Bank Legal Review

of weak and gray areas. That constitution guaranteed every person in Kenya
the freedom to “hold information” as well as to “receive ideas and informa-
tion without interference,”39 but the right was not absolute, being restricted on
grounds of public health and national security or safety.40 In addition, while
the constitution granted a freedom to receive ideas and information, it did not
specify a right to receive the information from the state, due to the Oﬃcial
Secrets Act prohibiting public servants from releasing any conﬁdential infor-
mation.41 Nor did the law deﬁne the term “conﬁdential,” which created the
possibility that any government information could be treated as conﬁdential.

The Current Constitutional Position
Article 35 of the 2010 constitution seeks to remedy the past weaknesses and
provides for an explicit entitlement to access information as a fundamental
right. The article provides that every citizen has the right of access to
(a) information held by the State; and
(b) information held by another person and required for the exercise
or protection of any right or fundamental freedom.
This provision raises several pertinent conceptual issues for assessment.
Unlike other fundamental rights, it is the only entitlement whose eﬀect is lim-
ited to citizens of Kenya. The entitlement includes a right to access information
held by the state (public authorities) and by another person (private entities).
The provision leaves an open ending to “information held by the State,” as op-
posed to information held by private citizens. Thus, citizens have a right to ac-
cess pertinent information held by the state without a need to demonstrate that
the information is required for exercise of any right or fundamental freedom.

Legislative Attempt to Develop Access to Information
Administrative Mechanisms
The Freedom of Information Bill 2012 is proposed as legislation to give eﬀect
to Article 35. The bill reiterates that access to information is a legally enforce-
able right. It proposes a complex administrative procedure governing how
public oﬃcials should respond to freedom of information requests, notably
placing a 15-day limit for processing the requests. It further proposes that
requests for information should be rejected only when the information, if re-
leased, would be likely to infringe on personal privacy, expose industrial or
commercial secrets, or endanger national security.

39 Id., section 79(1); see also Robert Kibugi, Development and Balancing of Interests in Kenya
166‒167 (Willemien du Plessis & Michael Faure eds., Pretoria U. L. Press 2011). See also the
analysis in E. Abuya, Towards Promoting Access to Information in Kenya 6 (Apr. 2011), available
at h p://spaa.newark.rutgers.edu/images/stories/documents/Transparency_Research_Con
ference/Papers/Abuya_Edwin.pdf (accessed Aug. 28, 2011).
40 Kenyan Const. (1994), supra note 38, at sec. 79(2).
41 Oﬃcial Secrets Act, Cap. 187 Laws of Kenya, sec. 3.
The Constitutional Basis of Public Participation 317
in Environmental Governance

Access to environmental information is an administrative process, and
thus legislation should endeavor to ease that process to avoid defeating the
purpose of the right. The Aarhus Convention underscores the need to ease the
administrative burden. Notably, the convention states that requested infor-
mation ought to be provided “without an interest having to be stated”; most
preferably in the form requested; and as soon as possible―within a month,
unless the complexity of the information justiﬁes an extension to two months,
in which case the applicant should be notiﬁed promptly and given reasons
for the delay.42 This provision supports the approach of the 2006 East African
Community Protocol on Environment and Natural Resources Management,
which, although lacking the detailed content, places an obligation at Article 34
on the states to “ensure that oﬃcials and public authorities assist the public
to gain access to information.” Ideally, therefore, it would be necessary for a
law to clarify if any administrative fee was to be levied, and to ensure this was
reasonable. Additionally, there should be an administrative or access to justice
mechanism through which members of the public can appeal decisions that
limit or deny access to information.

Obligation on Public Awareness and Information Dissemination
Public awareness, which is a core element of public participation, is a right
that is mutually reinforcing to all other elements facilitating citizen involve-
ment in environmental decision making.

Formal and Informal Education as Avenues for Public Awareness
One constitutional basis of public awareness is freedom of expression, set out
in Article 33, particularly the freedom to seek, receive, or impart information
or ideas. Another constitutional basis, consistent with the classiﬁcation by
Agenda 21, is found in Article 43, which creates a right to education for every
person. The right to education in Article 43 is set out as distinct from Article 53’s
universal right of all children to free and compulsory basic education. The
generic right in Article 43 could be interpreted to include an entitlement to
formal and informal education that improves the skills, knowledge, values,
and a itudes of people, including for the environmental decision making an-
ticipated in Article 69(2). Applying this constitutional foundation strengthens
the argument for developing and undertaking extensive civic education and
extension programs and integrating values of sustainability into curricula for
basic, secondary, tertiary, and adult education programs.

Adapting Existing Educational Strategies for Public Awareness
The ESD strategy for Kenya43 focuses on adapting sustainable development to
the formal education system and school syllabus, as well as for the training of
teachers. Public awareness, one of the strategic objectives of the Kenyan ESD

42 Aarhus Convention, supra note 19, at art. 4.
43 Kenya: Education, supra note 32, at 14.
318 The World Bank Legal Review

strategy, is usually undertaken through informal education mechanisms as a
key element in inculcating values related to and knowledge about sustainabil-
ity in natural resources management. The strategy, for instance, acknowledg-
es the role of government in “fostering public awareness, participation and
capacity building on ESD at all levels,” and of civil society in community in-
volvement at all levels, “through awareness and education programmes and
. . . sharing information relating to ESD.”44
This suggests a key role for generic civic education programs, typically
undertaken to disseminate information or educate the public on various mat-
ters of governance, such as through the Kenya National Integrated Civic Edu-
cation (K-NICE) Programme. This is an initiative of the government in col-
laboration with nonstate actors to develop a nationally owned and sustainable
program of civic education.
The strategy for the K-NICE civic education program sets out key result
areas: (1) to enhance awareness of the Bill of Rights and national values; (2)
to sustain citizens’ engagement in constitutional implementation; (3) to im-
prove understanding of land reforms, land use, and land management; (4) to
improve understanding and engagement in the implementation of devolved
government; and (5) to enhance engagement in the electoral process.45 The
integrated national civic education program has been developed and intro-
duced at a critical juncture in Kenya, and upon implementation it will en-
hance public participation in general governance and in environmental deci-
sion making.

The Role of Extension Education
Another option for undertaking public awareness, which is particularly rel-
evant for environmental decision making, is through extension education. Ex-
tension is the function of providing need- and demand-based knowledge and
skills to rural populations in a nonformal, participatory manner with the ob-
jective of improving their quality of life.46 Extension is often provided directly
to community members, depending on the natural resource activity they are
undertaking; it could, for example, be classiﬁed as agricultural, forestry, or
ﬁsheries extension.
Public awareness and other mechanisms for imparting knowledge, val-
ues, and skills for sustainable development will be inadequate unless public
authorities have an obligatory role in availing and disseminating pertinent
environmental information. As part of the constitutional right of access to in-
formation, the government has an obligation to “publish and publicise” any
important information aﬀecting the nation. The Freedom of Information Bill

44 Id., at 22‒23.
45 Kenya National Integrated Civic Education (K-Nice) Programme: Strategy and Implementation Plan
11‒14 (Ministry of Just., Constitutional Aﬀairs & Natl. Cohesion, 2011).
46 Kalim Qamar, Modernizing National Agricultural Extension Systems: A Practical Guide for Policy-
Makers of Developing Countries 1 (Food and Agric. Org. 2005).
The Constitutional Basis of Public Participation 319
in Environmental Governance

interprets this as an “obligation on the part of public bodies and oﬃcials to
disseminate essential information that the public is entitled to know, includ-
ing their core functions and key activities.”47 Based on Articles 42 and 69 of the
constitution, it can be argued that information on the diverse variants of en-
vironmental decision making is important to, and has an eﬀect on, the nation.

Access to Justice through Judicial and Administrative Mechanisms
The constitution has incorporated explicit mechanisms that guarantee the
right of access to justice, therefore strengthening application of other entitle-
ments that empower citizen or public roles in environmental management.
Article 48 obliges the Kenyan state to ensure access to justice for all persons
and to ensure that any fee required shall be reasonable and not an impediment
to the realization of the right. Access to justice, in practical terms, is realized
through judicial and administrative mechanisms for complaints, redress, and
remedy. The constitution sets out an extensive judicial structure for the en-
forcement of fundamental rights, interpretation of the constitution, and reso-
lution of disputes, as well as for upholding provisions of any law.

Liberal Legal Standing to Enforce Environmental Rights
Article 22 entitles any person who claims that a fundamental right has been de-
nied, violated, infringed upon, or threatened to bring a petition for protection
or enforcement of that right to the High Court. The provisions on legal stand-
ing have been extensively eased relative to the now-repealed constitution, such
that a person may ﬁle a petition for enforcement of the Bill of Rights on his or
her own behalf, on behalf of a group, or in the public interest. In an eﬀort to
enhance access to justice, there are powers given the chief justice to create rules
of procedure that will facilitate access to justice, including eliminating court
fees; minimizing formal procedures, such as possible entertainment of infor-
mal documentation for ﬁling petitions; easing procedural technicalities; and
permi ing persons with particular expertise pertinent to the ma er at hand
to appear as a friend of the court (amicus curiae). Article 70 of the constitution
is similar to Article 22 but speciﬁcally provides for actions to enforce constitu-
tional environmental rights without the need to demonstrate standing.

Specialized Environmental Court with Constitutional Enforcement Powers
Pursuant to constitutional authority to create specialized courts with the sta-
tus of a High Court,48 Parliament enacted the Environment and Land Court
Act, 2011. This specialized Environment and Land Court was established to
facilitate the just, expeditious, proportionate, and accessible resolution of en-
vironment and land disputes. The court has the power to hear and determine

47 Freedom of Information Bill sec. 26(13) (draft, Jan. 5, 2012).
48 Kenyan Const., supra note 5, at art. 165. The High Court is created as a court with unlimited
original and appellate jurisdiction on civil and criminal ma ers. Under art. 165(3-b), read
with art. 22, it has exclusive jurisdiction to enforce the fundamental rights guaranteed by the
Bill of Rights in the 2010 constitution.
320 The World Bank Legal Review

disputes relating to environmental planning and protection, trade, climate is-
sues, land use planning, title, tenure, boundaries, rates, rents, valuations, min-
ing, minerals, and other natural resources. Other areas of competence include
compulsory acquisition of land, administration and management of land,
and land contracts and instruments. The law empowers this court, because
it is equivalent to a High Court, with the authority to determine applications
brought under Article 22 of the constitution for enforcement of the fundamen-
tal right to a clean environment. This court also enjoys the power to determine
appeals from subordinate courts on ma ers of land and the environment and
to sit in judicial review of environmental decisions made by public oﬃcials
and administrative tribunals.
Innovatively, the court is empowered, on application by parties or on its
own motion, to apply alternative dispute resolution (ADR) mechanisms, in-
cluding customary law–based approaches that are consistent with the con-
stitution and statute law.49 Application of ADR provides opportunities for
concerned members of the public to constructively engage with one another
in resolving environmental disputes with plausible impacts on sustainable de-
velopment.

Independent Ombudsman to Safeguard Administrative Rights
There is a constitutional entitlement to administrative justice through admin-
istrative action that is expeditious, eﬃcient, lawful, reasonable, and procedur-
ally fair. If a fundamental right of a person is threatened by administrative
action, the concerned person is entitled to receive wri en reasons for the deci-
sion. This right is a core entitlement that aﬀects the realization of other basic
rights, including access to information and the right to a clean and healthy
environment. Through the Commission on Administrative Justice Act, 2011,
Parliament, under powers set out in Article 59 of the constitution, established
a statutory commission to function as custodian of the right to fair adminis-
trative action. The Commission on Administrative Justice (Ombudsman) has
broad powers to protect, uphold, and enforce the right to fair administrative
action.50 It has the power to institute and undertake investigations into com-
plaints submi ed by any person regarding administrative action. The com-

49 Environment and Land Court Act, sec. 18 (2012).
50 Sec. 5: The statutory powers of the Commission include (i) investigate any conduct in state
or public aﬀairs that is alleged to be, or is likely to be prejudicial or improper. (ii) investigate
complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive,
unfair or unresponsive oﬃcial conduct within the public sector. (iii) inquire into allegations
of maladministration, delay, administrative injustice, discourtesy, incompetence, misbehav-
iour, ineﬃciency or ineptitude within the public service; (iv) facilitate the se ing up of, and
build complaint handling capacity in, the sectors of public service, public oﬃces and state
organs; (v) work with diﬀerent public institutions to promote alternative dispute resolu-
tion methods in the resolution of complaints relating to public administration; (vi) provide
advisory opinions or proposals on improvement of public administration, including review
of legislation, codes of conduct, processes and procedures; and (vii) promote public aware-
ness of policies and administrative procedures on ma ers relating to administrative justice.
See also Commn. on Admin. Just. Reg., 2013 (Leg. Notice No. 64, April 12, 2013).
The Constitutional Basis of Public Participation 321
in Environmental Governance

mission is empowered to call witnesses and issue summons, and eventually
it may be able to recommend prosecution, or advise the complainant on an
appropriate form of judicial redress. It may also advise the complainant and
the particular public oﬃce concerned in the alleged violation on other appro-
priate methods of se ling the complaint or to obtain relief.
The Freedom of Information Bill has proposed a similar administrative
mechanism for investigating and adjudicating complaints regarding access to
information. Collectively, the structuring and implementation of these admin-
istrative mechanisms will impact, negatively or positively, the realization of
the right of access to justice and fair administrative action.

The Pursuit of Enhanced Public Participation in Environmental
Decision Making through County Governments
Public participation is, through Article 10 of the constitution, binding to county
governments. Article 69(1) of the constitution, as previously detailed, sets out
mandatory obligations that require both the national and county governments
to “encourage public participation in the management, protection and conser-
vation of the environment.” A speciﬁc responsibility of county governments
to ensure public participation in governance is set out in Clause 14, of the
fourth schedule to the constitution, as a responsibility to
ensure and coordinate the participation of communities and loca-
tions in governance at the local level and assist communities and
locations to develop the administrative capacity for the eﬀective ex-
ercise of the functions and powers and participation in governance
at the local level.
Although public participation is set out as a function of county govern-
ments with respect to general governance, there is no inhibition from adapting
it toward enhancing public participation in environmental decision making.
This is particularly evident in relation to the functions of county governments
in the fourth schedule to the constitution, which include implementing spe-
ciﬁc national policies and laws on the conservation of agriculture, the environ-
ment, soil, and water, as well as on water services and sanitation, among other
areas of concern. This public-participation function requires county govern-
ments to “assist communities . . . to develop the administrative capacity for
the eﬀective exercise of . . . functions . . . and participation in governance at the
local level.” It is an important legal provision on subsidiarity in governance
and, when applied to environmental decision making, synchronizes devolved
government in Kenya with the Local Agenda 21 framework.51 Local Agenda 21
involves cascading Agenda 21 to lower levels of government and places a re-
sponsibility on local governments, as the level of governance closest to the
people, to play a vital role in educating, mobilizing, and responding to the
public to promote sustainable development.

51 UN Conference on Environment and Development, supra note 28, at ch. 28.
322 The World Bank Legal Review

The constitutional provisions on devolution with respect to county gov-
ernments52 are given eﬀect through the County Governments Act, 2012.53 This
law came into operation after the ﬁrst general elections under the 2010 con-
stitution, in March 2013. It contains provisions on public participation that,
although generic in nature, could produce innovative constitutional inter-
pretation to enhance citizen roles. These provisions could be modiﬁed or ex-
panded through administrative regulations and other practical mechanisms
to enhance their utility to environmental decision making. This possibility is
examined in the ﬁnal section of this chapter.

The Village as the Basic Unit of County Administration
and Public Participation
The law on devolution mandates that every county government decentralize
its functions and services to cities and urban areas, constituencies (as sub-
county units), wards, and village units.54 The village units, as the most basic
and local level of government, are closer to the grassroots and will play a key
role in facilitating public participation in all aspects of governance, including
environmental decision making. Many citizens who live at that level of ad-
ministration utilize environmental resources such as water and land for liveli-
hood and are therefore at the forefront of making important utilization and
management decisions. Statute-mandated accessibility of government at that
level is therefore a critical innovation. It will be important to develop regula-
tions on adapting and applying this provision to enhance public participation
in environmental management.

The General Framework for Citizen Participation
The law on county governments sets out the framework and principles for
citizen participation,55 including timely access to information and reasonable
access to law and policy formulation processes. These principles notably en-
hance the legal standing of interested or aﬀected persons, organizations, and
communities to appeal or review decisions or redress grievances. This is an
equitable principle that places particular emphasis on traditionally margin-
alized communities, women, and youth. If interpreted into regulations or
county-level laws, this principle could entrench the equity function of public
participation in governance. The utility of this framework is heightened by
the principles under which county governments provide reasonable balance
in their interactions with nonstate actors in decision-making processes, thus
promoting shared responsibility and providing complementary authority and
oversight.

52 Kenyan Const., supra note 5, at ch. 11.
53 County Governments Act, Act No. 17 of 2012.
54 Id., at sec. 48
55 County Governments Act, supra note 53, at sec. 87
The Constitutional Basis of Public Participation 323
in Environmental Governance

Within this framework, county governments are obliged to respond to
petitions and challenges expeditiously, to limit the resort to court action, and
possibly to secure the integrity of public participation. They may also conduct
referenda on proposed laws and policies and may be petitioned to do so re-
garding planning and investment decisions.56 There is an obligation on county
governments to put into place facilitative structures such as town hall meet-
ings, information- and technology-based platforms such as websites, budget-
validation forums, or conventional means, such as notice boards, for ma ers
of public interest.57 Inasmuch as the village is the basic unit of administration,
such facilitative structures should be established at the village level, as they
are intended to facilitate consultation with citizens and to enhance their con-
tribution to governance. Going forward, with respect to environmental deci-
sion making, it will be necessary to persuade county governments to enact
framework legislation that will establish the purposes and rationale for con-
vening town hall meetings and budget-validation forums.

The Obligation to Undertake Public Communication
The framework of the law on county governments makes those governments
responsible for overseeing public communications and facilitating access to
information. Notably, county governments are required to use the media to
advocate core development issues such as sustainable environmental manage-
ment, agriculture, education, health, security, and economics. The law further
requires the county governments to develop a framework for mechanisms of
public communication, including television stations, information communi-
cation technology centers, websites, and community radio stations.58 These
are important mechanisms for furthering the dissemination of general and
important information, and for fostering debate and discussion by and among
citizens. County-level laws and administrative regulations will be needed.

Citizens’ Right of Access to Information
This devolved government law, in furtherance of Article 35 of the constitu-
tion, provides that every Kenyan citizen has a right to apply for and to ac-
cess information held by any county government. The law requires that each
county government and its agencies identify and designate an oﬃcer to be re-
sponsible for access to information requests. County governments may there-
fore enact regulations to further expeditious access to information, although
caution should be taken to prevent conﬂict with national access to information
law. Nonetheless, this provides a useful window for counties to introduce
speciﬁc administrative regulations of access to environmental information.

56 Id., at secs. 88‒90.
57 Id., at sec. 91.
58 Id., at sec. 95.
324 The World Bank Legal Review

The Obligation to Provide Civic Education
The county government law further provides for civic education, the objec-
tives of which are to empower and enlighten citizens and government, to
engage citizens and government on a continuous and systemic basis, to sus-
tain citizens’ engagement in the implementation of the constitution, and to
heighten citizen demand for service delivery by institutions of governance
at the county level. These objectives support the argument that civic educa-
tion and public awareness form the critical bedrock for all other elements of
public participation, because without knowledge it would be diﬃcult to spark
interest in governance or to have an impact on people’s values and a itudes.
In this context, civic education is the starting point for fulﬁllment of all other
elements of public participation, as awareness imparts knowledge on how to
be part of governance on ma ers aﬀecting citizens, such as the management
of local natural resources. Importantly, county governments are empowered
to develop legislation that puts into place the institutional framework for fa-
cilitating and implementing civic education.59

Looking Forward to Enhanced Public Participation
in Environmental Decision Making
With the constitutional transition in administrative systems and laws, Kenya
has undergone a signiﬁcant transformation that will impact public participa-
tion in environmental decision making and sustainable development. Many
of the frameworks analyzed in this chapter are generic in nature, designed to
enhance public participation in general governance and administration. The
normative framework derived from elements in Principle 10 of the Rio Decla-
ration provides a useful guide, against which Kenyan law can be examined to
determine the best model for public participation.
From the foregoing analysis, it emerges that the constitutional framework
in Kenya is fairly advanced on providing avenues for public participation in
governance. The entrenchment of public participation as a binding principle
of national governance in the constitution reinforces this view. It is similarly
evident that public participation is not merely an entitlement granted to citi-
zens by the state; it is inherently intertwined with the sovereignty reposed on
citizens. With this strong foundation, constitutional and other legal provisions
provide mechanisms to implement the various elements of public participa-
tion, particularly through the Bill of Rights and the system of devolved gov-
ernments. A reasonably advanced framework can thus be deduced from the
national constitution, and even from the law on county governments. While
this chapter links these frameworks to environmental decision making, this
linkage is not apparent in practice. It is therefore important for the law to take
additional steps through legislation and administrative regulations speciﬁc to

59 Id., at sec. 100.
The Constitutional Basis of Public Participation 325
in Environmental Governance

environmental management. The following seven areas are prime targets for
new legislation and regulations.

National Framework on Public Participation
in Environmental Decision Making
A legislative or policy framework would determine the thresholds and pa-
rameters for public participation in environmental decision making. Such a
framework would be particularly relevant as it would provide guidance on
how the general provisions on public participation would be adapted for en-
vironmental decision making. It would eliminate or limit the misuse of the
procedures of public participation by providing clear instruments, mecha-
nisms, or processes that would constitute a comprehensive process of public
participation.

Consultative Development of Public Mobilization Regulations,
Targets, and Procedures
In order to enhance public participation in environmental decision making, it
is important for Kenyan national and county governments to develop regula-
tions that will guide administrative implementation. This would build on the
framework law or policy on public participation, proposed above, making the
process of development more consultative, to include the general public, mem-
bers of Parliament, and other stakeholders. The regulations should, for ex-
ample, aim to set up ﬂexible procedures that could be applied to mobilization
(for purposes of consultations), including how to reach people who ordinarily
would be unaware or unreachable by conventional approaches such as town
hall meetings, media announcements, or Internet postings. The regulations
should also include procedures for providing feedback to members of the
public, individually or collectively. The absence of feedback is a major cause of
apathy to participation in ma ers of governance, as individuals do not think
it worth their time when their complaints or proposals are not acted upon
promptly and feedback is not provided. It is thus important for members of
the public to have available avenues and mechanisms through which they can
receive feedback on complaints and suggestions given to public oﬃcers or to
representatives to statutory commi ees.

Preparation of Digests for Dissemination
A potentially important administrative approach for national and county gov-
ernments and civil society (separately or in collaboration) is to develop dedi-
cated digests of the mechanisms available for public participation. This would
involve isolating distinctive legislative and policy provisions and simplifying
them, with possible translation into Swahili60 and/or vernacular languages for
dissemination. The dissemination could be facilitated by village government

60 Kiswahili is the national language, and one of two oﬃcial languages in Kenya, as per art. 7
of the 2010 constitution.
326 The World Bank Legal Review

oﬃces, either over the Internet or through citizens’ forums, including town
hall meetings, churches, and market centers.

Integrating Public Participation in Formal Education, Adult Literacy
Syllabi, and Civic Education Manuals
In addition to constitutional basis, sustainable development is reiterated as a
duty on every Kenyan citizen through Section 23 of the Kenya Citizenship and
Immigration Act, 2011. Integration into the education system can provide the
means to impart awareness and knowledge on the constitutional and statu-
tory duties that set the basis of public participation through basic education,
adult literacy programs, and civic education. The framework that has already
been synthesized through the Education for Sustainable Development (ESD)
strategy developed by the National Environment Management Authority
(NEMA) should, however, be reviewed to incorporate provisions of the 2010
constitution on sustainability duties and devolved governments.

Proactive Disclosure of Information
The proactive disclosure of information that is pertinent to environmental de-
cision making by the government is an instrumental mechanism for dissemi-
nation of information. It will also reduce pressure on the formal application
process for access to information. Indeed, Article 35 of the constitution obli-
gates the Kenyan national and county government agencies to publish and
disseminate any important information aﬀecting the nation.

Public-Interest Environmental Litigation
and Alternative Dispute Resolution
Access to justice is an important element of public participation. Although the
constitution and statutes make extensive provisions for access to justice mech-
anisms, the utility of these mechanisms depends on how often they are in-
voked by the public. They include petitioning the High Court for enforcement
of the right to a clean and healthy environment through Articles 22 and 70 of
the constitution, bringing civil actions to the Land and Environment Court,
and ﬁling complaints for administrative justice with the ombudsman. In addi-
tion to preparing digests that simplify the rights, duties, and procedures with
respect to these institutions, it is necessary to develop dedicated public and
civil society programs that oﬀer legal and paralegal advice on access to justice,
including public-interest litigation.

Civic Education
Civic education is an important element of public participation and of the
realization of sustainable development because it raises public awareness
of the existence of rights, avenues for service delivery, mechanisms for ac-
countability, and paths for actual participation by individual members of
the public. Civic education therefore forms a foundation for other forms of
public participation. It is important in disseminating information, deepening
The Constitutional Basis of Public Participation 327
in Environmental Governance

people’s knowledge, availing forums for debate and discussion, and trigger-
ing proactive engagement in ma ers of governance. Civic education is there-
fore a signiﬁcant practical approach for implementing public participation.
To communicate a consistent message, the content of civic education should
be synchronized, since it could be oﬀered by various stakeholders, including
the national government, county governments, civil society, and the private
sector, among others. The role of the Kenya National Integrated Civic Educa-
tion (K-NICE) Programme is thus critical, to enhance the level of awareness
of rights and encourage participation in governance and to act as a catalyst of
constructive and eﬀective citizen engagement in the management of natural
resources.

Conclusion
While public participation can be an elusive concept due to its generic nature,
the 2010 Constitution of Kenya has opened up new legal and administrative
frontiers. It is a basic law focused on the interests of democracy and the well-
being of citizens. This is evident in the framing of public participation and sus-
tainable development as binding national values of governance. Nonetheless,
with the exception of the basic right to a clean environment and the speciﬁc
provisions on proactive public participation arising from Article 69 of the con-
stitution, many of the provisions require innovative structuring to enhance
the utility to environmental decision making. This could take place through
legislation, policy, and administrative mechanisms that ensure a meaningful
implementation through the creation of opportunities for equitable citizen
participation in environmental decision making. Cascading the constitution
through legislation, policy, and other administrative mechanisms proposed in
this chapter will set the process in motion.
In order to be adjudged equitable and eﬀective, public participation in en-
vironmental decision making must impact the threshold of decision making.
If this occurs, those individuals making a contribution in decision making will
have been treated equitably, and such legal opportunities could be exploited
by more individuals. The design and structuring of such extensive forward-
looking mechanisms requires in-depth analysis of constitutional provisions
to distill the basic precepts of public participation and to allow for further
application with respect to environmental decision making. This chapter has
undertaken such an analysis, ﬁrst identifying a relevant normative content
aligned to Principle 10 of the 1992 Rio Declaration, and thereafter succinctly
identifying conceptual, legal, and administrative opportunities available to
enhance equitable participation of citizens in environmental decision making.
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Planning Laws, Development Controls,
and Social Equity
Lessons for Developing Countries

RACHELLE ALTERMAN

Implementing or revising planning laws is a booming trend around the globe,
especially in developing countries. The tendency in developing countries has
been to model planning laws along the lines of those enacted and practiced
in advanced-economy countries. Before rushing to emulate the planning laws
of advanced economies, however, developing and transition countries should
ask some tough questions about the models to be adopted. Perhaps the most
important is whether the enactment and implementation of planning laws
has enhanced social equity in cities or exacerbated the inequities. When one
examines advanced-economy countries, where planning laws and regulatory
instruments have been routinely applied and enforced for many decades, the
answer to this question is a mixed one.
After an introduction to the relationship between planning laws and ur-
ban justice, this chapter delves into the functions played by planning laws
and how cities and countries have operated without them, both in the past
and more recently. A brief history of the evolution of planning laws around
the globe is presented, including their general state in developing countries
today. A conceptual framework for thinking about the regulatory layers of de-
velopment controls leads to an overview of existing research on the eﬀects of
planning regulations on social composition of cities and neighborhoods, with
a special focus on housing prices. Finally, lessons for developing countries are
discussed.

Social Equity, Planning Laws, and Development Controls
Planning laws, planning regulation, and development controls set land use
and building characteristics and thus aﬀect the physical environment. Whether
intentionally or not, planning regulation may also aﬀect the social composi-
tion of regions, cities, neighborhoods, and even city blocks.
Unlike many other types of civic laws, planning laws aﬀect not only one
or two distinct spheres, such as governance, business, or child care. Because

I am very grateful to Iris Frankel Cohen—an a orney and urban planner—who has kindly
provided me with some of the literature sources and has oﬀered valuable comments.

329
330 The World Bank Legal Review

the entire range of human (and nature-based) activities require the use of
space, and because space is often people’s major property asset, the proce-
dures, institutions, and rules for controlling urban and rural development af-
fect many spheres of life. Some of these eﬀects can be anticipated, but many
are ancillary or unintended. By impacting the use of land and space, planning
laws and development control can deeply inﬂuence the existing sociocultural
and economic order. They may have dramatic implications on personal health
and safety, housing prices, employment opportunities, family life, personal
time (spent on travel), and accessibility to public services.
Planning regulation can encourage the supply of adequate and aﬀord-
able housing and thus reinforce social integration, but regulations might also
aggravate the separation of social groups, provide greater public amenities
to privileged sectors, and raise housing prices, whether intentionally or not.
Thus, planning laws may exacerbate social diﬀerentiation and social exclusion.
In other words, urban planning in general, and decisions made under plan-
ning law in particular, is strongly related to notions of justice. Social justice is
an elusive concept. In her book The Just City, Fainstein addresses the challenge
of evaluating public decision making in urban planning and management.
After surveying relevant schools of philosophy, she decides that the concept
of equity is preferable to that of equality and be er captures the essence of a
just city. She deﬁnes equity-seeking urban policy as one that “favors the less
well oﬀ more than the well-to-do. That is, it should be redistributive, not only
economically but also, as appropriate, politically, socially, and spatially.”1
The concept of “distributional equity” is relevant to planning regulations.
Because lucrative land in a particular region is limited, legally binding plans
or zoning decisions are really a ma er of allocating ﬁnancial gains or loss-
es—what Hagman and Misczynski call “windfalls and wipeouts.”2 The major
function of planning regulations is to allocate development rights for diﬀerent
land uses and densities—some lucrative to the landholders (such as designa-
tion as market housing or commercial), and some undesirable (such as desig-
nation as protected agricultural zone that allows no development). Planning
regulations also determine which tracts will have access to eﬀective public
services, and which will have li le access to services. Planning regulations
determine which areas will beneﬁt from positive externalities and which will
bear the brunt of negative ones. In other words, planning regulations have
major implications for property values and thus for many households.

1 Susan Fainstein, The Just City 36 (Cornell U. Press 2010).
2 Donald G. Hagman & Dean J. Misczynski eds., Windfalls for Wipeouts: Land Value Recapture
and Compensation (Am. Plan. Assn. 1978). In a book comparing 13 Organisation for Economic
Co-operation and Development (OECD) countries, Alterman analyzes how the law in each
country treats the value loss or gain from planning regulations diﬀerently. See Rachelle Al-
terman, Takings International: A Comparative Perspective on Land Use Regulations and Compensa-
tion Rights (ABA Press 2010).
Planning Laws, Development Controls, and Social Equity 331

Fainstein deﬁnes distributional equity as aiming “at be ering the situa-
tion of those who without state intervention would suﬀer from relative depri-
vation. 3” In the context of planning regulation, two baselines for comparison
would determine land use distribution if there were no planning controls:
market forces and existing sociocultural and political norms. In advanced-
economy countries, market forces are the dominant precursors to planning
regulations, whereas in developing countries, sociocultural and political
norms are also important (sometimes more than market forces).
Although Fainstein does not address planning law directly, her book
opens with a debate among planning theorists that is relevant to this chap-
ter. Fainstein asks if planning theory—and urban justice—should center on
the way planning decisions are made (procedural) or on their substance and
impacts (substantive). The procedural-justice approach focuses on the quality
of communication between government and the concerned public, on power
relationships or on the instruments of public participation.4 Fainstein argues
that although for the assessment of planning laws and regulations both ap-
proaches are relevant, substantive decisions are more relevant in evaluating
just planning or a just city.
Every planning law in the world contains both procedural and substantive
components that impact the concept of justice. On the procedural side, plan-
ning law sets up institutions, ways of communication with the public, access
to information, and degrees of legal power granted to stakeholders. On the
substantive side, the essence of planning law is the various instruments with
which it empowers government bodies to make a diﬀerence “on the ground.”
This chapter adopts Fainstein’s perspective in that it examines the instruments
of development controls in terms of their impacts, rather than on how they
were adopted. However, there is need for more comparative research on the
relationship between social equity and planning institutions and procedures.5
This chapter uses the term “urban justice” broadly, as suggested by
Fainstein,6 to refer to public policies that promote greater social equity and
fairness than the market or preexisting social forces would have engendered
without public regulation or intervention.

3 Fainstein, supra note 1, at 37.
4 John Forester, The Deliberative Practitioner (Mass. Inst. Tech. Press 1999); Patsy Healey, Plan-
ning through Debate: The Communicative Turn in Planning Theory, in Readings in Planning Theory
234–258 (Susan S. Fainstein & Sco Campbell eds., Blackwell 2011); Judith E. Innes, Plan-
ning Theory’s Emerging Paradigm: Communicative Action and Interactive Practice, 14 J. Am. Plan.
Assn. 183–189 (1995).
5 For an example of such comparative research, see Dafna Carmon & Rachelle Alterman, Plan-
ning Theory and the Right for a Fair Hearing in Planning Laws: A Cross-National Perspective (in
preparation).
6 Fainstein, supra note 1, at 37.
332 The World Bank Legal Review

What and Why Planning Laws?
Different Terms, Shared Elements
Planning laws are called diﬀerent things in diﬀerent countries: land use plan-
ning, zoning plans, land management, local planning, urbanization, spatial
planning, town and country planning, urban and regional planning, city plan-
ning, environmental planning, development control. All these terms refer to
one or more laws that authorize government bodies to apply a set of instru-
ments to steer or control urban and rural development or conservation. These
instruments often include statutory plans (in most countries), zoning bylaws
(in the United States and Canada), subdivision or “pla ing” controls, powers
to secure land or ﬁnancing for public services, and the control of development
by means of permits and building and housing codes.
All countries also have laws that empower the state or its organs to take
land or buildings for public purposes under a set of conditions.7 These pow-
ers may be included in the planning law or be independent of the planning
law. They are known by diﬀerent terms in diﬀerent countries: eminent do-
main, compulsory purchase, compulsory acquisition, expropriation, takings.
Although planning laws vary around the world, they usually encompass all
or most of these regulatory or interventionist functions.8 This chapter uses the
term “planning law” to include this entire set of instruments, including the
control of development through the process of granting (or refusing) building
permits.

Urban Development without Planning Laws
The history of planning laws should not be confused with the history of urban
planning in general. Urban planning has a long history—in some areas of the
world, it can be traced back thousands of years. Even today, urban planning
decisions by governments are not necessarily predicated on the existence of
planning laws. In some regimes, including those of many developing coun-
tries, governments can act directly in making and implementing their own
plans for certain aspects of city form.
Before the emergence of regulatory planning laws, public planning tended
to focus on only the basic elements that a regime deemed important, such
as central roads, water sources, and defense. The standards of use of land
and housing by private households and businesses usually did not concern
governments unless these actions interfered with the interests of the rulers or
other holders of power. Even today, in developing countries—which consti-
tute the majority of urban (and rural) areas in the world—planning laws are
either nonexistent or almost irrelevant due to nonimplementation. Instead,

7 These diﬀer signiﬁcantly across countries; the topic is beyond the scope of this chapter.
8 Rachelle Alterman, National-Level Planning in Democratic Countries: An International Compari-
son of Urban and Regional Policymaking (Liverpool U. Press 2001). Compare with the recent
large-scale comparative analysis, but on speciﬁc aspects only, Alterman, supra note 2.
Planning Laws, Development Controls, and Social Equity 333

market forces, social norms, or brute power regulates the use of land. Stark
social inequities often ensue.
What about when there is total government control over land use? Does
that hold the recipe for urban equity? The ideologies that propelled the Com-
munist countries envisioned such a situation in a large-scale experiment of
regimes that sought social equity without planning laws. The governments of
the Soviet Union and most East European Communist countries did not need
the authority of planning laws in order to make their own short- or long-range
urban plans. Most developable land was nationalized.9 State organs or related
agencies controlled most land allocation and had the authority to develop it
directly or to allow others to develop it. Communist countries were able to
plan and implement huge housing projects, intended to create social equality
and improve the livelihoods of all.
After the Bolshevik Revolution in 1917–18, Communist planning (without
planning law) delivered millions of standardized housing units and upgraded
public services. However, in the la er decades of the 20th century, the iniq-
uitous outcomes of Soviet planning became apparent:10 the title of a paper
by Weclzwowicz states the development succinctly: “From Egalitarian Cit-
ies in Theory to Non-egalitarian Cities in Practice.”11 Soviet planning turned
out thousands of tiny, poorly built housing units in huge blocks. These often
looked ﬁne on government plans but turned out to be dismal estates far away
from the city center or employment centers, without public transportation or
services. In the absence of regulation, environmental degradation became se-
vere. The collapse of the Soviet Union revealed a story of chronic housing
shortages, sometimes involving decades-long waiting lists.12 Yet, those who
were close to power were always able to obtain central housing locations.

9 B. Renaud & A. Bertaud, Socialist Cities without Land Markets, 41 J. Urb. Econ. 137–151 (1997);
Kiril Stanilov ed., The Post-socialist City: Urban Form and Space Transformations in Central and
Eastern Europe after Socialism (Springer 2007); Hopferm Andrezej, Property Development and
Land Use Planning in Poland, in Property Development and Land-Use Planning around the Bal-
tic Sea 55–70 (Kai Böhme, Burkhard Lange, & Malin Hansen eds., Nordregio 2000); Leonid
Limonov & Vincent Renard eds., Russia: Urban Development and Emerging Property Markets
(Association des Etudes Foncières 1995); Stephanie Balme, Rule of Law as a Watermark: China’s
Legal and Judicial Challenges, in The World Bank Legal Review vol.4, 179–200 (World Bank 2013).
10 Sonia Hirt & Kiril Stanilov, The Perils of Post-socialist Transformation: Residential Development
in Soﬁa, in The Post-socialist City: Urban Form and Space Transformations in Central and Eastern
Europe after Socialism 215–244 (Kiril Stanilov ed., Springer 2007); Tom Reiner & Ann L. Strong,
Formation of Land and Housing Markers in the Czech Republic, 61(2) J. Am. Plan. Assn. 200–209
(1995); Vincent Renard & Rodrigo Acosta eds., Land Tenure and Property Development in East-
ern Europe (Association des Etudes Foncières 1993); Jan K. Brueckner, Government Land-Use
Interventions: An Economic Analysis, in Urban Land Markets—Improving Land Management for
Successful Urbanization 3–23 (Somik V. Lall et al. eds., Springer 2009).
11 Grezgorz Weclzwowicz, From Egalitarian Cities in Theory to Non-egalitarian Cities in Practice:
The Changing Social and Spatial Pa erns in Polish Cities, in Of State and Cities: The Partitioning of
Urban Space 183–199 (Peter Marcuse & Ronald van Kempen eds., Oxford U. Press 2002).
12 The Polish case is an example. See Adam Radzimski et al., Are Cities in Poland Ready for Sus-
tainability? Poznan Case Study (Real Corp, Proceedings May 18–20, 2010), available at h p://
www.corp.at.
334 The World Bank Legal Review

The lesson from the Communist experiment is that regimes that grant few
freedoms to individual initiative do not need, or want, planning laws. Even
though the essence of planning laws is to restrain private actions, their very
existence is “good news” for personal freedom. The introduction of planning
law in China in 1990 can be viewed as a step forward in the democratization
of planning and land management.13

Planning Laws in Developing Countries
In developing countries, most land area, including urban areas, is not reg-
ulated by planning laws, even if laws exist on paper. The key a ributes of
urban areas in developing countries include widespread poverty; stark so-
cioeconomic disparities; intense rural-to-urban migration; a huge shortage of
adequate and aﬀordable housing leading to megaslums with informal tenure;
a weak or absent system of land registration and property recording;14 and
governance issues such as transparency and citizen-empowerment deﬁcien-
cies.15 In those developing countries that have planning laws on the books,
many dating back to colonial times, the laws are absent in practice from the
majority of urban areas and enforcement of the laws is haphazard.16
The cities of the developing world need planning laws and development
controls in order to oﬀer a be er quality of life for their residents, greater
certainty for their businesses, and more sustainable environmental resources.
Cities without planning laws are governed by a combination of an unbridled
market, cultural traditions, and brute power. These cities are unable to deal
with an insuﬃcient public infrastructure, the absence of public open space,
and poor environmental quality. Without planning laws, there is no mecha-
nism that can mitigate “negative externalities” emanating from land use—that
is, the many negative impacts on neighbors or the community at large, such as
noise, obstruction of sunlight, parking needs, and unaesthetic construction. In
the language of economics, private (or even public) land users have no incen-
tive to “internalize” these externalities unless regulations require or incentiv-
ize that. An unregulated market will likely produce substandard and danger-
ous housing of poor environmental quality and great disparities in access to
infrastructure, social services, and amenities.17 In general, an unregulated city

13 City Planning Law of the People’s Republic of China; available at h p://www.china.org.cn
/english/environment/34354.htm.
14 UN-Habitat, Secure Land Rights for All (Global Land Tool Network 2008).
15 Hassane Cissé, Legal Empowerment of the Poor: Past, Present, and Future, in The World Bank
Legal Review vol. 4, 31–44 (World Bank 2013).
16 C. B. Arimah & D. Adeagbo, Compliance with Urban Development and Planning Regulations
in Ibadan, Nigeria, 24(3) Habitat Intl. 279–294 (Sept. 2000); Maurice Onyango & Owiti A.
K’Akumu, Land Use Management Challenges for the City of Nairobi, 18(1) Urban Forum (2007).
17 There is extensive literature on unregulated urban areas in the developing world. See, for
example, Ayona Da a, The Illegal City: Space, Law, and Gender in a Delhi Squa er Se lement
(Ashgate 2012).
Planning Laws, Development Controls, and Social Equity 335

is host to extreme discrepancies in quality of life.18 A lack of planning controls
is not an option for developing countries.
However, planning laws and their regulatory instruments should be eval-
uated carefully and adopted only after the assessment of existing knowledge
about their performance and (surmised) impacts in developed countries.
Developing countries are at a juncture. Either they lack planning laws al-
together, or their existing laws and institutions are functioning only partially.
This situation provides an opportunity for a “restart” that advanced econo-
mies don’t have because planning laws have created a regulatory reality that
is diﬃcult to reverse. The time is ripe for developing countries to take a look at
their existing planning laws in terms of impacts on social justice, to learn from
the experiences of advanced economies, and to be selective in which aspects
and instruments of planning laws to adopt and which to reject.

A Brief History of the Emergence of Planning Laws
Building Codes: The Precursors to Planning Laws
In many countries, the precursors to planning laws were building or housing
codes. The major thrust in the development of building codes came with the
Industrial Revolution in Europe19 and somewhat later in the United States.20
The inﬂux of hundreds of thousands of people from rural areas into urban ar-
eas forced governments to shed their disinterest in the urban living of the gen-
eral population. Plagues, ﬁres, and blocked roads were dangers to all social
classes. The building or housing codes that emerged called for minimum dis-
tances between buildings, a minimum number of windows to enable sunlight
penetration, a minimum size for a housing unit, maximum building heights,
ﬁre escapes, and plans for sewage-disposal facilities. The need to transport
people and goods on a daily basis required passable streets, and thus were
born setback rules for buildings on public roads.
Even though building codes dealt with the structural and architec-
tural aspects of buildings, they also created greater social equality in housing

18 Nicholas Addai Boamah, Land Use Controls and Residential Land Values in the Oﬃnso South Mu-
nicipality, Ghana, 33 Land Use Policy, 111–117 (2013); Ademola K. Braimoh & Takashi Onishi,
Spatial Determinants of Urban Land Use Change in Lagos, Nigeria, 24 Land Use Policy 502–515
(2007).
19 Elke Pahl-Weber & Dietrich Henckel eds., Planning System, and Planning Terms in Germany
(Academy for Spatial Research Aug. 2008); Jeroen van der Heijden, International Comparative
Analysis of Building Regulations: An Analytical Tool, 1(1) Intl. J. L. in the Built Env. 9–25 (2009);
W. A. Fischel, An Economic History of Zoning and a Cure for Its Exclusionary Eﬀects, 41(2) Urb.
Stud. 317 (2004).
20 Wendy Collins Perdue, Lesley A. Stone, & Lawrence O. Gostin, The Built Environment and Its
Relationship to the Public’s Health: The Legal Framework, 93(9) Am. J. Public Health 1390–1394
(2003). The authors are with the Georgetown University Law Center. Requests for reprints
should be sent to Wendy Collins Perdue, 600 New Jersey Ave, Washington, DC, 20001.
336 The World Bank Legal Review

standards and in access to public services. The legacy of building codes is very
much embedded in current urban design and land subdivision.

Pioneering Planning Laws
Yet, building codes did not enable governments to designate diﬀerent tracts
of land for diﬀerent land use functions, diﬀering densities, or design. As writ-
ten, these regulations were used as exclusionary instruments (intentionally or
not), steering diﬀerent social groups (income, class, ethnic, religious) to diﬀer-
ent parts of the city.
Arguably the world’s ﬁrst national planning law was the United Kingdom’s
1909 Housing, Town Planning, Etc., Act.21 The British belief in the merits of
planning law was so strong that the government transported this innovation
to its colonies. Thus, at a time when even some of the most industrialized coun-
tries did not have planning laws, the British empire exported sophisticated
(for that time) formats of planning laws around the world.22 Poor countries
became the premature “owners” of planning laws that were born in disparate
circumstances. However, the eﬀects of these acts on the colonies were much
more limited—and at times dysfunctional and discriminatory23—than their
eﬀect on the British homeland.
Planning law in the United States emerged without any visible kinship
to British law. Instead of resulting from a federal or state legislative initia-
tive, planning law in the United States emerged from the bo om up.24 Local
authorities used their “police power” (an American term similar to regula-
tory authority) to enact rudimentary zoning ordinances in order to protect
the “health, safety, and welfare” of residents.25 For many years, the legality of
the rising wave of local ordinances was in limbo, and many court challenges
were submi ed. In 1926, the U.S. Supreme Court agreed to hear a zoning chal-
lenge.26 In Village of Euclid v. Ambler Realty Co., the court ruled that zoning was
not in violation of any constitutional or other legal right of landowners because

21 The oﬃcial name of the act is indeed Housing, Town Planning, Etc., Bill, HC Deb (Apr. 5,
1909) vol. 3 cc733–98, Hansard. The “etc.” reﬂected the absence at the time of a comprehen-
sive term for what would later become known in the United Kingdom as “town planning.”
Raymond Unwin, Town Planning in Practice: An Introduction to the Art of Designing Cities and
Suburbs (Ernest Benn 1909). See also Philip Booth & Margo Huxley, 1909 and All That: Reﬂec-
tions on the Housing, Town Planning, Etc. Act 1909, 27(2) Plan. Persps. 267–283 (Apr. 1, 2012).
22 Robert Home, Of Planting and Planning: The Making of British Colonial Cities (E & FN Spon
1997); K. H. Wekwete, Planning Law in Sub-Saharan Africa—A Focus on the Experiences in
Southern and Eastern Africa, 19(1) Habitat Intl. 13–28 (1995).
23 Vanessa Watson, The Planned City Sweeps the Poor Away: Urban Planning and 21st Century
Urbanisation, 72(3) Progress in Plan. 151–183 (Oct. 2009).
24 Rachelle Alterman, A View from the Outside: The Role of Cross-National Learning in Land-Use
Law Reform in the USA, in Planning Reform in the New Century 306 (Daniel M. Mandelker ed.,
Am. Plan. Assn. 2004).
25 J. R. Nolon, The Importance of Local Environmental Law 5 (Ctr. Envtl. Leg. Stud. 2001).
26 Unlike supreme courts in many other countries, the U.S. Supreme Court is very selective in
what appeals it decides to hear.
Planning Laws, Development Controls, and Social Equity 337

the designation in advance of diﬀerent areas of the town for diﬀerent land
uses is a legally valid extension of nuisance law.27 The obligatory separation
of zones for industry from zones for housing is an advance in prevention of
negative externalities. The separation of land uses was—and still is—a major
function of zoning.28
Thus, the legal road was paved for the use of zoning as a means of creat-
ing the physical homogeneity that typiﬁes many American suburbs, and thus
relatively homogeneous socioeconomic neighborhoods (see ﬁgure 1).29 As
many scholars have noted, zoning can be “credited” as a contributing factor
to the stark socioeconomic separations that characterize American land use
pa erns, especially residential ones.30
Planning laws arrived in most West European countries in the 1960s, in
the wake of World War II.31 The rationales for adopting laws varied from
nation to nation but often reﬂected the need not only to physically rebuild
destroyed cities but also to create a “welfare state” supplying housing, up-
grading schools, and providing public services. These rationales were very
diﬀerent from the thinly concealed exclusionary purposes—or eﬀects—of the
American zoning model.
The spread of national planning laws is a complex picture. On the one hand,
planning laws, more so than building controls, have a built-in capacity to create
social exclusion and inequities through a variety of instruments. No planning
laws and regulations are immune from exclusionary eﬀects. There is evidence
of exclusionary uses of development control powers not only in the United
States, but also in the United Kingdom.32 On the other hand, the exclusionary
use of planning laws is a ma er of degree, and there are major diﬀerences
around the world (although there is no systematic comparative research to doc-
ument this beyond a few countries). For example, Hirt compares German and
Austrian planning regulation with their American zoning counterparts and

27 U.S. Supreme Court. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), available at
h ps://supreme.justia.com/cases/federal/us/272/365/case.html.
28 Among the best-wri en (and most entertaining) accounts of the evolution of zoning in the
United States is Donald L. Ellio , A Be er Way to Zone: Ten Principles to Create More Liveable
Cities 9–18 (Island Press 2008).
29 Rolf Pendall, Local Land-Use Regulation and the Chain of Exclusion, 66(2) J. Am. Plan. Assn.
125–142 (2000); Fischel, supra note 19.
30 This fact is documented by many U.S. scholars. See, for example, Fischel, supra note 19; Ra-
phael Fischler, Linking Planning Theory and History: The Case of Development Control 19, J. Plan.
Educ. Res. 233 (2000); Jonathan Rothwell & Douglas S. Massey, Density Zoning and Class
Segregation in U.S. Metropolitan Areas, 91(5) Soc. Sci. Q. 1123–1143 (2010); Brueckner, supra
note 10; Richard H. Chused, Symposium on the 75th Anniversary of Village of Euclid v. Amber
Realty Co. Euclid’s Historical Imagery, 51 Case W. Res. 593 (2000–2001).
31 This conclusion can be deduced from European Union, European Commission, The EU Com-
pendium of Spatial Planning Systems and Policies (Oﬃce for Oﬃcial Publications of the Euro-
pean Communities 1997) (hereinafter, EU Compendium).
32 S. Davoudi & R. Atkinson, Social Exclusion and the British Planning System, 14(2) Plan. Prac. &
Res. 225–236 (1999).
338 The World Bank Legal Review

Figure 1. A typical U.S. middle-income residential area, homogeneous as a result of
a slate of planning regulations

Source: Wikimedia Commons. Photo by Sean O’Flaherty, aka Seano1. Photo from May 24, 2006,
cropped from original version from May 9, 2005. Location: San Jose, California.

shows that the former allow for much more mixture of land uses and housing
types.33 In general, European cities and suburbs are often less exclusionary
than their American counterparts. So although planning laws and regulations
harbor the capacity for exclusionary use, the degree of severity of such use
and the measures taken to counteract it are in the hands of policy makers.

Classiﬁcation of Planning Regulations
There is li le systematic comparative knowledge about the components of
planning laws, and even less about their performance and impacts.34 As coun-

33 Sonia Hirt, The Devil Is in the Deﬁnitions, 73(4) J. Am. Plan. Assn. 436–450 (2007); Sonia Hirt,
Mixed Use by Default, 27 J. Plan. Lit. 375 (2012).
34 Comparative systematic research of more than two or three countries is rare. Some items
are outdated. See Gerd Schmidt-Eichsteadt, Land Use Planning and Building Permission in the
European Union (Deutscher Gemeindeverlag Verlag 1995). See also EU Compendium, supra
note 31; Alterman, supra note 8. Compare with the recent large-scale comparative analysis,
but on speciﬁc aspects only, Alterman, supra note 2
Planning Laws, Development Controls, and Social Equity 339

terintuitive as it may sound, there is no dominant format of planning legisla-
tion, nor is there a consensus about best practice. As my prior research shows,
beyond some basic shared structures (sometimes with misleading in similari-
ties), there are major diﬀerences in the details of planning laws and regula-
tions.35 This may be true even for adjacent countries with similar cultural traits
and geo-demographic a ributes.36
There is no international depository of planning regulations (or develop-
ment controls) used in various countries.37 Regulatory instruments vary not
only from country to country but also from city to city. Moreover, there is no
internationally agreed-on classiﬁcation of such regulations. Researchers who
have sought to study the relationship between regulations and social factors,
especially housing prices, have developed their own classiﬁcations.
The majority of research on this topic originates in the United States—
perhaps due to the exclusionary history of zoning. The categories that indi-
vidual researchers have used may reﬂect their speciﬁc normative perspective.
For example, Pendall, Puentes, and Martin classify urban growth boundaries
as part of the recent “growth management” trend.38 By contrast, in England
and some other West European countries, the use of green belts—a distinctive
urban-containment instrument—is well established.39 Brueckner uses a clas-
siﬁcation based on free-market ideology and calls growth boundaries “supply
restrictions.”40
Table 1 presents a classiﬁcation of instruments intended to reﬂect the evo-
lution of planning regulations. The table reﬂects the layers of regulations that
have accumulated in advanced-economy countries over time. The division
into ﬁve “generations” is intuitive and may diﬀer from country to country.

35 Alterman, supra note 2.
36 For example, the planning laws in Sweden and Norway, the Netherlands and Flemish Bel-
gium, France and Wallonian Belgium, England and Ireland, and Germany and Austria diﬀer
signiﬁcantly from each other. See EU Compendium, supra note 31; Alterman, supra note 2;
Schmidt-Eichsteadt, supra note 34.
37 The most impressive a empt in this direction is UN-Habitat’s Global Land Tools Network
(GLTN). It is prescriptive rather than empirical, and it focuses on speciﬁc instruments
deemed to be lacking in the practice of developing countries. See h p://www.unhabitat.org
/categories.asp?catid=503.
38 Rolf Pendall, Robert Puentes, & Jonathan Martin, From Traditional to Reformed: A Review of
Land Use Regulations in the Nation’s 50 Largest Metropolitan Areas (Research Brief, Brookings
Institution, Aug. 2006).
39 Rachelle Alterman, The Challenge of Farmland Preservation: Lessons from a Six-Country Compari-
son, 63(2) J. Am. Plan. Assn. 220–243 (Spring 1997).
40 Brueckner, supra note 10. Another type of classiﬁcation is used by a third large-scale study:
Joseph Gyourko, Albert Saiz, & Anita Summers, A New Measure of the Local Regulatory Envi-
ronment for Housing Markets: The Wharton Residential Land Use Regulatory Index, 45 Urb. Stud.
693 (2008).
340 The World Bank Legal Review

Table 1. Layers of planning and development control regulations
First generation: Building or housing codes
• Structural soundness
• Durability and safety of construction materials
• Safety from ﬁre damage: architectural and engineering regulations
• Architectural regulations related to health: distances between buildings
to allow sunshine, minimum proportion of windows, roof rules
• Minimal size of housing unit and other housing standards

Second generation: Traditional land use and density instruments
• Minimal (or maximum) lot sizes
• Maximum number of housing units per lot
• Maximum building height
• Maximum coverage of lot, setbacks from street and other buildings
• Parking standards

Third generation: Rules about good architecture, urban design
• Rules for architectural quality: style of facades, roofs, color, materials,
size of lobby
• Rules about landscaping of private lots: location on plot, types of plants
permi ed, style
• Rules of historic preservation (what is deemed to be of historic value);
restrictions on replacement or extension
• Special design review process (additional procedure and cost)

Fourth generation: Environmental protection
• Requirements to leave part of lots unpaved for groundwater absorption
• Requirements for large lots with set-asides for wetlands or biodiversity
• Rules for energy conservation and passive energy
• Rules for wastewater and waste collection and recycling
• Rules that require investments in renewable energy
• Green belts, urban boundaries
• Agricultural land conservation
• Timing controls for growth management

Fifth generation: Regulatory instruments as public ﬁnance substitutes
• Land dedication for public use
• Exactions of other services or amenities in kind
• Impact fees for public services
• Environmental mitigation requirements
• Exactions for aﬀordable housing
• Exactions for “soft” community needs such as employment
Planning Laws, Development Controls, and Social Equity 341

At the time it was introduced, each regulatory instrument may have been
intended to be socially indiﬀerent or even to further social justice. However,
regulations interact with each other, creating cumulatively more restrictions
over time rather than the reverse. Restrictions often mean piling on costs or
excluding certain sections of the population. Together, the generations of
regulations may exacerbate social diﬀerences and impair the distribution of
urban beneﬁts among social groups.
The ﬁrst generation, building and housing codes, is the precursor to plan-
ning laws. These codes were not implemented with the intention to exclude
population groups or to raise housing prices. Some of the building codes refer
to engineering, others to architecture or public utilities. Some evolved into the
second generation.
The second generation includes traditional instruments for controlling
land use and density of development: land use categories, lot sizes, permi ed
coverage of the lot, setback lines from the road or lot boundaries, ﬂoor area
ratios relative to plot size, number of housing units, and so on. These types
of instruments are the most prevalent among planning regulations interna-
tionally. These instruments can be expressed quantitatively and are perceived
as helping planners rationalize the calculation of public services needed. Yet,
these “objective” measures can also be used in socially unjust ways.
The third generation of regulatory instruments includes design review
and historic preservation. Design review established rules, or discretionary
decision bodies, to assess architectural design proposals in terms of what is
“good architecture.” Design rules may control the shape, style, materials, and
color of buildings, roof types, and the design of retaining walls. By means of
design rules, governments may be able to require that multifamily residen-
tial buildings add a large (and expensive) lobby space or recreation facilities.
Some design controls restrict the design of private gardens. Design rules may
impose restrictions on the shapes, materials, or heights of fences. Many of
these requirements cost money and delay the permit approval process and
thus may raise housing and other costs (sometimes intentionally).41
Historic preservation regulations, part of the third generation, determine
what should be protected from new development because of historic value.
Historic preservation is tied to speciﬁc sociocultural narratives often shared
by parts of the population. Preservation regulations have achieved political
correctness and are also making inroads in developing countries. But historic
regulations can lead to higher property values, loss of aﬀordable housing, and
gentriﬁcation. Despite a seeming consensus about historic preservation, re-
cent research has shown that historic regulations are often the focus of conﬂict
and legal challenges.42

41 Nurit Corren & Rachelle Alterman, Design Control in Israel: Between Freedom of Architectural
Practice and Public-Planning Goals (Ctr. Urb. & Regl. Stud. 1999).
42 Nir Mualam & Rachelle Alterman, Conﬂicts over History Preservation: The Role of Tribunals (in
preparation).
342 The World Bank Legal Review

The fourth generation includes regulations based on environmental con-
siderations. This is a fast-growing enterprise. In today’s era of climate change,
national and local governments are adopting an increasing number of en-
vironmental restrictions over and above the traditional “amenities” such as
open space standards. Table 1 provides examples of requirements, such as a
rule that a portion of each plot must remain unpaved to allow for water seep-
age, or a portion of a plot be set aside for wetlands or urban wildlife. In some
countries and municipalities, planning or building regulations have required
green construction for energy saving, water conservation, or recycling. But as
Frieden noted as far back as 1979, environmental protection may hide social-
ly exclusionary considerations.43 Environmental protection regulations may
have trade-oﬀs with other goals, such as housing prices. Given the status of
these regulations, decision makers in developing countries should scrutinize
the prospective impacts of environmental regulations on urban justice with
extra care.
The ﬁfth generation is diﬀerent from the others because it deals with plan-
ning regulations as levers for ﬁnancial revenue. The use of planning regula-
tions for ﬁnancial revenue is both very old and very new. In some countries,
requirements of land for public roads embedded in property law or subdivi-
sion codes predate planning regulations.44 Today, the use of ﬁnance-substitute
instruments such as those listed in table 1 under “Fifth generation” is expand-
ing both geographically and in the range of services being ﬁnanced (though
not without legal stumbling blocks).45 I have argued elsewhere that such tools
have special relevance for developing countries where ample alternative re-
sources do not exist.46 When adopting planning laws, developing countries
should pay special a ention to revenue-generating instruments.

The Relationship between Planning Regulations and Social
Justice: Research from Advanced-Economy Countries
Because planning laws and development controls have been in operation
in advanced-economy countries for many decades, it is reasonable to ask if
the practice of development control has contributed to greater or lesser ur-
ban social justice and how this contribution has diﬀered across countries.

43 Bernard Frieden, The Environmental Protection Hustle (MIT Press 1979). The comprehensive
empirical study by Gyourko et al., supra note 40, shows the incidence of regulations for
open-space preservation and their impact on housing prices.
44 Rachelle Alterman ed., Private Supply of Public Services: Evaluation of Real-Estate Exactions, Link-
age, and Alternative Land Policies (NYU Press 1988).
45 Rachelle Alterman, Land Use Regulations and Property Values: The “Windfalls Capture” Idea Re-
visited, in The [Oxford] Handbook of Urban Economics and Planning 755–786 (Geri Knaap &
Nancy Brooks eds., Oxford U. Press 2011); Alterman, id.
46 Rachelle Alterman, Levying the Land: Instruments for Public Revenue and Their Applicability to
Developing Countries (paper presented to the UN-Habitat Governing Council, Apr. 14, 2013).
Planning Laws, Development Controls, and Social Equity 343

Methodological Challenges
There are no comparative analyses of the impacts of diﬀerent types of plan-
ning regulations across countries. To a ribute impacts to a particular planning
regulation, one must argue that there is a causal connection between the regu-
lation and the outcome on the ground (for example, higher housing prices).
Yet, there is scarcely any theory from which variables can be deduced. It is dif-
ﬁcult to “hold constant” the innumerable variables among countries and local
contexts. Comparative research has diﬃculty linking even one speciﬁc topic
of planning law to any “explanatory variables.”47
Most researchers admit that even single-country empirical analysis of the
social impacts of planning regulations is diﬃcult from a research perspec-
tive.48 Regulatory instruments interact with each other in diﬀerent ways in
diﬀerent contexts. Individual impacts are diﬃcult to determine because they
may be due not only to planning regulations but to many variables that diﬀer
from context to context. Yet, several researchers have undertaken empirical
research (especially in the United States) about planning regulations and the
relationship (not necessarily causal) with issues such as social composition
and housing prices.

The United States as a Laboratory
Due to its legal reality and sociopolitical diﬀerences, the United States has
proven to be a laboratory for research about the relationship between plan-
ning regulations and urban social justice.
Because of the U.S. federal structure and the constitutionally imposed di-
vision of powers, diﬀerent planning laws are enacted from state to state (al-
though there are similarities among some groups of states). In addition, exten-
sive planning and zoning powers are vested in local governments. The United
States is home to tens of thousands of empowered local governments. This
situation has created unprecedented variety in planning-regulation instru-
ments.49 In addition, the United States has a history of planning law. There-
fore, the United States oﬀers many lessons about the relationship between
planning regulations and social justice.
This section considers the rare situations in which advanced economies
function without public planning regulations and then proceeds to economies
that rely on planning regulations. The chapter then examines building codes,
ﬁnally addressing the impacts of planning regulations. Throughout, U.S. ex-
amples are cited.

47 Alterman, supra note 2, makes this argument in research on compensation rights for “regula-
tory takings.”
48 Pendall, Puentes, & Martin, supra note 38.
49 Alterman, supra note 24, at 306.
344 The World Bank Legal Review

No Planning Regulations
Among advanced economies, there are few examples of urban areas or hous-
ing markets without any planning (or zoning) regulations, and even fewer
without any building codes. However, there is one place where the planning
law clock seems to have stopped: Houston, Texas. Because the United States
has no national-level legislation for planning regulations,50 Texas has not en-
acted a state-level planning law that mandates local authorities to enact their
own land use regulations (zoning).
The Texas story has a racted many researchers. Their ﬁndings show that
even in Houston, the market is not entirely devoid of planning-like regula-
tions. Instead of zoning, Houston has private-law restrictive covenants self-
imposed by developers or housing associations; these act as facsimiles of pub-
lic planning regulations.51 However, private controls can be even less “socially
blind” than public zoning. Siegan was the ﬁrst to show that private controls
serve the middle and upper segments of the land and housing markets and
are largely absent from poorer areas.52 But Houston has not taken its hands
entirely oﬀ city planning: The city does retain some important powers that
shape city structure, such as siting and providing public roads, utilities, other
public services, and taxation and environmental regulations.
Research shows an ambivalent picture for Houston. On the one hand,
planning regulations have beneﬁ ed the be er-oﬀ groups much more than
other groups and have led to socially exclusive neighborhoods and dispari-
ties in the quality of public services. On the other hand, the less controlled
parts of the market retain more aﬀordable housing than may have been avail-
able with planning regulations—but with poorer environmental and service
qualities.53

Building and Housing Codes
Today, building and housing codes exist in most advanced-economy coun-
tries, sometimes based on independent legislation, sometimes integrated into
planning legislation and regulations. Like any regulations, building controls
may place a cost burden on housing and thus aﬀect aﬀordability; the question
for developing countries to consider is, How much?
Unlike with planning regulations, it is relatively easy to deﬁne the im-
pact of building codes on housing costs. Not all U.S. states have mandatory
codes, although the majority do. Some local governments impose their own

50 Other countries, such as Germany, do have national planning laws. Alterman, supra note 8.
51 B. H. Siegan, No Zoning Is the Best Zoning, in A Planner’s Guide to Land Use Law 143–152
(S. Meck & E. M. Ne er eds., APA Planners Press 1983); B. H. Siegan, Land Use without Zoning
(Lexington 1972); Edwin Buitelaar, Zoning, More Than Just a Tool: Explaining Houston’s Regu-
latory Practice, 17(7) European Plan. Stud. 1049–1065 (2009); T. M. Kapur, Land Use Regulation
in Houston Contradicts the City’s Free Market Reputation 34 Envtl. L. Rep. 10045 (2004).
52 Siegan, Land Use without Zoning, supra note 51.
53 Id.; Buitelaar, supra note 51.
Planning Laws, Development Controls, and Social Equity 345

codes even without a state mandate. A recent study surveyed the cost burden
imposed by codes on housing prices and concluded that these amount to an
increment of only a few percentage points.54 One author cites estimates that
building codes may add 15 percent to the cost of construction (without the
costs of land, infrastructure levies, etc.). Thus, there is evidence that the cost
burden of building codes is lower than that associated with many planning
regulations.55
The introduction of building codes in developing countries, even without
planning regulations, can address basic safety and health needs. However,
the establishment of building codes is not a simple ma er, because the ad-
ministrative and enforcement institutions need to be established, with trained
professionals available to issue permits and enforce the rules. Thus, these in-
stitutions could be viewed as precedents to the introduction of planning laws.

The Generations of Planning Regulations
American researchers have produced a large body of research on the social
impacts of planning regulations. This section focuses on two research projects
that have provided methods for observing the cumulative layers of planning
regulations.56
Pendall, Puentes, and Martin surveyed a large sample of U.S. local gov-
ernments in all regions of the country.57 Their ﬁndings classify municipalities
into four groups: low (which they call “wild, wild Texas”), traditional, exclu-
sionary, and reform (growth management). The authors provide a disclaimer
that the ﬁndings are “not a direct statement of cause and eﬀect” and that more
research is needed to discover the precise relationship between “regulator,
housing prices, sprawl, and regional opportunity.”58 Yet their ﬁndings do
portray several clear (though not uniform) relationships between the more
stringent layers of regulations and social exclusion (especially in the states
in the Northeast and Midwest). The litmus test of exclusionary tendencies
that Pendall et al. employ is the likelihood that local governments would ap-
prove a small number of two- or three-ﬂoor apartment buildings. They found
that 30 percent of municipalities within metropolitan areas would not ap-
prove even such minimal multifamily housing, preferring single-family (or

54 Michael D. Turner, Paradigms, Pigeonholes, and Precedent: Reﬂections on Regulatory Control of
Residential Construction, 23 Whi ier L. Rev. 3 (2001); other authors have addressed the cost of
regulation. See also Eric Damian Kelly, Fair Housing, Good Housing or Expensive Housing? Are
Building Codes Part of the Problem or Part of the Solution?, 29 John Marshall L. Rev. 349 (1996).
55 Richard Clagg, Comment: Who Remembers the Small Builders? How to Implement Ohio’s New
Statewide Residential Building Code without Sinking Ohio’s Small Builders, 34 Cap. U. L. Rev. 741
(2006).
56 More American researchers have analyzed planning regulations and their relationship with
exclusion or with housing prices—too many to survey here. Brueckner, supra note 10, pre-
sents a good survey.
57 Pendall, Puentes, & Martin, supra note 38.
58 Id., at 32.
346 The World Bank Legal Review

double-family) homes. This study and others show what any observer in the
United States will note: that zoning law and practice have not shed their ex-
clusionary origins (see ﬁgure 1).
Gyourko, Saiz, and Summers developed an index of 11 factors related to
the assumed stringency of planning regulations. Among their factors are not
only the types of regulations included in table 1 but also some related to deci-
sion processes. These researchers created a composite scale of stringency, sim-
ilar to what this chapter refers to as generations of regulations. Their overall
ﬁnding is that “community wealth is strongly positively correlated with the
degree of local land uses regulations. The higher the median family income,
median house value or the share of adults with college degrees, the greater is
the community’s [score on the index].”59 This study also conﬁrms the ﬁndings
of Pendall et al. that the Northeast states are more exclusionary.60

The Overregulation Paradox
The recognition of the socially exclusionary eﬀects of U.S. zoning practices
gave birth to the term “regulatory barriers.” The antidote has been the legal
concept of removal of regulatory barriers—a vivid expression of the strained
relationship between planning laws and social justice. Here is the paradox:
In order to remove the regulatory barriers accumulated over the years, more
regulation may be necessary.
One type of regulation that may help correct for the regulatory barriers is
inclusionary zoning.. This uniquely American concept incorporates recogni-
tion that zoning often has an exclusionary eﬀect. Inclusionary zoning is not a
uniform instrument but a set of zoning and other planning regulation instru-
ments that vary from place to place. All are intended to combat exclusion by
enabling or mandating neighborhoods with some degree or format of mixed
housing types, densities, or types of eligible households.61 The broader set of
instruments titled aﬀordable housing includes some regulations intended to
mitigate the price hike deemed to be caused by planning regulations (a topic
that is beyond the scope of this chapter).62

59 Gyourko et al., supra note 40, at 695.
60 See also E. L. Glaeser & B. A. Ward, The Causes and Consequences of Land Use Regulation: Evi-
dence from Greater Boston, 65 J. Urb. Econ. 265–278 (2009).
61 Among the body of writing on inclusionary zoning, see, for example, Alan Mallach, Inclu-
sionary Housing Programs: Policies and Practices (Ctr. Urb. Policy Research, Rutgers U. 1984);
B. R. Lerman, Mandatory Inclusionary Zoning—The Answer to the Aﬀordable Housing System,
33(2) B.C. Envtl. Aﬀ. L. Rev. 1 (2006); Jerold Kayden, Inclusionary Zoning and the Constitution,
2(1) NHC Aﬀordable Housing Policy Rev. 10–13 (2002); D. Porter, The Promise and Practice of
Inclusionary Zoning (Brookings Symposium on Growth Management and Aﬀordable Hous-
ing, May 29, 2003); Fischel, supra note 19; Edward Sullivan & Karin Power, Coming Aﬀordable
Housing Challenges for Municipalities after the Great Recession, 21(3&4) J. Aﬀordable Housing
& Community Dev. (2013).
62 There is a huge body of literature on aﬀordable housing in the United States and in other
countries. A few key references are T. Iglesias & R. Lento eds., The Legal Guide to Aﬀordable
Housing Development (ABA and Am. Plan. Assn. 2006); N. Calavita & A. Mallach eds., Inclu-
Planning Laws, Development Controls, and Social Equity 347

The best-known example of eﬀorts to remove regulations is the New Jer-
sey Supreme Court decisions in the two Mount Laurel cases.63 The cases were
brought to the court because certain local jurisdictions in New Jersey adopted
zoning regulations that had minimal lot sizes and no allocation of land for
multifamily housing. The developers argued that were it not for these regula-
tions, there would have been a market for their proposed multifamily hous-
ing. The court ruled that the state must set up regulatory and quasi-judicial
institutions in order to create a “fair share” of aﬀordable housing among mu-
nicipalities in the state and thus mitigate exclusion. Developers who wish to
develop multifamily housing could seek remedy with a special state body.
The Mount Laurel decisions are an example of “audacious judges,” as
Haar has characterized them at work.64 What kind of impact have these de-
cisions had? New Jersey’s urban poor—regardless of ethnicity or minority
status—continue to face many of the same problems in obtaining adequate,
aﬀordable housing that characterized the period prior to the rise of the Mount
Laurel doctrine. In addition to Gyourko et al., several other researchers have
shown that the Mount Laurel decisions have had only limited eﬀects.65 Some
researchers argue that regulations to counteract exclusionary regulations may
lead to higher housing prices rather than an increase in aﬀordability.66
The Mount Laurel decisions are regarded as the epitome of anti-exclusion-
ary legal measures in the United States. Yet, the empirical ﬁndings demon-
strate that the exclusionary tendencies of local planning regulations have been
more tenacious than the intended eﬀects of the New Jersey court rulings.

The “Piling On” Syndrome
American a empts to remove regulatory barriers hold important lessons. Ur-
ban justice would be much be er served if planning regulations were carefully
scrutinized in advance of their adoption. One may assume that each layer of
planning regulation had a laudable public justiﬁcation when it was adopted:
to rationalize urban structure for service provision, to beautify the city, to pro-
vide public or private open space, to preserve historically valuable areas, to
conserve the natural environment, to mitigate feared hazards. The problem

sionary Housing in International Perspective (Lincoln Inst. of Land Policy 2010).
63 Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J.) 423 U.S.
808 (1975); S. Burlington County NAACP v. Township of Mt. Laurel, 92 N.J. 158, 251, 456 A.2d
390, 438 (1983).
64 C. M. Haar, Suburbs under Siege—Race, Space and Audacious Judges (Princeton U. Press 1996).
65 Naomi Bailin Wish & Stephen Eisdorfer, The Impact of Mount Laurel Initiatives: An Analysis of
the Characteristics of Applicants and Occupants, 27 Seton Hall L. Rev. 1268–1281 (1997); Robin
Leone, Promoting the General Welfare: After Nearly Thirty Years of Inﬂuence, Has the Mount Lau-
rel Doctrine Changed the Way New Jersey Citizens Live, 3 Geo. J.L. & Pub. Policy 295 (2005);
Henry A. Span, How the Courts Should Fight Exclusionary Zoning, 32 Seton Hall L. Rev. 1 (2001)
66 Jenny Schue , Rachel Mel er, & Vicki Been, Silver Bullet or Trojan Horse? The Eﬀects of In-
clusionary Zoning on Local Housing Markets in the United States, 48(2) Urb. Stud. 297–329 (Feb.
2011).
348 The World Bank Legal Review

is the “piling on” syndrome: Even if each regulation is acceptable on its own,
their mutual interactions often lead to compromised social justice.
How does the piling on syndrome occur? Over time, more public objec-
tives emerge, proposed by newly trained professionals who bring more up-
to-date notions, by active civic groups, or by elected community leaders. But
the previous regulations are already in place and are diﬃcult to roll back due
to property values, public ﬁnance considerations, and political concerns. The
previous layers of regulations often become uncontested norms of “good plan-
ning.” They are taken for granted by the professionals and the consumers-
residents as deﬁning how housing areas ought to look and function, or how
public services ought to be located and allocated.
The introduction of each new regulation is rarely accompanied by a re-
quirement to assess the cumulative eﬀects on urban equity issues, such as
the cost of housing for diﬀerent social groups or the equitable access to pub-
lic services. A good rule might be that a new proposed planning regulation
that might impact equity be adopted only after existing regulatory barriers to
equity have been reassessed, removed, or relaxed. In a similar spirit, the UK
Legislative and Regulatory Reform Act of 2006 grants ministers powers for the
purpose of “removing or reducing any burden, or the overall burden, result-
ing directly or indirectly for any person from any legislation.” 67 However, this
act focuses on ﬁnancial and administrative burdens, not on social equity.68
There are no examples of a similar policy being consistently applied to plan-
ning regulations.

Conclusion: Lessons for Developing Countries
The experience of advanced-economy countries with planning regulations
depicts a strained relationship with social justice. Urban development can no
longer be left to the whims of rulers, social norms, or the marketplace. Plan-
ning laws fulﬁll many important functions in modern societies: they protect
the endangered environment and often facilitate the functioning of the mar-
ket. Countries that have experienced the absence of planning regulations—the
former Soviet Union, its allies, and China—are now in the midst of adopting
or learning how to implement planning laws.
Advanced-economy countries that have had operational planning regula-
tions for decades have accumulated layers of regulations that are diﬃcult to
shake oﬀ. Many of these have become “part of the furniture” of urban life,
and neither consumers nor decision makers can envision cities without them.
Foreign advisers often recommend that developing countries adopt laws and
regulations similar to those prevalent in their own countries. Each proposed
regulation may sound like a good idea and is likely to be accompanied by

67 UK Legislative and Regulatory Reform Act 2006 C51, at art. 1(2); available at h p://www
.legislation.gov.uk/ukpga/2006/51/contents.
68 Id., at art. 1(3).
Planning Laws, Development Controls, and Social Equity 349

eloquently presented examples from beautiful projects in one of the world’s
rich cities.
However, planners and policy makers in developing countries should
take a hard look at each proposed law or regulation.69 Unlike in advanced-
economy countries, the formative stage of planning laws in developing coun-
tries leaves enough “degrees of freedom” for decision makers to be selective
in what they choose to adopt. They should lead the way in ﬁnding ways to
evaluate proposed regulations critically in terms of anticipated equity impacts
and to be concerned about cumulative eﬀects.
Decision makers in developing countries should take the following advice
into account when considering a planning regime:
• Learn from the history of the gradual evolution of planning laws and their
rationales. It is not reasonable to introduce planning laws or regulations
that exist in advanced-economy countries because these reﬂect layers of
(often forgo en) rationales that have accumulated over time.
• Go back to the basic rationales of planning laws and development control:
health, safety, the rationalization of public services, and environmental
protection. Choose single regulations that can be assessed individually
rather than entire “packages.”
• If there are no current planning laws or if existing ones function poorly, con-
sider a graduated strategy: ﬁrst, adopt a solid administrative-professional
basis for introducing building and housing controls, and then, after sev-
eral years of successful operation, consider gradual introduction of plan-
ning laws.
• Create a routine for assessing proposed laws and regulations in terms of
their estimated cost eﬀects on housing and other amenities. Discuss the
likely trade-oﬀs with other public goals. For example, assess trade-oﬀs
of environmental quality, historic preservation, design review, or green
building with short- and long-term housing costs. Ask international aid
organizations for professional support in this task.
• Assess new planning laws or regulations in regard to their ability to be
fairly and systematically enforced across socioeconomic and political
groups in society. The costs of long-term enforcement should be factored
into the adoption of new land use regulations.
These recommendations will be diﬃcult to carry out, but the adoption and
implementation of complete planning laws is much more diﬃcult. A beacon
in such recommendations is the recent launching of the Urban Legislation
Unit of UN-Habitat,70 which espouses a “back to basics” approach similar
to the one presented in this chapter. If UN-Habitat promotes more policy

69 See also Carole Rakod, Forget Planning, Put Politics First? Priorities for Urban Management
in Developing Countries, 3(3) Intl. J. Applied Earth Observation & Geoinformation 209–223
(2001).
70 See h p://www.unhabitat.org/categories.asp?catid=260.
350 The World Bank Legal Review

research along these lines, and organizations such as the World Bank join the
momentum, developing countries may be able to adopt planning laws and
regulations suited to their own needs. They may be able to harness planning
laws to create greater urban justice, rather than to exacerbate urban inequali-
ties. To do this, developing countries and the experts advising them must be
willing to heed the lessons that the advanced-economy countries have learned.
Land Use Law and the City
Toward Inclusive Planning

MATTHEW GLASSER

More than half the world’s population lives in cities, and cities are expected to
account for two-thirds of the urban population by 2030. Cities generate more
than 80 percent of gross domestic product today, and this percentage grows
every year.1 Cities provide jobs and account for most global prosperity. As the
role of cities becomes ever more vital to the economic stability of developing
countries, opportunity, inclusion, and equity in cities have become fundamen-
tal concerns. No country has achieved middle-income status without urban-
ization. At their best, cities are the most eﬃcient mechanism for improving
the human condition through economic growth, eﬃciency, trade, intellectual
exchange, and a lightened burden on the global ecosystem.2 Unfortunately,
urban opportunities are not equally available to all, and the contrast between
the city of the rich and the city of the poor can be disturbing. This chapter
explores some of the ways that the existing legal and regulatory framework
for urban planning excludes the poor from opportunity and increases social
injustice and vulnerability.
Among the types of laws that are problematic for poor urban dwellers are
those that protect legal title to land in formal se lements where the wealthy
live, but not in informal se lements that the poor can aﬀord; laws that pro-
hibit (or regulate to the point of prohibition) the informal trading and service
economy through which many of the poor earn a living; and planning laws
that establish unaﬀordable land use standards. This chapter focuses on the
last of these types and discusses ways in which legal reformers might address
the situation to promote opportunity, inclusion, and equity.
An illustration of the problems faced can be found in Katherine Boo’s re-
cent book about Mumbai, which opens with a scene of a teenage entrepreneur
dodging the police.3 Abdul earns a living by sorting and packaging recycla-
bles that he buys from rag pickers. Although this is an economically produc-
tive and socially useful business, he has no license to engage in this work. His
business and his family’s informal housing are both illegal, and the family’s

1 Richard Dobbs et al., Urban World: Mapping the Economic Power of Cities (research report pre-
pared for the McKinsey Global Institute, McKinsey & Co. Mar. 2011).
2 One leading urban economist has argued that cities are humanity’s greatest invention and
our best hope for the future. Edward Glaeser, Triumph of the City: How Our Greatest Invention
Makes Us Richer, Smarter, Greener, Healthier, and Happier (Penguin 2011).
3 Katherine Boo, Behind the Beautiful Forevers: Life, Death and Hope in a Mumbai Undercity (Ran-
dom House 2012).
351
352 The World Bank Legal Review

precarious existence depends on the arbitrary and variable tolerance of vari-
ous authorities. Although he and millions like him are at the core of the urban
and economic growth that is lifting India and other parts of the developing
world out of poverty, they operate outside the protection and sanction of the
law and so are vulnerable to extortion, to destruction of their homes and busi-
nesses, and to disasters of all kinds.

What Role Does Planning Law Play?
Planning law is largely an urban phenomenon. Farms and villages don’t need
master plans, zoning, setbacks, or minimum lot sizes. The focus of this chapter
is on how urban land use is regulated. Some aspects of land use regulation
can exclude and marginalize the poor by prescribing unaﬀordable standards.
This situation is sometimes the result of historical factors, often reﬂects the
interests of elites, and can be the consequence of importing planning and land
use regulations from high-income countries into a low-income context. There
are at least three dimensions to this problem of exclusion; legal reformers have
engaged with each of these:
• The substantive legal framework for land use may be inappropriate4 to
the social and economic context.
• The processes and procedures through which regulations are developed
and site-speciﬁc decisions are made may not be inclusive.
• Courts that enforce land use regulations and standards may not be as
alert to considerations of equity and human rights as reformers would
like them to be.

Planning Standards Increase the Cost of Urban Land
Generous minimum lot sizes and restrictive ﬂoor area ratios make it illegal
for the market to supply, or for the poor to occupy, small living spaces that
are aﬀordable. In addition to these standards, land use regulations often pre-
scribe generous setback requirements and street widths, parking and open
space requirements, public park and school set-asides, and other standards
that have the eﬀect of limiting density. These standards, desirable though they
may be from the perspective of those who can aﬀord to live well, limit the in-
tensity of urban development and thus correspondingly increase the scarcity
of legally available urban land (or, acknowledging the vertical dimension of
cities, of urban living space). Such requirements increase the price of housing
and services for all residents.5 Broad boulevards with generous setbacks and

4 “Inappropriate” standards do not take actual conditions on the ground into account. A stan-
dard that makes illegal 80 percent of homes, or a like percentage of businesses, is clearly
inappropriate. To be appropriate, a land use rule must reﬂect what most people in a given
society would agree is right—a standard with which they are likely to comply without gov-
ernment compulsion.
5 Rachelle Alterman, Planning Law and Social Justice: A Strained Relationship (PowerPoint pre-
sentation at Law, Justice and Development Week, World Bank 2012).
Land Use Law and the City 353

single-family detached houses may be very pleasant, but they are inherently
exclusive and relatively expensive.

Inappropriate Standards Limit Lawful Access to the City
As the unit price of land and housing increases, people naturally consume
less. Cramped quarters in New York; Tokyo; and Hong Kong SAR, China are
examples of this phenomenon in the developed world.6 The same phenom-
enon plays out in the fast-growing cities of low- and middle-income countries.
At the bo om of the economic ladder, the poorest live in the most crowded
conditions, which they choose intentionally to be close to work and the other
opportunities a big city oﬀers. As do their richer neighbors, the poorest trade
personal space for proximity to opportunity. But when there is a legal mini-
mum, the choices at the bo om end of the scale become unlawful. Alain Ber-
taud argues that most minimum land use standards are implicitly aimed at
preventing the migration of poor people into cities.7 He points out that the
poor come to live and work in cities no ma er what the standards may say.
They are looking for jobs and a be er life for their children and cannot aﬀord
to be fussy. In that context, excessive legal standards have the eﬀect of trans-
forming crowded conditions into violations of the law. This puts individu-
als at the bo om end of the wage scale at risk: they must be close to work
and other opportunities, but they cannot live there legally. They must choose
between the risks of eviction and insecurity, on the one hand, and grueling
and expensive commuter trips from remote locations, on the other hand.8 And
sometimes they incur additional risks, as when the poor se le in environmen-
tally sensitive or unsafe areas, such as ﬂoodplains or unstable hillsides, which
may be close to the opportunities of the city but have li le or no value to
the formal sector because they cannot be legally developed. Such precarious
se lements can increase both pollution and vulnerability.9
Inappropriate standards can accomplish one of two things: where they are
successfully enforced, ineﬃcient pa erns of land use are locked in—they be-
come “facts on the ground” and are diﬃcult to change. Low-density cities are
expensive to serve with transport and bulk infrastructure, and the unit price
of services in low-density developments reﬂects this. Successful enforcement
of generous standards can thus have the eﬀect of permanently excluding the

6 See, for example, Overhead Photos of Cramped Apartments in Hong Kong, Telegraph (June 4,
2013), available at h p://www.telegraph.co.uk/property/propertypicturegalleries/9888398
/Overhead-photos-of-cramped-apartments-in-Hong-Kong.html.
7 Alain Bertaud, Land Use Regulations and Poverty (PowerPoint presentation at Law, Justice
and Development Week, World Bank 2012); similar materials are available at h p://alain
-bertaud.com.
8 Judy Baker et al., Urban Poverty and Transport: The Case of Mumbai (World Bank 2005); Somik
Lall et al., Shelter from the Storm but Disconnected from Jobs: Lessons from Urban South Africa
on the Importance of Coordinating Housing and Transport Policies (working paper, World Bank
2012).
9 Erminia Maricato, Searching for the Just City: Debates in Urban Theory and Practice 10 (Rout-
ledge 2009).
354 The World Bank Legal Review

poor. Alternatively, where inappropriate standards exist but are not routinely
enforced, those living in violation of legal standards are at risk of arbitrary
and capricious enforcement actions and/or extortion to avoid consequences.

When Land Use Regulation Is Inappropriate, It Divides the City
Where the law prescribes standards or processes that are impractical and in-
appropriate for a substantial portion of the urban population, it eﬀectively
divides the city into a formal sector with rules and standards for the minority
who can aﬀord to comply and an informal sector of those who cannot. In the
informal sector, standards and requirements are often disregarded, although
they may be enforced sporadically and selectively. When people are too poor
to comply with standards, they become part of the underclass. And though
noncompliance with legal standards is the norm in informal se lements (as
with informal trading, where livelihoods are earned), the law plays a critically
important role because it deﬁnes status: those living outside the law cannot
claim its protection. If they are evicted, or their property is conﬁscated, they
are largely without recourse. This socio-legal division can have an intraurban
spatial dimension, but even more formidable are boundaries of legal status,
with the privileged classes in-bounds and the poor out-of-bounds.10 “Plan-
ning proposals and urban laws apply only to fragments of the city, while the
remainder is beyond state control and does not follow the rule of law.”11

A Divided City Deprives the Poor of Access to Services
For poor families to be able to aﬀord to live in a city, they and those who
would sell or rent to them must be able to divide space into small, aﬀordable
increments. The poor must live at high densities if they want urban jobs. But
the crowded housing the poor can aﬀord often does not meet the standards
set by the law. Throughout the developing world, formal land markets with
high prices exist alongside informal se lements where people live in crowded,
precarious, and often dangerous conditions. These divided cities are a natural
consequence of an inappropriate legal framework, and the illegality of infor-
mal housing typically has further negative implications for access to basic ur-
ban services such as water, sanitation, electricity, and public safety—“public
authorities see it as condoning illegality to extend public services, such as po-
licing, to such se lements.”12 The poor, sometimes a majority of a city’s popu-
lation, are condemned to a marginal existence, without entitlement to basic
services, without secure tenure, and without the protection of the law.

10 South Africa’s apartheid planning legislation was perhaps the most egregious and explicit
example, but planning laws need not be explicitly exclusionary to have the eﬀect of margin-
alizing large segments of the population.
11 Maricato, supra note 9.
12 Abdul Baasit Abdul Aziz, What to Do about Slums (working paper, Joint Center for Housing
Studies, Harvard U. 2012).
Land Use Law and the City 355

Some Beneﬁt from a Gray Market for Urban Space
Informality dominates many large cities in the developing world, where
much of the population lives in noncompliance with the formal legal sys-
tem. Such widespread noncompliance can be in the interest of powerful elites
who beneﬁt personally and politically from a range of ambiguities: ambigu-
ity about land tenure, permi ed land uses, the outcomes of litigation, the
enforceability of rights. The private beneﬁts arising in the context of these
ambiguities create a strong incentive to maintain ambiguities, and with it
the culture of discretionary noncompliance. Rajack et al. speak of an “indus-
try of ambiguity” that beneﬁts private individuals and political campaign
ﬁnance.13 Many government planners know they are ﬁghting a losing ba le
but genuinely want their cities to be world class, and so continue to set un-
realistic standards.
Oﬃcials see themselves as a bastion against informality, illegality
and anarchy. Their views are often complemented by those of their
political principals who see the laws as serving very much the same
purposes as their colonial forebears did: to protect the quality of the
suburbs or enclaves in which the elite lives and to punish transgres-
sors for failing to comply with the often arcane prescriptions of the
law. This leads inexorably to a situation where there is a widespread
and generally accurate perception that there are “two laws”: one for
the well to do and another for the rest.14

Planning Laws and Land Use Regulations Are Rarely Inclusive
In much of the developing world, planning law is inherited from a colo-
nial and/or patrimonial past, when it represented the interests and values
of a European minority or a local elite.15 These laws have by and large not
been adapted to current local realities, though sometimes they have been
amended to limit opportunities for public participation. Berrisford argues
that eﬀorts to reform African planning laws fail for two fundamental rea-
sons: ﬁrst, a failure to identify and involve the key stakeholders; and second,
an assumption that technocratic approaches will suﬃce, as opposed to fol-
lowing basic principles of law making. As a result, he says, “Planning law . . .
has tended to have the eﬀect of being no more than an irritant to developers
but an oppressive force for the poor, without yielding any signiﬁcant societal
beneﬁts.”16

13 Robin Rajack et al., The Political Economy of Urban Land Management: Evidence from Mumbai
and Nairobi ( (presentation at Annual World Bank Conference on Land and Poverty, Wash-
ington DC, Apr. 8–11, 2013).
14 Stephen Berrisford, Why It Is Diﬃcult to Change Urban Planning Laws in African Countries, 22
Urban Forum (2011).
15 Marcello Balbo, Urban Planning and the Fragmented City of Developing Countries, 15(1) Third
World Planning Rev. (1993).
16 Berrisford, supra note 14.
356 The World Bank Legal Review

Land Use Regulations Can Lead to Forced Eviction
One of the most notorious examples of forced mass eviction based on “im-
proper” use of land is Zimbabwe’s Operation Murambatsvina (literally, Op-
eration Drive Out Rubbish, and oﬃcially, Operation Restore Order), which
destroyed more than 90,000 homes and innumerable small businesses.17 Simi-
lar evictions, sometimes with strong political and/or ethnic overtones, are not
unusual in the developing world. In fairness, it should be noted that land
use regulations are seldom the only oﬃcial justiﬁcation for such destruction—
although most slum se lements violate planning regulations, they typically
also violate other health and public safety codes, and often the residents lack
secure tenure.

New Urban Plans Can Also Lead to Forced Evictions
A slight variation on the theme of evictions due to violations of existing land
use regulations occurs when forced evictions are imposed on informal se le-
ments in the name of urban redevelopment, in other words, in order to imple-
ment a new urban planning scheme (typically prepared without meaningful
participation of those who are to be evicted). UN-Habitat cites examples in
Kenya, Zimbabwe, the Dominican Republic, Nigeria, and Brazil.18 The press
regularly reports similar examples from other countries, especially when ac-
companied by civil unrest or dramatic protests.19

How Might Legal Reformers Support Opportunity, Inclusion,
and Equity?
Legal Reforms Can Make a Positive Difference
There are at least three avenues to improving development outcomes:
• Planning and land use standards can be established that are aﬀordable
and achievable for the majority of urban residents.
• The establishment of planning standards and the development of land use
plans can be a genuinely inclusive, pro-poor process.
• Activists and courts can use legal principles of equity and human rights to
defend against the most egregious oppression.

17 Ben C. Arimah & City Monitoring Branch, Slums as Expressions of Social Exclusion: Explaining
the Prevalence of Slums in African Countries (mimeograph, UN-Habitat 2001).
18 Forced Evictions: Global Crisis, Global Solutions (UN-Habitat 2011).
19 Hunan Oﬃcials “Cover Up” Self-Immolation Protest, Radio Free Asia (May 28, 2013), available
at h p://english.rfa.org/english/news/china/coverup-05282013164754.html. At this writing,
prolonged urban uprisings in Turkey are testing the government’s resolve to proceed with
“urban renewal” plans in Istanbul.
Land Use Law and the City 357

The ﬁrst approach can be thought of as substantive inclusion, the second
as procedural inclusion, and the third as equity, in both the legal and the or-
dinary senses of the word.

Substantively, Legal Frameworks Can Successfully Legitimize
Urban Density
In some places, planning laws expressly legitimize the densities that poor ur-
ban residents can aﬀord. For example, in Surabaya, Indonesia, kampong de-
velopments have no minimum street widths and no minimum lot sizes. As
a result, a family can buy and occupy a very small piece of land if that is
what they can aﬀord. In some kampongs, the average density is more than 800
people per hectare.20 Surabaya’s land use planning expressly reserves areas
for the development and extension of such dense development near the edge
of the city. The government’s stable policy of recognizing the legitimacy of
dense kampong-style development, and of making infrastructure investments
within kampongs, has created “an invaluable stock of housing aﬀordable to
those who . . . are ready to trade oﬀ the convenience of a car for the kampong’s
central location.”21

Legitimizing Density Helps Avoid Slums and Integrate Cities
Vietnam is a low-income and rapidly urbanizing country. In many parts of the
world, this combination has been associated with slum formation. Among the
factors that have helped Vietnam avoid this are legitimizing small plot sizes
and a permissive a itude toward high ﬂoor area ratios.22 As in Surabaya, the
government invests in infrastructure and services in dense se lements—thus,
they become integral parts of the urban fabric, rather than marginalized slums.
Rather than dividing the city, the approaches taken in Surabaya and Vietnam
are inclusive—the legal framework takes account of the need for aﬀordable,
well-located urban living space, and includes these dense se lements as legiti-
mate parts of the city, entitled to infrastructure and urban services. These are
examples of substantive inclusion, allowing the entire population access to the
opportunities oﬀered by urbanization.

Rebalancing of Rights Can Support More Inclusive, Efﬁcient Cities
A substantive rebalancing of rights can provide opportunities for citizens of
all income levels to participate in urban life. In any country, there may be
tension between the rights of people who want to live and work in the city

20 See Kampung Kebalen Improvement: Aga Khan Award for Architecture, available at h p://www
.akdn.org/architecture/project.asp?id=443
21 Alain Bertaud, Note on Surabaya Mobility and Housing Issues (2012), copy in author’s ﬁles (part
of the materials the author received from a World Bank task team working on the Surabaya
project).
22 Vietnam Urbanization Review (Technical Assistance Report, World Bank 2011), h ps://open
knowledge.worldbank.org/bitstream/handle/10986/2826/669160ESW0P1130Review000Full0
report.pdf?sequence=1.
358 The World Bank Legal Review

and the rights of people who own property in the city. In a free market, as the
American political economist Henry George observed in 1879, the value of
land goes up with urbanization. George famously argued that governments
should impose signiﬁcant taxes on the ownership of land so that the owner
pays society a rent for the right to use that scarcest urban commodity, well-
located land.23 At least since his time, arguments have raged over the appro-
priate balance between owners’ rights to do as they choose with their land
and the community’s right to limit private property rights for the public good.
The 2001 Brazilian City Statute took the signiﬁcant step of codifying a “social
function of property,” a concept that had long existed in Brazilian law, and
imposed penalties on owners who hold unoccupied or unused buildings.24 In
other words, the legislation limits the rights of property owners when their
properties do not fulﬁll a social function.25 In a nod to Henry George, Brazil’s
City Statute requires graduated taxation of urban real estate and penalizes
owners of underutilized property.26 This encourages densiﬁcation and more
intensive use of prime land.

Good Urban Law Reﬂects an Evolving Social Consensus
about the City
Whatever the issue—density, aﬀordability, access, or sustainability—good ur-
ban planning law reﬂects common values and embodies rules for the city that
have general support and by which most people are willing to live. Good law
depends on voluntary compliance, rather than on enforcement. At its best,
law can protect and balance the rights of property owners and other citizens;
it can lend predictability to urban life; and it can provide an environment that
supports long-term public and private investments. A sound legal and regu-
latory framework must be ﬂexible, adaptive, and progressive so that as the
social consensus evolves and new challenges arise, the legal framework also
evolves. As Roscoe Pound said, “law must be stable, and yet it cannot stand
still.”27 The social consensus changes as new issues and technologies emerge.
Some urban standards that were accepted in the 20th century seem danger-
ous and wasteful in a world that is increasingly feeling the eﬀects of climate
change. Achieving social consensus starts with genuine participation and
transparency in establishing the rules for the city.

The Current Context Is a Useful Point of Departure
As one considers reforming planning law for cities in the 21st century, it is
wise to start from to the way cities actually are. Planning law ideally should be

23 Henry George, Progress and Poverty: An Inquiry into the Cause of Industrial Depressions and of
Increase of Want with Increase of Wealth (1879), available at www.henrygeorge.org.
24 O Estatuto da Cidade, Brazilian Federal Law No. 10.257 (July 10, 2001).
25 Maricato, supra note 9.
26 Alexandre Dos Santos Cunha, The Social Function of Property in Brazilian Law 80 Fordham L.
Rev. 1171 (2011).
27 Roscoe Pound, Interpretations of Legal History (Cambridge U. Press 1923).
Land Use Law and the City 359

a broadly negotiated outcome of discussion about space and its use, not a tool
crafted and enforced by a privileged segment of society with its own perspec-
tives and interests at heart. Planning laws, like other parts of the urban legal
framework, must ﬁt their context. Any law that requires 80 percent of people
to change the way they live is unlikely to succeed. A law that regularizes the
way that 80 percent of the people live, and that pushes the outliers into com-
pliance with community norms and common expectations, has a chance.

Procedural Safeguards Can Promote Inclusive Planning Processes
A United Nations report outlines the key elements of inclusive planning and
land use regulation, in the context of a human right to adequate housing:
[P]lanning and development processes should involve all those
likely to be aﬀected and should include the following elements: (a)
appropriate notice to all potentially aﬀected persons that eviction
is being considered and that there will be public hearings on the
proposed plans and alternatives; (b) eﬀective dissemination by the
authorities of relevant information in advance, including land re-
cords and proposed comprehensive rese lement plans speciﬁcally
addressing eﬀorts to protect vulnerable groups; (c) a reasonable
time period for public review of, comment on, and/or objection to
the proposed plan; (d) opportunities and eﬀorts to facilitate the pro-
vision of legal, technical and other advice to aﬀected persons about
their rights and options; and (e) holding of public hearing(s) that
provide(s) aﬀected persons and their advocates with opportunities
to challenge the eviction decision and/or to present alternative pro-
posals and to articulate their demands and development priorities.28
Many planning laws in developing countries do provide for formal notice
and a comment period, but they do not necessarily include all ﬁve elements
mentioned by the United Nations. And even when these elements are included
in the legal framework, they are not always implemented fully or in a way that
ensures meaningful participation.

Broader Efforts at Inclusivity Are Called For
Notice and an opportunity to be heard are necessary, of course, but in the con-
text of developing cities, these usually are not suﬃcient to provide for mean-
ingful participation. Just as the poor often cannot aﬀord the minimum spatial
standard that is frequently prescribed in planning legislation, they can seldom
aﬀord the kind of civic participation that is envisioned in typical planning
legislation. People who must work long hours and care for their families, who
must queue for water or stay at home to protect their shacks from demolition

28 Miloon Kothari, Implementation of General Assembly Resolution 60/251 of 15 March 2006, entitled
“Human Rights Council”: Report of the Special Rapporteur on Adequate Housing as a Component
of the Right to an Adequate Standard of Living, United Nations General Assembly A/HRC/4/18
(2007), available at h p://www.sarpn.org/documents/d0002804/index.ph.
360 The World Bank Legal Review

and thieves, don’t have the time, resources, or experience to participate eﬀec-
tively in public hearings, to ﬁle wri en comments, to pursue objections and
appeals, and so on. And many feel li le urge to do so, because they have li le
hope of aﬀecting the outcome—the process is often seen as hopelessly corrupt,
with “precooked” outcomes determined by bribes and/or political inﬂuence.29

Urban Master Plans Are Often Outdated and Were Rarely
Developed Inclusively
Almost every city in the world has some form of master plan, and sometimes
several generations of master plans. In rapidly urbanizing developing coun-
tries, these plans are often out of date and bear li le resemblance to the de facto
development that has occurred in the years or decades since the plans were
updated. In most cases, “expert” planners without meaningful public partici-
pation developed these plans. A summary of master plans in Brazil shows that
[f]or years the authoritarian or technocratic approach by the authori-
ties paid scant a ention to the ability of the population to partici-
pate in designing urban planning initiatives. The tradition of Master
Plans being drawn up by specialists—often consultancy ﬁrms with
no connective dialogue with the city’s inhabitants—permeates of-
ﬁcial planning practices to this day.30
The same could be said of master plans throughout the developing world.

Meaningful Participation Can Be a Requirement for Legal Validity
The 2001 Brazilian City Statute oﬀers a newer model for developing master
plans.31 This approach to land use planning (and other urban issues) provides
a land governance framework that is broader than traditional Western or co-
lonial models. This law makes popular participation in land use decisions an
essential condition of validity. Under the Brazilian City Statute, the test is not
just if there is an opportunity to be heard, but also if there has been eﬀec-
tive citizen participation. Although the implementation of the City Statute has
proved less dramatic than the law itself, the emphasis on actual participation
is remarkable. Fernandes observes that whereas “bad laws” can make inclu-
sive public policies very diﬃcult, “good laws” do not by themselves change
urban and social realities.32 He is cautiously optimistic about Brazil’s City Stat-
ute and its progeny:

29 Berrisford, supra note 14.
30 Evaniza Rodrigues & Benedito Roberto Barbosa, Popular Movements and the City Statute, in
The City Statute of Brazil: A Commentary (National Secretariat for Urban Programmes, Brazil
Ministry of Cities 2010).
31 O Estatuto da Cidade, supra note 24.
32 Edesio Fernandes, The City Statute of Brazil: A Critical Assessment, 10 Years Later (presentation
at Annual World Bank Conference on Land and Poverty, Apr. 2013).
Land Use Law and the City 361

[A] new legal-urban order has consolidated—sophisticated, articu-
lated and comprehensive—including the constitutional recognition
of Urban Law as a ﬁeld of Brazilian Public Law with its own para-
digmatic principles, namely, the socio-environmental functions of
property and of the city, and the democratic management of the city.
The collective right to sustainable cities was explicitly recognized,
and there is a clear commitment in the legal system to the urban
reform agenda.33
The Brazilian model illustrates one approach to moving away from expert-
driven planning and toward planning as a process of community dialogue
and agreement.

Equitable and Constitutional Principles Can Support
Urban Inclusivity
When slums and those who live in them are by deﬁnition outside the law,
informal se lements can be bulldozed and squa ers can be evicted with the
sanction of the law. But common law countries have a tradition of equity prin-
ciples that can supplement the strict rule of law to avoid harsh results, and
many constitutions confer rights that can be asserted to protect the rights of
urban dwellers, including the poor. In the context of urban planning and land
use legislation and litigation, at least two kinds of constitutional provisions
are relevant to issues of urban inclusion and equity. The ﬁrst is rooted in an
assertion of human rights. Kenya’s recent constitution provides every person
the right “to accessible and adequate housing, and to reasonable standards of
sanitation.”34 The second type of constitutional provision puts social limits on
the use of private property, as with Brazil’s twin sections: one guarantees the
right of property, and the immediately following section clariﬁes that prop-
erty “shall observe its social function.”35 This la er section is usefully read
together with Article 182 of the Constitution, which provides for master plans
and then explains that urban property performs its social function when it
“meets the fundamental requirements for the ordainment of the city as set
forth in the master plan.”
Realizing the promise of these equitable and constitutional principles
is not automatic or easy. The poor often do not have meaningful access to
courts. Judicial procedure can be impenetrable for the poor and asymmetri-
cally advantageous to formal property owners. When local government at-
tempts to encourage aﬀordable urban densities, the wealthy often challenge
such schemes and, at a minimum, buy time with lengthy litigation.

33 Id.
34 Constitution of Kenya, Revised Edition (2010), sec. 43(1)(b).
35 Constitution of the Federative Republic of Brazil (1988), as amended, art. 5, secs. XXII & XXIII.
362 The World Bank Legal Review

Some Courts Are Intervening on Behalf of the Poor
In some countries, courts have played important roles in establishing the right
of the poor to se le and live in cities, and to participate fully in urban life.36
Where legislation confers social rights, an active judiciary can intervene to
enforce those rights. In South Africa, for example, the constitution expressly
provides a right of “access to adequate housing.”37 In the path-breaking Groot-
boom case, families living in a ﬂood-prone se lement, without access to clean
water, sewage, or refuse removal services had moved to a hillside that had
been identiﬁed for eventual low-cost housing. The municipality bulldozed
their shacks and destroyed their possessions. Homeless and in desperate
circumstances, they brought an action to enforce their constitutional right to
housing. The court found that even though the municipality was engaged
in a massive housing program to eventually provide shelter and secure title
for all, it must provide interim shelter for those “with no access to land, no
roof over their heads, and who were living in intolerable conditions or crisis
situations.”38 As Justice Albie Sachs has wri en, “[t]he case showed the extent
to which creative lawyers and energetic civil society organizations can help
the poor to secure their basic rights.”39
In a similar case in Nairobi, a high court found that Article 10 of the Kenyan
Constitution sets out principles of governance—equity, inclusiveness, nondis-
crimination, good governance, and accountability—that bind all state oﬃcers
and that the forceful eviction of more than 15,000 residents without compen-
sation and rese lement was therefore unconstitutional.40 Both the South Afri-
can and the Kenyan cases signal a willingness by some courts to give concrete
meaning to the right to housing and urban services.
In this regard, these courts have gone further than a pioneering Indian
case, Tellis v. Bombay.41 In that case, state and municipal governments had
evicted pavement dwellers and slum dwellers. The plaintiﬀs argued that they
needed a home in the city to earn a living, and that if they were to be evicted
from the pavements and informal areas, then they were entitled to rese le-
ment. The Indian court did not agree that all were entitled to rese lement,
but it did agree that they had a right to a hearing and that some of them were
entitled to rese lement sites if they could prove that they had been counted in
the last census. Thus, although Tellis did establish a right to live in the city in

36 The idea of a “right to the city” was ﬁrst proposed by Henri Lefebvre in 1968 and has since
been widely used by advocates for the urban poor. It encompasses not just the individual
right to se le, live, and work in cities but also the right to urban services, and the collective
right to shape the city.
37 Constitution of the Republic of South Africa, Act 108 (1996), ch. 2, sec. 26.
38 Government of the Republic of South Africa and Other v. Grootboom and Others (2001), (I) SA 46
(CC); (2000), (II) BCLR 1169 (CC).
39 Albie Sachs, The Strange Alchemy of Life and Law 164 (Oxford U. Press 2009).
40 City Slum Dwellers Win Land Suit, Nairobi Daily Nation (Apr. 11, 2013).
41 Olga Tellis & Ors v. Bombay Municipal Council (1985) 2 Supp. SCR 51.
Land Use Law and the City 363

order to earn a living, it did not require the municipality to provide sites for all
of those aﬀected. More recently, when Mumbai faced a natural disaster in 2005
due to ﬂash ﬂooding, the high court forced the Maharashtra state government
to provide land and infrastructure to relocate thousands of families and facili-
tated the widening of the banks of the River Mithi, which caused the ﬂoods.42
The South African, Kenyan, and Indian cases are all rooted in constitu-
tional rights arising under democratically adopted constitutions. These mod-
ern constitutions provide the form into which courts can breathe life. These
constitutions were only superﬁcially the product of the lawyers that drafted
them. At a deeper level, each was the product of serious and sustained social
dialogue. In each country, people of all kinds debated vigorously and openly
as to the principles and values by which they wanted to be governed. And
perhaps this is the important truth: lawyers and judges may be custodians
of the law, but the law’s value lies in its legitimacy and relevance to the daily
lives of citizens.
It is also notable that these courts, all of which have roots in English com-
mon law, are acting in the tradition of chancery courts of equity, which inter-
vened to rectify injustice that occurred from the strict application of the law.
Although equitable remedies per se no longer exist in some of these countries,43
the underlying principles of equity, now enshrined in constitutional principles
of justice and human rights, shine through. It is an open question whether, in
civil law countries, the courts could or would be willing to take a similar path.
In any event, the wisest way forward lies in reforming the legal framework for
planning and land use to encourage aﬀordable density, including the entire
city when investing in infrastructure and services and encompassing all citi-
zens in decisions about land use and planning.

Conclusion
The tremendous growth of cities in the developing world means that most de-
velopment challenges are now urban challenges. As a result, the legal frame-
work within which cities operate is of urgent importance to development law-
yers. The law underpins every aspect of urban life, from land use to service
delivery, from infrastructure ﬁnance to municipal insolvency.
This chapter highlights one particular challenge: planning law has tended
to formally and informally divide cities, providing expensive standards and
processes for the privileged few and leaving the majority in an indeterminate
status that prevents the poor from accessing urban services that are their right
and providing fertile ground for corruption and arbitrary discretion. This ex-
clusion is obviously bad for individuals, but it also diminishes the productive
capacity of the poor, of the city, and of the nation.

42 Rajack et al., supra note 13.
43 See, for example, India’s Speciﬁc Relief Act of 1963, which codiﬁed many of the forms of
equitable relief.
364 The World Bank Legal Review

Law and legal reform can make a profound diﬀerence. In the case of land
use law, urban land use reform should start with a clear understanding of the
actual situation on the ground, rather than abstract ideals. The reform pro-
cess itself must be democratic and genuinely participatory, reﬂecting a wide
range of inputs from all levels of society. The Brazilian City Statute, and the
extensive social dialogue within which it is embedded, shows that there is
not a quick ﬁx, and success is not guaranteed, but it does oﬀer a promise of
sustainability.
Good urban land use law must consider aﬀordability and the importance
of access to the city and must be implemented in a way that allows people to
live near jobs and other opportunities by legitimizing the consumption of the
amount of space they can aﬀord. The law must also minimize opportunities
for the well connected to proﬁt from asymmetrical information access. It must
represent a genuine social bargain about how urban land will be used.
PART IV

GOVERNANCE AND ANTICORRUPTION
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Fighting Corruption in Education
A Call for Sector Integrity Standards

MIHAYLO MILOVANOVITCH

“What money can’t buy, a lot of money can”
― A modern-day Bulgarian proverb

Wang Anshi, a progressive Chinese statesman who lived during the 11th cen-
tury, believed that the causes of corruption are “bad laws and bad men.” His
intuition points toward corruption as a function of human behavior and the
(permissive) environment in which it takes place. For a while, Wang was quite
successful in improving the laws of his time. He failed, however, with the
“bad men,” who shortly before his death reversed his reforms and ousted him.
The “bad men” of today seem to get around. They also seem to have a cer-
tain weakness for schools and universities. According to data in a 2010–2011
survey conducted by Transparency International,1 59.4 percent of the popula-
tion in eastern Europe perceives education as corrupt or extremely corrupt.
“Bad men” have also visited African education establishments, corrupting
them in the eyes of 56.3 percent of the people living there. The story is the
same in the Caucasus (49.2 percent), Southeast Asia (34.4 percent), and Latin
America (22.2 percent). Globally, 35 percent of the population in 100 countries
has no trust whatsoever in the integrity of their education institutions.2 Obvi-
ously, no sector is immune from malpractice, but education might be more
vulnerable than ever before.
For very many people, education carries hope for a be er future. The de-
mand for degrees and qualiﬁcations is rising rapidly worldwide,3 and the sec-
tor is a priority in most national strategies for economic growth or recovery.

This chapter follows up the session Strengthening Integrity and Fighting Corruption in Edu-
cation: Insights and Eﬀective Measures (available at h p://go.worldbank.org/HBZI38VKK0),
initiated by the author and moderated by him on behalf of the Organisation for Economic
Co-operation and Development (OECD) at Law, Justice and Development Week, held in
2012 at the World Bank in Washington, D.C. The views expressed herein do not necessarily
reﬂect those of individuals and institutions that participated in the session, or of the Euro-
pean Training Foundation.
1 Transparency International, Global Corruption Barometer Report 2010/2011 (Transparency In-
ternational 2011), h p://www.transparency.org/gcb201011.
2 Id.
3 See, for example, Cathy Wendler et al., Pathways through Graduate School and into Careers (Edu-
cational Testing Service 2012) for trends in the United States, but also Education Indicators in
Focus (OECD Research Brief No. 2012/05, May 2012) for a trend summary for the OECD area,
China, and India.

367
368 The World Bank Legal Review

The educational gold rush, then, can stretch the capacity of education sys-
tems and professionals to deliver what is expected and can turn academic
credentials into a highly desired, sometimes even scarce commodity. Dealing
in bogus knowledge and recognition can easily become a norm of behavior,
especially in countries with still-limited educational coverage or where high-
quality institutions are rare.
The thirst for more and be er education also drives a growing demand
for more investment in a wide range of items and services related to the ex-
pansion of access to education and to quality improvement, such as in school
and IT infrastructures, textbooks and learning materials, professional devel-
opment, school meals, and consultancy services. Between 2000 and 2009, com-
bined public and private spending on education in OECD (Organisation for
Economic Co-operation and Development) countries rose by 36 percent, mak-
ing education one of the three biggest domains of public expenditure in the
OECD area.4 In some reform-oriented countries, the resources allocated for
educational improvement can amount to a third of the education budget.5 The
sheer size of the sector and the amount of services and goods that it requires
provide abundant opportunities for proﬁt.
The education sector is also vulnerable to corruption because national
education systems have a multitude of actors operating in a very complex,
often decentralized system that features institutions with considerable au-
tonomy, especially in tertiary education. This can, and frequently does, limit
the eﬀectiveness of policy and regulatory interventions and lets malpractice
go easily undetected―even more so as dependencies between perpetrators of
corruption oﬀenses in education persist beyond those created by the oﬀense
itself: students commonly depend on their teachers and parents; teachers and
schools depend on education authorities, and sometimes on contributions or
approval from parents; and parents depend on teachers for the educational
success of their children. To resist a request for a bribe in such a se ing can be
far more painful than to agree to it.
It is high time to ﬁght corruption in education, for even one corrupt insti-
tution and one fake doctor, teacher, or engineer is one too many. In 2001, in
their pioneer work on the issue, Jacques Hallak and Muriel Poisson asked an
important question: “What can be done?”6 Since then, governments around the
world have become painfully aware of the need to do something and now rou-
tinely a ach priority to education in their anticorruption strategies and action
plans.7 Is this good enough to stop corruption in education? Hardly, as the ﬁg-

4 Educators are also among the largest occupational groups in the workforce. See Education at
a Glance 2012: OECD Indicators (OECD 2012).
5 See Review of Secondary Education in Kazakhstan (OECD 2013).
6 See Jacques Hallak & Muriel Poisson, Corrupt Schools, Corrupt Universities: What Can Be Done?
(International Institute for Educational Planning 2007), which is based on ﬁndings from a re-
search project on ethics and corruption in education launched by the UNESCO International
Institute for Educational Planning.
7 See, for example, the summaries of proceedings of the Steering Group of the OECD Anti-
Fighting Corruption in Education 369

ures above suggest. More than a decade later and despite some promising ef-
forts to address the problem, the cynical wisdom of the proverb from Bulgaria
seems to continue to work well in education institutions worldwide. Is it time
to downgrade the optimism of the initial query to: “Can anything be done?”
The moral of the story of Wang Anshi is straightforward: improving laws
is good, but when “bad men” are around, it might not be good enough. How
can good laws be made and how can they be made to work against corruption
in a complex sector such as education? And who are the “bad men,” really?
Education policy analysis today is be er equipped to tackle complex sys-
temic problems than it was a decade ago and is capable of delivering new an-
swers to some old questions. Large-scale international assessments of educa-
tional performance are now fairly common and wide reaching8 and regularly
deliver rich and diversiﬁed information on the functioning of national educa-
tion systems. Data provide new insights into the factors inﬂuencing system
performance and contribute to a growing pool of evidence on the trajectories
of change of education systems and institutions over the past 10 to 20 years, as
accumulated by research institutions and international organizations with the
capacity and mandate to carry out education policy analysis. These can, and
should, be mobilized to deal with the issue at hand.9
Cross-border cooperation against corruption in the public sector has also
leaped ahead. Around the same time that the OECD was carrying out the ﬁrst
round of its ﬂagship survey of student achievement, the Programme for In-
ternational Student Assessment (PISA), in 2001, the international community
for the ﬁrst time agreed on a set of anticorruption standards and embodied
them in legally binding instruments such as the Council of Europe Criminal
Law Convention on Corruption of 1999 and the United Nations Convention
against Corruption of 2003 (hereinafter referred to as “the Conventions”), to
name only two. Comprehensive monitoring and compliance mechanisms
were established to support the signatories of these Conventions with the
implementation of standards, but the question of how to “translate” and suc-
cessfully enforce them at the sector level has been left aside. A review of lit-
erature that documents eﬀorts to ﬁght corruption in education would show
that education policy makers and researchers rarely if at all refer to them and
might in fact not be aware of their existence.
Perhaps it is time to venture into the development of a new, more compre-
hensive approach in tackling corruption in education―one that will capitalize

Corruption Network for Eastern Europe and Central Asia since September 2009 (available at
h p://www.oecd.org/corruption/acn).
8 Examples include the Programme for International Student Assessment (PISA) of the OECD,
which in 2012 covered 64 countries; Trends in International Mathematics and Science Study
(TIMSS), which covered 79 countries in 2011; and the Progress in International Reading Lit-
eracy Study (PIRLS), which covered 64 countries in 2011, both carried out by the Interna-
tional Association for the Evaluation of Educational Achievement.
9 Mihaylo Milovanovitch, Understanding Integrity, Fighting Corruption: What Can Be Done?
(Global Corruption Report: Education, Transparency International 2013).
370 The World Bank Legal Review

on the positive developments of recent years and be more systematic in ana-
lyzing the problem.10 Sector-speciﬁc insights could thereby greatly facilitate
the long-overdue “translation” of international standards into standards of in-
tegral institutional and individual behavior on a sectoral level and raise their
eﬀectiveness.

Expectations and Deliverables―Who Are the “Bad Men,” Really?
The Conventions establish the oﬀenses for corrupt behavior in the public sector.
Public education is implied in the umbrella term “public sector,” and shares
with other sectors in the public domain common functional elements such as
public-expenditure management, procurement, rules guiding employment,
and so on. Indispensable as it is in se ing cross-border standards, the um-
brella term is broad and masks sector-speciﬁc elements that might have an im-
pact on the enforcement of anticorruption measures in education, including
legislation based on international anticorruption standards. To “emancipate”
education from the generic notion of a public sector and identify these ele-
ments, one would need to take a closer look at education as a public service and
determine what this service is about. From the perspective of sector integrity,
there are good reasons for taking this approach.
Education is a social good,11 and in most countries it is a ma er of social
consensus that it should be available to everyone, regardless of income. From
the point of view of participants in education, its availability is measured
by the degree to which their expectations as education stakeholders are ad-
dressed by the education system and the services it provides. Instances of dis-
crepancy between deliverables and expectations would be a potential source
of corruption risk (see ﬁgure 1), as they would give participants in the system
incentives to revert to malpractice as a “remedy” for shortcomings in educa-
tional service provision.
It is reasonable to assume that education systems that would not fail their
stakeholders would experience fewer problems with corruption. In essence,
this assumption should hold for any public service. If issuing a driver’s license
in a given country took a year, it is likely that license applicants would wish
for the process to take less time. Some or many of them might be seriously
tempted to shorten the groundless waiting and arrange for a “shortcut,” with
help from oﬃcials who in turn might be on the lookout for ways to improve
their (low) salaries. An eﬀective preventive solution would target the incen-
tives for malpractice by improving the eﬃciency of the license-issuing process
and by raising the wages of those who manage it. But what do stakeholders
expect from education?

10 The next section features elements of a sector-speciﬁc approach to integrity, developed by
the author in 2011 and piloted under his supervision in Serbia and Tunisia in 2012‒13 within
the framework of the OECD Integrity of Education Systems (INTES) project.
11 Gregory Wurzburg, Corruption in Education (unpublished framing paper prepared in the
course of initial discussions that led to the OECD Integrity of Education Systems project).
Fighting Corruption in Education 371

Figure 1. Unmet expectations and corruption potential in education

Quality of education is a key education deliverable and probably the most
common area of stakeholders’ expectations worldwide. Parents and students
are usually prepared to go to great lengths to ensure that their expectations in
this area are met. Countries where these expectations are not met are exposed
to higher risk of malpractice. In the Kyrgyz Republic, for example, the quality
of learning in secondary schools is so low that student performance in PISA
persistently hurls the country down to the very last place of all economies par-
ticipating in the survey.12 Despite a considerable, above-OECD-average share
of national wealth invested in education, time for learning at school remains
very limited, the curriculum is overloaded, and teaching methods are outdat-
ed.13 Consequently―and despite the cost involved―in 2006 some 64 percent
of secondary students in the Kyrgyz Republic regularly resorted to one-on-
one, out-of-school private lessons14 with teachers from their own schools! It is
not known how much of this practice is in exchange for school grades, but in
a country that consistently ranks in the lowest quintile of Transparency In-
ternational’s Corruption Perception Index, the practice nurtures widespread
perceptions of corruption in the sector.
Another fundamental set of expectations revolves around access to edu-
cation. This includes fair and equitable provision of education, merit-based
transition to higher levels of education, and recognition of academic success.
In regions where good schools were rare, or in countries where a certain level
of education (usually higher education) was confronted with capacity limita-
tions, parents would be ready to bribe to ensure access to good education
for their children. To sort out the capable from the incapable, many countries
resort to high-stakes standardized tests, such as the Scholastic Achievement
Test, the Graduate Record Examination, or the Law School Admissions Test.

12 PISA 2009 Results: What Students Know and Can Do―–Student Performance in Reading, Math-
ematics and Science (OECD 2009).
13 Kyrgyz Republic 2010: Lessons from PISA (OECD 2010)
14 PISA 2006 vol. 2: Data (OECD 2006).
372 The World Bank Legal Review

Such tests are decisive for access and are often given more weight in the pro-
cess of admission. Cheating on them is widespread, throughout the world.15
In China, for example, exam questions are sold in advance; in South Africa,
the entire test is sold in advance; and in the United States and Japan, parents
hire exam proxies to take the exam for their children.16 A study carried out in
Russia in 2008‒2009 revealed that regional test administrators were involved
in falsifying high scores for paying students.17
From the perspective of education institutions and the people working
in them, another key deliverable would be the sound management of staﬀ and
resources, including their availability. In fact, staﬀ and resources are the op-
erational backbone of schools and universities,18 and education systems that
fail to operate adequately in these areas are in eﬀect instigating their teach-
ers and administrators to seek “alternative” solutions; for example, to ensure
suﬃcient resources for maintenance of infrastructure, to obtain or keep their
jobs, or simply to compensate for below-average wages. In Serbia, a country in
which the OECD carried out its ﬁrst assessment of education-system integrity
in 2011, the quality of schools’ educational resources as measured by PISA
proved to be below the international average, and the perception of resource
shortages other than for wages was widespread throughout the secondary ed-
ucation system.19 In dealing with the combined challenge of limited resources
and rising costs, the schools had developed high dependency on private in-
vestment20 and were engaging in thriving economic activities―but without
a matching system for oversight and control.21 Rumors of misappropriation
of school funds were widespread, but the number of investigated cases re-
mained low.
In sum, education as a public service is expected to be fair and equitable,
of good quality, and provided by institutions with sound management of staﬀ
and resources. The existence of identiﬁable causal links between corruption
in the sector and failures in service delivery indicates that malpractice in the
education system is determined, at least to a certain extent, by sector-speciﬁc
policy shortcomings. These supply the mostly “ordinary” people participat-
ing in education―parents, students, teachers, and principals―with reasons to
turn into Wang’s “bad men.” The eﬀectiveness of measures against corruption
in education therefore depends not only on “good laws” but also on targeted
adjustments in education policy.

15 Tricia Betrtram Gallant ed., Creating the Ethical Academy: A Systems Approach to Understanding
Misconduct and Empowering Change in Higher Education (Routledge 2011).
16 Id.
17 Anna Nemtsova, Russia Cracks Down on Fraud in College Entrance Exam, Chron. of Higher
Educ. (Oct. 1, 2009).
18 Strengthening Integrity and Fighting Corruption in Education: Serbia (OECD 2012).
19 Id.
20 The proportion of private resources that households in Serbia invest in public schools is on
average 2.5 times higher than in OECD countries.
21 Strengthening Integrity and Fighting Corruption in Education: Serbia, supra note 18.
Fighting Corruption in Education 373

Bad Laws, or How the Opportunity Makes the Thief
To be sure, failure to deliver on stakeholder expectations does not always lead
to corruption. Below-OECD-average performance in PISA, tough university
entry, or low salaries do not mean that all potentially disillusioned parents,
students, or teachers will resort to malpractice. Some or many of them might
be genuinely honest people, with a high level of personal integrity. Others
might be inherently “bad,” but hindered in their intentions by adequate laws
and eﬀective enforcement. This last point deserves further a ention.
Corruption depends not only on the presence of motives but also on in-
dividual readiness to commit it (this is beyond the scope of this discussion)
and opportunity to commit it. Windows of opportunity for corruption in
education―or in any other sector―are usually opened by shortcomings in
what could be called the prevention and detection framework of a country;
that is, the set of such institutions, actors, resources, values, and actions that,
taken separately or together, are in place to ensure a range of functions for the
prevention and detection of malpractice/corruption on a national and sector
level.22 Examples of preventive deﬁciencies include failure to criminalize cor-
ruption oﬀenses, absence of conﬂict of interest regulations for staﬀ working
in education, inadequate ﬁnancial control, ineﬃcient school inspections, and
lack of administrative transparency, among others.

Box 1. Transparency Against Large-Scale Corruption:
The Case of Uganda
Uganda is a good and frequently given example of a country that successfully
closed a window of major corruption opportunity in its education system by
boosting transparency. A Public Expenditure Tracking Survey (PETS) carried
out in 1996 revealed that only 13 percent of the central grant for education actu-
ally reached the schools; 87 percent of it was captured by corrupt oﬃcials at the
district level, leaving 73 percent of all schools in the country with less than 5
percent of the intended funds. As schools had no information on the amount of
funding they were entitled to, and the central tier of governance did not verify
the use of funds, these actions remained unchallenged.
At the core of policy changes triggered by this dramatic ﬁnding was a mas-
sive information campaign in which authorities started to publish and broad-
cast information on intergovernmental transfers of public funds and requested
schools to publicly post information on their ﬁnancial inﬂows. A follow-up
study estimated that the campaign led to as much as a 75 percent improvement:
between 1995 and 2001, the leakage of capitation grants to schools fell from
80 percent to 20 percent.
Source: Ritva Reinikka & Nathanael Smith, Public Expenditure Tracking Surveys in Education
(International Institute for Educational Planning, UNESCO 2004).

22 Mihaylo Milovanovitch, Simone Bloem, & Valts Kalnins, Integrity and Corruption in Educa-
tion: An Evidence-Based Approach to Malpractice Prevention (OECD forthcoming).
374 The World Bank Legal Review

Like other social phenomena, corruption has causes and consequences. In
education, these are linked in a vicious cycle of failure―of cause and eﬀect―
in which systemic failure causes corruption, which in turn aﬀects the system
and causes it to fail.23 Breaking this cycle involves the mapping of origins of
corruption in the sector in conjunction with the improvement of prevention
measures. Even the strongest prevention, detection, and follow-up mecha-
nisms are blind without an understanding of what causes corruption in a sec-
tor. The reverse is true as well; opportunities created by weak monitoring and
control represent a temptation in even the best of education systems.24

Figure 2. Corruption and prevention cycle

Source: Author, based on Milovanovitch et al. Integrity and Corruption in Education: An Evidence-
Based Approach to Malpractice Prevention (OECD 2013).

The “What” and “How” of Effective Prevention
Ideally, eﬀective prevention would comprise adjustments in the prevention
and detection framework to close windows of opportunity for corruption, but
also interventions in the realm of education policy in view of improving sector
deliverables and diminishing the reasons for engaging in malpractice. In prac-
tice, however, it proves very diﬃcult to coordinate such eﬀorts. The consensus
about what constitutes malpractice in education and what and how anticor-
ruption standards would be applicable is patchy, at best. Moreover, education
policy makers and institutions tend to lack sector-speciﬁc integrity guidance,
and anticorruption professionals and bodies have limited understanding of

23 Id.
24 Strengthening Integrity and Fighting Corruption in Education: Serbia, supra note 18.
Fighting Corruption in Education 375

the sector and its needs while continuing to count on its contribution for the
fulﬁllment of their commendable mandate.
The notion of malpractice becomes very ambiguous when applied to real
life in schools and universities. Malpractice is always harmful and damaging
to the integrity of a sector, but in education it can easily fall short of qualifying
as corruption oﬀense (i.e., an oﬀense entailing criminal liability) by interna-
tional standards. Private tutoring,25 for example, constitutes a clear-cut case
of corruption in which teachers request their own students to take private
lessons as a condition for passing an exam.26 Things become less clear when
teachers purposefully skip parts of the content in regular lessons to stimulate
demand for tutoring. This is a good example of a “softer” form of corruption
(i.e., malpractice that calls for civil, administrative, or disciplinary punish-
ments) that remains without correspondence in the body of anticorruption
standards but one that a diligent prevention/integrity strategy can ill aﬀord to
ignore (see ﬁgure 3). Other examples of teacher-related, soft forms of malprac-
tice could include teacher absenteeism27 or “ghost teachers.”28
Each oﬀense, hard or soft, likely also has a permissible, acceptable equiva-
lent at the lower end of the axis of tolerance represented in ﬁgure 3. In the
example of private tutoring, this could be cost-free remedial work with low
achievers or the giving of presents to teachers at the beginning of an important
school year. Figure 3 also applies to manifestations of integrity deﬁcits in any
of the three education-service dimensions discussed here.
In order to be eﬀective, prevention measures, which include education
policy interventions, must identify and take into consideration relevant prac-
tices on both sides of the threshold of tolerance. The complexity of the educa-
tion system and the cultural and country diﬀerences, however, make it dif-
ﬁcult to draw a clear line between acceptable practices and softer forms of
malpractice, and between soft corruption and criminal oﬀenses. This renders
the application of international anticorruption standards to education particu-
larly challenging and suggests a necessity to mobilize the education sector

25 For a thorough overview of the private tutoring phenomenon, see Mark Bray, Confronting the
Shadow Education System (UNESCO 2009).
26 See Mark Bray, Shadow Education: The Rise of Private Tutoring and Associated Corruption Risks
(Global Corruption Report: Education, Transparency International 2013).
27 Teacher absenteeism as a soft form of corruption was a theme discussed at the session
Strengthening Integrity and Fighting Corruption in Education in the Law, Justice and Develop-
ment Week (LJDW), held in 2012 at the World Bank in Washington, D.C. The topic was intro-
duced by Halsey Rogers (Human Development Network, World Bank), who discussed ways
of measuring the prevalence of teacher absenteeism, provided a country example (India),
and reported on progress in dealing with the problem.
28 “Ghost teachers” are ﬁctitious teachers whose names are on the payroll although they be-
long to people who are not in service anymore (because deceased or retired) or who never
existed.
376 The World Bank Legal Review

Figure 3. Malpractices and threshold of tolerance

itself to push for an agreement on where to draw the line at what is acceptable
practice and, based on that, for deﬁnition of complementary, sector-level stan-
dards of integral behavior.29 These standards would target a clearly deﬁned
set of soft and hard oﬀenses and be linked to international anticorruption in-
struments―that is, the Conventions―thus strengthening their eﬀectiveness
on a sector level.
National education institutions have an important role to play in this en-
deavor. They are paramount for the development of awareness and owner-
ship for the integrity eﬀort and are a primary reference point for civil society
involvement and for gauging important cultural aspects, such as a itudes to-
ward corruption. A prevention strategy that mobilizes all three layers of pre-
vention responsibility represented in ﬁgure 4―national, sector, and institu-
tional―will be able to capture the entire range of sector-speciﬁc malpractice,
from borderline unethical but tolerated behavior through soft corruption, to
corruption oﬀenses as deﬁned by international law.

29 The beneﬁts of mobilizing sector expertise for preventing fraud were the focus of the pre-
sentation of Alaleh Motamedi (senior procurement specialist, Operations and Policy Group,
World Bank), Procurement in Education, in the session, Strengthening Integrity and Fighting
Corruption in Education at the LJDW held in 2012 at the World Bank in Washington, D.C. She
argued for a new approach in improving procurement integrity, one that relies on be er
cooperation between procurement and education specialists to be er account for diﬀerent
country contexts and the speciﬁcities of market supply and demand in education, and to
stimulate stakeholder empowerment and innovative solutions.
Fighting Corruption in Education 377

Figure 4. Layers of prevention responsibility

What Next?
The explanatory report to the Criminal Law Convention on Corruption of the
Council of Europe notes that even after years of discussions, the international
community has failed to agree on a common deﬁnition of corruption, and the
OECD Glossary of International Standards in Criminal Law indicates that “there
are as many diﬀerent deﬁnitions of corruption as there are manifestations of
the problem itself.”30 International fora, in contrast, have quite successfully
focused on agreeing on the deﬁnition of certain forms of corruption, such as
bribery of foreign public oﬃcials (OECD Convention on Combating Bribery
of Foreign Public Oﬃcials in International Business Transactions), trading in
inﬂuence (Council of Europe Criminal Law Convention on Corruption), and
embezzlement, misappropriation, or other diversion of property by a public
oﬃcial (United Nations Convention Against Corruption).
In education, work in this respect has so far been very limited. Education
research over the past 10 to 15 years has concentrated on the production of
deﬁnitions of corruption, rather than on determining corruption oﬀenses. The
deﬁnitions produced so far remain too narrow and are applicable only in a
limited number of cases, or are too broad and of limited use.31 It is time to shift
the focus to corruption oﬀenses instead.

30 Corruption: A Glossary of International Standards in Criminal Law (OECD 2008).
31 Nataliya L. Rumyantseva, Taxonomy of Corruption in Higher Education, 80 Peabody J. of Educ.
81‒92 (2005). Two deﬁnitions of corruption are frequently referred to. One is that of Stephen
Heyneman, who argues that “education is an important public good [whose] professional
standards include more than just material goods.” He goes on to deﬁne corruption in education
378 The World Bank Legal Review

As of this writing (summer 2013), there has been a renaissance of inter-
est by multilateral institutions and their members in discussing a coordina-
tion of eﬀorts to combat corruption in education.32 More than a decade ago,
the World Bank33 and UNESCO34 drew their a ention to the corruption prob-
lem in schools and universities, triggering follow-up actions that, with some
exceptions (Uganda; see box 1) were neither systematic nor particularly evi-
dence based. The research on the issue at that time was also still young and,
most of all, scarce. Today, declarations of good intentions are the least of de-
liverables to be demanded. The growing political momentum lends itself to
supporting a consolidation of available evidence on education into a clear-cut
list of actions that constitute oﬀenses involving criminal or other types of li-
ability―the building blocks of a multilateral consensus on integrity standards
in the sector. Table 1 illustrates how the diﬀerentiated view of education as
a public-service deliverable can be used as a starting point in the work on
standards-oriented solutions.

Brokerage and Sector Inclusiveness:
The Role of International Fora
The standardization of integral behavior in education is not only a conceptual
but also a political task that calls for brokerage between states in a suitable in-
ternational forum. In fact, progress in the political dimension will depend on
the “suitability” of the broker. With one notable exception, the UNESCO In-
ternational Standard Classiﬁcation of Education, the education sector does not
have any international standards or entities that could set them and still relies
on best-practice cases or between-country data comparisons without norma-
tive value. Other international fora―such as the Council of Europe’s Group
of States against Corruption (GRECO), the OECD’s Anti-Corruption Network

as “the abuse of authority for personal as well as material gain” (Steven Heyneman, Educa-
tion and Corruption, 24 Intl. J. Educ. Dev. 6 [2004]). The other frequently used deﬁnition is that
of Hallak and Poisson, who believe that corruption in education is a “systematic misuse of
public oﬃce for private beneﬁt whose impact is signiﬁcant on access, quality or equity in ed-
ucation” (Hallak and Poisson, Ethics and Corruption in Education: Results from the Expert Work-
shop Held in Paris on 28–29 November 2001, h p://www.unesco.org/iiep/PDF/Forum15.pdf).
32 Education Ministers Back Pan-European Anti-corruption Platform and Ethical Code for Teachers,
(press release, Council of Europe, April 27, 2013), available at h p://www.coe.int/t/dg4
/education/standingconf/Source/press/Education_Ministers_Conference_press_release2.pdf);
see also the summary of proceedings from the Expert Seminar on Prevention of Corruption―
Enhancing Practical Implementation and Taking Eﬀective Measures at the Institutional and Sector
Levels (OECD Anti-Corruption Network for Eastern Europe and Central Asia, June 26‒27).
33 Through a ﬁrst round of public expenditure tracking surveys in education and their results.
34 See Dakar Framework for Action: Education for All; Meeting Our Collective Commitments (UNES-
CO 2000). The framework was adopted by the World Education Forum, Dakar, Senegal,
April 26–28, 2000.
Fighting Corruption in Education 379

Table 1. Sample of identity oﬀenses in education

Area of Deliverables/
Sample Oﬀenses
Expectations
• Provision of be er learning conditions to individual
students whose parents provide ﬁnancial support to the
school, at the expense of “regular” students

• Rigged examinations, i.e., through the sale of examination
questions

Quality of education • Forced purchase of learning materials authored by the
teachers

• Purposeful reduction of teaching eﬀectiveness during
regular school hours in view of stimulating demand for
private tutoring

• Private tutoring by the same teacher in exchange for grades

• Bribing to ensure access to education, or to allow for
transition to higher levels of education

• Rigged entrance examinations
Access to education
• Provision by students of intellectual or other services to
university teachers in exchange for academic success

• Sale of academic credentials
• Teacher recruitment based on political or family aﬃliations,
Sound management rather than on qualiﬁcations and performance
of staﬀ
• Teacher absenteeism
• Manipulation of local data on numbers of students,
admission of minorities, or on examination results to
obtain more favorable resource or staﬀ allocations

• Embezzlement of funds
Sound management of
resources • Use of school infrastructure for generating revenue at the
expense of the teaching and learning environment

• Use of student labor for generating school revenue under
the pretext of providing practical training

Source: Author, based on Katharina L. Ochse, Preventing Corruption in the Education System: A Prac-
tical Guide (Deutsche Gesellschaft für Technische Zusammenarbeit 2004).

for Eastern Europe and Central Asia, or the Conference of the States Parties to
the United Nations Convention Against Corruption―all have a strong man-
date to formulate and monitor anticorruption policies, but their legitimacy as
brokers of standards on a sector level is limited or yet to be established.
380 The World Bank Legal Review

The identiﬁcation of a suitable broker is a challenge that needs to be ad-
dressed before any progress can be made. One way to do this is to invest
eﬀort in making international anticorruption fora more sector inclusive. The
fact that the Steering Group of the OECD Anti-Corruption Network increas-
ingly includes education in its deliberations shows that this is a feasible op-
tion. There are also promising developments in the sector itself. The standing
conference of Council of Europe Ministers of Education recently established
an anticorruption platform for education that can be mobilized as a brokerage
agent. On a more technical level, in the next biennium, the European Training
Foundation, the biggest education agency of the European Union, charged
with steering knowledge and guiding resource allocations for human capital
development in 31 countries neighboring the European Union, is focusing on
eﬃciency and good governance as priority areas.
The times have never been more opportune for pu ing together resources
and coordinating eﬀorts on an issue that deeply concerns all countries, their
citizens, and the future of their citizens’ education. The success of this en-
deavor can render the wisdom of the modern-day Bulgarian proverb obsolete,
at last.
The Battle between Corruption
and Governance in India
Strategies for Tipping the Scale

SRIRAM PANCHU AND AVNI RASTOGI

Over the past few years, India has witnessed an upsurge of public anger at cor-
ruption in the upper reaches of the government. With Anna Hazare’s move-
ment galvanizing public sentiment in 2011, mass protests against corruption
have been held across the country.1
Corruption is the abusive use of public power for personal ends and covers
everything from the paying of bribes to civil servants in return for favors and
the theft of the public purse to a wide range of wrongful economic and po-
litical practices in which politicians, bureaucrats, and other vested interests
enrich themselves at the expense of the state.2 There are usually at least two
actors involved in a corrupt act. On the one hand are government oﬃcials
and public functionaries, who hold positions of authority and allocate rights
over scarce public resources on behalf of the state; on the other hand are the
nonstate actors, private individuals or entities that provide an incentive for
corrupt acts and gain an advantage from them. Corruption also involves two
distinct acts of redistribution of resources between the bribe payer and the
receiver: one is the bribe paid; the other is the allocation of public resources
determined by considerations other than public beneﬁt. The la er is why links
have been drawn between poverty and corruption.
This chapter begins with a brief introduction to corruption in India and
the cost to the country as a result of the large-scale diversion of money from
state coﬀers. It then touches on the prevalent theoretical understanding of the
causes of corruption that has informed eﬀorts to tackle corruption, followed
by an assessment of anticorruption eﬀorts in India. Although pe y corruption
is dealt with brieﬂy, the focus is on the kind of reform required to deal with
big-ticket political corruption. The chapter concludes by describing a model
for an authority that could deal with corruption at the higher levels of govern-
ment in the Indian context.

1 In 2011–12, Anna Hazare, a social activist, led a movement against corruption in India us-
ing nonviolent methods of protest such as hunger strikes. The movement garnered a lot of
public support before ﬁzzling out by the end of 2012. However, the movement did succeed
in bringing the issue of corruption to the fore.
2 Inge Amundsen, Political Corruption: An Introduction to the Issue 7 (research report prepared
for the Chr. Michelsen Inst., Bergen, Norway 1999), available at h p://bora.cmi.no/dspace/
bitstream/10202/263/1/WP1999.7%20Inge-07192007_3.pdf (accessed Apr. 3, 2013).

381
382 The World Bank Legal Review

Corruption in India
The “Kissinger Cables” that Wikileaks published in April 2013 spotlight the
enduring problem of corruption in India. In 1976, the U.S. Embassy in India
made clear to the U.S. State Department that corruption was a cultural, politi-
cal, and economic fact of life in India.3 Nepotism and “speed money” were
considered acceptable, the embassy reported, and “innovative” ways were
found to award contracts to favored bidders. Unfortunately, ma ers have only
worsened since this assessment was made. Whereas at one time the “discern-
ing Indian distinguished between corruption for personal and political pur-
poses” as per the cable, now the corrupt are indiscriminate in their activities.4
Corruption in India has two main avtars, to borrow the Hindi term for
“manifestation.” One is the chai-paani (“tea water,” a reference to daily small
expenses) avtar, which refers to the all-pervasive greasing of palms that is ex-
pected by most public oﬃcials as “speed money” to issue documents and li-
censes and to deliver public services of any kind. The extent of such bribery is
evident from the Indian Corruption Study series published by the Centre for
Media Studies. The total monetary value of pe y corruption nationally in just
11 services covered was estimated at Rs 210.68 billion, or US$3.9 billion,5 in
2005.6 The 2010 edition of the study estimated that the amount paid in bribes
by rural households in 12 surveyed states for just four public services was
Rs 4,718 million, or US$87.37 million, during the preceding year.7 In 2012, the
study focused on urban slum dwellers and found that three of every four slum
dwellers had been asked to pay a bribe to the Public Distribution System or
for health or municipal services received in the year preceding the survey.
The study also found that the incidence of corruption in services had doubled
since 2008 in urban India, rising from 34 percent to 67 percent.8 These statistics
are worrisome for a nation grappling with poverty and development.

3 P. J. George, Corruption in India, a “Fact of Life” Say U.S. Diplomats, The Hindu (Apr. 11,
2013), available at h p://www.thehindu.com/news/national/corruption-in-india-a-fact-of
-life-say-us-diplomats/article4603544.ece (accessed Apr. 12, 2013).
4 Id.
5 The conversions from rupees to U.S. dollars are based on an exchange rate of Rs 54 per US$1.
6 In its 2005 edition, the study covered corruption in the delivery of 11 public services across
20 states. Centre for Media Studies and Transparency International, India Corruption Study
2005 (June 30, 2005), available at h p://iri.org.in/related.../India%20Corruption%20Study
%202005.pdf (accessed Mar. 20, 2013).
7 The 2010 study covered four essential services in 12 states in rural areas. The study also
found a decline in the general perception of corruption in public services and a reduction in
the experience of rural households of paying bribes since 2005, which could be due to the
Right to Information Act of 2005 and anticorruption reforms since then. Centre for Media
Studies, India Corruption Study 2010 (Apr. 2011), available at h p://www.waterintegrity
network.net/index.php?option=com_mtree&task=a _download&link_id=148&cf_id=61 (ac-
cessed Mar. 20, 2013).
8 Centre for Media Studies, India Corruption Study 2012: Expanding Slums & Growing Corrup-
tion (press release, Ctr. for Media Stud., New Delhi, Dec. 7, 2012), available at h p://www
.cmsindia.org/PressReleaseCMS_ICS_2012.pdf (accessed Mar. 20, 2013).
The Battle between Corruption and Governance in India 383

The second avtar of corruption is the big-ticket variety involving huge
amounts of money diverted as private gains from public resources. Since 2010,
a number of multimillion-dollar scams involving people in high places have
been unearthed, including the Commonwealth Games (2010) ,9 the Adarsh
Housing Society scam (2010),10 the 2G scam (2010),11 the Tatra scam (2011),12 the
Antrix Devas deal (2011),13 and “Coalgate”(2012).14 The Bofors scam (1989),15
the Harshad Mehta stock market scam (1992),16 the Jain Hawala case (1997),17
the fodder scam (1996),18 and the Telgi stamp paper scam (2003)19 are slightly
older milestones in India’s history of corruption. The amount of money in-
volved in these scams and the loss to the exchequer is mind-boggling. The va-

9 This refers to a number of corrupt deals involving overstated contracts entered into in prepa-
ration for the Commonwealth Games in 2010, leading to a total loss of Rs 23.42 billion, or
US$433.7 million, to the exchequer.
10 In 2002, in a transfer okayed by the chief minister and revenue minister of Maharashtra,
prime real estate land in Mumbai was allo ed for the construction of a cooperative society
for the retired personnel of the defense services, primarily Kargil War widows and their fam-
ilies, called the Adarsh Housing Society. Instead, politicians, bureaucrats, and high-ranking
military oﬃcials were allo ed ﬂats in the society at low prices.
11 This scam involves the illegal undercharging by government oﬃcials to various telecom
companies during the allocation of 2G licenses for cell phone subscriptions. According to the
Comptroller and Auditor General of India, the estimated loss to the exchequer amounted to
about Rs 1.76 trillion, or US$32.6 billion.
12 Indian Army chief General Vijay Kumar Singh had accused Tatra of supplying substandard
military trucks to the army through its Indian partner BEML. The ma er came to light when
the army chief alleged he was oﬀered a bribe to clear a consignment of substandard trucks.
The scam was estimated at Rs 7.5 billion, or US$138.9 million.
13 The deal involved Indian Space Research Organisation leasing the S-band transponders on
two satellites to Devas for broadcasting purposes by violating rules and procedures. The
total loss was estimated at Rs 2 trillion, or US$37.03 billion.
14 The Comptroller and Auditor General of India has accused the Indian government of giving
undue beneﬁts to companies by distributing 155 coal acres in an arbitrary manner instead of
auctioning them to the highest bidder during 2004–2009. The scam involves a loss of Rs 1.85
trillion, or US$34.26 billion.
15 Prime Minister Rajiv Gandhi and other politicians and bureaucrats were accused of receiv-
ing kickbacks from Bofors AB, a Swedish company, in connection with a contract for the
supply of howi er ﬁeld guns. A loss of Rs 640 million, or US$11.85 million, was estimated.
16 Harshad Mehta used his position as a stockbroker for banks to illegally use bank-owned
money to buy shares at a premium, leading to a boom in the stock market, which came
crashing down when the scam was revealed in 1992. The total amount swindled was Rs 30
billion, or US$555.56 million.
17 This scam involved alleged payments to a number of Indian politicians through four hawala
(an alternative informal money transfer system) brokers amounting to Rs 650 million, or
US$12 million. The Jain brothers were found with a list of initials that matched senior politi-
cians with large amounts against their names believed to be indicative of amounts paid to
these politicians in bribes.
18 The animal husbandry department in the Bihar state government embezzled funds of
around Rs 9.5 billion, or US$175.93 million, meant to purchase ca le fodder, medicines, and
animal husbandry equipment, leading to the resignation of Chief Minister Laloo Prasad Ya-
dav and others.
19 Abdul Karim Telgi printed and sold counterfeit stamp papers through 300 agents, leading to
a loss of Rs 300 billion, or US$5.56 billion, to the government exchequer.
384 The World Bank Legal Review

riety of these scams demonstrates that the problem of the use of public oﬃce
for private gain is not limited to politicians alone but encompasses the police,
the media, public oﬃcials and civil servants, education, the armed forces, and
the private sector.20 Corruption has also found its way into the judiciary.

Cost of Corruption
The cost of corruption to India is evident from the ﬁndings of a study by Global
Financial Integrity, which reports that from 1948 through 2008 India lost
US$213 billion in illicit ﬁnancial ﬂows (or illegal capital ﬂight). That sum was
siphoned oﬀ by a combination of corruption, bribery, and kickbacks; criminal
activities; and eﬀorts to shelter wealth from the country’s tax authorities.21
If the loss to the exchequer via the scams listed above were to be aggre-
gated, it would amount to more than Rs 4 trillion.22 At a reinvestment rate of,
say, 10 percent per annum, the total annual loss of revenue from this amount
would exceed Rs 400 billion. To put the implication of such losses into per-
spective, consider the following: Rs 22.42 per day or Rs 8,183 a year is the
minimum income required to be above the poverty line in rural India.23 The
annual revenue loss calculated above would lift 48 million rural citizens out
of poverty.24
An equally grave cost of corruption to society and the country can be as-
sessed through the ﬁndings of a study conducted on extralegal payments in
the provision of driver’s licenses in Delhi.25 This study found that corruption
has been institutionalized through middlemen who bribe oﬃcers of the gov-
ernment department responsible for testing applicants and issuing driving
licenses. Nearly 71 percent of people obtaining licenses did not take the licens-
ing exam, and 62 percent were unqualiﬁed to drive (according to the inde-
pendent test) at the time they obtained a license. Most of these people learned
how to drive after obtaining their licenses, and only became proﬁcient to the
extent that was useful to them personally, which means that a large number

20 Each of these categories earned high scores in the results of the Corruption Perception Index
prepared by Transparency International. Transparency International, Consumer Perception
Index, available at h p://cpi.transparency.org/cpi2012/results/ (accessed Mar. 19, 2013).
21 Dev Kar, The Drivers and Dynamics of Illicit Financial Flows from India: 1948–2008 (Nov. 2010),
available at h p://www.gﬁntegrity.org/storage/gﬁp/documents/reports/india/gﬁ_india.pdf
(accessed Mar. 20, 2013).
22 The ﬁgures mentioned here are based on assessments of the Comptroller and Auditor Gen-
eral of India and news reports.
23 As ﬁxed by the government of India for rural areas at 2011–12 prices.
24 As per government of India data from 2009–10, 29.8 percent of a population of 1.24 billion
are below the poverty line.
25 Marianne Bertrand et al., Obtaining a Driver’s License in India: An Experimental Approach to
Studying Corruption, 122(4) Q. J. Economics 1639–1676 (2007). The study shows that corrup-
tion not only transfers resources from citizens to bureaucrats but also distorts the allocation
of resources by the government in favor of those citizens willing and able to pay higher
amounts for services.
The Battle between Corruption and Governance in India 385

of people on Indian roads are unqualiﬁed to drive at the socially optimal level
(this is evident to even a casual observer of Indian roads). One can imagine
how much damage to life and property is caused when so many drivers are
insuﬃciently qualiﬁed to be on the road.
Corruption has become a driving force of state action, leading to increased
bureaucratic hurdles and red tape and inspiring wasteful, unproductive, and
harmful actions. For instance, massive projects and purchases are undertaken
not because they are needed or viable but because a good deal of corrupt
money can be generated from their associated transactions—a classic case of
improper motive leading to misdirected action causing loss to public good. If
corruption is a major factor in the making of economically and environmen-
tally critical decisions such as whether a particular company is favored with
a contract, whether to build a mega–power plant, or whether small industries
should be protected or left exposed to competition from international ﬁrms,
then the picture of governance that emerges is frightening.

Causes of Corruption
Diﬀerent motives and diﬀerent actors are involved in pe y corruption and
big-ticket corruption. Pe y corruption, also referred to as “bureaucratic
corruption,”26 takes place at lower levels of authority. The actors involved
are the lower bureaucrats and government oﬃcials. Big-ticket corruption, or
grand corruption, is political corruption involving political and bureaucratic
decision makers at high levels subverting rules of procedure and political
institutions to misallocate resources—actions that eventually lead to institu-
tional decay.
Recent research calls for a wide and comprehensive understanding of the
causes of corruption. Robert Klitgaard’s formulation of corruption as being
a function of monopoly, discretion, and accountability27 oﬀers only a limited
understanding of what causes corruption. It fails to take into account factors
such as the briber’s perspective in inﬂuencing public decision making and
it does not fully appreciate the underlying incentives and risks.28 Corrup-
tion needs to be recognized as a complex phenomenon, as the consequence
of more deep-seated problems of policy distortion, institutional incentives,
governance, and ethics.

26 Amundsen, supra note 2.
27 Corruption = Monopoly + Discretion – Accountability, as developed by Robert Klitgaard,
International Cooperation against Corruption, 35(1) Fin. & Dev. 3 (1998), available at h p://
www.imf.org/external/pubs/ft/fandd/1998/03/pdf/klitgaar.pdf.
28 Hiram Chodosh, Without Identifying the Underlying Causes We Cannot Combat Corrup-
tion, Daily Star (Lebanon) (Nov. 5, 2009), available at h p://www.dailystar.com.lb/Law
/Nov/05/Without-identifying-the-underlying-causes-we-cannot-combat-corruption.ashx
#axzz2QQh286eq (accessed Mar. 24, 2013).
386 The World Bank Legal Review

Corruption should also be seen as being inﬂuenced by cultural factors
such as social norms and values.29 An underlying cause, for instance, is a
marked deterioration of values and the emergence of greed as an accepted
social norm.30 Public interest has become subservient to private interests, and
the commitment to working toward Nehru’s vision of India has been lost. A
breakdown in public institutions, the weakening of the rule of law, and the
intertwining of business, politics, and crime are also key factors contributing
to the extent of corruption today31 and must be taken into account when strat-
egies for corruption reform are formulated.
Political explanations of the causes of corruption ﬁnd a connection be-
tween the level of legitimacy of the government and the level of corruption.
There is a strong inverse, two-way connection between the strength of institu-
tions and transparency in decision-making processes, on the one hand, and
the level of corruption, on the other hand. Democratization provides new in-
centives for corruption, particularly in election campaigns and when demo-
cratically elected leaders are weighing the lucrative possibilities of privatizing
state-owned resources.
Economic explanations of corruption focus on the cost and beneﬁt analy-
ses for an individual in commi ing a corrupt act. Links are also drawn be-
tween corruption in developing economies and their systems that permit
capitalist exploitation of national resources. An economic perspective also
focuses on variables such as salary levels, the mechanisms of control and
deterrence, the selection of employees, and the systems of taxation and infor-
mation. In India, corruption levels have risen noticeably since liberalization
of the economy in 1991, a ributed to increasing opportunities for errant ac-
tion by public actors, insuﬃcient salaries of public servants, and the lack of
eﬀective deterrent.
Big-ticket corruption in India is the result of a combination of excessive
discretion vested in state actors, easy opportunities, a high demand for favors
from, inter alia, private and corporate interests, and an abundant supply of
black money, accompanied by falling levels of integrity and increasing levels
of greed. The existing political system, which obliges political parties to raise
considerable sums of money to run their election campaigns, is another per-
petrator. Ma ers are simpliﬁed for the corrupt political decision maker by co-
operative bureaucratic machinery, which makes it easier to cover one’s tracks.
Pe y corruption can be a ributed to insuﬃcient compensation for gov-
ernment servants and the lack of monitoring of day-to-day oﬃcial activities.
With limited infrastructure and increased workloads, government employees

29 Abigail Barr & Danila Serra, Corruption and Culture: An Experimental Analysis, 94(11) J. Pub.
Economics 862–869 (2010).
30 Ram Manohar Reddy, How Is India Doing (2012): Revisiting Amartya Sen’s 1982 Essay (Gu-
han Memorial Lecture, Chennai, India, Dec. 2012), available at h p://www.cag.org.in/sites
/default/ﬁles/Guhan%20Memorial%20Lecture%202012.pdf (accessed May 28, 2013).
31 Id.
The Battle between Corruption and Governance in India 387

are simply (illegally) using the means at their disposal to increase their income
or ﬁnding ways to enrich themselves by distributing the scarce resources they
control.

Reform Strategies
Reform strategists seeking to reduce pe y corruption have advocated for the
increased use of technology and a reduced interface between oﬃcials and citi-
zens. The Right to Information Act, which was introduced in 2005, has been
used as a tool to spur administrative action. These reforms have met with
some success, for example, in Ahmedabad.32
Eﬀorts to reform the big-ticket avtar have focused on reducing unbridled
discretion, increasing transparency and public participation in decision-
making processes, and expanding access to information. A empts have also
been made to set up an authority such as the lokpal.33
The Supreme Court of India has consistently taken a strong stand against
corruption, aided by the tool of public interest litigation (PIL).34 In the Jain
Hawala case,35 for instance, journalist Vineet Narain ﬁled a PIL alleging that,
due to the high-proﬁle politicians linked to the case, the Central Bureau of
Investigation (CBI) was not conducting a fair and proper investigation and
was dragging its feet. To ensure that the CBI functioned in a manner unfet-
tered by political interests, the court devised the doctrine of “continuing man-
damus,” ordering that the CBI do its lawful duty, with the court reviewing
and supervising such discharge of duty to ensure that it was properly and
lawfully done. With the use of this doctrine, and requiring the CBI to report
to it on progress made, the court kept a watchful eye on the investigation to
ensure that it proceeded eﬃciently. The Supreme Court also made it easier to
commence investigations against senior bureaucrats by holding as ultra vires a
directive that required the prior permission of the head of the department for
such investigations.
The Supreme Court’s orders in the more recent 2G scam have followed the
same lines. The court has held that anticorruption laws must be interpreted
to strengthen the ﬁght against corruption and set a limit of three months on

32 Centre for Media Studies and Transparency International India, India Corruption Study 2008,
available at h p://www.transparencyindia.org/resource/survey_study/India%20Corruption
%20Study%202008.pdf (accessed Mar. 20, 2013); compare with India Corruption Study 2012,
supra note 8.
33 Roughly translated, lokpal means “people’s protector” or “caretaker,” implying a person or
institution that protects public interest. Since 1968, there have been several failed a empts to
pass a law in Parliament to establish the institution of a lokpal to inquire into allegations of
corruption against public functionaries in the central government.
34 Where the court uses its constitutional jurisdiction to take up broad issues of public interests
and passes wide-ranging orders for remedial action.
35 Vineet Narain and Others v. Union of India A.I.R. 1998 S.C. 889; refer to supra note 17.
388 The World Bank Legal Review

the government’s sanction for prosecution of cases under the Prevention of
Corruption Act.36

An Assessment
All these strategies and reforms have had some positive impact. However, a
critical element in any eﬀective anticorruption regime—but one that is largely
absent from current reform measures—is a strong, eﬀective mechanism to
detect, prosecute, and enforce the anticorruption laws. India’s current legal
provisions dealing with corruption and diﬀerent aspects of it include the Pre-
vention of Corruption Act (1988), the Indian Penal Code (oﬀenses by public
servants), the Prevention of Money Laundering Act (2002), the Benami Trans-
actions Prevention Act (1988), and the Criminal Law Amendment Ordinance
(1944). These laws, however, reﬂect the scale of the problem rather than the
potency of the ﬁght against it. As the U.S. Embassy commented in 1976, “there
is a direct and positive relationship between laws against corruption and the
extent of corruption itself, i.e., each such law only means that there are more
people to bribe.”37
A related failure in the Indian system is the proliferation of ineﬀective,
overburdened oversight mechanisms such as internal audit, the Comptroller
and Auditor General of India, and the Central Vigilance Commission, in ad-
dition to law enforcement agencies such as the CBI, the police, and the Anti-
Corruption Bureau. The CBI lacks independence and is subject to the control
of and interference from political and executive masters who are sometimes
themselves suspected of being corrupt.

Dealing with Petty Corruption
While the focus in this chapter is on corruption at the apex of the political
and bureaucratic pyramid, one cannot discount the magnitude of orderly, sys-
tematic everyday corruption that the ordinary citizen has to contend with. A
random checklist, representing no more than a minuscule sample of the ways
in which a citizen’s quest for a reasonable quality of life is routinely vitiated
in India, includes false weight of marketed produce; cheating in ration and
fair-price shops; misdirection of beneﬁts in targeting antipoverty programs;
bribery to secure routine documents of a estations such as caste certiﬁcates;
speed money outlays required for the purchase of loan sanctions, licenses,
quotas, insurance and social security claims, water supply, electricity connec-
tions, and telephone connections; doctored meters in auto-rickshaws, taxis,
and other vehicles; capitation fees for admission into schools and other educa-
tional institutions; bribes for jobs in the employment market; adulteration of
food and drink, which often has fatal consequences (especially in the ma er

36 Dr. Subramanian Swamy v. Dr. Manmohan Singh A.I.R. 2012 S.C. 1185.
37 Supra note 3.
The Battle between Corruption and Governance in India 389

of illicit alcohol); and cheating and extortion by professionals, such as medical
practitioners. Corruption has become a way of life.
Because of the pervasive nature of pe y corruption, a distinct decentral-
ized prevention strategy is needed to deal with it. State initiatives―for ex-
ample, in Madhya Pradesh, Bihar, Jammu and Kashmir, Delhi, Rajasthan, and
U ar Pradesh―that include legislation on the right to public services and
that institutionalize grievance-redress system are steps in the right direction.
These Right to Public Services Acts guarantee time-bound delivery of selected
services to citizens and are signiﬁcant because they place the onus of deliv-
ery on the service provider. They address the growing demands of citizens to
improve public services, reduce corruption by imposing penalties on service
providers for defaulting, impose a time frame for delivery of services, and
universalize public services. In addition, what was under the citizens’ char-
ters38 an administrative guarantee has been translated into a justiciable legal
right under the various Right to Public Services Acts.
Some states have legislated to create the oﬃce of a lokayukta, an anticorrup-
tion ombudsman at the state level, similar to a lokpal proposed for the center.
The Karnataka lokayukta, for example, has seen some success, although other
states have experienced problems regarding the autonomy and powers of the
lokayukta.
The central government has proposed a Citizen’s Grievance Redressal
Bill. The bill addresses grievances related to public services and corruption in
service delivery, that is, pe y corruption within a ﬁxed time frame. The Griev-
ance Redress Bill would cover the functioning of the panchayat,39 government,
public sector units, and police. It would look into complaints of violations of
the citizens’ charter formulated by each government department, identify li-
abilities of public servants in cases of default, and impose penalties for failure
to deliver services or redress grievances in a ”time-bound” manner.

Focus of Anticorruption Efforts in the Future
India has seen much a ention focused on creating an anticorruption body.
The agitation led by Anna Hazare, initially wri en oﬀ by the government,
grew to mammoth proportions. Three reasons for this were
• Acceptance of Hazare as a morally upright person with no family stakes
in politics, enhanced by his invocation of honesty and probity in public
life as well as by his public image—his clothes of white khadi (homespun

38 Citizen charters are a bid to improve public services by the government. The charters let the
public know the mandate of the concerned ministry or department, explain how one can get
in touch with its oﬃcials, and describe what to expect by way of services and how to seek a
remedy if something goes wrong.
39 Panchayats are units of decentralized administration in India at the village, block, and dis-
trict level, responsible for certain speciﬁed ma ers of rural governance.
390 The World Bank Legal Review

cloth) and Gandhi topi (cap) were a throwback to the ﬁgure of the Ma-
hatma
• Massive support from the middle classes, until then thought to be com-
placent about corruption and unconcerned with many other public issues
• Vociferous media coverage, with prominent television anchors and news-
casters strongly endorsing Hazare’s movement, thereby raising its public
proﬁle very signiﬁcantly
Reeling under a series of scams, and scorched by this outpouring of de-
nunciation, the government backpedaled. It entered into negotiations with
Hazare’s team, agreed to several demands, and improved its own version of a
lokpal bill. Hazare insisted on widening the scope of the bill and giving it more
teeth. It seemed that mutually acceptable and eﬀective legislation was on the
horizon. Unfortunately, the all-or-nothing approach of the Hazare negotiating
team, as well as doubts raised by other public campaigners on the capacity
of a gargantuan lokpal to handle corruption from top to bo om, prevented
an agreement from being reached. The momentum was lost, and a watered-
down version emanated from the oﬃcial side; once again the country was
denied the creation of a strong, eﬃcient, and eﬀective anticorruption body.
However, progress was made, and no doubt the ﬁght will resume. Corruption
is too widespread and damaging to disappear from the public eye.
The Indian debate has prompted reﬂection on the structure of an anticor-
ruption body and the strategies needed to make it eﬀective.
In an environment where corruption is widespread, encompassing the en-
tire political and bureaucratic establishment, the question of where to focus
reform eﬀorts arises, given the limited resources available to those ﬁghting cor-
ruption. The answer should be based on impact—and if the focus were to be on
the top rung of the country’s leadership, and on creating a more honest class
of legislators, bureaucrats, and judges, the impact would be tremendous. An
honest senior oﬃcer will discipline and control his or her subordinates, as well
as set a department-wide example of probity. There is no point in focusing on
the bo om rung; and the eﬀort is unsustainable if the top is left untouched.
At present, however, no mechanism controls corruption at the highest lev-
els of the executive, legislature, and judiciary; and if no new mechanism is
devised, Indians can bid good-bye to hopes of development and good gover-
nance. If the leadership is cleansed, the lower rungs will automatically show
more honesty. Cleanliness obeys the law of gravity; it percolates downward.
Leadership has its tone and tenor—honest leaders will choose people like
themselves for crucial positions and will relegate the others to lesser posts
or neuter their ability to abuse power A signiﬁcant proportion of the bribes
demanded at the lower levels—by, say, the registrar of documents, the po-
lice inspector, and the pe y revenue oﬃcial—is funneled to the top. Another
reason why the focus should be on corruption at the top level is because that
is where administrative decisions are made that involve more money, aﬀect
more institutions, and impact a greater number of lives.
The Battle between Corruption and Governance in India 391

It is not necessarily true that the more honest oﬃcer is the more eﬀec-
tive one, yet be er governance is more likely to be had from the trustworthy
plodder than the clever rascal. Creaming oﬀ the corrupt layer would improve
personnel, practices, and policies. Eﬀorts must therefore concentrate on the
member of Parliament, the minister, the senior civil servant, and the judge. A
remarkable feature of the proﬁle of litigation is that cases between individu-
als involving property, contracts, and the like have been in decline; the vast
majority of cases clogging the Indian courts involve relief sought to quash an
illegal government order or to direct the government to perform its adminis-
trative duty. Many of these cases do not involve a point of law; they are simply
instances of wrong administrative action, and the most common cause of such
action or inaction is that the demand for a bribe was refused or a bribe was
paid by a rival. A direct consequence of more honesty in the administration
would be a more responsive and be er-functioning government, in turn low-
ering the need for redress from courts.
Therefore, complaints made by the public at large regarding administra-
tive lapses and individual cases of nonperformance should be redressed by
suitable mechanisms, and a corruption-ﬁghting method and strategy should
be designed to catch the big ﬁsh and not the minnows.

A Model for Tackling Big-Ticket Corruption
A High-Proﬁle Authority
Preferably enjoying constitutional status, the authority for tackling big-ticket
corruption should be a permanent, full-time body (“the Authority”), with
ﬁxed tenure for members, which cannot be abolished or interfered with by
the government. Persons for appointment to the Authority could be sourced
from such ﬁelds as law, the judiciary, public life, civil service, the media, and
academia. The members of the Authority should be limited in number, and
anyone tainted with dishonesty or close to those in power should be excluded.
One can ﬁnd even in these days persons with integrity and sturdy indepen-
dence. The members of this Authority should be selected by a panel drawn
chieﬂy from the ranks of the judiciary and other independent constitutional
functionaries such as the Comptroller and Auditor General of India and the
Chief Election Commissioner; government oﬃcials should be in a minority
on the selecting panel. The power to remove someone from oﬃce should be
reserved to a panel consisting of senior judges.

Target: The Leadership of the Country
The Authority should be a policing mechanism for ministers, legislators, and
bureaucrats. It should also oversee others in the pay of the “state,” including
employees of government agencies and state-owned corporations. However,
the focus must be on the top ranks. The Authority must be empowered to train
its sight on the leadership of the country—the prime minister, chief ministers,
cabinet members and other ministers at national and state levels, civil servants
392 The World Bank Legal Review

above the rank of joint secretary, heads of statutory bodies and commissions,
senior oﬃcers of government corporations, and agencies and institutions (in-
cluding educational and medical institutions). A separate mechanism is sug-
gested below for judges of the Supreme Court and High Courts.

Receipt of Complaints
The Authority should be able to receive complaints from any source, as well
as initiate suo moto action. Provision should be made to enable the judiciary
to refer ma ers to investigation, especially in cases where it becomes appar-
ent to the Court that there is a corrupt motive behind the action of a public
oﬃcer.
Protection for whistle-blowers should be part of the complaint-receipt
scheme. In recent times, there have been a spate of a acks on those who have
used the Right to Information Act to expose wrongdoing. The prospect of
coming to harm because of disclosures is a real one. The Authority would
have to ﬁnd a way to receive complaints and material anonymously, as well
as to provide witness protection.

Investigative Power
The Authority should have its own investigative body answerable only to it.
The Authority should be able to recruit personnel and to select oﬃcers from
the police and other investigative bodies such as the Central Bureau of Inves-
tigation.
There should be no requirement of prior sanction from the government
before investigation can be commenced by the Authority.
These two powers―control over the investigative body and the granting
of sanction to investigate oﬀenses―are jealously guarded by government. Un-
less these powers are moved to the Authority, it will be rendered ineﬀectual.
Thorough and impartial investigation should be the foundation of all cases;
the investigating oﬃcers should have complete independence from all ex-
ternal sources. Their conditions of service and promotional prospects would
have to be determined by the Authority. There is a strong case for a separate
cadre and higher pay structure for these oﬃcers, who must have unblemished
reputations for integrity.

Prosecuting Arm
In addition to having an investigative arm, the Authority should have a pros-
ecution wing, answerable only to the Authority, which steps in once the Au-
thority decides on the basis of investigation that the case is ﬁt for prosecution.
Choosing and overseeing prosecutors are critical to the success of the Author-
ity—the strongest cases can fail with an ineﬃcient or, worse, corrupt prosecu-
tor. Currently, prosecutors are appointed by the government of the day. Given
the anti-incumbency nature of election results, each election tends to bring to
power a government eager to prosecute the outgoing government. But given
The Battle between Corruption and Governance in India 393

the backlog of cases and the delays in bringing cases to trial, by the time a case
can be heard, the accused are likely to be back in power. They will then devise
strategies to derail cases against them, including instructions to prosecutors
to withdraw cases.

Interim Action: Person and Property
Once a prima facie case is made and the decision to prosecute is made, the ac-
cused should be suspended from continuing in oﬃce so that he or she cannot
use the power of his or her oﬃce to inﬂuence the proceedings in the case.
Assets suspected to be ill-go en gains should be frozen, whether they are
held in the name of the public oﬃcer or his or her ally.

Special Courts
Because the Authority will focus its a ention on the candidates for and the
holders of high oﬃce, the corrupt must be evicted from oﬃce speedily and
the innocent exonerated with equal alacrity. Magistrates and Sessions judges
are overburdened with a mass of criminal cases, and multiple appeals are
available against their orders. It is thus necessary for cases to be heard by a
higher court. What is needed is a “Special Court” headed by a senior judge.
When such a court is to be constituted, the Chief Justice of India would be ap-
proached to appoint a si ing or retired High Court or Supreme Court judge.
The trial could then be conducted expeditiously. Interim applications could
be disposed of quickly and directions given or refused. No appeal would lie
against such interim orders. “Expeditiously” would be deﬁned as a period of
a few months. Appeals, too, should be disposed of early, but the conviction
and bar arising from conviction would hold unless set aside in appeal.

Punishment
Punishment needs to be deterrent in nature—that is to say, it ought to be so
heavy that others will think many times before commi ing such oﬀenses
themselves. Those who deprive the state and its citizens of vast amounts of
money that could have provided food, shelter, and basic human rights to
thousands or even millions of people must receive a punishment equal to the
harm caused. The breach of trust by a person holding an oﬃce of public trust
should bring with it corresponding retribution. If murder of one person can
invite a punishment for life, there is no reason why the high-level corrupter
whose actions cause grave harm to innumerable people should not receive a
similar sentence, with a component of hard labor.
Fines should be commensurate with the gravity of the oﬀense and the
extent of private enrichment.
394 The World Bank Legal Review

Recovery of Ill-Gotten Gains
Recovery of assets ought to follow automatically after conviction. To Caesar
must be rendered what has been pilfered from the state and its people. Where
the public servant is proved to be in possession of wealth disproportionate to
known sources of income, the excess should vest in the state. The deterrent ef-
fect of prosecution and conviction is minimized if one is able to enjoy the gains
of one’s crime after serving out a sentence, especially when the gains are large
enough to be enjoyed by one’s children and their children.
Many corrupt oﬃcials hold movable and immovable properties not in
their own names, but in the names of close relatives or friends. This is referred
to as benami property (i.e., property held under a false or misleading name;
benami also refers to the person holding such property). The anticorruption
law should ensure that such vicarious holding is no shield, and that where the
connection is proved and the benami has no other source of income to explain
the wealth, these assets are liable to be forfeited to the state.
Apart from creating an Authority for investigation and prosecution, and a
Special Court for judicial determination, certain other measures are necessary
to check corruption.

The Onus of Proof and the Right to Remain Silent
It is not easy to trace the path of oﬀer and acceptance of the bribe. It is easier
to identify assets that could have been acquired from the proceeds of corrupt
acts. When the possession of assets, by either oneself or a benami, in excess of
declared sources of income is established, the onus should shift to the accused
to show how he or she acquired such property. If the onus is not discharged,
conviction should follow.
Another issue is whether the normal rule against self-incrimination should
be applied to such accused when the issue is one of acceptance of illegal grati-
ﬁcation for public acts or of misappropriation of public assets. There ought to
be a distinction between private transactions and public acts when balancing
the individual right to remain silent with the need to obtain information on
an oﬀense of state corruption. A public oﬃcer must be prepared to give an
account of his or her public acts when called upon. As regards the right to
remain silent, public servants ought to be treated as a category distinct from
the rest. This is because they can wrap the cloak of secrecy around their acts
using their oﬃce, and the eﬀects of such corruption are gravely deleterious
to society. Considering the ramiﬁcations of such actions, and the overarching
need for probity in public life, there are suﬃcient reasons to review the doc-
trine of the right to remain silent to see if an exception should be carved out
when dealing with corruption proceedings. This may require a constitutional
amendment, which can be justiﬁed on the overarching need of curbing cor-
ruption, which destroys the rule of law and the fabric of governance.
The Battle between Corruption and Governance in India 395

Stopping the Corrupt from Entering the Legislature
In the parliamentary system of democratic governance, the political execu-
tive, the ministers, are drawn from the legislative ranks of the majority party.
A disturbing percentage of members of Parliament and state assemblies have
corruption charges against them.40 They were not barred from standing for
election or continuing in oﬃce. That is because they are presumed to be in-
nocent until proven guilty, a fundamental postulate of fair legal systems. It
is also because it takes a long―a very long―time to reach a conviction in
the courts given the backlogs, technicalities of procedure, and innumerable
objections raised and ingenious obstacles put in place by clever defense law-
yers intent on delaying their clients’ trials. The case against a prominent chief
minister charged with acquisition of hugely disproportionate assets has been
pending in court for no less than 16 years. The election law in the form of the
Representation of Peoples Act allows persons facing criminal charges to con-
test elections. This is useful in a scenario in which criminal law is used as a
tool and/or strategy by rivals to paint each other black. It is useless when the
trial is indeﬁnitely postponed.
The anticorruption strategy should respect the presumptive right of in-
nocence while at the same time ensuring that a person guilty of corruption is
denied access to, or tenure in, the portals of legislative power. The main prob-
lem is how to exclude from the election process persons who are suspected
of corruption and who have charges ﬁled against them, which indicates that
the investigation has reached a prima facie opinion of guilt. The solution is
an expedited trial. The potential candidate should give notice well ahead of
the election that he or she intends to stand as a candidate and wants the case
to be disposed of early so that he or she may stand without having charges
pending. The case should receive priority for trial. Conviction, unless upset in
appeal, should be a bar to standing for oﬃce. In the case of those who face a
corruption charge while holding oﬃce, here again a priority trial conducted
within three to six months should determine the issue of culpability. If found
guilty, the person should forfeit oﬃce. While an appeal should be permissible,
resumption of oﬃce should await success in the appeal.41

40 Based on studies of the self-declared aﬃdavits ﬁled by candidates before the National Elec-
tion Commission contesting the national and state assembly elections, the Association for
Democratic Reforms found that 98 candidates with corruption cases under the Prevention of
Corruption Act have been given tickets by various political parties in the 2009 national election
and all state assembly elections held since 2008. Thirty-six of these candidates won the elec-
tions. These include 4 si ing MPs in Lok Sabha 2009, 3 si ing MPs in the current Rajya Sabha
and 29 MLAs in various state assemblies. Association for Democratic Reforms, Report on Law
Makers Facing Corruption Charges under Prevention of Corruption Act: Role of Political Parties (Jan.
2013), available at h p://adrindia.org/sites/default/ﬁles/7%20MPs%20and%2029%20MLAs
%20declare%20cases%20under%20Prevention%20of%20Corruption%20Act%20_English
_0%20latest.pdf (accessed Jul. 31, 2013).
41 In a recent judgment, Lily Thomas v. Union of India, dated July 10, 2013, the Supreme Court
has in fact accepted the validity of the point made here that a convicted person should not
continue to hold oﬃce pending the appeal. The court struck down Section 8(4) of the Rep-
resentation of People’s Act, which provided that a legislator if convicted while holding oﬃce
could continue in that oﬃce provided that he ﬁle an appeal within three months.
396 The World Bank Legal Review

This would turn on its head the reliance of the accused on the long delays
of the law, and the capacity of corrupt oﬃcials and their lawyers to enhance
such delay and prolong the trial. If it is provided that the candidate cannot
stand for oﬃce until the trial is completed, then the interest of the accused is
to complete the trial expeditiously. It will then only have to be ensured that
the prosecution does not delay, and that meritorious objections of the defense
receive quick resolution. This is possible by devising the structure mentioned
above. Thus, the oft-repeated “law will take its own course” mantra, which
now means a sluggish course much to the comfort of the accused, will become
a demand from them that the law take a quick course.
This strategy will keep the dishonest from entering the legislature. It will
tend to keep a person honest while in the legislature. If these objectives are
achieved, even partially, India will have much cleaner political personnel and
practices

Disclosure of Assets
All public servants—judges, ministers, civil servants, legislators—should be
required to disclose their assets and those of their family members at the time
of entering public oﬃce, and to keep the list of disclosed assets updated on a
periodical basis. This list would provide the benchmark for the requirement
that any additional assets held would have to be explained; failing to provide
such an explanation would raise the presumption that they were acquired by
corrupt means.

Corrupt Judges
Most legal systems were founded and still operate on the assumption that
the judiciary is safe from corruption; those systems have consequently not
devised systems to test that assumption. However, times have changed. At
one time, the phrase “honest judge” was thought to be a superﬂuity; all judges
were presumed honest, so where was the need for the adjective? Now, in the
minds of many, that presumption does not hold good. The situation is serious
enough to demand the creation of a system speciﬁcally designed to handle
corruption in the judicial ranks.
The Authority, as outlined in this chapter, may not be suited to combating
corruption within the judiciary, for the simple reason that all cases prosecuted
by the Authority would be tried by the judiciary. There is an inherent tension
when the judge could potentially be hauled up by the person prosecuting the
case (i.e., the Authority). If a particular judge dismisses a slew of cases ﬁled by
the Authority, the la er may be a li le more eager to investigate a complaint
against the former. This possibility may also weigh in the mind of the judge;
if so, the scales of justice would not be held evenly. Just as much as the need
for probity of the judiciary would warrant a body to check corruption within
it, the independence of the judiciary would require that the composition of
such a body not detract from the need of the judge to be free from apprehen-
sion in the discharge of his or her judicial function. At the same time, such
The Battle between Corruption and Governance in India 397

a body should not be composed only of judicial personnel; brethren tend to
close ranks and be somewhat kind to themselves. A measure of external pres-
ence and transparency will bring the needed sharpness to the endeavor. The
prescription would be a body similar to but separate from the Authority. This
body would be composed of senior serving and retired judges, with a pres-
ence of legislative and executive representation and headed perhaps by a for-
mer president or former chief justice. It would have its own investigative and
prosecution wing; the judge would not hear cases while the case proceeded at
a quick pace; and conviction would entail, among other things, the recovery
of assets.
While on the subject of the judiciary, it needs to be said that it has not
taken its share of the blame for the tardiness of the justice system in dealing
with and deciding the cases of corruption against the high and mighty. Per-
haps there is insuﬃcient recognition of the direct connection between disposal
of such cases and reducing high-level corruption, while also raising levels of
governance. Wonderful lessons would be taught, and remembered, if even a
handful of corruption-tainted leaders were to see the inside of jails for long
periods, and be deprived of at least some of their assets. It is diﬃcult to un-
derstand why a Supreme Court or High Court judge does not get outraged
by the languishing of corruption cases for double-digit years, while hearing
one more appeal regarding an interlocutory plea that is obviously designed
to delay the trial. If the court can bring itself to monitor investigation of cases
of scams, surely it ought to monitor the progress of the trial of such cases. De-
lay in judicial process has become part and parcel of the Indian way of doing
things. It is taken so much for granted that, combined with the respect for the
judiciary (so well deserved on other counts), citizens live uncomplainingly
with the disastrous eﬀects on governance when the course of the law is slow
and meandering and often dies on the sands of time.

Conclusion
India can ill aﬀord the losses that are being inﬂicted on it by corruption. The
amount of money lost to the country through the scams that regularly descend
on it is mind-boggling. If corruption is substantially curbed, the state will be
able to provide far be er infrastructure, amenities, and living conditions to its
citizens. It will be able to spur development and signiﬁcantly reduce levels of
poverty. India has a population of 1.3 billion people, 65 percent of whom are
accepted by the government to be poor.42 Until some real and eﬀective anticor-
ruption measures are introduced and enforced, every welfare or development
scheme introduced by the government will be seen and used only as another
opportunity for bureaucrats and their political masters to line their pockets at

42 S. Rukmini & M. K. Venu, Beyond the Debate, Govt. Accepts 65% Indians Are Poor, The Hindu
(Jul. 24, 2013), available at h p://www.thehindu.com/news/national/beyond-the-debate-govt
-accepts-65-indians-are-poor/article4948698.ece (accessed Jul. 31, 2013).
398 The World Bank Legal Review

the expense of the have-nots. No country can prosper with the degradation of
administration and governance that corruption brings in its wake.
Corrupt public oﬃce holders beneﬁt from the current lackadaisical imple-
mentation of inadequate laws. The Supreme Court exerts itself to pursue some
high-proﬁle cases, even crossing the border that separates its powers from
those of the legislature and the executive. However, there are limits to what
even an activist court can do; while it can provide the impetus in a few cases,
it cannot handle the problem at large. The public, previously somnolent in the
face of corruption, is currently galvanized, but there are limits, too, to what
can be achieved by public outrage.
The pervasiveness of corruption could dramatically change, however, if a
tough anticorruption body were to be established and the law strengthened
to curb corruption. These steps could well tip the scales against corruption.
This chapter has argued for the creation of just such a body, one with sharp
teeth provided by changes to the law. It is true that transparency, innovative
administrative strategies, incentives, and rewards all have their roles to play
in the ﬁght against corruption. However, given the extent of corruption and
the shamelessness of its practitioners, tough measures will be heeded more
than soft approaches. The times demand sticks and stones.
Leveling the Playing Field
A Race to the Top

BART STEVENS AND ROBERT DELONIS

Private sector enterprises in developing countries are key partners in execut-
ing the World Bank development mandate, as well as in its eﬀorts to foster
integrity in the projects it ﬁnances. The private sector drives job creation and
the delivery of goods, works, and services needed to end extreme poverty and
promote shared prosperity. As the World Bank Development Commi ee said
in its April 2013 vision statement, “the most eﬀective path out of poverty is
through access to more and be er jobs; this requires rapid and broad-based
growth centering on the strong contribution of the private sector.”1
Opportunity, inclusion, and equity are essential to private sector success.
Businesses require a level playing ﬁeld of economic competition in order to
grow and thrive. Fraud and corruption undermine a level playing ﬁeld: they
distort economic incentives, stiﬂe fair competition, and impose a heavy bur-
den on small businesses. All these eﬀects choke economic growth.2 Moreover,
when misconduct occurs in Bank-supported projects, the funds provided by
the World Bank are misappropriated—with, in the World Bank’s case, the

The authors would like to recognize the important contributions from several Integrity Vice
Presidency staﬀ members, especially Lisa Bostwick, who provided much of the content for
the paper’s compliance program discussion, Mamta Kaushal, and Paul Haynes. We would
like to give special thanks to Lisa K. Miller, Senior Counsel in LEG, and Steve Zimmermann,
INT Director of Operations, for their insightful comments during chapter preparation as
well as INT interns, Meng Lu and Tuyet (Amy) Tu. The ﬁndings, interpretations, and conclu-
sions expressed herein are those of the authors and do not necessarily reﬂect the view of the
World Bank Group, its Board of Directors, or the governments they represent.
1 Joint Ministerial Commi ee of the Boards of Governors of the Bank and the Fund on the
Transfer of Real Resources to Developing Countries (hereinafter the Development Commit-
tee), A Common Vision for the World Bank Group (Development Commi ee paper, Intl. Mon-
etary Fund, World Bank, Apr. 3, 2013).
2 See, for example, Cheryl W. Gray & Daniel Kaufmann, Corruption and Development, Fin. &
Dev. 7–8 (Mar. 1998), arguing that bribery raises transaction costs, increases economic in-
security, leads to ineﬃcient economic outcomes, most adversely impacts small businesses,
and undermines state legitimacy; Susan Rose-Ackerman, “Grand” Corruption and the Ethics
of Global Business, 26 J. Banking & Fin. 1889 (2002), arguing that corruption has signiﬁcant
adverse economic eﬀects, suﬃcient to oblige multinational companies not to engage in it;
Roger P. Alford, A Broken Windows Theory of International Corruption, 73 Ohio St. L.J. 1253,
126–169 (2012), arguing that high corruption correlates with reduced economic competitive-
ness, reduced human development status, and weak civil liberties; and Claes Sandgren, Com-
bating Corruption: The Misunderstood Role of Law, 39 Intl. Law 717 (2005), noting corruption’s
many adverse eﬀects and proposing legal measures to help remedy the problem.
399
400 The World Bank Legal Review

borrowing country’s taxpayers bearing the cost—and the development ben-
eﬁts of those projects are undermined.3
As Heineman and Heimann observed, “there is a cultural dimension to
anti-corruption, which involves transmi ing positive values and norms that
can strengthen [other] enforcement, prevention, and state-building measures,”
that needs to be pursued to tackle corruption.4 Over the past decade, the World
Bank has moved to the forefront in developing tools that foster a culture of
anticorruption through partnerships with the private sector. This chapter dis-
cusses three such tools, which were developed by the World Bank Integrity
Vice Presidency (INT): the Voluntary Disclosure Program (VDP),5 negotiated
resolution agreements (NRAs),6 and the Integrity Compliance Oﬃcer (ICO).7
The chapter begins by situating INT within the World Bank’s governance
and anticorruption activities and policies. It brieﬂy introduces the VDP, NRAs,
and the ICO, before using a hypothetical case study to demonstrate how these
tools are used in INT’s work. Following the case study, the chapter returns
to each program to discuss it in greater detail. In so doing, the chapter shows
how the VDP, NRAs, and the ICO can help replace a “race to the bo om” of
bribery with a “race to the top” in which all can access and beneﬁt from inclu-
sive, equitable competition.

The Integrity Context
The World Bank’s pursuit of policies and solutions that facilitate private sec-
tor growth and competition is fundamental to its mission. The Bank is obliged,

3 See, for example, UN Development Programme, Anticorruption Practice Note 7 (Mar. 2004),
which asserts that corruption reduces funds available for social spending; increases costs
for health, education, and public services; and disproportionately impacts the poor; Daniel
Kaufman, Aart Kraay, & Pablo Zoido-Labaton, Governance Ma ers 1 (World Bank Dev. Res.
Group, Macroeconomics and Growth, and World Bank Inst., Governance, Reg. and Fin., Pol-
icy Working Paper No. 2196, Oct. 1999), asserting that be er governance is causally related
to be er development outcomes, such as lower infant mortality and higher literacy rates,
available at h p://info.worldbank.org/governance/wgi/pdf/govma ers1.pdf; and Jong-Sung
You & Sanjeev Khagram, Inequality and Corruption 5 (Hauser Ctr. for Nonproﬁt Organiza-
tions Working Paper No. 22; Kennedy Sch. Govt. Working Paper No. RWP04-001, Harv. U.,
Nov. 2004), asserting that there is a signiﬁcant relationship between high levels of corruption
and high levels of income inequality.
4 See Ben W. Heineman Jr. & Fri Heimann, The Long War against Corruption, 85 For. Aﬀairs 75,
77 (2006).
5 See World Bank Group, VDP Guidelines for Participants (undated) (hereinafter VDP Guide-
lines), available at h p://www.worldbank.org/vdp; and World Bank Group, Voluntary Dis-
closure Program Terms & Conditions (n.d.) (hereinafter VDP Terms & Conditions), available at
h p://www.worldbank.org/vdp.
6 World Bank Group, World Bank Sanctions Procedures, 31–34, art. XI (Apr. 15, 2012) (hereinaf-
ter Sanctions Procedures).
7 See World Bank Group, Frequently Asked Questions: Integrity Compliance at the World Bank
Group (n.d.) (hereinafter Integrity Compliance FAQ), available at h p://siteresources.world
bank.org/INTDOII/Resources/Q_&_A_for_ICO.pdf.
Leveling the Playing Field 401

under its Articles of Agreement, to ensure that its funds are used for their in-
tended purposes.8 The World Bank fulﬁlls these goals in a number of ways:
• The Bank works with member-country governments to promote national
regulatory and macroeconomic environments that encourage investment
and innovation,9 stimulating competition and growth.
• The Bank’s procurement policies—reﬂected in its procurement and con-
sultant guidelines10—require open, transparent competition, along with
ethical bidder and contractor behavior, in Bank-ﬁnanced tenders. These
requirements help ensure that borrowers receive quality goods, works,
nonconsultant services, and consultant services at competitive prices.
• The World Bank prohibits fraud, corruption, collusion, and coercion in its
projects, and will sanction ﬁrms and individuals found to have engaged
in one of these prohibited practices, as well as refer its ﬁndings to national
authorities.11 By excluding such actors from its projects, the World Bank
helps promote equitable competition.
INT is principally responsible for investigating allegations that parties
have engaged in practices that are sanctionable by the World Bank. INT in-
vestigations usually involve the collection and analysis of project, tender,
and contract documents and information, as well as interviews with involved
persons and, in some cases, physical site inspections. Firms that a empt to
prevent INT from investigating—for example, by destroying documents,

8 International Bank for Reconstruction and Development Articles of Agreement, art. III,
sec. 5(B); International Development Association Articles of Agreement, art. V, sec. 1(g); and
International Finance Corporation Articles of Agreement.
9 The Development Commi ee, Update on the Bank’s Business Modernization: Results, Openness,
and Accountability (Apr. 11, 2012), available at h p://web.worldbank.org/WBSITE/EXTERNAL
/DEVCOMMEXT/0,,pagePK:64000837~piPK:64001152~theSitePK:277473~contentMDK:2316
6515,00.html.
10 See World Bank, Guidelines: Procurement of Goods, Works, and Non-consulting Services under
IBRD Loans and IDA Credits and Grants by World Bank Borrowers (Jan. 2011) (hereinafter Pro-
curement Guidelines); and World Bank, Guidelines: Selection and Employment of Consultants
under IBRD Loans & IDA Credits and Grants by World Bank Borrowers (Jan. 2011) (hereinafter
Consultant Guidelines).
11 The deﬁnitions of these sanctionable practices are found in the Bank’s procurement, consul-
tant, and anticorruption guidelines. See Procurement Guidelines, supra note 10, at 6–7, para.
1.16; Consultant Guidelines, supra note 10, at 9–10, para. 1.23; and World Bank, Guidelines
on Preventing and Combating Fraud and Corruption in Projects Financed by IBRD Loans and
IDA Credits and Grants 3, para. 7 (Oct. 15, 2006) (hereinafter Anticorruption Guidelines). The
Bank’s sanctioning jurisdiction extends only to entities that participate in, or seek to partici-
pate in, Bank-ﬁnanced activities; the Bank cannot sanction the public oﬃcials of member-
country governments. See, for example, World Bank Group, The World Bank Group’s Sanc-
tions Regime: Information Note 17–23 (undated) (hereinafter Sanctions Information Note),
available at h p://siteresources.worldbank.org/EXTOFFEVASUS/Resources/The_World
_Bank_Group_Sanctions_Regime.pdf. The Bank a empts to address misconduct by public
oﬃcials of member-country governments through referral reports and bilateral engage-
ments with relevant authorities.
402 The World Bank Legal Review

threatening witnesses, or preventing INT from inspecting relevant books and
records—may be subject to sanctions for engaging in obstructive practices.12
If INT obtains suﬃcient evidence to allow it to conclude that a party en-
gaged in a corrupt, fraudulent, collusive, coercive, or obstructive practice, it
can commence a case in the World Bank’s administrative sanctions system,
through which independent decision makers decide whether and how to
sanction the responsible entity.13 Sanctions apply throughout the World Bank,
including private sector work by the International Finance Corporation (IFC)
and the Multilateral Investment Guarantee Agency (MIGA) and through the
Bank’s partial risk guarantee (PRG), project-based partial credit guarantee
(PCG), and carbon ﬁnance activities.14 Because the nature and severity of mis-
conduct vary among cases, the World Bank permits the imposition of a variety
of sanctions, including le ers of reprimand, conditional nondebarment, de-
barment with conditional release, debarment for a ﬁxed period of time, indeﬁ-
nite debarment, and restitution.15
To enhance the deterrent eﬀect of these sanctions, ﬁve major multilateral
development banks (MDBs)—the African Development Bank, the Asian De-
velopment Bank, the European Bank for Reconstruction and Development,
the Inter-American Development Bank, and the World Bank—have harmo-
nized their deﬁnitions of sanctionable practices and have agreed, subject to an
opt-out provision, to cross-debar entities for a period that exceeds one year.16

Competition with Integrity: Expanding the Tool Kit
Sanctions help level the playing ﬁeld by excluding actors that seek to under-
mine open and fair competition. But no authority can detect and sanction
all misconduct. Thus, cooperative tools that promote broad, cultural change
within business are necessary for anticorruption success. INT developed the
VDP, NRAs, and the ICO to mitigate the impact of fraud and corruption risks

12 Procurement Guidelines, supra note 10, at 7, para. 1.16(a)(v); Consultant Guidelines, supra note 10,
at 10, para. 1.23(a)(v); Anticorruption Guidelines, supra note 11, at 3, para. 7.
13 For a description of the Bank’s sanctions system and its evolution and development, see
Conrad C. Daly and & Frank A. Fariello Jr., Transforming through Transparency: Opening Up
the World Bank’s Sanctions Regime, in Legal Innovation and Empowerment for Development, vol. 4,
101–122 (Hassane Cissé, Sam Muller, Chantal Thomas, & Chenguang Wang eds., 2013).
14 For IFC, MIGA, PRGs, PCGs, and carbon ﬁnance activities, the sanctions regime is operation-
alized “through the inclusion of appropriate provisions in their ﬁnancing/guarantee docu-
ments, technical assistance agreements, and other documentation. Each entity has adopted
anticorruption guidelines, which are a ached to such entity’s respective legal agreements
and which further explain the deﬁnitions and provide examples relevant to the [World Bank
Group’s] private sector operations. IFC discloses the sanctions process to prospective part-
ners through its ‘mandate le er,’ which deﬁnes the scope and basic terms of IFC’s invest-
ment.” Sanctions Information Note, supra note 11, at 13.
15 See Sanctions Procedures, supra note 6, at 23–24, sec. 9.01.
16 Agreement for the Mutual Enforcement of Debarment Decisions (Apr. 9, 2010), available
at h p://siteresources.worldbank.org/NEWS/ Resources/AgreementForMutualEnforcement
ofDebarmentDecisions.pdf.
Leveling the Playing Field 403

on World Bank–supported projects and thus enhance development results.
The eﬀectiveness and potential impact of these tools depend on the level of
sophistication of the national regulatory and governance environments—ar-
eas in which the Bank provides capacity-building support to member-country
governments.

The Voluntary Disclosure Program
The VDP, launched in 2006, enables INT to obtain information about fraud
and corruption in World Bank–supported projects through voluntary and
conﬁdential disclosures by ﬁrms. Any ﬁrm, nongovernmental organization
(NGO), or individual is eligible to apply to enter the VDP, save those that are
already under investigation by INT.17
The VDP incentivizes voluntary corporate governance and integrity re-
form. VDP participants are not subject to World Bank sanctions for past mis-
conduct, and their identities are kept conﬁdential. In exchange, they must
• agree to not engage in misconduct in the future;
• disclose to INT the results of an internal investigation into past miscon-
duct on Bank-ﬁnanced contracts signed during or in eﬀect for at least the
ﬁve years preceding their entry into the VDP; and
• implement an internal compliance program that is monitored by a World
Bank–approved compliance monitor for at least three years.18
The incentives for corporate reform are backstopped with a signiﬁcant
deterrent. If a participant joins the VDP and then violates a material term or
condition, it is automatically debarred for 10 years.19

Negotiated Resolution Agreements
NRAs provide an eﬃcient way to resolve ongoing investigations or sanctions
cases. They can save considerable resources while providing certainty of out-
come for all parties. Although NRAs are generally case speciﬁc and leave open
the possibility of further sanctions for other misconduct, they often lead to a
lesser sanction than would be expected through the full adjudicative process.
Every entity subject to sanction may explore the possibility of an NRA
with the World Bank. However, INT retains the discretion to decide whether
to se le a particular case. As a minimum, an NRA includes:
• A voluntary admission (or an agreement not to contest) that the entity
engaged in sanctionable misconduct
• An agreed-on sanction, usually a period of debarment in excess of one year

17 VDP Guidelines, supra note 5, at 8–9.
18 VDP Terms & Conditions, supra note 5.
19 Id., at 6–7, paras. 43–47.
404 The World Bank Legal Review

• The implementation of a corporate compliance program (when appropri-
ate) and cooperation with INT, including on investigations into miscon-
duct by the entity or other parties
• Other case-speciﬁc conditions
NRAs are negotiated by INT and cleared by the general counsel, as well as
reviewed by the Bank’s suspension and debarment oﬃcer (SDO)20 to conﬁrm
voluntariness and that the agreed-on sanction falls within the World Bank
sanctioning guidelines.21

The Integrity Compliance Ofﬁcer
In cases resulting in a period of debarment with release conditioned on corpo-
rate reform, the ICO works with the sanctioned entity to develop good busi-
ness practices through the creation of robust corporate integrity compliance
systems. In many cases, to demonstrate rehabilitation, the sanctioned party
must satisfy the ICO that it has in place—and has implemented for an ad-
equate period—an eﬀective integrity compliance program within the context
of its operating environment. To help the private sector develop such pro-
grams, the World Bank has a set of integrity compliance guidelines that in-
corporate recognized best practices in good governance and the prevention
of fraud and corruption.22 The integrity compliance guidelines also provide
the framework that the ICO uses to determine whether a sanctioned party has
implemented an eﬀective compliance program and should be released from
sanction. ICO sanction-release decisions may be appealed to the World Bank
Sanctions Board.23
The decision to use the VDP or NRA options and the ICO’s compliance
program involves a detailed assessment of case-speciﬁc factors. The following
hypothetical case study demonstrates how this analysis proceeds.

Hypothetical Case Study: Reform Co.
Reform Co. is a global supplier of goods with several Bank-ﬁnanced contracts
concentrated in one region of the world. It has other contracts ﬁnanced by
other MDBs.

20 On March 31, 2013, the Oﬃce of Evaluation and Suspension (OES) was renamed the Oﬃce
of Suspension and Debarment (OSD), and the evaluation and suspension oﬃcer (EO) was
renamed the suspension and debarment oﬃcer (SDO).
21 World Bank Group, World Bank Sanctioning Guidelines (Jan. 1, 2011) (hereinafter Sanction-
ing Guidelines), available at h p://siteresources.worldbank.org/EXTOFFEVASUS/Resources
/WorldBankSanctioningGuidelines.pdf.
22 World Bank Group, Summary of the World Bank Group Integrity Compliance Guidelines (n.d.),
available at h p://siteresources.worldbank.org/INTDOII/Resources/IntegrityComplianceG
uidelines_2_1_11web.pdf.
23 See Sanctions Procedures, supra note 6, at 27–28, sec. 9.03(e).
Leveling the Playing Field 405

Due to the entry into force of new and expanded anticorruption legislation
aﬀecting the company’s operations, Reform Co. undertook an internal due
diligence exercise to review its contracts, subcontractors, and operating meth-
ods in a number of developing countries. During this exercise, it discovered
that one of its subsidiaries had engaged in misconduct in a number of Bank-
ﬁnanced contracts. Reform Co. engaged external counsel to conduct an in-
depth review of the identiﬁed misconduct and determine whether such mis-
conduct was limited to the subsidiary or more widespread. External counsel
prepared detailed reports with evidentiary exhibits and recorded interviews.
Based on the external counsel’s ﬁndings, Reform Co. decided to disclose
the results of its investigations to local authorities and to seek se lements
that included some degree of leniency of sanction. The ﬁrm expected these
se lements to eventually become public. Reform Co. also began voluntarily
refraining from bidding on Bank-ﬁnanced contracts before it contacted the
Bank about the discovered misconduct.

Disclosure to INT
Reform Co. approached INT to voluntarily disclose the misconduct that its
internal review had discovered in Bank-ﬁnanced contracts. Prior to its self-
disclosure, the ﬁrm was neither investigated by INT nor the subject of a com-
plaint in INT’s internal databases.
Reform Co. detailed the ﬁndings of its internal review to INT, and its exter-
nal counsel made a presentation to INT detailing how Reform Co.’s subsidiary
colluded with a number of suppliers to divide up MDB-ﬁnanced contracts. To
ensure their success, the ﬁrms made corrupt payments to government project
implementation oﬃcials and submi ed fraudulent documents in their bids.
When the subsidiary later ceased paying bribes, it found that the project-
implementing agency delayed its payments for work completed under several
Bank-ﬁnanced contracts.
Reform Co. provided INT with copies of relevant documents and inter-
view records. These materials were a treasure trove of useful information
about corrupt and collusive schemes in several countries, agents involved in
those schemes, joint venture partners that engaged in bribery, and competi-
tors who appeared to be using similar schemes to win contracts.
Reform Co. asked INT how it could resolve its subsidiary’s engagement in
sanctionable practices and sought assistance in determining the illicit proﬁts
that it had earned through its misconduct so that it could disgorge these funds
to appropriate authorities. The ﬁrm told INT that, in response to its investiga-
tive ﬁndings, it had ﬁred key subsidiary oﬃcials, replaced them with a new
management team, and introduced a number of changes to its compliance pro-
gram. It also, as noted earlier, voluntarily ceased bidding on Bank-ﬁnanced
contracts.
406 The World Bank Legal Review

INT Considerations and Case Resolution
When evaluating a case like Reform Co’s., INT gives signiﬁcant weight to the
ﬁrm’s response to identiﬁed misconduct, including voluntary restraint from
bidding, voluntary disclosures of useful information to INT, oﬀers of ﬁnancial
or other remedies, termination of involved staﬀ, and managerial and compli-
ance program reforms.
For Reform Co., most of these factors applied, which favored an amicable
resolution—as did the fact that all the available evidence of misconduct came
from Reform Co. itself, requiring no INT time or eﬀort. Reform Co.’s response
upon discovering its subsidiary’s misconduct supported its claim that it would
not re-engage in misconduct and that it had a genuine desire to compete on
a level playing ﬁeld. As a result, an NRA was entered into between the Bank
and Reform Co. pursuant to which the agreed-on sanction came into eﬀect.

Cooperation and Compliance
From Reform Co.’s detailed disclosures, INT was able to refer speciﬁc details
of misconduct by public oﬃcials to appropriate national authorities. INT used
the details of the schemes disclosed by Reform Co. to advise the Bank’s opera-
tional units on how to prevent similar schemes from succeeding under future
Bank-ﬁnanced projects.
During se lement negotiations, the ICO meets with companies to discuss
their compliance program and lay the groundwork for the compliance com-
ponents of the se lement. Here, Reform Co. informed INT that it already had
an existing compliance program and that it had made improvements to that
program based on the ﬁndings of its internal investigation. Based on these as-
sertions, the ICO met with Reform Co. during se lement negotiations to learn
more about the program and assess it against the Bank’s integrity compliance
guidelines. The program turned out to be comprehensive, and the modiﬁca-
tions already made by Reform Co. ﬁlled the gaps observed by the ICO. As
a result, Reform Co. was given a reduction in its sanction for the program
improvements,24 and once the se lement came into eﬀect, the ICO monitored
Reform Co.’s program for a limited period of time before concluding that it
was fully implemented and eﬀective.

Details and Lessons of INT’s Cooperative Tools
The Voluntary Disclosure Program
The crucial consideration for VDP participation is whether the prospective
participant is eligible to enter the program. If the ﬁrm is under an active INT

24 The World Bank’s sanctioning guidelines generally permit up to a 50 percent reduction in a
ﬁrm’s sanction for voluntary corrective action, such as the establishment or improvement,
and implementation, of an eﬀective corporate compliance program. See Sanctioning Guide-
lines, supra note 21, at 4–5.
Leveling the Playing Field 407

investigation, or maintaining conﬁdentiality is practically impossible (as was
the case for Reform Co.), the VDP is generally not an appropriate option.
The VDP is a non-negotiable program. Its terms and conditions are stan-
dard and are publicly disclosed on the INT website to ensure the predict-
ability of participant commitments.25 Participants bear the costs associated
with complying with the program (although assistance from the Bank can be
sought in exceptional instances),26 and the mandatory 10-year debarment for
noncompliance with the program’s terms is a signiﬁcant penalty.27 However,
companies’ disclosure of misconduct under the VDP oﬀers them conﬁdenti-
ality.28 Under the VDP, INT redacts disclosures made to member countries,
Bank management and staﬀ, and other stakeholders.
Although the VDP’s conﬁdentiality protections limit how INT can use
VDP-provided information, INT substantially beneﬁts from accessing that
information. The VDP allows INT wide-ranging access to evidence on the na-
ture and scope of corruption in Bank-ﬁnanced projects—and it does so more
quickly, completely, and inexpensively than is possible with traditional inves-
tigative techniques. This information feeds directly into INT’s work protect-
ing other Bank-ﬁnanced projects from fraud and corruption. VDP participant
disclosures enable INT to direct its investigative resources toward entities that
are more likely to have engaged in misconduct, increasing INT’s chances of
investigative success and achieving greater impact from its investigative ex-
penditures. Entities reform their own processes, expanding business anticor-
ruption norms.
The VDP is not an appropriate ﬁt for everyone. However, for entities com-
mi ed to reforming their ways, embracing ethical business practices, and pro-
actively addressing the risks arising from past misconduct, the VDP provides
signiﬁcant beneﬁts to them and to INT—and thus helps level the playing ﬁeld
for all businesses.

The Sanctions System and the Settlement Process
The primary beneﬁts of NRAs are certainty of outcome, saving of time and
resources, and the possibility of a lesser sanction in recognition of the ﬁrm’s
cooperation and acceptance of responsibility for its conduct. In contrast, the
World Bank’s adjudicative process may require signiﬁcant time; NRA se le-
ments avoid the costs that may be associated with that work.

The World Bank Sanctions System
When INT concludes that a party has engaged in a sanctionable practice, INT
submits a Statement of Accusations and Evidence (SAE) that details ﬁndings

25 See h p://www.worldbank.org/vdp.
26 VDP Terms & Conditions, supra note 5, at 8, para. 52.
27 Id., at 6–7, paras. 43–47.
28 Id., at 6, paras. 38–40.
408 The World Bank Legal Review

of suﬃcient evidence and states the aggravating and mitigating factors that
aﬀect the choice of sanction under the Bank’s sanctioning guidelines.29 INT
also includes all exculpatory or mitigating evidence in its possession in the
SAE.30 If, while an investigation is ongoing, INT believes that it has found
suﬃcient evidence that a party has engaged in at least one sanctionable prac-
tice and continues to investigate other possible sanctionable practices in work
it expects to complete within a year, INT can seek an early temporary suspen-
sion of a party’s eligibility to participate in World Bank–supported projects
pending the completion of its remaining investigative work.31
The sanctions system has a two-tiered review process. INT ﬁrst submits
its SAE to the suspension and debarment oﬃcer (SDO)—for IFC and MIGA,
this is the evaluation and suspension oﬃcer (EO)—who reviews it to conﬁrm
whether INT has presented evidence suﬃcient to conclude that the party en-
gaged in a sanctionable practice.32 Because the sanctions system is an admin-
istrative proceeding, cases are decided on a preponderance of evidence, or
a “more likely than not” standard.33 INT bears the burden of proving that a
party more likely than not engaged in a sanctionable practice.34 Upon that
ﬁnding, the burden shifts to the party (called a “respondent”) to prove that it
did not engage in such a practice.35
If the SDO ﬁnds suﬃcient evidence, he or she issues a Notice of Sanctions
Proceedings to the respondent, recommends a sanction, and temporarily sus-
pends the respondent’s eligibility to receive Bank-ﬁnanced contracts.36 The re-
spondent may then ﬁle an explanation, due in 30 days, of why the case should
be withdrawn or its temporary suspension should be lifted and/or a response,
due in 90 days, contesting the case.37
If the respondent does not contest the case, the SDO automatically imposes
the recommended sanction38 and, since September 2011, posts a Notice of

29 Sanctions Procedures, supra note 6, at 10–11, sec. 3.01.
30 Id., at 11, sec. 3.02.
31 Sanctions Procedures, supra note 6, at 6–7, sec. 2.01(a). An early temporary suspension has the
same eﬀect as a debarment. It prevents a company from being awarded new World Bank–
ﬁnanced contracts for an initial period of six months, subject to possible extension for an ad-
ditional six months, pending the completion of the INT investigation and the ﬁling of an SAE
in the case. Id., at 8–9, secs. 2.02 & 2.04. Because the Bank’s sanctions process is conﬁdential,
the status of any particular case cannot be disclosed publicly.
32 Id., at 11, sec. 4.01(a).
33 Id., at 22, sec. 8.02(b)(i).
34 Id., at 22, sec. 8.02(b)(ii).
35 Id.
36 Id., at 11–14, secs. 4.01–4.02.
37 Id., at 13, sec. 4.02(b), & 15, sec. 5.01(a).
38 Sanctions Procedures, supra note 6, at 15, sec. 4.04.
Leveling the Playing Field 409

Uncontested Sanctions Proceedings on the Bank’s website.39 If the respondent
contests the case, the ma er proceeds to the second tier: the World Bank Sanc-
tions Board.40 The Sanctions Board is a seven-member body comprising four
eminent jurists from outside the World Bank and three senior World Bank
staﬀ.41 It is chaired by a nonstaﬀ member.42 The respondent may contest the
case solely on wri en pleadings, or it may request an oral hearing before the
Sanctions Board.43 INT may ﬁle a reply in support of its case, and it may re-
quest an oral hearing if the respondent does not do so.44
The sanctions process is conﬁdential until a ﬁnal decision is made.45 As
of May 2011, the SDO had issued Notices of Uncontested Sanctions Proceed-
ings for all uncontested cases, and, as of May 2012, the Sanctions Board had
published fully reasoned, wri en decisions for all contested cases.46 The ﬁrst
full decisions were posted on May 30, 2012.47 In December 2011, the Sanctions
Board issued a digest of past decisions to provide a public record of prior ju-
risprudence.48 The Bank may separately issue a press release when it sanctions
a respondent.49

Settlements
Se lement can avoid much of this time-consuming process. Although a sanc-
tions case can se le at any time, in practice, se lements are more likely before
the sanctions process commences.
Se lement begins with the premise that every subject of an INT investiga-
tion, big or small, has the option to discuss entering into an NRA. Thus, prior
to launching formal sanctions proceedings, INT will generally advise the sub-
ject of the investigation of the availability of the se lement process to resolve
the ma er. When an entity expresses an interest in pursuing an NRA, INT
provides it with a standard term sheet that outlines the key terms that every
NRA must contain.

39 See World Bank, Evaluation and Suspension Oﬃcer Determinations in Uncontested Proceedings
(various dates), available at h p://go.worldbank.org/G7EO0UXW90.
40 Sanctions Procedures, supra note 6, at 15, sec. 5.01(a).
41 International Bank for Reconstruction and Development, International Development Asso-
ciation, International Finance Corporation, and Multilateral Investment Guarantee Agency,
Sanctions Board Statute, p. 2, art. V (Sept. 15, 2010).
42 Id., at 3, art. VI.
43 Sanctions Procedures, supra note 6, at 15, sec. 5.01(a), and 18–20, art. VI.
44 Id.
45 Id., at 37, sec. 13.06.
46 Id., at 21–22, sec. 8.01.
47 See World Bank Group Sanctions Board, Sanctions Board Decisions (various dates), available
at h p://go.worldbank.org/58RC7DVWW0.
48 See World Bank Group Sanctions Board, Law Digest (Dec. 2011), available at h p://
go.worldbank.org/S9PFFMD6X0.
49 These press releases are available at h p://go.worldbank.org/4UP7MMFCZ0.
410 The World Bank Legal Review

Before proceeding with negotiations, INT must be satisﬁed that the partic-
ular case warrants se lement. INT’s criteria for determining whether to se le
a particular case include:
• Has the respondent admi ed culpability (or agreed not to contest evi-
dence of culpability) and expressed remorse?
• Will se lement result in resource savings to the World Bank?
• Has the respondent agreed to cooperate or is it cooperating with the in-
vestigation?
• Has the respondent taken corrective measures, or has it shown that it will
no longer be a signiﬁcant ﬁduciary risk to the World Bank?
INT considers the stage of the case when determining whether to se le.
If a case has already progressed to formal sanctions proceedings, INT will be
less likely to se le than if the ma er is in the investigative stage.
The World Bank takes steps to ensure that all respondents—regardless of
size or complexity of or the involvement of legal counsel in the case—enter
into se lements voluntarily and with full awareness of what they are doing.
Every NRA includes two aﬃdavits, one signed by the respondent and one
signed by INT, which certify that the respondent is entering into the NRA
fully informed, voluntarily, and without duress.
Once an NRA becomes eﬀective, the agreed-on sanction takes eﬀect, and
the respondent (and any sanctioned aﬃliates) is added to the World Bank’s
public debarment list. Although the NRA itself is conﬁdential, INT may issue
a press release announcing the basic terms of the NRA. Sanctions imposed
through se lements are implemented in a fashion identical to that for any
sanction imposed through the traditional sanctions process, including the ap-
plication of cross-debarment.
The respondent works closely with INT to meet its obligations and with
the ICO to create or enhance its compliance program.50 Many NRAs include
an obligation to cooperate with INT on inquiries that are both prospective
and retrospective. INT’s interest in prospective cooperation stems from the
desire to learn about new misconduct as it arises. INT is interested in informa-
tion regarding past misconduct because that misconduct may involve other
parties—such as government oﬃcials, agents, partners, subcontractors, or
competitors—that are still engaged in misconduct under other World Bank–
supported projects. Such disclosures provide INT with insight into the types
of schemes that aﬀect World Bank–supported projects and facilitate more ef-
ﬁcient investigations and more eﬀective preventive advice.
NRAs detail how a ﬁrm’s cooperation with INT is to proceed. Usually,
the respondent conducts an initial review of its past Bank-ﬁnanced contracts

50 Compliance programs are not mandatory in se lements, although some level of compliance
review is often included as a condition for release from debarment. ICO activity is discussed
in detail later in this chapter.
Leveling the Playing Field 411

to identify red ﬂags of possible fraud or corruption. This initial review may
be followed by a deeper investigation of a select number of contracts. INT’s
goal, like the respondent’s, is to use this information to promote a level play-
ing ﬁeld in which all participants conduct themselves according to the highest
ethical standards.

Lessons Learned
Unlike for a conﬁdential entrant into the VDP, the publicity of ﬁrms’ obliga-
tions under an NRA may provide them with a degree of protection from future
bribe solicitations because they can refer to their NRA commitments as an in-
tegrity standard that does not permit the payment of bribes. As such, a se le-
ment oﬀers companies an opportunity to announce conformity with an integ-
rity pact of the sort often identiﬁed as an eﬀective tool in curbing corruption.
Respondents exploring the possibility of se lement must, however, be
willing to comply with all their obligations, including making complete and
thorough disclosures to INT. Firms from jurisdictions where internal investi-
gations and compliance programs are uncommon face a learning curve that
can slow their cooperation.
Some se lements involve ﬁrms seeking to “turn the page” on past corpo-
rate misconduct by undertaking extensive internal investigations, reforming
their internal compliance systems, and addressing actual or potential legal
actions against them—sometimes in multiple jurisdictions. Such fundamental
change in business behavior inevitably helps speed up se lements.
The presence of multiple, ongoing national investigations can create an
environment in which a ﬁrm believes that seeking a negotiated resolution is
in its best interest. But this situation can introduce other complexities. It is im-
portant to openly discuss and coordinate these concerns as early in the se le-
ment process as possible.
Conﬁrmation of a ﬁrm’s operational and legal structures will generally
be factored into the basic structure of the se lement. Because these issues are
complex and address core questions, such as which entities can be sanctioned
and what the appropriate sanction may be, they should be addressed early in
negotiations.
A limited number of INT’s se lements include restitution or other mea-
sures to remedy the harm done by the misconduct.51 One se led ma er in-
volved a ﬁrm that had fraudulently claimed reimbursement for approximately
US$350,000 from a government ministry. The se lement in this case included
the repayment of this amount to the government at issue. Two other se le-
ments involving corruption included payments based on an estimate of the
enrichment from the corrupt conduct, and a third case was resolved in part

51 “Restitution or other remedy” is one of the sanctions available in the World Bank sanctions
system. See Sanctions Procedures, supra note 6, at 24, sec. 9.01(e).
412 The World Bank Legal Review

through a contribution in kind of medical test kits to the aﬀected country’s
health authorities.
The ﬂexibility of NRAs makes them a useful tool in fashioning resolutions
to World Bank investigations and sanctions cases. Like the VDP, they utilize
cooperation and internal reform to build anticorruption cultures in businesses
and thus promote open, equitable market competition.

The ICO and the Conditional Release Process

The ICO
The ICO function was established in 2010, in part to implement the World
Bank’s default sanction of a debarment with conditional release.52 The World
Bank sees the adoption (or improvement) and implementation of eﬀective in-
tegrity compliance programs as important ways for the private sector to help
prevent, detect, and remedy misconduct. The World Bank made debarment
with conditional release the default sanction to incentivize the adoption of
such programs and to minimize the chance that the sanctioned party will re-
engage in misconduct when it becomes eligible to receive new Bank-ﬁnanced
contracts or otherwise participate in World Bank–supported activities.

The Conditional Release Process
To demonstrate rehabilitation, the sanctioned party must satisfy the ICO that it
has in place, and has implemented for an adequate period, an eﬀective integrity
compliance program within the context of its operating risk environment.53
Following the imposition of a conditional sanction, the ICO contacts the sanc-
tioned party to discuss the conditional release process. If the sanctioned entity
is a ﬁrm, the ICO provides it with a copy of the World Bank’s integrity compli-
ance guidelines54 and requests information regarding its corporate structure,
scope of operations, and existing corporate compliance measures. The sanc-
tioned party may also be requested to conduct an integrity risk assessment
of its operations. Based on this information, the ICO assesses the sanctioned
party’s compliance program and identiﬁes suggested improvements.55
Once the sanctioned party has its program in place, the ICO monitors
its implementation through semiannual wri en reports. These reports are
intended to conﬁrm that the program is fully functioning and eﬀective, not
just a “cosmetic” program that exists solely on paper. The ICO may require

52 Integrity Compliance FAQ, supra note 7, at 1.
53 Sanctions Procedures, supra note 6, at 25–29, sec. 9.03.
54 The guidelines are recommended as a resource for businesses by the Criminal Division of
the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Ex-
change Commission in their joint publication, A Resource Guide to the U.S. Foreign Corrupt
Practices Act 63 (Nov. 2012), available at h p://www.sec.gov/spotlight/fcpa/fcpa-resource
-guide.pdf.
55 See Integrity Compliance FAQ, supra note 7, at 2–3.
Leveling the Playing Field 413

that an independent compliance monitor, external auditor, or other compli-
ance adviser be engaged—at the expense of the sanctioned party—to assist
in the evaluation and oversight of the program. An independent compliance
monitor usually will be required for ﬁrms that are not small and medium-size
enterprises (SMEs).56 These monitors are typically internationally recognized
law or accounting ﬁrms with experience relating to integrity compliance pro-
grams for large companies with international operations; applicable national
and local compliance and internal controls regulations; international best
practices in integrity compliance; and the conduct of internal investigations
on behalf of large companies at the direction of national authorities.
Sanctioned SMEs may be required to engage a compliance expert, typi-
cally a local law ﬁrm or accounting ﬁrm, appropriate civil society organiza-
tion, or individual expert. For particularly small SMEs, the ICO may suggest
resources such as its Resource Guide for SMEs (under preparation) and publicly
available compliance resources.
Sanctioned individuals are usually required to take appropriate remedial
measures to address their sanctionable practices and to complete training and/
or other educational programs that demonstrate a continuing commitment to
personal integrity and business ethics in the industry. Sanctioned individuals
and the ICO agree on an action plan to be implemented within six months
of the imposition of a sanction. In addition to any remedial measures, such
action plans typically involve 20 hours of training in each year of sanction
on subjects such as ethics, anticorruption, and internal controls. This training
must be in excess of any continuing professional education requirements that
the individual must meet. The publication of articles, conference presenta-
tions, or other individually designed initiatives may fulﬁll this requirement if
the ICO so approves.

Lessons Learned
The ICO has learned valuable lessons during its two years of operation, which
are inﬂuencing its planned next steps.
Many ﬁrms lack familiarity with corporate compliance principles. Many sanctioned
parties that have engaged with the ICO have expressed a lack of familiarity
with basic corporate compliance principles. These parties usually have lim-
ited access to skilled, local compliance advisers or to oﬀ-the-shelf resources in
their local languages. This absence of a “compliance community” accessible to
these ﬁrms poses a challenge for them if they seek to develop eﬀective controls
systems as their businesses grow.
SMEs face particular compliance challenges. SMEs, which constitute a signiﬁcant
percentage of the ﬁrms sanctioned by the Bank, often lack access to local com-
pliance communities. Even if SMEs are able to access information resources,

56 The World Bank generally deﬁnes SMEs as having at least two of the following characteris-
tics: fewer than 300 employees, total assets of less than US$15 million, or total annual sales of
less than US$15 million.
414 The World Bank Legal Review

a comprehensive, state-of-the-art, formal compliance program may be unnec-
essary or prohibitively expensive for them. Indeed, even minor issues, such
as the translation of compliance program materials into English (to facilitate
their review by nonlocal advisers) may impose signiﬁcant costs.
To assist SMEs, the ICO is working with other Bank units and civil so-
ciety counterparts to develop resources speciﬁcally designed for SMEs. For
example, the ICO is working with the IFC to create an integrity compliance
module for the IFC’s tool kit for SMEs, which will be available for free through
the IFC’s website. The ICO also is preparing an SME resource guide, which
will provide guidance on applying the World Bank’s integrity compliance
guidelines to operations and to direct SMEs to other useful public information
resources.
Compliance programs can be costly, and this may aﬀect a ﬁrm’s engagement with
the ICO. Compliance program costs vary with a ﬁrm’s size, industry, operat-
ing environments, and risk areas, and costs can be substantial. For example,
a large multinational corporation with global operations will likely require a
comprehensive program, led by a senior oﬃcer and a large team of full-time
staﬀ commi ed to the program. Given these costs, some sanctioned parties
may not engage with the ICO if Bank-ﬁnanced work constitutes a small por-
tion of their operations or if they do not intend to seek Bank-ﬁnanced con-
tracts in the future.
The ICO is a empting to facilitate participation in the conditional release
process by developing informational and diagnostic resources for companies.
One tool, presently in development, is an interactive integrity compliance
checklist, scalable from SMEs to multinationals, for testing corporate compli-
ance programs. However, there is no shortcut for review time. The ICO has
found that it usually requires about six months to assess a program and recom-
mend changes, and at least a year of monitoring (following full program imple-
mentation) to conﬁrm that the program is fully implemented and eﬀective. Ac-
cordingly, even with a sanctioned party’s best eﬀorts, the conditional release
process usually requires at least 18 months to complete. The only exception is if
a sanctioned party already has a largely eﬀective compliance program in place
at the time of sanction, in which case the ICO could complete the conditional
release process after the 12-month monitoring and reporting period.

Conclusion
As World Bank president Jim Kim observed in a speech, in the context of the
World Bank’s development work,
[c]orruption steals from the poor. It steals the promise of a bright-
er future. . . . Few issues are more important for development and
shared growth than good governance. Public institutions deliver
vital services such as health and education, upon which the poor
are particularly dependent. Corruption subverts and undermines all
these functions and as such serves as a major impediment to devel-
Leveling the Playing Field 415

opment. It is in this context that combating corruption both has been
and will continue to remain one of the Bank’s top priorities.57
Tools like the VDP, NRAs, and the ICO are still relatively new, and fur-
ther research is necessary to quantify their value in promoting open, equitable
competition through corporate reform. INT’s experience, however, is that
these tools can be eﬀective in catalyzing corporate reform and furthering the
Bank’s integrity goals, particularly when used in tandem with broader good
governance and anticorruption eﬀorts. Given their mutual interest in foster-
ing development through opportunity, inclusion, and equity, the World Bank
and the private sector are natural partners in furthering the opportunity, in-
clusion, and equity required to end poverty through sustainable growth and
shared prosperity.

57 Anti-corruption Eﬀorts in a Global Environment: A Commitment to Act (Jan. 30, 2013), available
at h p://www.worldbank.org/en/news/speech/2013/01/30/world-bank-group-president-jim
-yong-kim-speech-anti-corruption-center-for-strategic-and-international-studies.
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The World Bank Group Sanctions System
and Access to Justice for Small
and Medium-Size Enterprises
FRANK FARIELLO AND GIOVANNI BO

Following the adoption of a principle against corruption at the 2004 UN Global
Compact Leaders Summit1 and the entry into force of the United Nations
Convention against Corruption in 2005, increased a ention has been paid to
the detrimental impact of corruption on small-business development. Data
show that the smaller the ﬁrm, the more likely it is to be negatively aﬀected
by corruption;2 more than 70 percent of small and medium-size enterprises
(SMEs) perceive corruption as an impediment to their business, as opposed to
approximately 60 percent of larger corporations.3 International organizations,
development agencies, business associations, and nongovernmental organiza-
tions have expanded the focus of their research into understanding the nega-
tive eﬀects of corruption on small and medium-size business development,
given SMEs’ prominent role in the business environment worldwide.4 In par-
ticular, the structural diﬀerences that exist between small and large corpora-
tions have called for the revision and adaptation of anticorruption tools and
other measures to prevent corruption in order to account for the speciﬁc char-
acteristics of SMEs and to develop tools tailored speciﬁcally to ﬁt their needs.5

The views expressed in this article are those of the authors and do not necessarily reﬂect
the views of the Board of Executive Directors of the World Bank or the governments they
represent.
1 UN Global Compact, The Ten Principles, Principle 10 (“Businesses should work against
corruption in all its forms, including extortion and bribery”), available at h p://www
.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html.
2 In general, SMEs are more likely to be aﬀected by corruption for a number of reasons, in-
cluding their limited ﬁnancial resources, inability to exert a strong inﬂuence over public
oﬃcials, and capital structure. See United Nations Industrial Development Organization
(UNIDO)/United Nations Oﬃce on Drugs and Crime (UNODC), Fighting Corruption, Cor-
ruption Prevention to Foster Small and Medium-Sized Enterprise Development 7 (2007), available
at h p://www.unodc.org/unodc/en/corruption/publications.html.
3 UNIDO/UNODC, Draft Discussion Paper of the Expert Group Meeting on “Small Business De-
velopment and Corruption”, II (Mar. 6–7, 2006), available at h p://info.worldbank.org/etools
/acportal/docs/T1_3_SmaBizDevAndCrrpt.pdf (quoting World Bank/European Bank for
Reconstruction and Development, BEEPS, Question: How Problematic Is Corruption in the Busi-
ness Environment? [2000]).
4 SMEs make up about 90 percent of all established businesses worldwide. See UNIDO,
Responsible Trade and Market Access: Opportunities or Obstacles for SMEs in Developing
Countries? 12 (2006), available at h p://www.unido.org/ﬁleadmin/media/documents/pdf
/Services_Modules/csr_responsible_trade_market_access.pdf.
5 UNIDO/UNODC, supra note 2, at 9. Some important tool kits and guidelines have been

417
418 The World Bank Legal Review

Besides with prevention, the ba le against corruption is also being fought
on the enforcement front. In parallel with, and often as a complement to, a
multitude of national systems, the World Bank’s sanctions process aims at
making sure that ﬁrms and individuals found to have engaged in one or more
sanctionable practices (known as “respondents”) in connection with Bank ﬁ-
nancing are sanctioned for their illicit practices.
The World Bank’s sanctions system originated in 1996 as an internal, ad-
ministrative process with limited opportunities for respondents to defend
themselves.6 The “rules of the game” were few and largely nonpublic, and de-
cisions were short and conclusive, shared only with the respondent and those
within the Bank with a need to know.7 Since then, the system has evolved
signiﬁcantly toward a quasi-judicial model, with increasing transparency and
due process protections, including a double-instance structure, the right to
counsel, publicly available rules and procedures, sanctioning guidelines, and
other wri en guidance, as well as published, reasoned sanctions decisions.
This evolution has made the system fairer for respondents that have the
capacity to take advantage of the system’s features, in particular those that
can aﬀord legal counsel. Ironically, however, these changes, and the result-
ing higher degree of formality, may have had the unintended consequence of
making the system less accessible to low-capacity respondents such as indi-
viduals and SMEs.

developed by international organizations targeting private sector anticorruption compli-
ance. See, for example, International Chamber of Commerce, Rules of Conduct to Combat Ex-
tortion and Bribery in International Business Transactions (1996); Organisation for Economic
Co-operation and Development (OECD), Principles of Corporate Governance (1999); OECD,
Guidelines for Multinational Enterprises (updated 2011); Transparency International, Corrup-
tion Fighters’ Tool Kit (2004). In addition to the UNIDO/UNODC joint project, a number of
tools have been developed speciﬁcally for SMEs. For example, Transparency International
published a guide that sets out the process by which smaller businesses can develop an an-
tibribery program relevant to their size and resources. See Transparency International, Busi-
ness Principles for Countering Bribery—SME Edition (2008). There are a growing number of
initiatives and tools to help SMEs in countering corruption and bribery. The Danish Devel-
opment Agency, in cooperation with other partners, has developed a website, the Business
Anti-corruption Portal (h p://www.business-anti-corruption.com), for SMEs operating in
developing countries, which provides information on possible corruption risks and ways to
avoid and ﬁght corruption. Additional anticorruption tools tailored to SMEs’ needs include
International Finance Corporation, SME Toolkit (2002); Hong Kong Institute of Directors,
SME Corporate Governance Toolkit (2009); Lebanon Anti-bribery Network, Code of Ethics and
Whistle Blower Procedure for Small and Medium Enterprises (2009); and Business Unity South
Africa, An Anti-corruption Guide for South-African SMEs (2009).
6 The process was ﬁrst formulated in a paper presented to the World Bank executive directors
in 1996 and implemented in 1998. The original process included a Sanctions Commi ee,
composed of senior Bank staﬀ, which reviewed allegations of fraud and corruption by bid-
ders, contractors, suppliers, and consultants in IBRD-ﬁnanced projects and recommended
an appropriate sanction to the president of the Bank, who made the ﬁnal decision on the
sanction to be imposed.
7 Dick Thornburgh et al., Report Concerning the Debarment Process of the World Bank 10–12 (Aug.
14, 2002), available at h p://go.worldbank.org/1O93GTKH40 (hereinafter, Second Thorn-
burgh Report).
The World Bank Group Sanctions System and Access to Justice 419
for Small and Medium-Size Enterprises

The Bank’s Legal Vice Presidency (LEG) is about to conclude the ﬁrst
phase of a comprehensive review of the sanctions system.8 The review found
increasingly positive overall performance of the system both in terms of pro-
cessing times and outputs and in terms of its legal adequacy under due pro-
cess and global administrative law principles.9 The Bank’s system compares
quite favorably with similar systems on these metrics. But a less encouraging
development emerged in the course of the review: the majority of respon-
dent SMEs were simply not engaging with the system, either during adjudi-
cation or in the rehabilitative process that is intended to follow sanctioning.
It became apparent that the system has an “SME issue” that merits further
study and concern.10 Although there are various possible explanations for this
pa ern of nonengagement, the LEG review hypothesized that, among other
things, the system may suﬀer from an “access to justice” issue.
This chapter examines this hypothesis in some detail. The chapter sum-
marizes the principles underlying the concept of access to justice, including
the elimination of unnecessary obstacles to the services of the adjudicative
body, such as geographic location as well as language, economic, and proce-
dural barriers. It then examines the possible reasons for SME nonengagement
and the possible hurdles that low-capacity respondents may face in accessing
the sanctions system. Finally, the chapter explores ways to improve access to
justice for low-capacity respondents in the sanctions system and makes the
case as to why it is important for the Bank to do so—and not just from a fair-
ness perspective.

Principles of Access to Justice
In recent times, the concept of “access to justice” has been expanded to include
a variety of meanings.11 In general terms, access to justice has been deﬁned as

8 More information on the review and consultation process is available at h p://www
.worldbank.org/legal/sanctionsreview.
9 See, for example, Nico Krisch & Benedict Kingsbury, Introduction: Global Governance and
Global Administrative Law in the International Legal Order, 17(1) Euro. J. Intl. Law 1–14 (2006);
Pascale Dubois & Aileen Nowlan, Global Administrative Law and the Legitimacy of Sanctions
Regimes in International Law, 36 Yale J. Intl. L. Online (2010), available at h p://www.yjil.org
/docs/pub/o-36-dubois-nowlan-global-administrative-law-sanctions.pdf.
10 The ideas for improvement that the authors explore in this chapter are based on the analysis
of available data. Although there appears to be a fairly clear correlation between the size of a
ﬁrm and the likelihood it will contest a case, a number of other factors deserve further study
and a ention, such as typology of cases (e.g., are respondents more likely to engage if there
is a claim of corruption or collusion, as opposed to fraud?) and if the ﬁrm’s main source of
business lies in Bank-ﬁnanced contracts.
11 For a discussion of the evolution of the concept of access to justice, see Mauro Cappelle i et
al., Access to Justice, 94 Harv. L. Rev. 1911 (1981); Lawrence M. Friedman, Access to Justice:
Some Historical Comments, 37 Ford. Urb. L.J. 3–15 (2009). The term “access to justice” is not
commonly used as a legal term and is not expressly used in a number of international hu-
man rights instruments, which instead, contain provisions on fair trial and the right to a
remedy. See, for example, Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) (Nov. 4, 1950), Europ.T.S. No. 5; 213 U.N.T.S. 221, arts. 6 and 13; Universal
420 The World Bank Legal Review

the possibility for an individual to bring a claim before an institution of justice
for adjudication.12 In a more qualiﬁed manner, the term is used to express
“the right of an individual not only to access a court of law, but to have his
or her case heard and adjudicated in accordance with substantive standards
of fairness and justice.”13 Finally, in a narrower sense, “access to justice” may
be used to refer to the need of the poor to have access to the legal assistance
required for the meaningful protection of their rights.14
The term “access to justice” is used in this chapter as synonymous with
“access to courts” to refer to the broad notion that the structure and machin-
ery of an adjudicative system must be accessible to those who are subject to its
jurisdiction and require mechanisms to ensure that participation is eﬀective,

Declaration on Human Rights, G.A. Res. 217A (III), at 71, U.N. Doc. A/810 (1948); Interna-
tional Covenant on Civil and Political Rights, 999 U.N.T.S. 171; 6 I.L.M. 368 (1967), arts. 2(3a),
9(4), 14(1), and 14(3c). However, a speciﬁc reference to access to justice was introduced in
the Treaty on the Functioning of the European Union (TFEU), which stipulates that “the
Union shall facilitate access to justice, in particular through the principle of mutual recogni-
tion of judicial and extrajudicial decisions in civil ma ers.” Treaty on the Functioning of
the European Union (Oct. 26, 2012), 2012 O.J. (C 326), art. 67, para. 4. For other examples of
international law instruments referencing access to justice, see Convention on Access to In-
formation, Public Participation in Decision-Making and Access to Justice in Environmental
Ma ers, 2161 U.N.T.S. 447; 38 I.L.M. 517 (1999); United Nations Convention on the Rights
of Persons with Disabilities, 2515 U.N.T.S. 3 (2008); and Convention on International Access
to Justice, 19 I.L.M. 1505 (1980). For an EU-wide comparative analysis of the eﬀectiveness of
access to justice as a means of ensuring individuals’ rights in the area of nondiscrimination,
see European Union Agency for Fundamental Rights, Access to Justice in Europe: An Over-
view of Challenges and Opportunities (2010), available at h p://fra.europa.eu/sites/default/ﬁles
/fra_uploads/1520-report-access-to-justice_EN.pdf. For a discussion of the notion of access to
justice from a U.S. perspective, see Deborah L. Rhode, Access to Justice (Oxford U. Press 2004).
12 Francesco Francioni, The Rights of Access to Justice under Customary International Law, in Access
to Justice as a Human Right 1 (Oxford U. Press 2007). A recent overview of the World Bank’s
existing work in access to justice categorizes access to justice eﬀorts into six groups: court
reforms, legal aid, information dissemination and education, alternative dispute resolution,
public sector accountability, and research. See Vivek Maru, Access to Justice and Legal Empow-
erment: A Review of World Bank Practice (Justice & Development Working Paper Series No. 9,
2009).
13 Francioni, supra note 12, at 1. Access to justice intersects with human rights, and it “emerges
as an essential component of every system of human rights protection, which, in principle,
must be safeguarded also in times of crisis and emergency.” (Id., at 56.) See also Antônio
Augusto Cançado Trindade, Access to Justice at International Level and the Right to an Eﬀective
Domestic Remedy, in The Access of Individuals to International Justice 51–59 (Oxford U. Press
2011); Jeremy McBride, Access to Justice for Migrants and Asylum Seekers in Europe (Council of
Europe Publishing 2009).
14 Francioni, supra note 12, at 1. See also Ineke Van De Meene & Benjamin Van Rooij, Access
to Justice and Legal Empowerment: Making the Poor Central in Legal Development Co-operation
(Amsterdam U. Press 2008); Justice Earl Johnson Jr., Equal Access to Justice: Comparing Access
to Justice in the United States and Other Industrial Democracies, 24 Ford. Intl L.J. S83 (2000);
Robert J. Rhudy, Comparing Legal Services to the Poor in the United States with Other Western
Countries: Some Preliminary Lessons, 5 Md. J. Contemp. Leg. Issues 223 (1994); Mauro Cap-
pelle i et al., Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies (Giuf-
frè; Oceana Publications 1975); Earl Johnson Jr., Toward Equal Justice: Where the United States
Stands Two Decades Later, 5 Md. J. Contemp. Leg. Issues 199, 204 (1994).
The World Bank Group Sanctions System and Access to Justice 421
for Small and Medium-Size Enterprises

costs are aﬀordable, and decisions are made in a timely and fair manner by an
independent decision-making body.15
This section provides an overview of the main general principles of access
to justice as applied to the performance of adjudicatory systems.16 It is impor-
tant to note that the World Bank’s sanctions regime cannot and should not be
equated with a civil or criminal judicial system. It is, rather, administrative in
nature. Nevertheless, the system’s adjudicatory nature makes it suitable for an
assessment against these general principles.17 Moreover, starting at least from
its ﬁrst set of reforms in 2004, the Bank has recognized that it must hold itself
to a higher standard of fairness than might otherwise be considered strictly
required for a typical administrative process.18 The sanctions system is part of
a larger Bank eﬀort to promote good governance and ﬁght corruption, com-
monly referred to as its governance and anticorruption (GAC) agenda.19 In
this context, it was the consensus of Bank managers and staﬀ that the Bank
has a responsibility to demonstrate, through its own practices, the standards
of governance that it hopes will take root in the developing world.20 In plain
terms, the Bank must practice what it preaches.
The basic principles of access to justice can be summarized as follows.

15 See European Union Agency for Fundamental Rights, supra note 11, at 15 (“According to
current usage, then, access to justice is related to a number of terms that at times are used
interchangeably or to cover particular elements, such as access to court, eﬀective remedies
or fair trial”).
16 Bureau of Justice Assistance, U.S. Department of Justice, Trial Court Performance Standards
with Commentary (1997), available at h ps://www.ncjrs.gov/pdﬃles1/161570.pdf (hereinaf-
ter, Trial Court Performance Standards). See also American Bar Association, Access to Justice
Assessment Tool: A Guide to Analyzing Access to Justice for Civil Society Organizations (2012),
available at h p://www.americanbar.org/content/dam/aba/directories/roli/misc/aba_roli
_access_to_justice_assessment_manual_2012.authcheckdam.pdf. Although much literature
exists on the general principles underlying the access to justice concept, these standards are
particularly useful for the purposes here because they provide concrete benchmarks relevant
to an adjudicatory system, against which the Bank’s sanctions system may be assessed.
17 More recently, the emerging ﬁeld of global administrative law (GAL) has called for bringing
due process, transparency, and other notions of fundamental fairness to bear on interna-
tional administrative processes. See supra note 9 and Armin von Bogdandy et al., Develop-
ing the Publicness of Public International Law: Towards a Legal Framework for Global Governance
Activities, 9 German L. J. 1375, 1377 (2008) (“The legal framework of governance activities
of international institutions should be conceived of as international institutional law, and
enriched by a public law perspective, i.e. with constitutional sensibility and openness for
comparative insights from administrative legal thinking”).
18 See Second Thornburgh Report, supra note 7, at 7, 21, and 30. Or so it was thought at the time.
Since then, a number of developments, particularly in the area of international administra-
tive law and human rights jurisprudence, have raised the bar considerably. See supra notes 9
and 17.
19 See World Bank, Strengthening World Bank Group Engagement on Governance and Anticorrup-
tion (Mar. 16, 2007). The GAC strategy was updated in 2012 to respond to the fundamental
changes that had swept the world since its adoption in 2007, including the global ﬁnan-
cial crisis and the rise of civil society movements. See World Bank, Strengthening Gover-
nance: Tackling Corruption—The World Bank Group’s Updated Strategy and Implementation Plan
(Mar. 6, 2012), available at h p://go.worldbank.org/GJU5GEHQ40.
20 See Second Thornburgh Report, supra note 7, at 7.
422 The World Bank Legal Review

First, the broader notion of access to justice requires the elimination of
unnecessary obstacles to the services of the adjudicative body, such as geo-
graphic location as well as language, economic, and procedural barriers.21 In
this connection, a justice institution must ensure that the parties to the pro-
ceedings are able to participate in and understand the hearing as well as read
the key documents in the case.22 The cost of access to proceedings and records
should be reasonable, fair, and aﬀordable. Legal aid (i.e., the provision of le-
gal assistance to people otherwise unable to aﬀord legal representation) and
the dissemination to the public of as much information as possible about the
“rules of the game,” both substantive and procedural, are also regarded as
crucial in ensuring eﬀective access to justice.23
Second, an eﬀective justice system should be able to meet its goals in an
expeditious and timely manner. The repercussions for untimely action may
have serious consequences for the ﬁrms and individuals involved in the pro-
ceedings. Expedition and timeliness include the establishment of an eﬀective
case management process, compliance with schedules, and prompt imple-
mentation of law and procedure.24
Third, due process demands equality, fairness, and integrity. Integrity, in
turn, requires adherence to duties and obligations imposed on the adjudica-
tive body by the applicable legal and policy framework. In parallel, fairness
and equality require that persons similarly situated receive similar treatment

21 Trial Court Performance Standards, supra note 16, at 7.
22 See, for example, Julia Alanen, Language Access Is an Empowerment Right: Deprivation of Ple-
nary Language Access Engenders an Array of Grave Rights Violations, 1 Intl. Leg. Stud. Program
93 (2009), available at h p://papers.ssrn.com/sol3/papers.cfm?abstract_id=1578607 (arguing
that references to the connection between language access and due process/fair trial, now
largely limited to defendants in criminal proceedings, should also apply to limited- and non-
English-proﬁcient individuals seeking redress in the civil courts); Williamson B. C. Chang
& Manuel U. Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking De-
fendant, 63 Cal. L. Rev. 801–823 (1975). In 2002, the European Union adopted a directive to
improve access to justice in cross-border civil and commercial disputes by establishing mini-
mum common rules relating to legal aid. See Council Directive 2002/8/EC of January 27, 2003,
to improve access to justice in cross-border disputes by establishing minimum common
rules relating to legal aid for such disputes, 2003 Oﬃcial Journal of the European Communi-
ties (L26/41).
23 See Trial Court Performance Standards, supra note 16, at 9 (“Means to achieve this include the
use of volunteer lawyers to do pro bono work”). In general, the provision of legal assistance
to people otherwise unable to aﬀord legal representation is regarded as crucial in ensuring
eﬀective access to justice. See, for example, Edwin Rekosh et al., Access to Justice: Legal Aid
for the Underrepresented, in Access to Justice in Central and Eastern Europe: Source Book (Public
Interest Law Initiative 2003). An explicit connection between access to justice and legal aid
is found in the Charter of Fundamental Rights of the European Union, which provides that
“[l]egal aid shall be made available to those who lack suﬃcient resources in so far as such
aid is necessary to ensure eﬀective access to justice.” Charter of Fundamental Rights of the
European Union (Oct. 26, 2012), 2012 O.J. (C 326) 391–407, art. 47.
24 Trial Court Performance Standards, supra note 16, at 10. Although the Trial Court Perfor-
mance Standards and this chapter focus on the adjudicatory phase, expedition and timeli-
ness also call for the prompt investigation of a case.
The World Bank Group Sanctions System and Access to Justice 423
for Small and Medium-Size Enterprises

in proportion to the nature and magnitude of the case and that decisions be
reasoned.25
Fourth, an adjudicative body must be independent from political inﬂu-
ence and other forms of pressure.26
Fifth, performance of adjudicative functions should instill public trust and
conﬁdence.27
These ﬁve principles, if properly implemented, also address two of the
concerns expressed by SMEs in connection with a recent study on the use
of alternative dispute resolution mechanisms for resolving disputes, namely,
that the resolution process not take too long and not cost too much.28

The World Bank Sanctions System and Access to Justice Principles
Nonengagement by SMEs in the System
The Bank’s two-tiered sanctions process, as it presently exists, may be sum-
marized as follows.

Investigation and Preparation of the Statement of Accusations
and Evidence
The process starts with the decision of the Bank’s Integrity Vice Presidency
(INT) to investigate allegations that sanctionable practices have occurred in
Bank-ﬁnanced projects and programs. If, upon concluding an investigation,
INT believes that there is suﬃcient evidence as to the occurrence of a sanction-
able practice, it prepares a Statement of Accusations and Evidence (SAE) for
submission to the IBRD/IDA suspension and debarment oﬃcer (SDO).29

Sanctions Proceedings: First-Tier Review
INT initiates a sanctions case by submi ing the SAE to the SDO. If the SDO
ﬁnds that the accusations are supported by suﬃcient evidence, the SDO issues
a Notice of Sanctions Proceedings to the respondent; this notice contains the
SDO’s recommendation of an appropriate sanction and, where applicable, in-
forms the respondent that it has been temporarily suspended. The respondent

25 Id., at 12.
26 Id., at 17.
27 Id., at 20.
28 Rob van der Horst, Renate de Vree, & Paul van der Zeijden, SME Access to Alternative Dispute
Resolution Systems, Final Report (EIM Business & Policy Research 2006), available at h p://
ec.europa.eu/enterprise/newsroom/cf/_getdocument.cfm?doc_id=4126.
29 As of March 31, 2013, the title of IBRD/IDA evaluation and suspension oﬃcer (EO) was
changed to IBRD/IDA suspension and debarment oﬃcer (SDO). The titles of the evaluation
and suspension oﬃcers for IFC, MIGA, and Bank Guarantee operations were maintained.
References to SDO in this chapter include the evaluation and suspension oﬃcers for IFC,
MIGA, and Bank Guarantee operations, as appropriate.
424 The World Bank Legal Review

may ﬁle an explanation with the SDO seeking either dismissal of the case or
a reduction in the recommended sanction. If the respondent chooses not to
contest the case before the World Bank Sanctions Board, the noncontested de-
termination becomes ﬁnal.

Sanctions Proceedings: Second-Tier Review
The respondent may trigger a second tier of review by submi ing a wri en
response to the Sanctions Board, an independent body composed of three in-
ternal (i.e., Bank staﬀ) and four external (i.e., non-Bank staﬀ) members and
chaired by one of its external members. The Sanctions Board considers the
case de novo and makes a ﬁnal, nonappealable decision.

The Integrity Compliance Ofﬁcer
When the sanction imposed is debarment with conditional release, the In-
tegrity Compliance Oﬃcer (ICO) is charged with monitoring compliance by
debarred parties with conditions for release from debarment, typically, the
establishment and implementation of an integrity compliance program. The
ICO is housed within INT, but with functional and administrative reporting
lines independent of INT’s investigation and litigation units.30

Negotiated Resolutions (aka Settlements)
INT may, in appropriate circumstances, enter into negotiations with a respon-
dent at any stage of the sanctions process up to the issuance of a decision by
the Sanctions Board or even prior to the initiation of sanctions proceedings.
Negotiated resolutions are subject to a number of safeguards to ensure fair-
ness, transparency, and credibility.
In the course of LEG’s review of the sanctions system, a pa ern of non-
engagement by SMEs was discovered. Of the roughly 60 percent of sanctions
cases that were resolved at the ﬁrst tier of proceedings, before the Bank’s Of-
ﬁce of Suspension and Debarment (OSD), more than 90 percent resulted from
what could be termed “defaults” by the respondents, most of them SMEs,
because they did not respond in any way to Notices of Sanctions Proceedings,
either by submi ing an explanation to the SDO or by referring the case to the
Sanctions Board. There appears to be a fairly clear correlation between the size
of ﬁrm and the likelihood it will contest a case.31

30 The ICO is subject to a code of conduct in order to ensure independence, fairness, and impar-
tiality.
31 As of March 31, 2013, roughly 88 percent of large corporations had contested a case before
the Sanctions Board (14 of 16); roughly 57 percent of medium-sized corporations (26 of 46);
roughly 27 percent of small corporations (17 of 63); roughly 24 percent of NGOs (5 of 21); and
roughly 29 percent of individual respondents (22 of 77). The Bank does not systematically
track the proﬁle of respondents according to size. These ﬁgures are OSD estimates based
on its reading of pleadings presented in sanctions cases and, therefore, remain somewhat
conjectural. However, the authors are conﬁdent that these ﬁgures are suﬃciently robust to
identify the pa erns discussed here.
The World Bank Group Sanctions System and Access to Justice 425
for Small and Medium-Size Enterprises

The pa ern continues after sanctions are imposed. The ICO reports that
approximately 15–20 percent of the respondents that have been sanctioned
with compliance conditions have actively engaged with the ICO.32 Of these, the
majority are large ﬁrms that are likely to be able to aﬀord to implement integ-
rity compliance programs (or have already done so for domestic law reasons).
The impact on SMEs has been a point of concern for some external stake-
holders, in particular in the context of se lements, where critics have argued
that advantage may be taken of SMEs and individuals.33 These concerns seem
to be overstated. The system has various safeguards against abuse and favor-
itism.34 Nevertheless, the LEG review did identify occasional signs that these
safeguards may need strengthening when dealing with SMEs.35
In this connection, it bears pointing out that the standard form of nego-
tiated resolution agreement (NRA) used by the Bank includes a “certiﬁcate
of voluntariness.”36 In a normal case, OSD relies on this certiﬁcation without

32 As of March 28, 2013, 19 parties were actively engaging in the conditional release process. Of
these 19 parties, seven have been classiﬁed by the ICO as SMEs. As of that date, four parties
had been released (under the post-2010 sanctions procedures) or early released (under the
pre-2010 sanctions procedures) after fulﬁlling compliance conditions, while 11 parties had
been released at sanction end dates (under the pre-2010 sanctions procedures).
33 Some critics argue that se lements favor the big players (especially those that are willing to
make payments in restitution), who are more likely to get special deals.
34 INT has the discretion to determine, in consultation with the World Bank General Counsel,
whether or not it is appropriate to engage in se lement negotiations with a particular re-
spondent and the appropriate terms and conditions for any resulting se lement agreement.
See Anne-Marie Leroy & Frank Fariello, The World Bank Group Sanctions Process and Its Recent
Reforms (World Bank 2012), at 21. In addition, agreed-on sanctions must not manifestly vio-
late secs. 9.01 and 9.02 of the World Bank Sanctions Procedures (as adopted Apr. 15, 2012)
(hereinafter, Sanctions Procedures) and related guidance, including the World Bank Sanc-
tioning Guidelines (Jan. 1, 2011) (hereinafter, Sanctioning Guidelines), while se lements
are subject to limited review by OSD both to ensure that the agreed-on sanction does not
manifestly violate the relevant guidance, which should ensure a minimum degree of consis-
tency across respondents, and for voluntariness, that is, that the respondent entered into the
se lement agreement freely and fully informed and without any form of duress. See Sanc-
tions Procedures, secs. 11.02(a) and (b). Moreover, a study of the actual results of se lements
conﬁrms that, after accounting for se lements with cooperation as a mitigating factor, the
agreed-on sanctions have been broadly in line with the Sanctioning Guidelines, with larger
ﬁrms actually incurring heavier penalties (above the baseline of three years) and individuals
and smaller ﬁrms incurring lesser sanctions.
35 A few SMEs have complained, after the fact, that they did not understand the nature of the
sanctions to which they agreed. In one case, an individual respondent complained that it
had not been informed that the le er of reprimand would be made public, while in another
case a respondent complained that it had not understood the requirements of an integrity
compliance program when agreeing to such a condition for release from debarment.
36 The representative of the respondent a ests that he/she (i) has full authority to sign the NRA,
on behalf of the respondent; (ii) has been given copies of the Sanctions Procedures and the
Sanctioning Guidelines; (iii) understands that the negotiated resolution of the case is carried
out in place of a determination made by the SDO or the Sanctions Board; (iv) understands
that it is not obligated to enter into a negotiated resolution of the cases with INT, but may
instead choose to participate in sanctions proceedings; (v) understands that, under the Sanc-
tioning Guidelines, the baseline sanction for engaging in a sanctionable practice is debar-
ment of three years with conditional release, which may be increased or decreased per any
426 The World Bank Legal Review

making inquiries of the respondent. Of course, the diﬃculty is that, in the
hypothetical case that a respondent were obligated under duress to sign an
NRA, it could also be obligated to sign the certiﬁcate. The authors trust that
in actuality duress does not occur; a far more likely scenario is that SMEs and
other low-capacity respondents simply sign NRAs without asking too many
questions.37
The ICO also reports that some SME respondents, including those that
agreed to implement integrity compliance programs as part of the se lement
of a sanctions case, do not understand the requirements involved. And al-
though the ICO provides information on compliance programs, including
resources to educate and assist respondents in designing and implementing
compliance programs to suit their needs, there has been limited follow-up
from respondents.

Possible Reasons for SME Nonengagement
There are various possible explanations for SME nonengagement, some be-
nign, others less so. At its most benign, respondents culpable of misconduct
may simply recognize the futility of contesting the SDO’s recommended sanc-
tion.38 Some respondents may not care to engage the system, whether culpable
or not, either during proceedings before OSD or the Sanctions Board or at the
ICO stage, because they do not do enough Bank-related business to make it
worth the time and expense of litigating or adopting compliance programs.
Less benignly, some bad actors may simply set up operations under another
corporate form in hopes of evading the eﬀect of sanctions.
It may also be, however, that the system suﬀers from an access to justice
issue for SMEs and other low-capacity respondents. Since the establishment
of the World Bank’s sanctions system in 1996, the Bank has periodically made
incremental improvements to the sanctions process to increase its eﬃciency,
fairness, and eﬀectiveness.39 Ironically, as the system has become more so-
phisticated and provided more robust due process for respondents that have

relevant aggravating and mitigating factors; and (vi) has entered into the agreement freely
and fully informed of the terms thereof and free from any form of duress.
37 To counter this, INT representatives cosign the certiﬁcate of voluntariness to aﬃrm, inter
alia, that neither INT nor any other representative of the World Bank has made any state-
ment or engaged in any conduct intended to impose duress on the respondent and that the
respondent has entered into the agreement freely and fully informed of the terms thereof
and without any form of duress.
38 See Second Thornburgh Report, supra note 7, at 37 (“Some respondents would recognize
that in light of the evidence possessed by the Bank it would be futile to contest the ma er
further”).
39 See Leroy & Fariello, supra note 34, at 9–11; and Conrad C. Daly & Frank A. Fariello, Trans-
forming through Transparency—Opening Up the World Bank’s Sanctions Regime, in The World
Bank Legal Review, vol. 4, 101, 107–110 (2011). See also World Bank, Reform of the World Bank’s
Sanctions Process (June 28, 2004); World Bank, Expansion of Sanction beyond Procurement and
Sanctioning of Obstructive Practices (July 28, 2006); and World Bank, World Bank Group Sanc-
tions Regime—An Overview (Oct. 8, 2010).
The World Bank Group Sanctions System and Access to Justice 427
for Small and Medium-Size Enterprises

the means to take advantage of these improvements, it may have become less
accessible to respondents without those means.
The SAE and the ﬁles of evidence that accompany it are typically volumi-
nous and often contain complex legal arguments. SMEs and other low-capac-
ity respondents may feel overwhelmed when faced with these materials and
unable to respond.
The integrity compliance requirements that typically a ach to conditions
for release from debarment pose a particular challenge for SMEs and other
low-capacity respondents. Compliance programs are still in their infancy in
many countries, and local experts are hard to ﬁnd at any price. And these pro-
grams are not inexpensive. Although the costs of implementing a compliance
program vary depending on size, industry, risk areas, and the legal environ-
ment in which the company operates, it has been estimated that an indepen-
dent compliance monitor for a multinational corporation may charge well in
excess of US$1 million in fees over a two-year period.40 For SMEs, even minor
issues such as translation of program materials may pose signiﬁcant costs.
The Bank’s integrity compliance guidelines take into consideration a re-
spondent’s size and capacity. The guidelines outline the components of an in-
tegrity compliance program whose objective is to prevent, detect, and remedi-
ate corruption, collusion, coercion, and fraud within the party and clarify that
SMEs may adopt less formal measures in developing a compliance program
on account of ﬁrm size, business sector, location(s) of operations, and other
circumstances particular to the party.
Despite all these barriers to entry, some low-capacity respondents do, in
fact, choose to participate, at both the ﬁrst and second tiers, so the current
system cannot be considered entirely inaccessible. Without reaching out to
actual respondents, observers can only make educated guesses about the rea-
sons behind the pa ern of nonengagement. Yet it is clear that the system, as it
is currently constituted, poses some daunting challenges to low-capacity re-
spondents and could be made more accessible—and therefore fairer—to those
respondents.

40 The annual cost of mandatory ethics and compliance programs under the U.S. Federal Ac-
quisition Regulation have been estimated to run to the tens of millions of dollars for a large
corporation. However, the costs to a government contractor of not implementing an ethics
and compliance program are deemed to be signiﬁcantly greater than the costs for carrying
out internal investigations, cooperating with external investigators, defending litigation, and
se ling cases. See John T. Jones & Greg Bingham, Costs of Mandatory Ethics and Compliance
Programs (The Kenrich Group LLC 2009), available at h p://www.kenrichgroup.com/news
.php. On the broader issue of regulatory compliance, a recent study concluded that the aver-
age cost of compliance was US$3.5 million compared to the nearly US$9.4 million for organi-
zations that experience noncompliance-related problems. See The True Cost of Compliance—A
Benchmark Study of Multinational Organizations (Ponemon Inst. LLC 2011), available at h p://
www.tripwire.com/tripwire/assets/File/ponemon/True_Cost_of_Compliance_Report.pdf.
For a global snapshot of the state of compliance within ﬁrms, see Susannah Hammond &
Jane Walshe, Cost of Compliance Survey (Thomson Reuters 2013), available at h p://accelus
.thomsonreuters.com/sites/default/ﬁles/The-Cost-of-Compliance.pdf.
428 The World Bank Legal Review

Analysis of the Sanctions System under Access to Justice Principles
As discussed above, the broader notion of access to justice requires the elimi-
nation of unnecessary geographic, language, economic, and procedural ob-
stacles to the services of the adjudicative body.

Geography
The vast majority of SMEs and other low-capacity respondents are located in
the developing countries in which Bank-ﬁnanced projects are implemented.
While the ﬁrst tier of sanctions proceedings before the SDO is entirely pa-
per based and can be conducted by traditional mail, courier, or email,41 sec-
ond-tier proceedings before the Sanctions Board typically include hearings.42
Because the Sanctions Board normally holds its sessions in Washington, D.C.,
travel costs and other associated costs and hurdles, such as obtaining a visa,
likely represent an insurmountable barrier for certain types of respondents,
especially SMEs and individuals.
The Sanctions Board’s statute allows for sessions to be held elsewhere if
the board considers that the eﬃcient conduct of the proceedings so warrants,43
although the board has never chosen to do so, in part because of cost and in
part because, given the Bank’s worldwide reach, the cases for any given ses-
sion may involve misconduct in widely dispersed locations. In addition, hear-
ings may be held via telephone conference or similar communication media,
provided that all persons participating in the session can hear one another.44
When hearings are requested, respondents are given the possibility of se-
lecting their preference for remote participation, thus reducing geographic
barriers and their concomitant costs.45

41 Documents, including explanations and responses, may be delivered or submi ed by the
respondent by mail or courier or in person. Although, in accordance with sec. 13.05(c) of
the Sanctions Procedures, it is in the discretion of the SDO or the secretary to the Sanctions
Board to accept submission of materials by electronic means, the practice has been to include
in Notices of Sanctions Proceedings an email address for both the SDO and the secretary of
the Sanctions Board to which respondents may elect to submit an explanation or a response,
respectively.
42 Hearings may be held upon request by the respondent, or by INT, or upon decision by the
Sanctions Board chair. See Sanctions Procedures, sec. 6.01.
43 Statute of the Sanctions Board, art. XII, para. 2.
44 Statute of the Sanctions Board, art. XII, para. 3.
45 This has been done in at least ﬁve cases. In another instance, a respondent arranged access to
a potential witness by teleconference because the witness was unable to secure a visa. For an
interesting analysis of the beneﬁts and drawbacks resulting from the use of videoconferenc-
ing as an alternative means of providing access to courts under U.S. law, see Developments
in the Law—Access to Courts, 122 Harv. L. Rev. 1151–1216 (2009). See also United States v.
Lawrence, 248 F.3d 300, 304 (4th Cir. 2001) (holding that “even in an age of advancing technol-
ogy, watching an event on the screen remains less than the complete equivalent of actually
a ending it”).
The World Bank Group Sanctions System and Access to Justice 429
for Small and Medium-Size Enterprises

Language
Language may be an obstacle for many SMEs and other low-capacity respon-
dents, in particular those from non-Anglophone countries. Although the Bank
has no “oﬃcial” language, English is its working language for reasons of
cost and promptness in the conduct of its business.46 Reﬂecting general Bank
practice, since its inception, the sanctions system has required English-only
pleadings and proceedings.47 This may bar some respondents from eﬀectively
defending themselves—non-Anglophone respondents who cannot aﬀord or
simply lack access to translation services. (By contrast, the rules governing
procurement of goods, works, and services and the selection and employment
of consultants under World Bank–ﬁnanced projects—the context in which the
majority of sanctions cases arise—do not require that bidding documents or
requests for proposals be prepared in English.48) Moreover, the system may
prove daunting even for English speakers, as the Sanctions Procedures and
other key documents are drafted in legalese.

46 Historically, the World Bank Group has approached the issue of languages with ﬂexibility
in order to meet its constituent institutions’ business needs and purposes. English is the
working language of the Bank, the IFC, and MIGA. ICSID, on the other hand, has chosen
three oﬃcial languages in which to carry out its mandate and conduct its business. See World
Bank, A Document Translation Framework for the World Bank Group (Aug. 6, 2003), available
at h p://documents.worldbank.org/curated/en/m2003/08/2734859/document-translation
-framework-world-bank-group. See also Edward J. Mason & Robert E. Asher, The World Bank
since Bre on Woods 66–68 (The Brookings Institution 1973) (“In the early years of the Bank, it
was decided that English would be the working language—a decision that saved money and
enormously expedited the conduct of business by comparison with the United Nations and
most other international agencies”).
47 All wri en submissions in connection with the sanctions proceedings, including the respon-
dent’s explanation and/or response, must be in English, except that exhibits shall be in the
original language with the pertinent parts translated into English. See Sanctions Procedures,
sec. 5.02(a).
48 For procurement under international competitive bidding, prequaliﬁcation and bidding
documents may be prepared in English, French, or Spanish. In addition, the borrower has
the option to issue translated versions in another language (the “National Language”),
which should either be the national language of the borrower or the language used nation-
wide in the borrower’s country for commercial transactions. The contract signed with the
winning bidder must be wri en in the language in which its bid was submi ed, which is
the one that governs the contractual relations between the borrower and the bidder. If the
contract is signed in the National Nanguage, the borrower must provide the Bank with an
accurate translation of the contract in English, French, or Spanish. The World Bank’s Pro-
curement Guidelines further specify that bidders are neither required nor permi ed to sign
contracts in more than one language. For procurement under national competitive bidding,
there is no requirement that the relevant documents be prepared in English. See World Bank,
Guidelines for the Procurement of Goods, Works, and Non-consulting Services under IBRD Loans
and IDA Credits & Grants, secs. 2.15 and 3.4 (Jan. 2011), available at h p://go.worldbank
.org/XH679K5M60. Substantially similar provisions govern the selection and employment of
consultants under World Bank–ﬁnanced projects. See World Bank, Guidelines for the Selection
and Employment of Consultants under IBRD Loans and IDA Credits & Grants by World Bank Bor-
rowers, secs. 1.22 and 2.5 (Jan. 2011).
430 The World Bank Legal Review

Economic Costs
Under access to justice principles, the cost of access to proceedings and records
should be reasonable, fair, and aﬀordable. The language and geographical
requirements of the Bank’s sanctions system can pose considerable costs for
respondents, although the system does provide for mechanisms to reduce
some of these costs. And although there is no requirement under the Sanctions
Procedures that a respondent be represented by an a orney, the complexity of
the system makes legal counsel highly desirable, if not an absolute necessity.49
Legal advice typically does not come cheaply. For reasons of economy, the
Bank does not oﬀer legal aid to respondents, and the authors are not aware of
signiﬁcant pro bono work being done by private lawyers in connection with
World Bank sanctions, although the Bank itself is beginning to make some ef-
forts in this regard.

Procedural Barriers
One area where the Bank may claim considerable credit is in its procedures,
which provide ample opportunity for respondents to mount a meaningful
defense. An argument can be made that the 30-day response period that ap-
plies to submissions of explanations may be too short for some respondents,
in particular those who require translation and/or need to hire legal counsel,
but the procedures provide for the extension of this period by application to
the SDO.50 Practice shows that, generally, the SDO has granted extensions of
up to 30 days based on reasonable grounds described by the respondent in a
wri en application.51

Timeliness
The LEG review found that timeliness is an area in which the system has con-
siderably improved. Processing times have been reduced considerably at every
stage, from investigation to adjudication. For example, the time for the ini-

49 A respondent may be self-represented or represented by an a orney or any other individual
authorized by the respondent, at the respondent’s own expense. See Sanctions Procedures,
sec. 6.02.
50 Upon request by the respondent, a reasonable extension of any time period for the ﬁling of
submissions may be granted, as a ma er of discretion, by the suspension and evaluation of-
ﬁcer, by notice to both parties. See Sanctions Procedures, sec. 4.02(b) (extending application
of sec. 5.02(b), mutatis mutandis, to the explanation).
51 In one case, the respondent, a Thai medium-size enterprise, argued in its appeal to the Sanc-
tions Board that it was unfair to require the ﬁling of the explanation within 30 days and
of the response within 90 days of delivery of the notice, after more than three years had
passed from INT’s investigation to the initial submission of the SAE, and almost two more
years passed before the notice was issued. However, the Sanctions Board noted that the
respondent could have, and did not, avail itself of the option to request an extension of
time for its wri en submissions, as provided under secs. 4.02(b) and 5.02(b) of the Sanctions
Procedures. Therefore, in the Sanctions Board’s view, “the respondent’s arguments of preju-
dice in its submission deadlines lacked foundation.” Sanctions Board Decision no. 50 (issued
May 30, 2012), at 25, available at h p://siteresources.worldbank.org/EXTOFFEVASUS
/Resources/WebsiteDecision50.pdf.
The World Bank Group Sanctions System and Access to Justice 431
for Small and Medium-Size Enterprises

tial investigation phase has been cut by more than half if one compares the
processing times for the ﬁrst 25 cases processed under the two-tiered sanc-
tions system against the most recent 25 cases completed as of June 30, 2012.
The data also show improvement, albeit less dramatic, in all other phases of
the sanctions process, with the periods in the adjudicative phase being much
shorter to begin with. Overall, it is fair to say that the system compares favor-
ably with national judicial systems and falls within due process norms. At the
same time, there is room for further improvement.

Fairness, Equality, and Transparency
This is an area in which, again, the Bank has made considerable strides over
the years, in particular in the area of transparency. While the Sanctions Board
Statute and Sanctions Procedures have always been publicly available, the
Bank recently enhanced the transparency of the system through publication of
uncontested SDO determinations and Sanctions Board decisions in contested
cases, the issuance of a Law Digest—a compendium of the legal principles
underlying Sanctions Board decisions—and the public dissemination of the
Sanctioning Guidelines and other guidance materials.52
The system provides for fairness and equal treatment through its Sanc-
tioning Guidelines, which, although not binding on decision makers, provide
a framework that guides those who have the discretion to impose sanctions as
to the considerations that are relevant to any sanctioning decision. The public
nature of Sanctions Board decisions, and the fact that they are reasoned, pro-
vides further assurance of fairness and equal treatment.53

Independence
An adjudicative body must be independent from political inﬂuence and other
forms of pressure. Here again, the Bank’s system has seen a considerable shift
in favor of independence, with the transition from an internal Sanctions Com-
mi ee to a semi-external Sanctions Board, complemented in 2009 by a transi-
tion from an internal to an external chair. The code of conduct adopted in 2010
conﬁrms that Sanctions Board members may be removed for misconduct, af-
ter due process and decision by the Bank’s executive directors.

52 World Bank, The World Bank Group’s Sanctions Regime: Information Note, available at
h p://siteresources.worldbank.org/EXTOFFEVASUS/Resources/The_World_Bank_Group
_Sanctions_Regime.pdf; World Bank, The World Bank Sanctions Board Law Digest, Uphold-
ing the Rule of Law in the Fights against Corruption and Poverty (World Bank 2011), available
at h p://siteresources.worldbank.org/INTOFFEVASUS/Resources/3601037-342729035803
/SanctionsBoardLawDigest.pdf; Leroy & Fariello, supra note 34; Daly & Fariello, supra note 39.
53 Leroy & Fariello, supra note 34, at 24–29. The SDO determinations published in uncontested
cases also include the SDO’s reasoning for the recommended sanction, in terms of the ag-
gravating and mitigating factors considered.
432 The World Bank Legal Review

Improving Access to Justice in the Sanctions System
A Few Ideas for Improvement
The issues discussed in this chapter had not gone unnoticed by the actors in
the sanctions system even before the review, and the World Bank had already
taken a number of steps to make the system more accessible to SMEs and
other low-capacity respondents.
For example, INT advises that it takes into account the capacity of a subject
of investigation, and whether the subject has legal counsel, in assessing state-
ments in an interview or in response to a show cause le er. OSD has for some
time included summaries in its Notices of Sanctions Proceedings that employ
plain English and provide an overview of sanctions proceedings and the av-
enues available to the respondent for contesting the case. In addition to the
speciﬁc accusations of INT and the SDO determination, the Notice includes
a summary of the Sanctions Procedures and instructions to the respondent.
The ICO is taking steps to address the nonengagement of low-capacity
respondents after sanction. Although the Bank has had integrity compliance
guidelines since it introduced debarment with conditional release as its base-
line sanction, the ICO is preparing a reader-friendly guidance note that pro-
vides practical and targeted support to SMEs to assist them in developing an
eﬀective integrity compliance program. The guidance reﬂects internationally
recognized standards in corporate ethics and compliance and evolving best
practices in the ﬁeld of SME corporate governance. In addition, the ICO has
reached out to a network of retired legal counsel with expertise in compli-
ance programs that are willing to provide pro bono advice and support for
debarred ﬁrms and individuals who wish to receive it.
However, it is the authors’ contention that there is more that the Bank
Group could and should be doing to make the system more accessible to
SMEs and individuals without legal counsel, without incurring undue cost.

Geography and Language
The creation of “know your rights” literature for respondents would help
to enhance transparency and create greater equality of arms between low-
capacity respondents and INT. The use of plain English throughout sanctions
proceedings would help surmount, at least in part, the language barrier that
some respondents face. More regular use of videoconferencing or other vir-
tual means to hold hearings would help to reduce or, in some cases, eliminate
travel costs.

Costs and Length of Proceedings
A simpliﬁed approach to smaller cases would be more manageable for less so-
phisticated respondents and help make proceedings more expeditious. Other
steps to expedite the sanctions process could include more frequent use of
The World Bank Group Sanctions System and Access to Justice 433
for Small and Medium-Size Enterprises

panels by the Sanctions Board to consider cases in real time in lieu of periodic
plenary sessions.54
And although eﬀorts are being made to make integrity compliance more
understandable and aﬀordable for SMEs, the Bank may also wish to consider
curtailing the use of conditional release in smaller cases involving SMEs in
favor of alternative approaches like more severe sanctions for repeat oﬀenses.
(This would involve a change to the Sanctioning Guidelines, which currently
provide for debarment with conditional release as the default sanction.)

Settlements
In the context of se lements, in cases for which there is a compelling reason
to believe that the respondent may lack the capacity to make a fully informed
decision or eﬀectively assert its legitimate interests, especially where it lacks
legal representation, the SDO could make full use of its power to review the
negotiated resolution agreement with heightened scrutiny, including (where
appropriate) consultation with the respondent, to verify its understanding of
the terms and conditions of the agreement, thus mitigating the risk of low-
capacity respondents entering into a negotiated resolution of the case without
a full understanding of the implications of doing so.

Independence
In its recent review, LEG called for steps to enhance the independence of the
system, most notably through a transition to an all-external Sanctions Board.
Although the SDO is a Bank oﬃcer, the SDO’s independence could be en-
hanced through increased security of tenure, allowing for a ﬁxed term of of-
ﬁce and removal only for cause.

Transparency
The World Bank can rightly claim to have created the most transparent sanc-
tions system among international organizations—and many national agen-
cies as well. Nevertheless, the LEG review calls for even more transparency.
Among other things, the Bank will soon make public the Sanctions Manual,
which sets out Bank management’s internal guidance for decision makers in
the system on issues including sources of law, hierarchy of norms, treatment
of corporate groups, and other topics of relevance to respondents.55 LEG re-
cently made public its advisory opinions, which set out the General Counsel’s

54 In a few of the early cases, the ﬁrst chair of the Sanctions Board chose to form three-person
panels to hear sanctions cases, which allowed for “real-time” consideration of referrals. Dur-
ing the term of the second chair, plenary sessions were favored in order to encourage coher-
ence and consistency in approach. As the system matures, there may be opportunities to rely
more on panels, in particular for cases that do not present novel or complex issues.
55 Some of the main principles in these areas have already been made public though the Leroy
& Fariello article and the Information Note. See Leroy & Fariello, supra note 34; and The World
Bank Group’s Sanctions Regime: Information Note, supra note 52.
434 The World Bank Legal Review

authoritative advice on key substantive legal issues such as mens rea, the con-
cept of recklessness, and theories of collective and derivative liability.

Instilling Trust and Conﬁdence in the System
The LEG review called for more outreach and consultation with external
stakeholders in the system, especially when changes in the system are being
contemplated. The Bank already does this when making changes to its opera-
tional policies, so it should follow suit when dealing with sanctions policy.
Stakeholder involvement, in turn, will enable a transparent policy-making
process and should increase the level of the overall social and business accep-
tance of the decisions made in reforming the sanctions regime, resulting in a
higher degree of public trust and conﬁdence.

Is Legal Aid for Respondents Viable?
Legal aid is one area in which the Bank may be reluctant to venture, given
the potentially prohibitive costs involved. The Bank’s Voluntary Disclosure
Program (VDP), adopted in 2006,56 set a precedent for the idea that the Bank
should provide low-capacity respondents with legal assistance in order to re-
move a possible barrier to entry into the program.57 If the Bank were to pro-
vide legal aid, it would need to confront the issue of who would provide such
assistance. The ICO, for example, which must assess a respondent’s compli-
ance program and decide whether to release the respondent from debarment,
would face a conﬂict of interest if it were to provide direct assistance. One
possible way forward, building on the ICO’s initiative, would be to encourage
the formation of a pro bono bar for respondents among civic-minded lawyers.

A Question of Balance
In considering these ideas and others, the key will be to balance considerations
of access and fundamental fairness with the need to keep expenses reason-
able. The sanctions system consumes considerable institutional resources, and
these resources have increased as the system has grown more sophisticated.
It is clear, however, that decisions informed exclusively by considerations of
economy for the Bank have the consequence of shifting the economic burden
onto respondents, including those whose resources may be limited, such as
SMEs and individuals. At the same time, like many governments and other
international organizations, the Bank is operating in an increasingly resource-
constrained environment. Fairness is important—indeed, it is crucial—but so

56 World Bank, VDP Guidelines for Participants, sec. 7.2, available at h p://siteresources.world
bank.org/INTVOLDISPRO/Resources/VDP_Guidelines_2011.pdf.
57 To prevent the costs associated with the VDP from deterring small ﬁrms from entering the
program, the Bank allows ﬁrms with fewer than 50 employees to petition INT to have INT
perform some or all of the investigations, report generations, compliance program develop-
ment, and compliance monitoring. As of May 13, 2013, there had been only one instance
in which a ﬁrm petitioned INT to receive, and INT agreed to provide, assistance with the
compliance monitoring phase.
The World Bank Group Sanctions System and Access to Justice 435
for Small and Medium-Size Enterprises

are the Bank’s other activities in favor of the poor. Unfortunately, budgets are
a zero-sum game.

The Case for Access to Justice
The question could plausibly be posed: Why should the Bank care if SMEs are
disproportionately impacted by the system? The Bank has limited resources
for ﬁghting corruption, so why spend those scarce resources to help corrupt
actors?
These are not trivial questions. The Bank’s sanctions system is founded
on the ﬁduciary duty in its Articles of Agreement that requires that the Bank
take appropriate measures to ensure that its ﬁnancing is used for purposes in-
tended, with due consideration for economy and eﬃciency.58 It owes this duty
both to the member states that provide the Bank with its ﬁnancial wherewithal
and to its borrowers and their beneﬁciary populations, who are the principal
victims of fraud and corruption. From an economic standpoint, corruption
distorts capital ﬂows from their intended and productive purposes. Diverted
funds reduce the impact of development assistance and constitute an unpro-
ductive burden on the borrower’s treasury. The Bank’s foremost concern must
therefore be the protection of its ﬁnancing—and the development eﬀective-
ness of the projects and programs it ﬁnances—by preventing and combating
fraud and corruption.
This is not the end of the story, however. From its inception, the Bank has
recognized that the manner in which it pursues the ﬁduciary duty, particu-
larly in the area of sanctions, is crucial to the entire enterprise. In devising the
basic blueprint for the Bank’s sanctions system, the Thornburgh panel recog-
nized that it was proposing a more formal structure than was common among
national or international debarment systems. But the panel noted that there
was a consensus among senior Bank managers and professional staﬀ that the
Bank was in a unique position, and that the stakes posed by a Bank debarment
called for greater process and a ention. Notably, the panel recognized that
debarment could have a signiﬁcant adverse eﬀect not only on the debarred en-
tity but also on development eﬀectiveness by reducing the pool of companies
available for projects. Given the double-edged sword that sanctions, and par-
ticularly debarment, represent, and given the Bank’s development mandate,
the panel put a premium on considerations of accuracy and fairness.59
One should not lose sight of the fact that the system is predicated on a pre-
sumption of innocence. That means that until a ﬁnal determination is made
by the SDO or the Sanctions Board, the respondent must not be treated as a
corrupt actor. In this light, a ﬁrm that is sanctioned by default because it lacks
the means to defend itself is a cause for serious concern.

58 IBRD Articles of Agreement, art. III, sec. 5(b), and IDA Articles of Agreement, art. V, sec. 6.
See also Sanctions Procedures, sec. 1.01(a).
59 See Second Thornburgh Report, supra note 7, at 6.
436 The World Bank Legal Review

Even at the ICO stage, after a respondent has been found culpable for mis-
conduct, there are reasons why the Bank should care whether the respondent
has engaged or will engage with the system. The Bank’s sanctions system is
not meant to be punitive in nature; it is protective and—one hopes—rehabili-
tative in nature. Indeed, that is the stated purpose for imposing conditions for
release.60
Many SME respondents hail from countries where corruption is endemic.
In these environments, small private actors who wish to participate in public
procurement often feel they have no choice but to acquiesce to the prevail-
ing corrupt arrangements because public oﬃcials or other, more inﬂuential
private actors impose those arrangements on smaller actors. In these circum-
stances—although misconduct has occurred—it is overly simplistic to see
SME respondents merely as bad actors not worth worrying about.
At its ideal best, engagement with the sanctions system, in particular with
the ICO, can be seen as taking the ﬁght against corruption to its highest level,
which presupposes some kind of re-education and commitment on the part
of the respondent to core integrity values and principles. In turn, this commit-
ment takes shape in the adoption of a compliance program aimed at prevent-
ing and avoiding the occurrence of illicit corrupt and fraudulent practices in
the future.
The case for access to justice posits that, given all these considerations,
the sanctions system cannot be only about “ge ing the bad guys.” The system
already provides signiﬁcant fairness, but it needs to be further improved, par-
ticularly to ensure that the signiﬁcant due process protections it does provide
are available to all, not just to those who can aﬀord it, and not just on paper
but in fact.

60 See Leroy & Fariello, supra note 34, at 15–16.
Private Civil Actions
A Tool for a Citizen-Led Battle
against Corruption

WILLIAM T. LORIS

The ﬁght against corruption relies heavily on the threat of prosecution under
criminal laws. To succeed, this approach requires political will and commit-
ment, concerted action by state institutions, and an independent, noncorrupt
judiciary. However, the ﬁght against corruption could be expanded and in-
vigorated by providing ordinary citizens and legal entities a clear legal frame-
work for the pursuit of private civil actions against corruption. This chapter
proposes a three-point conceptual framework for how civil actions could
serve as an additional weapon in the anticorruption arsenal by providing for
speciﬁc remedial and recovery measures, empowering victims of corruption,
and engendering social transformation around cases on which media and civil
society can focus. The chapter advocates for the development of regional con-
ventions under which signatory states would expand their obligations under
the United Nations Convention Against Corruption by further commi ing to
establishing and implementing a legal framework for private actions against
corruption that include features similar to those in the Council of Europe Civil
Law Convention on Corruption.
The chapter begins with an outline of the traditional criminal law ap-
proach to corruption, which has increasingly paid a ention to victims’ rights.
The chapter then describes the rise of civil actions against corruption, high-
lighting the objectives of such actions and their advantages when compared
to a traditional criminal law approach. The international law basis of private
legal civil actions against corruption is explained and diﬃculties in domestic
implementation are discussed. The three-point conceptual framework for us-
ing civil actions against corruption is discussed in detail, illustrated by the
French Biens Mal Acquis cases, and analyzed in terms of access to justice for the
poor. The chapter concludes with general thoughts on how civil actions foster
development through opportunity, inclusion, and equity.

The author wishes to acknowledge and express appreciation for the substantial support in
the preparation of this chapter by Simon N. M. Young, professor of law and director of the
Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong. His sup-
port included advice on the chapter structure and arguments, editing, and the contribution
of the text concerning the Biens Mal Acquis cases. The author also wishes to express apprecia-
tion for editorial and drafting assistance in the preparation of this chapter by Alison Rende,
2013 Loyola University Chicago PROLAW LL.M candidate, and Bandini Chhichhia, 2012
PROLAW LL.M graduate.
437
438 The World Bank Legal Review

The ﬁght against corruption is normally carried out in the context of a
country’s criminal justice system. State legislation deﬁnes corrupt behavior
and assigns penalties for convicted violators. State institutions are the central
actors in the detection and investigation of criminal activity, the apprehension
of suspected violators, and the prosecution and enforcement of court-ordered
penalties and punishment. The general public’s role is largely a passive one,
even when members of the public have suﬀered harm from the corrupt acts
that are the subject of prosecution.
In recent years, the plight of victims of crime has received greater a en-
tion. Several countries have established schemes that provide for the compen-
sation of victims of certain violent crimes, including acts of terrorism.1 Others
have extended the concept of compensating victims to other types of crime.
For instance, in the United States, the Mandatory Victim Restitution Act of
1996 authorizes courts to order those convicted of any oﬀense commi ed by
fraud or deceit as a result of which an identiﬁable victim or victims have suf-
fered physical injury or pecuniary loss to provide restitution to the victims.2
Enactment of this law was a victory for the victims’ rights movement, which
succeeded in making the needs and concerns of victims the subject of national
concern and focus.3
Other examples are Italian and U.S. laws that provide for victim compen-
sation for harm suﬀered as a result of racketeering and extortion. Italian law
allows victims to become parties of interest in relevant criminal proceedings
with eventual compensation being made from a dedicated solidarity fund.4
The U.S. Racketeer Inﬂuenced and Corrupt Organizations (RICO) Act allows
victims to use civil actions to seek damages for harm suﬀered from racketeer-
ing and corrupt acts.5 Although the U.S. Foreign Corrupt Practices Act (FCPA)
does not provide for a private right of action, U.S. and foreign plaintiﬀs are
using the U.S. courts for private actions based on the same factual se ings as
those on which FCPA actions are or can be based.6 These examples are part
of the broader trend toward the recognition of the rights and needs of victims

1 In particular, in the wake of the terrorist a acks in New York in 2001, in Beslan (Russian Fed-
eration) and Madrid in 2004, and in London in 2005, assistance to victims of terrorism has be-
come a priority. See Council of Europe, h p://www.coe.int/t/dlapil/codexter/victims_en.asp
(accessed May 23, 2013).
2 Title II of the Antiterrorism and Eﬀective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (eﬀective Apr. 24, 1996), codiﬁed at 18 U.S.C. sec. 3663A.
3 Edna Erez & Julian Roberts, Victim Participation in the Criminal Justice System, in Victims of
Crime 277 (Robert C. Davis et al. eds., 3d ed., Sage 2007).
4 Legge 44 (Feb. 23, 1999); Gazze e Uﬃciale 51 (Mar. 3, 1999).
5 See Racketeer Inﬂuenced and Corrupt Organizations Act, 18 U.S.C. secs. 1961–1968 (1982 &
Supp. IV 1986); 18 U.S.C. sec. 1964(c) (“Any person injured in his business or property by rea-
son of a violation of section 1962 of this chapter may sue therefor in any appropriate United
States district court and shall recover threefold the damages he sustains and the cost of the
suit, including a reasonable a orney’s fee”).
6 Jason E. Prince, A Rose by Any Other Name? Foreign Corrupt Practices Act–Inspired Civil Actions,
The Advocate (Mar./Apr. 2009).
Private Civil Actions 439

of crime as reﬂected in the UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power.7
Each of these schemes is dependent on the initiation and outcome of crim-
inal proceedings. The beneﬁts and protections available to victims hinge on a
state’s success in detecting, investigating, and prosecuting corrupt activity. If
the state fails to act, or where prosecution fails, justice may not be obtained.

The Rise of Private Civil Actions against Corruption
Fortunately, securing justice for the victims of corruption need not begin and
end with the vigor of state authorities in ﬁghting corruption or the state’s suc-
cess or failure in prosecuting individual cases of corruption. Victims have an
alternative in which they become the moving parties, in which they become
the protagonists in the ﬁght against speciﬁc instances of corruption. They can
do this by undertaking private civil actions against corrupt persons. These
civil actions may be closely linked to relevant criminal proceedings, especially
with regard to certain procedural issues and the collection of evidence, but
they are independent of such criminal proceedings.
The objectives of civil actions are diﬀerent from those pursued in criminal
actions. The la er are aimed at retribution and deterrence. Plaintiﬀs in civil
actions are seeking to secure remedies that will relieve them or compensate
them for harm they have suﬀered as a result of corruption.
Transparency International’s 2013 Global Corruption Report: Education
highlights a number of advantages that civil actions may have in the ﬁght
against corruption.8 The ﬁrst and most obvious is that having a right to initi-
ate private civil actions against the corrupt makes each person and each legal
entity in a given jurisdiction a potential “prosecutor” in her or his own right.
This multiplies the points of detection and control of corruption, thus supple-
menting the scarce resources and reach of oﬃcial justice institutions. Legal
actions by individual victims, be they natural persons or legal entities, send
an important warning message to the corrupt and a message of hope and em-
powerment to the general public.
As a complement to the criminal justice system, private civil actions cre-
ate a more perilous playing ﬁeld for those who engage in corrupt practices.
The implication for legal reformers is that providing a clear legal framework
for private actions of large numbers of well-informed private individuals and
legal entities looking after their own interests presents tactical and strategic
advantages in the ﬁght against corruption.

7 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/
RES/40/34 (Nov. 29, 1985), available at h p://www.un.org/documents/ga/res/40/a40r034
.htm (accessed May 23, 2013).
8 Global Corruption Report: Education (Transparency International 2013).
440 The World Bank Legal Review

In addition, the remedies available in civil proceedings serve victims’ in-
terests be er than criminal proceedings might. Although a conviction may
provide a sense of vindication, unless the particular jurisdiction provides for
mandatory compensation for victims, a mere conviction leaves the victims’
situation largely unchanged.
It is an advantage when a private party may initiate a civil action even
when the state authorities decide not to press criminal charges. The ability of
private citizens and legal entities to decide independently whether to initiate
private actions limits the circumstances in which a jurisdiction’s executive and
justice institutions can politically aﬀord to remain inactive.
In jurisdictions where the burden of proof required to succeed in a civil
proceeding is lower than that required in a criminal proceeding, civil actions
may oﬀer a procedural advantage. Formulations of the standard of proof in
civil cases such as “a preponderance of the evidence,” “more likely than not,”
or a “reasonable possibility” are far less burdensome than standards such as
“beyond reasonable doubt,” which is common in criminal proceedings. But
this procedural advantage is not available in all legal systems. Under German
law, for example, a “beyond reasonable doubt” standard is applied in civil
and criminal proceedings.9
Other procedural advantages may be available in civil proceedings in
some jurisdictions. Certain jurisdictions’ procedural rules provide for a shift-
ing of the burden of proof to the defendant once the claimant has made a pri-
ma facie case. A wide range of remedies are normally available to civil claim-
ants, and these can be chosen to ﬁt the circumstances of particular claimants’
needs. Procedures may be available to allow the claimant to name defendants
in a particular suit who would be considered too remote from a criminal law
standpoint to be prosecuted.
Finally, although pe y corruption that plagues the poor is likely to be
considered too insigniﬁcant and too diﬀuse to be eﬀectively dealt with by
criminal prosecutors, the poor would still have access to civil actions to seek
redress. In this way, the civil action becomes an inclusive mechanism to real-
ize equality and fairness in society.
These advantages are so clear that one commentator called on the World
Bank and other donors to provide support directed at developing the condi-
tions for the pursuit of civil remedies against corrupt oﬃcials. That commen-
tator described such remedies as a powerful weapon against corruption and
pointed out that for businesses, the prospect of recovery of damages would
provide a strong incentive to pursue a civil action.10 The recent proliferation

9 Juliane Koko , The Burden of Proof in Comparative and Human Rights Law: Civil and Common
Law Approaches with Special Reference to the American and German Legal Systems 18 (Kluwer L.
Intl. 1998).
10 Bryane Michael, Suing against Corruption, in Policy Innovations (Carnegie Foundation Sept.
2007), available at h p://www.policyinnovations.org/ideas/innovations/data/000015/ (ac-
cessed May 23, 2013).
Private Civil Actions 441

of private legal actions by corporate victims of corruption seems to support
that assertion.
Other commentators are in agreement. The rise in the use of private legal
actions against corruption has been explained by what Simon Young refers
to as “the empowering eﬀect of suing, the political signiﬁcance of these
lawsuits.”11 Commenting on her native Nigeria, Abiola Makinwa stated that
“the civil law provides a window of opportunity. Creating an environment
where the private and public law present a coherent response to the oﬀend-
ers and to the transactions involved in the corruption exchange will push the
frontiers of the ﬁght against international corruption.”12

Expanding the Legal Basis for Private Legal Civil Actions
Although there is new interest in private civil actions against corruption,
the legal basis of such actions is well rooted in existing law. Most civil and
common law systems provide the basic legal framework for bringing such
actions. The starting point is the nearly universal feature in legal systems un-
der which everyone is responsible for harm caused by his or her intentional
acts. In civil code jurisdictions, the basic provisions of civil responsibility are
relevant. In common law jurisdictions, tort and equity principles can be in-
voked, and damages and other remedies can be crafted to ﬁt individual cases.
Jurisdictions apply these doctrinal frameworks and deal with remedies quite
diﬀerently, but the basis for initiating private actions is generally available for
actions seeking such remedies as restitution, compensation for damages, and
court-mandated remedial actions such as injunctions.
Mariani points out that under Italian, French, and German law, the basic
civil responsibility provisions of the civil code support such actions seeking
such remedies. The right to pursue such suits and seek damages or injunctive
or other kinds of relief is also well established.13
Political support has deepened and the legal framework for private civil
actions has been expanded by the adoption of two international conventions.
The ﬁrst is the 1999 Council of Europe Civil Law Convention on Corruption
(the Civil Law Convention).14 The report accompanying the Civil Law Con-
vention explains that when ﬁghting against corruption,
civil law is directly linked to criminal law and administrative law.
If an oﬀence such as corruption is prohibited under criminal law, a

11 Simon Young, Why Civil Actions against Corruption? 16(2) J. Fin. Crime 144–159 (2009).
12 Abiola O. Makinwa, Motivating Civil Remedies for International Corruption: Nigeria as an Illus-
trative Case Study 2(2) CALS Rev. Nigerian L. & Prac. 128 (2008).
13 Paola Mariani, How Damages Recovery Actions Can Improve the Fight against Corruption: The
Crisis of Criminal Law Policies and the Role of Private Enforcement in an Italian Case of Judicial
Corruption (Bocconi Legal Stud. Research Paper No. 2007241, Feb. 17, 2012).
14 Civil Law Convention on Corruption, ETS 174 (adopted Nov. 4, 1999), available at h p://
conventions.coe.int/Treaty/en/Treaties/Html/174.htm (accessed May 23, 2013).
442 The World Bank Legal Review

claim for damages can be made which is based on the commission
of the criminal act. Victims might ﬁnd it easier to safeguard their
interests under civil law than to use criminal law. Similarly, if an
administration does not exercise suﬃciently its supervisory respon-
sibilities, a claim for damages may be made.15
The Civil Law Convention was the ﬁrst a empt to deﬁne common in-
ternational rules in the ﬁeld of civil law and corruption. Article 1 of the Civil
Law Convention requires state parties to provide in their domestic law “for
eﬀective remedies for persons who have suﬀered damage as a result of acts of
corruption, to enable them to defend their rights and interests, including the
possibility of obtaining compensation for damage.”16
The Civil Law Convention provides for measures to be taken at national
levels, provisions promoting international cooperation, and, signiﬁcantly,
monitoring of implementation. The parties are obligated under the Civil Law
Convention to undertake to incorporate the convention’s principles and rules
into their domestic law, taking into account their own particular circumstances.
The Civil Law Convention covers a wide range of issues, including com-
pensation for damage, which may cover material damage, loss of proﬁts, and
nonpecuniary loss; liability (including state liability for acts of corruption
commi ed by public oﬃcials); contributory negligence (by the plaintiﬀ); re-
duction or disallowance of compensation, depending on the circumstances;
validity of contracts; protection of employees who report corruption; court
orders to preserve the assets necessary for the execution of the ﬁnal judgment
and the maintenance of the status quo pending resolution of the points at is-
sue; and international cooperation.
The core provisions of the Civil Law Convention are found in Articles 3
and 5.17 Article 3 deﬁnes the core obligation that the parties ensure that victims
of corruption have the right to initiate their own legal proceedings. Article 5
deﬁnes the right of victims to claim compensation. The actual language is as
follows:

15 Explanatory Report, Council of Europe Civil Law Convention on Corruption, para. I(a)(12),
available at h p://conventions.coe.int/Treaty/EN/Reports/Html/174.htm.
16 See supra note 14, at art. 1. As of May 20, 2013, the following states were signatories to the
convention: Albania, Andorra, Armenia,* Austria, Azerbaijan, Belarus, Belgium, Bosnia and
Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic,* Denmark,* Estonia, Finland,
France, Georgia,* Germany,* Greece, Hungary, Iceland,* Ireland,* Italy,* Latvia, Lithuania,
Luxembourg, Malta,* Moldova, Montenegro, Netherlands, Norway, Poland, Romania, Ser-
bia, Slovak Republic, Slovenia, Spain, Sweden, FYR Macedonia, Turkey, Ukraine, United
Kingdom* (*not ratiﬁed). Council of Europe members that had not signed or ratiﬁed the
convention include Liechtenstein, Monaco, Portugal, Russian Federation, San Marino, and
Swi erland. In addition to Belarus, non–Council of Europe member states Canada, the Holy
See, Japan, Mexico, and the United States participated in the elaboration of the convention
17 Supra note 13, at arts. 3 and 5.
Private Civil Actions 443

Article 3: Compensation for damage
Each Party shall provide in its internal law for persons who have
suﬀered damage as a result of corruption to have the right to initiate
an action in order to obtain full compensation for such damage.
Article 5: State responsibility
Each Party shall provide in its internal law for appropriate proce-
dures for persons who have suﬀered damage as a result of an act of
corruption by its public oﬃcials in the exercise of their functions to
claim for compensation from the State or, in the case of a non-state
Party, from that Party’s appropriate authorities.
Another important feature of the Civil Law Convention is that the par-
ties have deﬁned a mechanism for monitoring implementation of the conven-
tion. Under the Civil Law Convention, the European Union’s Group of States
against Corruption (GRECO) is charged with monitoring commitments en-
tered into under the Civil Law Convention by the state parties.18 Reviews of
implementation and related aspects of corruption in the contracting states are
undertaken periodically, and the results are made public.
The GRECO system is worth studying in some detail because it may pro-
vide a model of how to ensure monitoring and reporting on the implementa-
tion of other current or future international conventions or similar arrange-
ments dealing with the control of corruption. For instance, certain GRECO
reports highlight the lack of follow-up implementation by speciﬁc states,
whereas others provide speciﬁc information on modiﬁcations to the domestic
legal framework of others. At present, the Civil Law Convention is limited in
application to certain European countries, but it serves as a clear and inspira-
tional example of how far states can go to promote and facilitate civil actions
as a tool to ﬁght corruption.
The second and more signiﬁcant convention that provides for private
civil actions against corruption is the UN Convention Against Corruption
(UNCAC), to which over 165 states are party.19 UNCAC is the most compre-
hensive international convention on corruption and covers a wide range of
ma ers. Using language that closely tracks the Civil Law Convention, UN-
CAC requires that state parties ensure that measures are taken to facilitate
private civil actions. The actual language is as follows:
Article 35: Compensation for damage
Each State Party shall take such measures as may be necessary, in
accordance with principles of its domestic law, to ensure that enti-
ties or persons who have suﬀered damage as a result of an act of

18 GRECO Statute, Annexed to Council of Europe Commi ee of Ministers, Resolution (99)5
Establishing the Group of States against Corruption (GRECO, adopted May 1, 1999).
19 United Nations Convention Against Corruption, GA Res. 58/4 (adopted Oct. 31, 2003), avail-
able at h p://www.unodc.org/unodc/en/treaties/CAC/index.html.
444 The World Bank Legal Review

corruption have the right to initiate legal proceedings against those
responsible for that damage in order to obtain compensation.20
The travaux préparatoires that accompanied UNCAC included two inter-
pretative notes relevant to Article 35. The notes explain:
(a) The expression “entities or persons” is deemed to include
States as well as legal and natural persons;
(b) This article is intended to establish the principle that States
parties should ensure that they have mechanisms permi ing per-
sons or entities suﬀering damage to initiate legal proceedings, in
appropriate circumstances, against those who commit acts of cor-
ruption (for example, where the acts have a legitimate relationship
to the State party where the proceedings are to be brought). While
article 35 does not restrict the right of each State party to determine
the circumstances under which it will make its courts available in
such cases, it is also not intended to require or endorse the particular
choice made by a State party in doing so.21
These notes highlight the relative complexity of implementing the basic
Article 35 obligation. Note b refers to the establishment of the principle that
state parties should ensure that they have mechanisms permi ing persons or
entities suﬀering damage to initiate legal proceedings, in appropriate circum-
stances, against those who commit acts of corruption. The clear message is
that each state party must determine for itself the detailed manner and the
detailed legal framework in which it will give substance to this principle in
domestic law.
The degree of complexity and the variety of approaches available in im-
plementing the right to private civil action principle in given jurisdictions can
be appreciated by comparing the issues involved in this area in diﬀerent ju-
risdictions. Olaf Meyer collected a rich set of national commentaries in this
regard, which includes jurisdictions as diﬀerent from one another as Bulgaria
and Nigeria.22 In Key Issues of Civil Law in Corruption Cases in Bulgaria, Chris-
tian Takoﬀ writes:
The criminal circumstance of “bribery” cannot be proved in civil law
proceedings; they have to be suspended until the criminal law court
has rendered its decision. The law does not provide for presump-
tions helping to prove corruption. It is only the giving and obtaining
of the bribe that is proven in criminal law courts.23

20 Note the distinction between art. 35, which discusses civil actions by entities or natural per-
sons, and art. 53(a), which provides that states can initiate civil actions in connection with
asset-recovery proceedings.
21 United Nations Oﬃce on Drugs and Crime, Travaux Préparatoires, art. 35, available at h p://
www.unodc.org/unodc/en/treaties/CAC/travaux-preparatoires.html (accessed May 23, 2013).
22 Olaf Meyer ed., The Civil Law Consequences of Corruption (Nomos 2009).
23 Id., at 200.
Private Civil Actions 445

The removal of bribery from the list of possible corrupt behavior that can
be proved in a civil proceeding will aﬀect the way in which the EU Conven-
tion or Article 35 of UNCAC can be implemented in Bulgaria. Corrections of
this problem need to be dealt with through careful reﬁnement of both criminal
and civil law. Dalton’s examination of the diﬃculties in dealing with cultural
heterogeneity in making distinctions between bribery and legitimate gift giv-
ing hint at the complexities of adjusting national legal systems to the expecta-
tions reﬂected in these international instruments.24

Conceptual Framework for Implementation of UNCAC Article 35
and the Civil Law Convention
Given the relatively new interest in private civil actions and the critical im-
portance of the main, criminal, aspects of UNCAC, it is not surprising that
implementation of UNCAC Article 35 has not been assigned a higher priority
by the state parties in their review and follow-up framework. This does not
mean, however, that the basic obligation in Article 35 is any less binding than
the convention’s other obligations.
The realization of the potential that the civil actions envisioned in Article 35
have in the ba le against corruption may require additional work at the re-
gional level aimed at developing the details of reform and building under-
standing of how to use this new area of law in practice.
One way to organize such an initiative would be for state parties to develop
civil action–focused regional conventions. Negotiation of such conventions
would provide the needed a ention to the detailed changes that Article 35 re-
forms require, and would provide an opportunity for the involvement of the
public at large and the building of a coalition of nonstate actors with an inter-
est in the outcome. Such a coalition could include legal professionals, busi-
ness leaders, civil society, academics, the media, and members of the pub-
lic, including the poor. Ideally, each such regional convention would reﬂect
the core purpose by formulating something akin to “The (Region) Conven-
tion on the Establishment of Arrangements Favoring Private Civil Actions
against Corruption.” In the greater European area, where a detailed regional
convention already exists, state party interaction in the regional convention’s
review mechanism would be strengthened by building the kind of formalized
coalition of nonstate actors and the direct involvement of that coalition in the
review process.
The idea of using regional conventions as a tool to strengthen implemen-
tation of a global norm has been applied in the human rights arena, where the
Universal Declaration of Human Rights was implemented by various regions
in the form of similar and improved instruments: the African (Banjul) Charter

24 Marie M. Dalton, Eﬃciency v. Morality: The Codiﬁcation of Cultural Norms in the Foreign Corrupt
Practices Act, 2 N.Y.U. J.L. & Bus. 583–689 (2006).
446 The World Bank Legal Review

on Human and Peoples’ Rights,25 the American Convention on Human
Rights,26 and the European Convention on Human Rights,27 with subsequent
revisions in the form of protocols.
Strengthening of regional mechanisms, their a endant processes, and the
successful implementation of the reforms that they engender can add value
in the ﬁght against corruption by strengthening the remedial/recovery pur-
poses of UNCAC, enhancing the empowerment of victims of corruption by
engendering social transformation around real cases on which media and civil
society can focus.

Strengthening the Remedial and Recovery Purposes of UNCAC
All civil actions, by their nature, are driven by litigants’ hope to secure a right,
to recover property, to avoid or minimize ongoing or imminent harm, or to
recover full or partial loss occasioned by the actions or inactions of public or
private parties. Private civil actions against the corrupt are no diﬀerent in this
respect. They have the same remedial and recovery purposes as other kinds
of civil actions.
Extending this observation to the area under discussion, each civil action
against corruption in a jurisdiction covered by UNCAC or the Civil Law Con-
vention can be viewed as supporting the remedial and recovery purposes of
those conventions. The challenge is to ensure that such actions can be main-
tained in the courts of the state parties. In many jurisdictions, this will require
some legal reform and accommodation.
Given the low priority that implementation of Article 35 has been as-
signed under the UNCAC review process, a parallel initiative that concen-
trates solely on Article 35 implementation could hasten the reforms that state
parties need to accomplish in this area. If state parties were to follow the sug-
gestion in this chapter that they enter into negotiation of regional conventions
that concentrate solely on civil actions against corruption, the regional nego-
tiation processes would provide “faction-forcing events” that bring into focus
the details of needed reforms. The Civil Law Convention would provide an
excellent starting point for such negotiations because it identiﬁes many of the
details that national reforms need to take into account to make civil actions
against corruption an eﬀective tool. Involvement of top academic, business,
civil society, and legal personalities in the drafting process would provide
each country involved with a base of expertise that could be drawn upon for
required follow-up.

25 OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (adopted June 27, 1981, entered into
force Oct. 21, 1986).
26 OAS Treaty Series No. 36; 1144 U.N.T.S. 123; 9 ILM 99 (1969).
27 Council of Europe, European Convention for the Protection of Human Rights and Funda-
mental Freedoms, as amended by Protocols No. 11 and 14 (Nov. 4, 1950), ETS 5.
Private Civil Actions 447

Reform for Empowerment
The process described above would provide the impetus for the follow-up
work at the national level required to ensure that civil actions against corrup-
tion become well supported under the law and well-known in society as a
whole. Empowerment of the victims of corruption would come in a variety of
forms, as illustrated in the following hypothetical scenarios:
• Private sector businesses and private entrepreneurs would be able to
use civil actions to claim compensation for losses suﬀered as a result of
corruption such as bribery in connection with the award of publicly pro-
cured contracts, or possibly to have such contracts annulled, whether or
not criminal charges in connection with the same acts of corruption have
been ﬁled.
• Adjacent landowners would be able to seek court orders to halt works
for which building permits have been corruptly procured or where the
authorities turn a blind eye to construction without such permits in return
for an illegal payment or gratuity.
• Parents whose children have been denied school admission for lack of
a private payment to a school oﬃcial could seek court orders to compel
admission.
• The very poor and helpless, who suﬀer disproportionally from the eﬀects
of corruption, would now have a means of seeking redress. Mothers who
walk many kilometers to seek care for a child at a public hospital and are
forced to pay medical staﬀ as a condition of treatment could ﬁle suits to
recover those illicit charges or for the damages suﬀered as a result of being
denied admission.
• Small vendors prevented from operating in certain areas by police in the
pay of more established shop owners would be able to seek compensation
for being denied the opportunity to compete or to compel the police to
desist with their evictions.
• Civil society organizations such as legal aid societies and anticorruption
groups could direct their eﬀorts nationally by supporting litigation
eﬀorts in the form of training and capacity building, funding direct
actions, providing assistance to litigants, or ﬁling amicus curae briefs in
courts.

Although success in such actions would certainly be important, the sense
of empowerment would be experienced to some degree just by bringing such
cases to the courts and bearing public witness in the presence of the defen-
dants they plan to prove corrupt. It would also be empowering for observers
of such processes to see ordinary people taking a public stand and seeking
justice.
The vision of such an awakened and empowered populace is not likely to
become a reality unless some of the barriers to success in civil actions against
448 The World Bank Legal Review

corruption are addressed. These include the cost of civil litigation, jurisdiction
over small-value claims, gathering of evidence, proof of the corrupt act, the
possibility of retribution against the claimant, acts of the claimant that may
have contributed to the corrupt acts complained of, and the measure of dam-
ages or design of eﬀective remedial measures. Each country will diﬀer in its
approaches, and the obstacles and challenges to access to justice will need to
be crafted based on the realities on the ground.
The beginning point for dealing with such issues could be the negotia-
tion of the regional conventions. Creative provisions that ﬁt a region could
be crafted for all such issues that will inform the domestic reforms and the
practice that grows up in this area. The conventions could include provisions
that require or encourage the establishment of domestic provisions needed
for the authorization of class action procedures for multiple claimants relating
to the corrupt behavior. They could also provide guidance on protection for
claimants, speedy procedures to prevent the occurrence of irreparable harm,
and the exclusion of contributory causation for payments extorted or paid by
a claimant under duress, such as under threat of denial of a public service.
In regions with high percentages of poor people in their populations or
where gender equality is an issue, other provisions might be considered for
inclusion in the regional conventions. These include the establishment of a
duty by the signatories to minimize the cost of litigation such as through the
establishment of reduced ﬁling fees for the poor, especially for small ma ers,
and the duty of states to establish and maintain dedicated courts in locations
to which poorer litigants have access, including the establishment of mobile
courts with simpliﬁed procedures, including enforcement procedures, for
small-value ma ers. The inclusion of a requirement that signatory states en-
sure the availability of legal aid for the poor would send a strong message on
access to justice and provide an enabling environment for the poor that would
have implications beyond the area of corruption. Provisions requiring that sig-
natory states allow litigants, especially poor litigants, to use local languages
and a requirement that signatory states speciﬁcally provide for standing to
sue for women and public interest groups would further inform and inﬂuence
the national implementation processes that would follow.
Involvement of women and representatives from poor and rural commu-
nities and the NGOs that work in these communities in the preparation of
the regional conventions would help the framers develop pro gender and pro
poor features in the ﬁnal texts. This process alone would be an empowering
experience.

Civil Actions as a Source of Social Transformation
Irrespective of their outcomes, civil actions against corruption have the poten-
tial to serve as powerful motivators for social change. Like a mass protest, a
graphic scene of ordinary people lined up to ﬁle their writ in the courthouse,
all seeking to recover the years of systemic bribes they have had to pay daily
in exchange for basic public services, would grip the imagination of the world
Private Civil Actions 449

and generate strong political and moral pressure on those in power to trans-
form their societies. It is the side eﬀects of these suits that ma er. They can
bring international media a ention to a particular case that highlights an in-
justice. They can galvanize civil society to focus on a common cause. They can
generate local debate and demands for action.
In other words, civil actions can have a strong symbolic signiﬁcance. They
can represent a public frustrated with the political process rising up to chal-
lenge the status quo, not by anarchy or disorder, but by using law and the
courts. They can aﬃrm the value of and strengthen the rule of law and shame
those in power.
An instructive example of the symbolic signiﬁcance that actions of this kind
can have is the ongoing French Biens Mal Acquis cases involving the alleged
corruption-linked assets of the ruling families of several African nations.28
These cases were initiated not by French authorities but by the persistent ef-
forts of African citizens working together with public interest groups, includ-
ing Transparency International (TI) France and Sherpa.29 When the French
prosecutors refused to act in 2008, TI France and a citizen from Gabon obtained
standing to ﬁle a civil party petition to trigger a judicial process, potentially
leading to criminal proceedings. Their complaint was ultimately found to be
admissible by the Cour de Cassation, noting that the alleged oﬀense of money
laundering in France of assets obtained through corrupt practices would be
of such a nature as to cause a direct and personal loss to TI France, given the
speciﬁc nature of its mission.30 This decision led to the search of mansions;
the seizing of assets, including several luxury cars; and the issuing of an in-
ternational arrest warrant for Teodoro Nguema Obiang, the son of the presi-
dent of Equatorial Guinea, in 2012. Although the proceedings are pending,
the symbolic signiﬁcance of this action is great because it shows how the civil
process in France was used by ordinary individuals and NGOs to generate
international a ention and concern regarding allegations of kleptocracy.31 It
also distressed African leaders enough that they protested diplomatically and
brought a case against France in the International Court of Justice.32
A major consideration in such litigation is that although the actual liti-
gants were not poor citizens of the countries from which assets had been

28 See chronology in Sherpa, “Biens Mal Acquis” Case: Teodorin Obiang Refuses to Appear before
Judicial Authorities 3 (press statement, July 13, 2012).
29 Gregory Ngbwa Mintsa of Gabon was awarded a Transparency International Integrity
Award in 2010 for helping to bring the case against the ﬁve African presidents. See Trans-
parency International website, h p://www.transparency.org/getinvolved/awardwinner
/gregory_ngbwa_mintsa.
30 Decision of the Cour de Cassation, Criminal Chamber (Nov. 9, 2010).
31 For reports in international media, see Angelique Chrisaﬁs, France Has Finally Got Tough on
Corruption by Seizing a Dictator’s Paris Mansion, The Guardian (Aug. 6, 2012); Lisa Bryant,
Equatorial Guinea in Spotlight with Controversial UNESCO Award, Voice of America (July 16,
2012).
32 See Equatorial Guinea Takes France to ICJ over Obiang Corruption Raids, RFI (Sept. 28, 2012).
450 The World Bank Legal Review

stolen, the litigants represented the poor of those countries. The successes of
such litigation can be considered as part of the campaign to bring Article 35 to
the national level. The victories that such cases represent can be communicated
to all citizens of the countries involved, along with the message that their rep-
resentatives are preparing the ground for all citizens to be able to pursue the
corrupt at every level. This is a powerful and transforming message.
Providing individuals the opportunity to pursue the corrupt is in line
with the access to justice concepts outlined by the UN special rapporteur on
extreme poverty and human rights, Magdalena Sepulveda Carmona, who ex-
plained the concept of access to justice as it applies to the judicial protection
for economic, social, and cultural (ESC) rights. In the event of a violation of
an ESC right,
each individual has a right to access justice without discrimination
of any kind and a right to due process, understood as the right to be
treated fairly, eﬃciently and eﬀectively throughout the justice chain.
States have assumed obligations in this regard, by commi ing to re-
spect, protect and fulﬁl [these] rights.33
Underpinning this right to access to justice is the principle of equality and
nondiscrimination.34 In addition, a number of ancillary rights come into play
under access to justice, such as the right to due process, the right to equality
before the courts and tribunals, the right to a fair trial, the right to legal as-
sistance, and the right to equality and equal protection of the law. More im-
portant, there is a speciﬁc right to an eﬀective remedy that is “a key element
of human rights protection and serves as a procedural means to ensure that
individuals can enforce their rights and obtain redress.”35
The special rapporteur states that justiciability for ESC rights “entails
more than improving access to judicial and adjudicatory mechanisms. It also
implies that remedies must be eﬀective, and legal and judicial outcomes must
be just and equitable.”36 Depending on the nature of the violation in question,
the right to an eﬀective remedy may include reparation, restitution, compen-
sation, rehabilitation, satisfaction, and guarantees of nonrepetition.

33 Magdalena Sepulveda Carmona, Report of the Special Rapporteur on Extreme Poverty and Hu-
man Rights (2012), 27: The right to an eﬀective remedy (e.g., Universal Declaration of Human
Rights, art. 8; International Covenant on Civil and Political Rights, art. 2.3; Convention on
the Elimination of All Forms of Racial Discrimination, art. 6; Convention against Torture,
arts. 13 and 14); the right to equality before the courts and tribunals (e.g., International Cov-
enant on Civil and Political Rights, art. 14.1); the right to a fair trial (e.g., Universal Declara-
tion of Human Rights, art. 10; International Covenant on Civil and Political Rights, arts.
14 and 15); the right to legal assistance (e.g., Universal Declaration of Human Rights, art.
11.1; International Covenant on Civil and Political Rights, art. 14.3(b)–(d)); and the right to
equality and equal protection of the law (e.g., Universal Declaration of Human Rights, art. 7;
International Covenant on Civil and Political Rights, art. 26).
34 See Carmona, id., at 5.
35 Id., at 4.
36 Id.
Private Civil Actions 451

A similar line of reasoning could be applied to the rights under both
UNCAC and the Civil Law Convention. Speciﬁcally, the need to ensure access
to justice for corruption cases is relevant for a number of reasons:
• First, given the serious nature of the damage suﬀered, prospective claim-
ants will most likely be persons living in poverty (or in danger of falling
into poverty) who have a higher propensity to come into contact with the
justice system generally, and so positive beneﬁts reaped in one area can
act as preventative measures or deterrents for other areas of the law, such
as criminal law.
• Second, development of jurisprudence on social and economic rights can
contribute to overcoming deprivation and thus to poverty reduction.
• Third, fair and eﬀective justice systems prevent violent behavior and
unfair se lements and reduce violence and conﬂict within communities.
• Fourth, the inability to pursue justice remedies through existing systems
increases vulnerability to poverty and perpetuates violations of rights.37
Thus, applying the right to access to justice to corruption cases ensures
that a prospective claimant has the economic, social, and legal means to en-
force his or her right and to obtain a satisfactory remedy under law.

Conclusion
Despite the increasing will of governments to tackle corruption through the
criminal justice system, the will to be free from corruption must come from
the people. As illustrated by the Biens Mal Acquis cases, private citizens need
the support of civil society, the a ention of the media, and the eﬀorts of public
interest lawyers. But it will be the people themselves, acting within their own
cultures and traditions, who will set the course of fundamental shifts in soci-
etal values and practices.
The next stage in the ﬁght against corruption can be bo om up and can
use the civil action as an instrument for development. In accordance with in-
ternational and regional conventions, governments should seek to promote
and empower citizens with this new opportunity for action. Civil actions can
provide public fora for the many ba les that it will take for an empowered
populace to challenge and overcome the status quo and to show that the peo-
ple themselves can win the war on corruption. Civil actions serve to promote
be er governance and accountability in government. They also have the po-
tential to change a itudes and values, and there lies the importance of this
powerful new weapon in the ﬁght against corruption.

37 Id., at 3–4.
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Fostering Opportunity through
Development Finance in Africa
Legal Perspectives from
the African Development Bank

KALIDOU GADIO

The African Development Bank (AfDB), the premier development ﬁnance in-
stitution in Africa, possesses an international character and a neutrality from
the politics of its member countries, both of which are derived from the pro-
hibition of political activity enshrined in Article 38 of its constitutive agree-
ment.1 Established in 1964, the AfDB has 53 regional and 24 nonregional mem-
ber countries.2 The AfDB has oﬃces in 34 countries across the continent that
work together to achieve the bank’s mission.3 Structurally, the AfDB belongs
to a family of three separate legal entities: the AfDB, the African Development
Fund (AfDF), and the Nigeria Trust Fund (NTF).4 This chapter focuses on Ar-
ticle 38 of the AfDB Agreement; Article 38 principles are replicated in Article
21 of the AfDF Agreement and implied in Article 4.1 of the NTF Agreement.

The author would like to thank Rowland A a-Kesson, Legal Consultant of the AfDB, for his
in-depth research assistance, analytical legal assessment, and overall assiduous contribu-
tions to this chapter. The author is also grateful to Yvonne Fiadjoe, Senior Legal Counsel and
Assistant to the General Counsel at the AfDB, and Godfred Penn, Lead Counsel and Adviser
to the General Counsel, AfDB, for their comments and analytical review of the chapter.
1 See AfDB, Agreement Establishing the African Development Bank (2011), available at h p://
www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Legal-Documents/Agreement%20Estab
lishing%20the%20ADB%20ﬁnal%202011.pdf (accessed Apr. 21, 2013).
2 The 24 nonregional member countries are Argentina, Australia, Belgium, Brazil, Canada,
China, Denmark, Finland, France, Germany, India, Italy, Japan, Korea, Kuwait, the Nether-
lands, Norway, Portugal, Saudi Arabia, Spain, Sweden, Swi erland, the United Kingdom,
and the United States of America. See h p://www.afdb.org/en/about-us/ (accessed June 7,
2013). Turkey is just completing the formal process of becoming a nonregional member.
3 These include 29 ﬁeld oﬃces, 2 regional resource centers (in Nairobi and Pretoria), 3 custom-
ized oﬃces (in Guinea Bissau, São Tomé and Príncipe, and Mauritius), and 1 external repre-
sentation oﬃce (in Japan). The opening of the two pilot regional resource centers in January
2012 consolidated regional capacity, enabling more rapid support to clients and ﬁeld oﬃces
through increased technical and specialist skills and facilitating improved dialogue with
regional economic communities. For fragile states, the AfDB expanded its presence by open-
ing a ﬁfth oﬃce in South Sudan in 2012, in addition to oﬃces opened in Liberia, Burundi, the
Central African Republic, and Togo in 2011.
4 Some oﬃcial communications of the AfDB bundle the three together with the insignia “AfDB
group” or “the African Development Bank Group” or “the Bank Group.” See, for example, Af-
rican Development Bank Group, At the Center of Africa’s Transformation Strategy for 2013–2022
(AfDB 2013), available at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Policy
-Documents/AfDB%20Strategy%20for%202013%E2%80%932022%20-%20At%20the%20

453
454 The World Bank Legal Review

In the foreword to the Ten Year Strategy (TYS) of the AfDB group, the
AfDB group’s president, Dr. Donald Kaberuka, points out that Africa is the
world’s second-fastest-growing continent and that “growth must bring jobs
and opportunities for all.”5 This chapter addresses the legal implications en-
gendered by the AfDB’s ever-increasing role in Africa’s development.
This chapter is organized into several sections. It begins with a discussion
of how the AfDB group seeks to foster opportunities through the TYS. The
central focus of this section is the progressive thrust of the TYS and its impli-
cations in the context of Article 38. The chapter then presents a legal analysis
that makes a case for a purposive interpretation of Article 38, which allows for
“a constructive and creative stretching” of Article 38 without “breaking” it.6
The next section examines some recent public sector operations of the AfDB
group in the context of postconﬂict recovery and reconstruction interventions,
and the special case of premembership interventions in the Republic of South
Sudan, to assess how the AfDB group has utilized a presidential directive, best
practices, and cooperation with others to foster opportunities.

The AfDB’s Ten Year Strategy
The AfDB group charted a vision for the African continent and a path for the
AfDB in the 2007 report Investing in Africa’s Future: The African Development
Bank in the 21st Century.7 This report inspired the work of the AfDB group’s

Center%20of%20Africa%E2%80%99s%20Transformation.pdf (accessed June 3, 2013). The
term “AfDB” is used in this chapter in reference to only the AfDB, and the term “AfDB group”
is used in reference to the three entities. The use of those expressions is strictly communica-
tion shorthand. As a ma er of international treaty law, the constitutive instruments of these
entities do not create them as a group. The AfDF is an international ﬁnancial institution that
was “formed as a partnership” between the Bank and mainly non-African donor countries.
The purpose of the Fund is to “assist the Bank in making an increasingly eﬀective contribu-
tion to the economic and social development of the Bank’s members and to the promotion of
co-operation (including regional and sub-regional co-operation) and increased international
trade, particularly among such members.” The NTF, a Special Fund of the bank, provides re-
sources to the low-income regional member countries of the bank. It was established in 1976
with resources provided by the Government of the Federal Republic of Nigeria. The NTF
seeks, among other things, to enable Nigeria to make an increasingly eﬀective contribution
to the economic development and social progress of Africa.
5 See id., at iii. This TYS replaces the Medium-Term Strategy (MTS) of the bank, which was in
eﬀect from 2008 to 2012.
6 See Hassane Cissé, Should the Political Prohibition in Charters of International Financial Institu-
tions Be Revisited? The Case of the World Bank in The World Bank Legal Review, vol. 3, 92 (Hassane
Cissé, Daniel Bradlow, & Benedict Kingsbury eds., World Bank 2012), borrowing a term
coined by World Bank Vice President of Operations Policy and Country Services, Joachim
von Amsberg.
7 AfDB, Report of the High Level Panel: Investing in Africa’s Future: The ADB in the 21st Century
(AfDB 2007), available at http://www.afdb.org/fileadmin/uploads/afdb/Documents
Publications/27842402-EN-HLP-REPORT-INVESTING-IN-AFRICAS-FUTURE.PDF (ac-
cessed Apr. 23, 2013).
Fostering Opportunity through 455
Development Finance in Africa

Medium-Term Strategy from 2008 to 2012.8 The new bank strategy, the TYS
covers the years 2013‒2022.
Investing in Africa’s Future states:
Africa is on the move. Policy changes and improved governance and
management have led to the highest rates of sustained growth since
the days of independence. The proportion of the population in ex-
treme poverty is no longer increasing; democratic change is becom-
ing the norm; African-led eﬀorts have reduced conﬂict. The global
context is also favorable, with the large emerging economies creat-
ing new opportunities for Africa. More African countries are credit-
worthy, and investment has increased.9
This statement sums up Africa’s development drive in the 21st century;
the TYS is designed to reposition the AfDB group “at the Center of Africa’s
Transformation” and to improve the quality of Africa’s growth.10 Of particular
interest is how the AfDB group will use the TYS to support Africa’s transfor-
mation into a continent that is more prosperous, with markedly lower poverty
levels and a more equitable distribution of economic and social opportunities,
including jobs and income, than the Africa of the 20th century.
Two broad objectives are intended to support this transformation: “inclu-
sive growth” in terms of age, gender, and geography; and “gradual transi-
tion to green growth” by building resilience and managing natural resources
and sustainable infrastructure. The TYS highlights three areas for special em-
phasis: utilizing a “continuum” and regional approach in fragile states; sup-
porting value chains in agriculture and food security; and ensuring gender-
focused economic empowerment and legal and property rights. These three
areas are the basis for ﬁve operational priorities: infrastructure development,
regional integration, private sector development, governance and account-
ability, and skills and technology.
The TYS reﬂects the general views of all stakeholders of the AfDB. It is
based on broad-based consultations with all stakeholders, including the gov-
ernors.11 A plethora of issue papers on diﬀerent aspects of the TYS were gen-
erated. For example, an issue paper on green growth highlighted a holistic
approach to the persistent problems of poverty, social inequality, pollution, en-
vironmental degradation, and climate change on the continent.12 Considering

8 See AfDB, African Development Bank Group Medium-Term Strategy (MTS) 2008–2012 of the Bank
Group (2008), available at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Policy
-Documents/MTS%20anglais.pdf (accessed June 3, 2013).
9 See AfDB, supra note 7, at 1.
10 See AfDB, supra note 4, at 1.
11 See AfDB, Governors’ Dialogue Long Term Strategy 2022 Issue Paper (May 31, 2012), available at
h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Policy-Documents/LTS%20Issues
%20Paper%20for%20Governors%20Dialogue.pdf (accessed Apr. 23, 2013).
12 See AfDB, Brieﬁng Notes for AfDB’s Long Term Strategy; Brieﬁng Note 8: Green Growth: Per-
spectives for Africa and the AfDB in the 21st Century (Mar. 7, 2012), available at h p://www
456 The World Bank Legal Review

the extensive consultations that went into the TYS, one can assume that the
TYS has the support of AfDB member countries, and this support may be
suﬃcient to refute contrary views such as those held by Jessica Einhorn and
Heather Marque e.13

A Purposive Interpretation of Article 38
As an international development and ﬁnancial institution, the AfDB has
thrived on results-oriented operations informed by its legal normative order.
Article 38 explicitly prohibits political considerations in the AfDB’s decision-
making process. Li le has been wri en about Article 38,14 as compared to
similar provisions in the constitutive agreements of other multilateral devel-
opment banks (MDBs). On the interpretation of similar political prohibition
clauses in the charters of other MDBs, scholars are divided15 along the lines of

.afdb.org/ﬁleadmin/uploads/afdb/Documents/Policy-Documents/FINAL%20Brieﬁng%20
Note%208%20Green%20Growth%20452012.pdf (accessed Apr. 21, 2013).
13 See Jessica Einhorn, The World Bank’s Mission Creep, 80(5) For. Aﬀairs 22 (Sep. 2001), and
Heather Marque e, The Creeping Politicisation of the World: The Case of Corruption, 52(3) Pol.
Stud. 413 (Oct. 2004).
14 What is wri en often describes in general terms Africa’s development experiences and the
related policy lessons considered by the bank. See, for example, Omar Kabbaj, The Challenge
of African Development (Oxford U. Press 2003), where the former president of the AfDB group
comprehensively describes a number of Africa’s key development issues, such as rural trans-
formation, role of the private sector, good governance, regional integration, debt and debt
reduction, and the challenge of globalization. See also Kwame Donkoh Fordwor, The African
Development Bank: Problems of International Cooperation xiv (Pergamon 1981), where another
former president of the AfDB argues for a balance between politics and diplomacy and the
requirements of technical and technocratic management. See, further, Karen A. Mingst, Poli-
tics and the African Development Bank (U. Press of Ky. 1990), for a comprehensive discussion of
how politics characterized the formative stages of the AfDB. Similarly, see E. Philip English
& Harris M. Mule, Multilateral Development Banks, vol. 1, The African Development Bank (Lynne
Rienner 1996). Others have discussed Article 38 by subsuming it under the political prohibi-
tion clauses of MDBs generally. See John W. Head, For Richer or for Poorer: Assessing the Criti-
cisms Directed at the Multilateral Development Banks, 52 U. Kan. L. Rev. 248 (2003–2004), where
the author, in providing a general survey and assessment of the criticisms leveled against
MDBs, reasons that despite their diversity, MDBs share the same fundamental precepts and
structures and all the MDBs have economic development as their motivating aim. See also
Daniel D. Bradlow, Should the International Financial Institutions Play a Role in the Implementa-
tion and Enforcement of International Humanitarian Law?, 50 U. Kan. L. Rev. 702 (May 2002),
where the author argues that the African, Asian, and inter-American development banks all
have mandates similar to those of the IBRD and that their articles of agreement contain politi-
cal prohibition clauses almost identical to the IBRD’s and the IDA’s political prohibitions.
15 For example, see Cissé, supra note 6, at 81–83, where he discusses two schools of thought
critiquing the political prohibition clause of the World Bank. One school describes the World
Bank’s interventions as creeping politicization by virtue of the expansion of its mandate.
The other school articulates that the World Bank invokes its political prohibition clause as a
constraint.
Fostering Opportunity through 457
Development Finance in Africa

the so-called mission creep, or creeping politicization,16 and a narrow econom-
ic focus.17 Of the two views, the former has been faulted as unpersuasive.18
In eﬀect, there is no consensus among scholars on this issue. Herbert V.
Morais notes that, although a formal amendment of MDBs’ legal mandates and
internal governance structures is desirable to respond to the changing world,
the MDBs’ adoption of innovative policies and operational strategies in re-
sponse to new crises and major developments in international law does not
mean that they have acted outside their legal mandate in spite of their omis-
sion to formally amend their respective charters.19 The suggestion that MDBs
amend their charters is overruled by Robert Hocke , who prefers a simple shift
of focal point of the MDBs, or “a gestalt switch.”20 Even those who question the
incidence of the so-called mission creep admit that there are some useful les-
sons in it.21 Hassane Cissé revisits the relevance of political prohibition clauses

16 See Einhorn, supra note 13; the author, a former managing director of the World Bank, argues
that the World Bank has added new tasks to its mandate. She calls for a redeﬁnition of this
unwieldy mission of the World Bank by suggesting, among other things, that the World
Bank should raise the proﬁle of core competencies through its economic lens and narrow its
focus. See also Marque e, supra note 13, arguing that there is an increasing politicization of
the World Bank through its work on corruption.
17 See Daniel D. Bradlow & C. Grossman, Limited Mandates and Intertwined Problems: A New Chal-
lenge for the World Bank and the IMF, 17 Hum. Rights Q. 439 (1995), where the authors urge MDBs
and other international ﬁnancial institutions to reinterpret their charters to clarify what issues
are considered “domestic” political issues, and therefore outside the scope of their mandate.
18 See Head, supra note 14, at 269, 288, 297.
19 See Herbert V. Morais, Testing the Frontiers of Their Mandates: The Experience of the Multilateral
Development Banks, 98 Am. Socy. Intl. L. Proc. 64 (Apr. 2004), where the author writes that
“although the MDBs have not formally amended their charters to redeﬁne their legal man-
dates, a number of new crises and major developments in international law have propelled
them to initiate innovative new policies and operational strategies and to devise new instru-
ments to assist developing and transition countries.”
20 Robert Hocke , From “Mission-Creep” to Gestalt-Switch: Justice, Finance, the IFIs and the Intended
Beneﬁciaries of Globalization, 98 Am. Socy. Intl. L. Proc. 70 (Apr. 2004), where the writer states:
I would like to suggest ways the IFIs in particular, but also globalization as a whole,
might be brought to be the blessings they were meant to be, means by which their prom-
ises might be redeemed. These means will not require changes in the fundamental struc-
ture of the IFIs or other institutions. Nor will they require radical amendment of their
mandates—their “missions.” Rather, a simple shift of focal point, a gestalt switch so to
speak, from one to another of the objects that jointly constitute traditional IFI concerns
will do the trick. Like the well-known image of the duck that can be viewed as a rabbit (or
is it the rabbit that can be viewed as a duck?) the IFIs and their missions as already con-
stituted can be viewed in a way that be er suggests programs and policies that will make
friends of all people of goodwill, and that will nourish and sustain such friendships.
21 For example, even after criticizing mission creep as unpersuasive in most respects, Head ob-
serves that there are some elements of mission creep that make sense and ought to be taken
seriously. See Head, supra note 14, at 288. Similarly, Morais, supra note 19, at 68, writes,
One example of the fusion (confusion?) of agendas is the current implementation of the
Millennium Development Goals promoted by the United Nations, which in themselves
are laudable and need to be urgently addressed. Yet it is not clear that the World Bank
and the regional MDBs share a responsibility to implement all these goals. Failure to
be discerning in taking on new goals imposed from the outside could result in policy
proliferation or “mission creep.”
458 The World Bank Legal Review

to modern times.22 The general thinking seems to be that MDBs should main-
tain their traditional character of being nonpolitical. The preferred approach is
a purposive or teleological interpretation of the political prohibition clauses in
the charters of MDBs.23 This chapter adopts a middle-of-the-road approach of
nonpolitical MDBs and a purposive interpretation of the political prohibition
clauses. The purposive interpretation is useful in connection with the inter-

22 See Cissé, supra note 6, at 59–92, where the author examines the relevance of the political
prohibition clause of the World Bank’s Articles of Agreement. After discussing the argu-
ments for and against the retention of the political prohibition clause, Cissé concludes that
the political prohibition clause is as relevant today as it was in 1944, and that in the absence
of its amendment, the men and women responsible for providing legal advice on the inter-
pretation of the World Bank’s Articles of Agreement should continue the “constructive and
creative stretching” of the political prohibition provisions without breaking them.
23 See Ibrahim F. I. Shihata, World Bank Legal Papers (Kluwer L. Intl. 2000), especially ch. 9,
where Shihata concludes his discussion on the prohibition of political activities of the World
Bank with the following words:
The Bank’s Articles of Agreement envisage a ﬁnancial institution of universal member-
ship which takes its decision on the basis of economic consideration and lends after
careful technical review of the projects it ﬁnances. They prohibit the Bank from inter-
ferences in the political aﬀairs of its members and limit its mandate to the develop-
ment and reconstruction of territories of members by facilitating and promoting invest-
ment for productive purposes and promoting the long range growth of international
trade and the maintenance of equilibrium in balances of payments. These are indeed
broad conﬁnes which have been brought, through ﬁfty years of practice, to reach new
frontiers, far beyond the originally intended concept, but reasonably accommodated
through a continued process of purposive interpretation. (emphasis added)
See also Ibrahim F. I. Shihata with Franziska Tschofen & Antonio R. Parra eds., The World
Bank in a Changing World: Selected Essays 7‒13 (Martinus Nijhoﬀ 1991). Similarly, Head, supra
note 14, at 272, writes “I believe the MDBs have, as Shihata urged us to conclude a dozen
years ago with regard to the World Bank, remained largely true to their charter provisions,
especially if we are prepared to take a ‘purposive’ or ‘teleological’ approach to charter in-
terpretation.” See also John D. Ciorciari, The Lawful Scope of Human Rights Criteria in World
Bank Credit Decisions: An Interpretive Analysis of the IBRD and IDA Articles of Agreement, 33
Cornell Intl. L.J. 331, 343–369 (2001). In this work, Ciorciari discusses the ordinary meaning,
secondary or intrinsic, and the use of travaux préparatoires, or preparatory works, in treaty
interpretations. See also Morais, supra note 19, at 67, where the author addresses the mission
creep critics of the World Bank by drawing a ention to two factors, one of which he states in
the following words:
The power to interpret their Articles of Agreement has been vested in their Boards of Di-
rectors, with a right of appeal or reference also to the Boards of Governors. It is arguable
that some of these interpretations, formal or otherwise, may have stretched the meaning
of the constitutional provisions to the limit. There is also no provision for independent
judicial review of such interpretations. Nevertheless, I believe that, on the whole, the
new MDB initiatives have been guided by a purposive interpretation of their charters
that has eﬀectively promoted achievement of the goals of development.
Fostering Opportunity through 459
Development Finance in Africa

pretation of treaties,24 but it is not without faults when considered in terms of
certainty of law.25
MDBs have a racted criticism for not being fully democratic26 and ac-
countable.27 In essence, MDBs have been urged to be accessible to all their
stakeholders, especially those in the private sector.28 In response, MDBs strive
to foster opportunities for their stakeholders through their use of policy-based
lending as a tool to encourage borrowing governments to adopt certain eco-
nomic and ﬁnancial policies.29 Interestingly, some of the MDB policies have
highlighted noneconomic considerations, which, indirectly have an econom-
ic impact, such as good governance, anticorruption measures, and the rule
of law. How does Article 38 foster such opportunities? In other words, how
should Article 38 be interpreted?
Article 31(1) of the Vienna Convention on the Law of Treaties states: “[A]
treaty shall be interpreted in good faith in accordance with the ordinary mean-
ing to be given to the terms of the treaty in their context and in the light of its

24 For an example of the use of purposive interpretation of MDBs’ charters, see Cissé, supra note 6,
at 84–85, where Cissé responds to the idea that interpretation cannot be used as a tool to
ignore or contradict the ordinary meaning of the words used in treaties. Thus, Cissé argues
that in rare and unusual instances, interpretation that contradicts the ordinary meaning of
the terms of a text may be warranted. He reasons that there may be cases in which interpre-
tation does not function as a means that will “lead to a change in ordinary meaning” of the
words used in a text, but merely formalizes or conﬁrms changes in the meaning of a text that
have been brought about by obsolescence or incremental interpretations that modify the
ordinary meaning of these words.
25 See, for example, Bradlow & Grossman, supra note 17, at 430–432, who argue that the World
Bank uses its creative interpretation of its political prohibition clauses in an ad hoc and arbi-
trary manner to include some human rights issues, such as female genital mutilation, while
at the same time excluding other human rights issues, such as the prevention of torture or
the suppression of political dissent on the ground that they are purely “political.”
26 See Enrique R. Carrasco et al., Governance and Accountability: The Regional Development Banks,
27 B.U. Intl. L.J. 1 (2009), alluding to the criticism against the World Bank and the IMF as well
as other regional development banks for not being democratic enough.
27 See Richard E. Bissell & Suresh Nanwani, Multilateral Development Bank Accountability Mecha-
nisms: Developments and Challenges, 6(1) Manchester J. Intl. L. 2–55 (2009), giving an overview
of the accountability mechanisms of the World Bank Inspection Panel (WBIP), the Inter-
American Development Bank (IDB) Independent Investigation Mechanism (IIM), the Asian
Development Bank’s (ADB) Accountability Mechanism, the Compliance Adviser/Ombuds-
man (CAO) of the International Financial Corporation (IFC) and Multilateral Investment
Guarantee Agency (MIGA), the European Bank for Reconstruction and Development’s
(EBRD) Independent Recourse Mechanism (IRM), and the AfDB Independent Review Mech-
anism (IRM). In comparing the function, structure, and operations of these mechanisms,
illustrating their similarities and diﬀerences, the authors note that the ADB’s accountability
mechanism stands out as the only mechanism that provides claimants the opportunity to
comment (with management) on the panel’s draft investigation report before it is ﬁnalized
and issued to the board.
28 See Daniel D. Bradlow, Private Complainants and International Organizations: A Comparative
Study of the Independent Inspection Mechanisms in International Financial Institutions, 36 Geo. J.
Intl. L. 403 (Winter 2005).
29 See Head, supra note 14, at 249.
460 The World Bank Legal Review

object and purpose.”30 Thus, it is imperative to interpret a treaty in good faith
according to the ordinary meaning of its terms in their context and in light
of the object and purpose of the treaty. The citation from Article 31(1) of the
Vienna Convention is applicable to Article 38 of the AfDB Agreement. What is
the ordinary meaning of Article 38?

The Ordinary Meaning of Article 38
At face value, Article 38 seems to be absolute, because it does not allow for any
exceptions. The intention of the drafters may be seen as insulating the AfDB
from interference from its member states and vice versa.31 This way, the AfDB
is assured of technical competence and neutrality in its dealings with member
countries. It is also able to maintain an international legal personality, sepa-
rate and distinct from its members.
Article 38(1) provides that “The Bank shall not accept loans or assistance
that could in any way prejudice, limit, deﬂect or otherwise alter its purpose or
functions.” Article 38(2) further provides that
The Bank, its President, Vice-Presidents, oﬃcers and staﬀ shall not
interfere in the political aﬀairs of any member; nor shall they be in-
ﬂuenced in their decisions by the political character of the member
concerned. Only economic considerations shall be relevant to their
decisions. Such considerations shall be weighed impartially in order
to achieve and carry out the functions of the Bank.
Article 38(3) provides that “The President, Vice-Presidents, oﬃcers and
staﬀ of the Bank, in discharge of their oﬃces, owe their duty entirely to the
Bank and to no other authority. Each member of the Bank shall respect the
international character of this duty and shall refrain from all a empts to inﬂu-
ence any of them in the discharge of their duties.”
These provisions suggest that three purposes can be a ributed to Article 38:
• The prohibition against the alteration of the purpose and functions of the
AfDB

30 See Vienna Convention on the Law of Treaties (with annex), 1155 U.N.T.S., (entered into
force Jan. 27, 1980) (hereinafter Vienna Convention), available at h p://treaties.un.org/doc
/publication/UNTS/Volume%201155/v1155.pdf (accessed June 3, 2013).
31 See United Nations Economic Commission of Africa (ECA), The Final Report of the Commit-
tee of Nine on the Establishment of an African Development Bank, E/CN.14/FMAB/1 (Jan. 14–23,
1963), at para. 26:
Freedom from political inﬂuence and the emphasis placed on the maintenance of sound
banking principles in all the activities of the Bank—the third leading idea in the case for
its establishment—are recognized as indispensable if the Bank is to succeed. They are
also essential to mobilizing additional non-African resources for its purposes.
Available at h p://repository.uneca.org/bitstream/handle/10855/7761/Bib-47948.pdf?seq
uence=1 (accessed June 3, 2013).
Fostering Opportunity through 461
Development Finance in Africa

• The prohibition against the AfDB’s interference in the political aﬀairs of
its member countries and the insistence of economic considerations as the
only permissible mandate of the AfDB
• The prohibition of member countries’ inﬂuencing the president, vice pres-
idents, oﬃcers, and staﬀ of the AfDB in the performance of their duties
Of the three, the second point is most challenging. It suggests that the
AfDB must consider only economic factors and exclude noneconomic factors
in its decision making, even when the consideration of an economic factor
necessarily involves a noneconomic factor, which does not in any way preju-
dice, limit, deﬂect, or alter the AfDB’s purpose or functions. For example, the
ordinary meaning of Article 38(2) implies that the AfDB must work with any
incumbent government—whether de facto or de jure—regardless of political
ideology or governance structure; that is, whether a particular regime is dem-
ocratic or autocratic. Unfortunately, the phrases “political aﬀairs” and “politi-
cal character” are not deﬁned in the text.
Article 37(3) states that “The President shall be the legal representative of
the Bank,” replicating Article VIII(5)(a) of the Inter-American Development
Bank (IADB) charter.32 Per Article 36(1) of the AfDB Agreement, the president
is a person of the highest competence in ma ers pertaining to the activities,
management, and administration of the AfDB. In Article 37(1), the president
is the chairman of the board of directors, and although he or she does not
vote, the president does decide in the case of a tie. The president may also
participate in meetings of the board of governors, even though the president
has no vote. Per Article 37(2), the president is the chief of staﬀ of the AfDB and
conducts the current business of the AfDB under the direction of the board
of directors. By this, one may infer that the president has lawmaking powers,
even though the drafters did not explicitly say so.
A deeper analysis indicates that of the three decision-making organs of
the AfDB with lawmaking powers, the president has a legitimate lawmak-
ing power, given that he or she is elected by all the members of the AfDB,
whereas the board of governors is appointed and the board of directors is
elected through indirect universal suﬀrage by the countries that compose the
constituencies that each represents. Thus, the president’s lawmaking powers
do not arise merely from his or her competence in ma ers pertaining to the
activities, management, and administration of the AfDB or from the fact that
the president is the legal representative of the AfDB.

32 See Agreement Establishing the African Development Bank, Preparatory Work, including Summary
Records of the Conference of Finance Ministers, E/CN.14/ADB/28, 162 (U.N. 1964).
462 The World Bank Legal Review

Certain procedural norms33 of global administrative law34 are impera-
tive for proper lawmaking. The role of the AfDB’s general counsel is crucial
when it comes to legal interpretation and the drafting of legal documents.35
For example, following the legal advisory opinions of the general counsel, a
presidential directive was drafted in 2010 to allow the continuity of the Af-
DB’s operations and engagement with de facto governments in some regional
member countries.36 It is contended that this bank practice reﬂects the a itude
envisaged by Article 38(2). Thus, irrespective of the political aﬀairs and politi-
cal character of a regional member country (RMC), the AfDB has continued its
operations. But does Article 38(2) also mean that the AfDB should continue its

33 See Benedict Kingsbury, Global Administrative Law in the International Practice of Global Regula-
tory Governance, in The World Bank Legal Review, vol. 3, 8–9 (Hassane Cissé, Daniel Bradlow, &
Benedict Kingsbury eds., World Bank 2012), where Kingsbury explains that global adminis-
trative law is based on the insight that much of global regulatory governance can be under-
stood as “administration.” Intergovernmental organizations engage in such administrative
activities beyond the reach of controls imposed by the public law, democratic apparatus, or
other review structures of individual states. Therefore, these intergovernmental organizations
have increasingly sought to shore up their legitimacy, and to enhance the eﬀective-
ness of their regulatory activities, by applying to (and between) themselves procedural
norms (referred to . . . as “GAL norms”) of transparency, participation, reasoned de-
cision making, and legality, and by establishing mechanisms of review and account-
ability. These procedural norms and mechanisms resemble, at least in their general
orientation, administrative law as applied to regulatory agencies and other executive
bodies within some national legal systems.
34 For a general discussion of global administrative law, see Benedict Kingsbury et al., The
Emergence of Global Administrative Law, 68 L. & Contemp. Probs. 17 (Summer/Autumn 2005),
where the authors explain that global interdependence is far-reaching in such ﬁelds as secu-
rity, the conditions on development and ﬁnancial assistance to developing countries, envi-
ronmental protection, banking and ﬁnancial regulation, law enforcement, telecommunica-
tions, trade in products and services, intellectual property, labor standards, and cross-border
movements of populations, including refugees. The authors note that various transnational
systems of regulation and international regulatory cooperation treaties exist. Informal in-
tergovernmental networks of cooperation, shifting many regulatory decisions from the na-
tional to the global level, also exist. There are transnational administrative bodies—includ-
ing international organizations and informal groups of oﬃcials who determine the details
and implementation of such regulations. Also of increasing importance are regulations by
private international standards–se ing bodies. A hybrid of public-private organizations, in-
cluding representatives of businesses, NGOs, national governments, and intergovernmental
organizations, also exists to regulate global administrative law.
35 See Adesegun A. Akin-Olugbade, Managing Development in a Time of Crisis: The Legal Frame-
work for the Temporary Relocation of the African Development Bank, 38(3) Intl. Lawyer 725, 727
(2004), available at h p://www.jstor.org/stable/40708223 (accessed May 10, 2013), where
the author and former general counsel writes, “As with the other multilateral development
banks, questions of interpretation of the ADB Agreement’s provisions are within the pur-
view of the powers of the Bank’s Board of Directors. Such interpretations may be formal or
informal, explicit or implicit, and are usually made on the basis of the General Counsel’s
advice.”
36 See AfDB, Concerning Continuity of Operations and Engagement with De Facto Government in
Regional Member Countries (African Dev. Bank Pres. Directive No. 3/2010, 2010), available
at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Policy-Documents/40-%20EN
-%20Concerning%20continuity%20of%20operations%20and%20engagement%20with%20
the%20facto%20governements%20in%20regional%20member%20countries.pdf (accessed
May 10, 2013).
Fostering Opportunity through 463
Development Finance in Africa

operations in a politically unstable regional member country even when the
lives and property of the AfDB are endangered?
The answer is obviously no. In some instances, the AfDB has had to relo-
cate its operations, oﬃcers, and staﬀ to a temporary agency. The legal opinion
issued by a former general counsel, Dr. Akin-Olugbade on the legal conditions
for the temporary relocation of the AfDB’s activities addresses the conditions
under which a decision can be made to transfer or move the AfDB’s principal
oﬃce or headquarters from Abidjan:
As the crisis in the host country unfolded, with considerable anxiety
and concerns about the possible adverse impact on the Bank’s busi-
ness and the security of its staﬀ, certain Executive Directors wanted
the Bank to make an expeditious decision and sought the advice of
the General Counsel on the appropriate and legally feasible options
available to the Bank. Against the backdrop of the provisions of the
Bank’s Charter prohibiting interference by the Bank in the politi-
cal aﬀairs of its member countries, and inspired by the fundamen-
tal principle that “the client of the Bank’s General Counsel is not
only the Bank’s Management, the Boards, or any particular member
country, but the institution as whole, including all its organs,” the
advice had to carefully balance the many competing interests, in or-
der to avoid any breach of the Bank’s obligations under the Head-
quarters Agreement with the host country.37

The Scope of Article 38
What is the scope of a purposive interpretation? In terms of Article 31 of the
Vienna Convention, the meaning of Article 38 can be gleaned from the con-
text of the words used therein and in light of the objects and purpose of the
overall AfDB Agreement. The context includes the preamble and annexes of
the agreement.38 Other aids to interpretation are subsequent practice of the

37 See Akin-Olugbade, supra note 35, at 728–731, where the author notes that the overarching
considerations were, however, adherence to the rule of law and safeguarding the AfDB’s
interest, that is, ensuring its survival as a viable entity to enable it to continue to deliver on
its development mandate.
38 Vienna Convention, supra note 30, at art. 31(2), states:
The context for the purpose of the interpretation of a treaty shall comprise, in addition
to the text, including its preamble and annexes: (a) Any agreement relating to the treaty
which was made between all the parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the con-
clusion of the treaty and accepted by the other parties as an instrument related to the
treaty. (italics added)
464 The World Bank Legal Review

parties39 and the established meaning of a term.40 Interestingly, recourse may
be possible for supplementary means of interpretation, including the prepa-
ratory work41 of the treaty and the circumstances of its conclusion, to avoid
an ambiguous or obscure meaning or manifestly absurd or unreasonable
results.42
A purposive interpretation is the preferred approach for interpreting the
text of a treaty.43 For example, in relation to the political prohibition clause of
the World Bank’s Articles of Agreement, Ibrahim F. Shihata has stated that,
while the Articles stipulated these injunctions as legal obligations,
their original drafters realized from the beginning the complexity of
this ma er and indicated that in the Bank’s practice such strict sepa-
ration between the Bank and the politics of its members would de-
pend on the character of those who would be in charge of the Bank.44
This statement suggests a purposive construction of the World Bank’s po-
litical prohibition clause, which takes into account both the le er of the law
and the practices of the World Bank seen in the conduct of those who work
for it. In the case of the AfDB, the drafters of Article 38 reasoned that freedom
from political inﬂuence and sound banking principles are indispensable to

39 Id., at art. 31(3), provides:
There shall be taken into account, together with the context: (a) Any subsequent agree-
ment between the parties regarding the interpretation of the treaty or the application of
its provisions; (b) Any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation; (c) Any relevant rules of international
law applicable in the relations between the parties. (italics added)
40 Id., at art. 31(4), provides “A special meaning shall be given to a term if it is established that
the parties so intended.”
41 The United Nations Economic Commission for Africa (ECA) adopted a resolution in Febru-
ary 1961 by which the ECA executive secretary was tasked to undertake a thorough study
of the possibility of the establishment of an African development bank and to report on this
ma er at the next session of the ECA. The executive secretary in turn appointed a panel
of experts. The report of the panel of experts was unanimously adopted by the ECA at its
session in February–March 1962. In the ECA resolution adopting the report, the ECA consti-
tuted a commi ee of nine member governments to, among other things, draft a charter for
the proposed bank. The ECA resolution also tasked the ECA executive secretary to convene
a conference of ﬁnance ministers to review the report of the Commi ee of Nine and to make
ﬁnal decisions. This conference of ministers was held in Khartoum, Sudan, from July 30 to
August 4, 1963. The conference of ministers discussed the draft agreement, adopting further
amendment, and approved the ﬁnal text of the Agreement Establishing the African Develop-
ment Bank. See Agreement Establishing the AfDB, supra note 32, at i–ii.
42 Vienna Convention, supra note 30, at art. 32, provides:
Recourse may be had to supplementary means of interpretation, including the prepa-
ratory work of the treaty and the circumstances of its conclusion, in order to conﬁrm
the meaning resulting from the application of article 31, or to determine the meaning
when the interpretation according to article 31: (a) Leaves the meaning ambiguous or
obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.
43 Id.
44 See Shihata, supra note 23, at 228.
Fostering Opportunity through 465
Development Finance in Africa

the success of the AfDB.45 Meanwhile, the drafters also envisaged a ﬂexible
application of the provisions of the AfDB Agreement, including Article 38.46
Indeed, a close reading of Article 38 mirrors a purposive interpretation. Thus,
the AfDB can provide only loans and assistance that do not prejudice, limit,
deﬂect, or otherwise alter its purpose and function. Moreover, those who work
in the AfDB owe their allegiance entirely to the bank and to no other author-
ity. With this in mind, it is important to appreciate the meaning of Article 38
in light of the purpose of the AfDB, the drafting history of Article 38, and the
relevant rules of international law applicable to the relations between the par-
ties, that is, the AfDB, its members, and all other stakeholders, including other
MDBs.

The Purpose and Function of the AfDB
The purpose and function of the AfDB are clearly stated in Articles 1 and 2 of
the AfDB Agreement. The AfDB is guided by these two key provisions in all
its decisions.47 However, the functions of the AfDB as explicitly prescribed by
the AfDB Agreement are not exhaustive.48
The AfDB is authorized to undertake activities and provide services that
may advance its purpose, which is the undertaking of any activities that con-
tribute to the sustainable economic development and social progress of its
regional member countries.49 The AfDB’s inherent mandate is expansive. For
example, some observers have suggested that the AfDB has a leading role as
the principal African development ﬁnance institution, working with others to
promote infrastructure investment, capital market development, and regional
integration through diﬀerent measures.50 The AfDB is mandated to cooperate

45 See ECA, supra note 31.
46 Id., at para. 27, states “one last consideration which has informed all discussions concerning
the Bank is that its approach to its task should be broad and ﬂexible.”
47 See AfDB, supra note 1, at art. 2(3).
48 Id., at art. 2(1), provides that the AfDB must use the resources at its disposal to ﬁnance invest-
ment projects and programs for the economic and social development of its regional member
countries (RMCs), giving special priority to two speciﬁc types of projects and programs: (a)
projects or programs that by their nature or scope concern several members; and (b) projects
or programs designed to make the economies of its members increasingly complementary
and to bring about an orderly expansion of their foreign trade. The AfDB is also mandated
to undertake, or participate in, the selection, study, and preparation of projects, enterprises,
and activities contributing to such development. It also has responsibility for mobilizing
and increasing, within and outside Africa, resources to ﬁnance such investment projects and
programs. Again, it generally has to promote investment in Africa of public and private
capital in projects or programs designed to contribute to the economic development or social
progress of its regional members. Lastly, the AfDB provides such technical assistance that
may be needed in Africa for the study, preparation, ﬁnancing, and execution of development
projects or programs.
49 Id., at art. 1.
50 See Cedric Achille Mbeng Mezui & Bim Hundal, Structured Finance: Conditions for Infra-
structure Project Bonds in African Markets 33 (AfDB 2013), where the authors suggest that the
AfDB can meaningfully contribute to the continent’s infrastructure needs through politi-
cal inﬂuence. Available at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Project
466 The World Bank Legal Review

with national, regional, and subregional development institutions in Africa in
carrying out its functions.51 Such cooperation may also be seen as reﬂecting
the acceptable banking practices or norms among MDBs, and ipso facto, they
are permissible functions of the AfDB.52
Studies of MDBs tend to be strictly legalistic in nature and articulate that
MDBs are nonpolitical bodies. But scholars such as Karen Mingst argue that
MDBs, including the AfDB, are political institutions.53 This view is not con-
vincing in terms of prudent banking practice. To borrow from one writer: “[I]t
is one thing to accept the inevitability and usefulness of a political dimension
in international decision making, but it is quite another thing to make the po-
litical dimension the sole or predominant factor in the deliberative and man-
agement process of an institution.”54 Moreover, the goals of the AfDB “call for
a combination of relevant technical expertise and managerial skills, aided in
appropriate cases by measured political leverage.”55 Similarly, the March 1996

-and-Operations/Structured%20Finance%20-%20Conditions%20for%20Infrastructure%20
Project%20Bonds%20in%20African%20Markets.pdf (accessed May 10, 2013).
51 See AfDB, supra note 1, at art. 2(2).
52 This is because the activities of MDBs are sources of international law. See José E. Alvarez,
Governing the World: International Organizations as Lawmakers, 31 Suﬀolk Transnatl. L. Rev.
591 (2007–2008), where the author challenges the traditional account of modern interna-
tional lawmaking, given the proliferation of international organizations and their impact
on the international plane. He writes that modern treatises acknowledge that international
organizations are now considered international legal persons, but scarcely do these treatises
examine the consequences of such a proposition. He examines the consequences of such a
proposition to argue that the move to international organization has introduced changes in
the sources, content, and legally relevant actors of international law, which are changing the
compliance and enforcement of international law. Elsewhere, Alvarez suggests that few self-
contained regimes exist in international law. He believes that there is no distinction between
economic concerns and those of national security, so that there is li le or no distinction
between international lawmaking and domestic lawmaking; he cites as an example how the
World Bank is now taking on goals such as environmental sustainability, anticorruption,
tax reform, and privatization. On the role of international organization in international law-
making, Alvarez writes that international organizations with nearly universal membership
have replaced ad hoc conferences of the 19th century as the preferred venue for multilateral
treaty making. He divides treaty-making pa erns into four categories: international organi-
zation (especially UN-sponsored) treaty-making conferences; expert treaty-making bodies;
“managerial” forms of treaty making; and institutional mechanisms for “treaty making with
strings a ached.” MDBs are implied in the second category because of their expertise in in-
ternational economic law. See José E. Alvarez, The New Treaty Makers, 25 B.C. Intl. & Comp. L.
Rev. (2002), available at h p://lawdigitalcommons.bc.edu/iclr/vol25/iss2/4 (accessed June 5,
2013). For further discussion on the generation of soft international laws, see Dinah Shelton,
Commentary and Conclusions [to “Human Rights” section], in Commitment and Compliance:
The Role of Non-binding Norms in the International Legal System (Dinah Shelton ed., Oxford U.
Press 2000), who quotes in International Human Rights: Problems of Law, Policy and Practice,
4th ed., 137–142 (Richard B. Lillich et al. eds., Aspen Publishers 2000); see also M. N. Shaw,
International Law 92 (4th ed., Cambridge U. Press 1997).
53 See Mingst, supra note 14. In ch. 1, she argues that international organizations are mushroom-
ing around the globe and they are playing key roles in international politics.
54 See Fordwor, supra note 14, at xiv.
55 Id.
Fostering Opportunity through 467
Development Finance in Africa

Report of the AfDB’s Panel on Governance discounts the view that the AfDB is a
political institution.56 Paragraph 1.14 of the report states:
Equally as important, the shareholders of the Bank will need to come
to an agreement on what the Bank should be, and what role it should
assume in the development of the region. Despite its unique origins
as a symbol of political cooperation and unity among its founding
African member states, the Bank today—if it is to succeed as a de-
velopment ﬁnance institution—has to function as a Bank subject to
the requirement of the marketplace. And as a Bank seeking to raise
funds in the international market—and make resources available to
its regional member countries—it is clear that it cannot function as
a political bank.
However, this does not mean that the AfDB, as a creature of international
treaty law with legal personality, lives and survives in the conﬁnes of society
without being aﬀected by the political realities of its environment. In other
words, the AfDB’s mandate could be described as nonpolitical rather than
apolitical.57 But, one may ask, does this not suggest mission creep?

A Purposive Interpretation and Analysis to Avoid Breaking Article 38
Head58 and Morais59 do not agree to the suggestion that MDBs are guilty of
mission creep given their expansive functions as nonpolitical international
ﬁnancial intermediaries. Instead they, like Shihata,60 prescribe a purposive
interpretation of the legal mandates of MDBs. There are risks to adopting a
purposive interpretative approach to Article 38, including a risk of breach or
overstretch,61 and some people argue that the following three-step analysis is
necessary to avoid such risk:
• Is the decision of the bank, or its president, vice presidents, oﬃcers, or
staﬀ, in pursuit of a legitimate objective, such as being concerned with
economic interventions in a member country?
• If it is, does the a ainment of that objective demand a consideration of the
political situation existing in the member country?
• If so, can the bank or its president, vice presidents, oﬃcers, or staﬀ show
that the means adopted allows as few political considerations as possible?

56 See AfDB, Reforming the Governance Structures of the African Development Bank: Report of the
Panel on Governance Established by the Board of Governors of the African Development Bank (Mar.
1996).
57 See Cissé, supra note 6, at note 10, where the author distinguishes apolitical from nonpoliti-
cal. Apolitical means “unconcerned with or detached from politics,” and nonpolitical means
“not involved in politics.”
58 See Head, supra note 14, at 269, 288, 297.
59 Morais, supra note 19.
60 See Shihata, supra note 23.
61 See supra notes 24 and 25.
468 The World Bank Legal Review

Shihata alludes to the fact that the World Bank could use economic con-
cerns as justiﬁcation for including political considerations in its work. He rea-
sons that because the World Bank is required to act prudently in its borrowing
and its lending operations and to pay due regard to the ability of the borrower
to meet its obligations, pure economic consideration without regard for the de-
gree of political instability of a member country is not prudent. But he cautions
the World Bank to “limit itself to the necessary analysis needed for the pur-
poses of its work.”62 Such a proportionality test approach would allow for a
careful, constructive, and creative stretching of Article 38 without breaching it.

The TYS and Article 38
Without doubt, there is the desire to make the AfDB more agile in respond-
ing to the varied needs of its many clients in a rapidly changing world. As the
principal shareholders of the AfDB, many African countries are making steady
progress toward achieving some of the Millennium Development Goals, not-
withstanding persistent challenges. As is typical of developing economies, the
economies of most African countries are resource driven and have features
of external debt ﬁnancing.63 There is also the phenomenon of state failure64
seen in terms of poor governance65 in the speciﬁc context of corruption.66 But
a study of dysfunctional states that describes some African countries as “an-
archic,” like Somalia, “phantom or mirage,” like the Democratic Republic of
Congo, and “aborted,” like Angola,67 is controversial and tenuous. Each Afri-
can state has unique circumstances and challenges, although nearly a quarter
of Africa’s population lives in fragile states where there is exceptionally weak
institutional capacity, poor governance, political instability, and ongoing or

62 See Shihata, supra note 23, at 229.
63 See Christiana Ochoa, From Odious Debt to Odious Finance: Avoiding the Externalities of a Func-
tional Odious Debt Doctrine, 49 Harv. Intl. L.J. 109 (Winter 2008).
64 For a general discussion of state failures in Africa, see James C. Owens, Government Failure
in Sub-Saharan Africa: The International Community’s Options, 43 Va. J. Intl. L. 1003, 1044–1045
(Summer 2003), identifying dependence on external sources of revenue as a cause of regress
in Sub-Saharan Africa.
65 For a discussion of good governance, see Francis N. Botchway, Good Governance, the Old, the
Principle, and the Elements, 13 Fla. J. Intl. L. 159 (Spring 2001).
66 Hazel M. McFerson, Democracy and Development in Africa, 23(3) J. Peace Research 241–248
at 243 (Aug. 1992), available at h p://www.jstor.org/stable/424278 (accessed May 10, 2013),
where the author writes, “Since independence, a political involution has proceeded in Africa
from the adoption of colonial pa erns of economic control, through the ‘mobilization for
development’ and central control, to their unintended but inevitable oﬀspring: a predatory
and corrupt political system which is often referred to as ‘prebendalism.’ ”
67 See Stephen Ellis, How to Rebuild Africa, 84(5) For. Aﬀairs 135, 139 (Sept.–Oct. 2005), borrow-
ing from Jean-Germain Gros, available at h p://www.jstor.org/stable/20031711 (accessed
May 10, 2013).
Fostering Opportunity through 469
Development Finance in Africa

past violent conﬂict.68 Conﬂict69 creates emergencies like displacements, hun-
ger, health hazards, and unemployment that development institutions either
try to prevent from happening or must respond to or remedy. Addressing
these issues involves eradicating the root causes, some of which are political
in nature. This is because a nexus can be found between economic and politi-
cal considerations when it comes to issues of conﬂicts. Collier and Hoeﬄer
observe—in relation to the detection of rebellion using both political science
and economic theories—that conﬂict has two essential causal elements: the
motive and the opportunity to rebel.70
In regard to fostering opportunities, the AfDB group proposes three stra-
tegic directions in the TYS:

68 See AfDB, Bank Group Support to Conﬂict-Aﬀected Countries, ch. 5 in African Development Report
2008/2009: Conﬂict Resolution, Peace and Reconstruction in Africa 60 (Oxford U. Press 2009),
available at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Publications/African
%20Development%20Report%202008.2009_00_Full_Report.pdf (accessed Apr. 25, 2013).
69 The literature on this subject is expansive and often discussed in relation to natural resources
exploitation. For example, see Michael T. Klare, Resource Wars: The New Landscape of Global
Conﬂict 217–226 (Metropolitan 2001); Michael Ross, The Natural Resource Curse: How Wealth
Can Make You Poor, in Natural Resources and Violent Conﬂict: Options and Actions 17–19 (Ian
Bannon & Paul Collier ed., World Bank 2003); Paul Collier & Anke Hoeﬄer, On Economic
Causes of Civil War, 50 Oxford Econ. Papers 563–573 (1998), available at h p://oep.oxford
journals.org/cgi/reprint/50/4/563 (accessed Apr. 25, 2013); Paul Collier, Doing Well out of War:
An Economic Perspective, in Greed and Grievance: Economic Agendas in Civil Wars 91 (Mats Berdal
& David M. Malone eds., Lynne Rienner 2000); Paul Collier, Anke Hoeﬄer, & Dominic
Rohner, Beyond Greed and Grievance: Feasibility and Civil War, 61 Oxford Econ. Papers 1–27
(2009), available at h p://oep.oxfordjournals.org/cgi/reprint/61/1/1 (accessed Apr. 25, 2013);
Ole Magnus Theisen, Blood and Soil? Resource Scarcity and Internal Armed Conﬂict Revisited, 45(6)
J. Peace Research 801–818 (2008), available at h p://jpr.sagepub.com/cgi/content/abstract
/45/6/801 (accessed Apr. 25, 2013); Indra De Soysa & Eric Neumayer, Resource Wealth and
the Risk of Civil War Onset: Results from a New Dataset of Natural Resource Rents, 1970–1999,
24 Conﬂict Mgt. & Peace Sci. 201 (2007), available at h p://cmp.sagepub.com/cgi/content
/abstract/24/3/201 (accessed Apr. 25, 2013); Päivi Lujala et al., Fighting over Oil: Introducing a
New Dataset, 24 Conﬂict Mgt. & Peace Sci. 239 (2007), available at h p://cmp.sagepub.com
/cgi/content/abstract/24/3/239 (accessed Apr. 25, 2013); Thad Dunning, Resource Dependence,
Economic Performance, and Political Stability, 49 J. Conﬂict Res. 451 (2005), available at h p://
jcr.sagepub.com/cgi/content/abstract/49/4/451 (accessed Apr. 25, 2013); Päivi Lujala et al., A
Diamond Curse? Civil War and a Lootable Resource, 49 J. Conﬂict Res. 538 (2005), available
at h p://jcr.sagepub.com/cgi/content/abstract/49/4/538 (accessed Apr. 25, 2013); Paul Col-
lier & Anke Hoeﬄer, Resource Rents, Governance, and Conﬂict, 49 J. Conﬂict Res. 625 (2005),
available at h p://jcr.sagepub.com/cgi/content/abstract/49/4/625 (accessed Apr. 25, 2013);
Paul Collier & Anke Hoeﬄer, Greed and Grievance in Civil War, 56 Oxford Econ. Papers 63
(2004) (hereinafter Greed and Grievance in Civil War), available at h p://oep.oxfordjournals
.org/cgi/reprint/56/4/563 (accessed Apr. 25, 2013); see also h p://www-wds.worldbank
.org/external/default/WDSContentServer/IW3P/IB/2004/03/10/000265513_20040310152555
/Rendered/PDF/28126.pdf (accessed Apr. 25, 2013); James D. Fearon, Primary Commodity
Exports and Civil War, 49 J. Conﬂict Res. 483 (2005), available at h p://jcr.sagepub.com/cgi
/content/abstract/49/4/483 (accessed Apr. 25, 2013).
70 See Collier & Hoeﬄer (2004), supra note 69, at 63. The authors use political science and eco-
nomic theories to posit two essential elements in the cause of conﬂicts: the motive and the
opportunity to rebel. They explain that the political motivation for rebellion is grievance and
the economic motivation is greed. One of their proxies for the opportunity to rebel is the
extortion of natural resources, and they argue that primary commodity exports inﬂuence the
risk of conﬂict signiﬁcantly.
470 The World Bank Legal Review

• Becoming more agile in responding quickly to the varied needs of the
AfDB’s many clients in a rapidly changing world
• Becoming more selective in promoting Africa’s development priorities,
including inclusive and sustainable growth, which will require greater
a ention to collaborating and dividing responsibilities with many devel-
opment partners
• Becoming more insistent on delivering results
The third direction means going beyond assessing the development re-
sults of the work of the AfDB to instilling a results-oriented culture through-
out the bank.71
The drafting of Article 38 shows the article’s resemblance to the political
prohibition clauses of other MDBs, such as the World Bank and the Inter-
American Development Bank. The history also shows that the original draft
of the Commi ee of Nine had not what is now Article 38(1) but rather what is
now Article 38(2) and (3). Being mindful of the African context and the mani-
fest consequences that could be occasioned by a literal interpretation of Article
38, the Conference of Finance Ministers72 adopted the ﬁnal draft of Article 38,
which includes what is now Article 38(1).73 The drafters did not intend Article
38 to prejudice, limit, deﬂect, or otherwise alter the purpose or functions of the
AfDB. The TYS guides the AfDB to use the resources at its disposal to ﬁnance
investment projects and programs relating to the economic and social devel-
opment of its regional members.74 When looking speciﬁcally at sustainable
economic development, one can observe that three of the ﬁve operational pri-
orities of the LTS—infrastructure development, private sector development,
and skills and technology—are economic in nature.

71 See AfDB, Governors’ Dialogue: Long Term Strategy 2022—Issues Paper (Bank Group Annual
Meetings report, Arusha, Tanzania, May 31, 2012), available at h p://www.afdb.org/ﬁleadmin
/uploads/afdb/Documents/Policy-Documents/LTS%20Issues%20Paper%20for%20Governors
%20Dialogue.pdf (accessed Apr. 23, 2013).
72 For a brief introduction to the Commi ee of Nine and the Conference of Finance Ministers,
see ECA, supra note 31.
73 Id., at 164. The explanatory notes submi ed by the Commi ee of Nine explain what is now
Article 38(2) and (3) in the following words:; “Paragraphs (1) and (2) [i.e., Article 38(2) and
(3)] of the Article have, as in the case of the IADB (Art. VIII(5)(d) and (f)), been combined into
a single Article (see IBRD Ar. IV(10) and V(5)(c)). A reference to the President of the Bank has
been added to para 1. For the rest, the texts are on traditional lines.” (italics added)
74 See AfDB, supra note 4, at iii, where the president of the AfDB states in the foreword to the
TYS:
The Strategy also addresses the issue of development ﬁnance. New global pa erns of
ﬁnance and capital ﬂows, and the discovery of signiﬁcant oil and gas resources, now
make it possible for Africa to mobilize its own savings through, among other things,
be er management of natural resources. This is an area where the Bank will play a
catalytic, leveraging role.
Fostering Opportunity through 471
Development Finance in Africa

Would Sustainable Development Considerations under the TYS
Violate Article 38?
The TYS addresses green growth within the context of sustainable develop-
ment using a holistic approach that links green growth and green economy as
two concepts that can help tackle the challenges of poverty, social inequality,
pollution, environmental degradation, and climate change on the continent.
Scholars have suggested that MDBs should address sustainable development
issues. Günther Handl argues that “MDBs themselves can no longer aﬀord
to treat environmental and social concerns as merely incidental to develop-
ment projects, but have an aﬃrmative duty to incorporate these issues into the
mainstream of their development-ﬁnancing operations.”75 Similarly, Shihata
has argued that
the prohibition of political activities in the MDBs Charters has never
been an obstacle to accepting and mainstreaming environmentally
and socially sustainable development. He reasoned that this is not
political development but economic development which takes full
account of environmental and social implications and includes safe-
guards to assure an outcome that is positive or at least not negative
in these respects.76
Handl contends that the banks’ decisions on lending activities are being
legally circumscribed as a function of the emergence of relevant international
public policy and law, the internationally mandated criterion for achieving
sustainable development.77 Both Shihata and Handl observe that mainstream-
ing sustainable development into the mandate of the MDBs is stating the obvi-
ous. The issue is whether the AfDB has managed to get this concept right in
its TYS.
One can argue that the mandate of the AfDB incorporates sustainable de-
velopment. Article 1 of the AfDB Agreement explicitly states that “the purpose
of the Bank shall be to contribute to the sustainable economic development
and social progress of its regional members individually and jointly.” When
Article 1 is construed literally, one can infer that the controlling theme in the
purpose and functions of the AfDB is sustainable economic development. The

75 Günther Handl, The Legal Mandate of Multilateral Development Banks as Agents for Change to-
ward Sustainable Development, 92 Am. J. Intl. L. 642 (Oct. 1998), available at h p://www.jstor
.org/discover/10.2307/2998127?uid=3738072&uid=2134&uid=370214251&uid=2&uid=70&uid
=3&uid=370214241&uid=60&sid=21102201987457 (accessed Apr. 26, 2013).
76 See Co-editors in Chief of the American Journal of International Law, Correspondence, 93 Am.
J. Intl. L. 625–626 (July 1999).
77 Id., at 626–627. According to Handl, it is not “political,” but appropriate for MDBs, like other
actors on the international legal plane, to be seen as subject to general international law. As
such, MDBs cannot insulate themselves against the reach of evolving international law by
invoking a traditional understanding of the principles enshrined in their constituent treaties,
especially when the new international norms not only permit but mandate a diﬀerent view
of what constitutes prohibited “political activities.”
472 The World Bank Legal Review

contours of sustainable development itself are very intricate,78 and it does not
make sense to construe Article 38(2) literally. However, a purposive interpre-
tation of Article 38(2) translates into an examination of the sustainable eco-
nomic development purpose of the AfDB in Article 1.
In the area of governance and accountability, the AfDB proposes to sup-
port institutions that promote inclusion and accountability. This proposal in-
cludes strengthening the capacities of parliamentarians, the media, and civil
societies.79 In fragile states, the AfDB notes, fragility is contagious and epi-
sodic, and its support must be tailored to diverse needs and a continuum and
regional approach built around dialogue, local ownership, and a celebration
of success.80 As evidence of cooperation with other MDBs, the AfDB joined
other MDBs to establish an international ﬁnancial institution anticorruption
task force in 2006,81 and the AfDB signed the Agreement for Mutual Enforce-
ment of Debarment Decisions targeting corruption in 2010.82 The purposive

78 For a general discussion of its historical development and legal framework, see Alhaji B. M.
Marong, From Rio to Johannesburg: Reﬂections on the Role of International Legal Norms in Sustain-
able Development, 16 Geo. Intl. Envtl. L. Rev. 21 (2003). In spite of its vagueness, its relevance
is shared by both developed and developing countries. See Ved P. Nanda, Sustainable Devel-
opment, International Trade and the Doha Agenda for Development, 8 Chap. L. Rev. 53 (2005). By
reason of this universal acceptance, this term lends itself to several uses; one writer describes
it as “probably suﬀering from its success as a buzzword.” See Patricia Nelson, An African
Dimension to the Clean Development Mechanism: Finding a Path to Sustainable Development in the
Energy Sector, 32 Denv. J. Intl. L. & Policy 615 (Fall 2004), discussing the Kyoto Protocol to
the United Nations Framework Convention on Climate Change (UNFCCC) and how Africa
is neglected in considerations of sustainable development in the energy sector. Of particular
signiﬁcance are eﬀorts at the global level in using the term to address environmental ills
associated with global industrialization; see Paolo Galizzi, From Stockholm to New York, via
Rio and Johannesburg: Has the Environment Lost Its Way on the Global Agenda?, 29 Fordham
Intl. L.J. 952 (May 2006). In the context of the extractive industry, see Andres Liebenthal
et al., Extractive Industries and Sustainable Development: An Evaluation of World Bank Group
Experience (World Bank 2005), available at h p://www.ifc.org/ifcext/oeg.nsf/A achmentsBy
Title/ei_report/$FILE/Extractive+Industries+and+Sustainable+Development.pdf (accessed
Apr. 23, 2013).
79 See AfDB, supra note 4, at 2–3.
80 Id., at 3.
81 See AfDB et al., International Financial Institutions Anti-corruption Task Force (2006), available
at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Generic-Documents/30716700
-EN-UNIFORM-FRAMEWORK-FOR-COMBATTING-FRAUD-V6.PDF (accessed June 5, 2013).
See also Laurence Boisson de Chazournes, Partnership, Emulation, and Coordination toward the
Emergence of a Droit Commun in the Field of Development Finance, in The World Bank Legal Review,
vol. 3, 183 (Hassane Cissé, Daniel Bradlow, & Benedict Kingsbury eds., World Bank 2012):
Another step in terms of cooperative practices among institutions has been the es-
tablishment of mechanisms for cooperation and mutual recognition between the World
Bank and regional development banks. In the ﬁght against corruption, the actions
undertaken and policies adopted by the World Bank and the regional development
banks have inspired cooperation. In this respect, in September 2006, the Uniform
Framework for Preventing and Combating Fraud and Corruption was put into place
by the leaders of the AfDB Group, the ADB, the EBRD, the EIB Group, the IMF, the IDB,
and the World Bank Group.
82 See International Bar Association, Global Leaders: Kalidou Gadio, 66(3) IBA Global Insight 36
(2012). See also Stephen S. Zimmermann & Frank A. Fariello Jr., Coordinating the Fight against
Fostering Opportunity through 473
Development Finance in Africa

interpretation and margin of appreciation analysis make the AfDB’s involve-
ment in anticorruption eﬀorts consistent with Article 38.

Some Bank Practices and Article 38
Essentially, the AfDB’s operations and activities are designed to respond to
the development challenges and demands of its RMCs. The AfDB’s operations
have generated the following issues:
• Are the AfDB’s premembership interventions in an RMC compliant with
Article 38?
• If AfDB premembership interventions do not compromise the AfDB’s role
as a neutral arbiter, does such intervention also aﬀect the interests of an
existing regional member?
• Is Presidential Directive No. 3 of 2010 compliant with Article 38?
The ﬁrst two issues are discussed below in the context of premembership
operations of the AfDB in the Republic of South Sudan.

AfDB Premembership Interventions and Article 38 Compliance
The Republic of South Sudan was oﬃcially admi ed into the AfDB as a mem-
ber on May 31, 2012.83 Upon the independence of the Republic of South Sudan
from the Republic of Sudan, the AfDB signed a Cooperation Agreement with
the Republic of South Sudan in September 2011, which provided the legal
basis to continue operational assistance and programming activities pending
full membership of the new state in the AfDB.84 The AfDB and its staﬀ assisted
in negotiation or mediation exercises involving the two countries, facilitated
by the African Union High-Level Implementation Panel (AUHIP). The chair
of the AUHIP made a request not only to the AfDB but also to the World Bank
and the IMF for technical assistance. The AfDB responded positively to the
request.
The assistance included the provision of advisory services to the AUHIP
on the economic-related aspects of the negotiations that were intricately linked
to other security and political ma ers. The republics of Sudan and South Su-
dan and the African Union were comfortable with the AfDB’s role.

Fraud and Corruption Agreement on Cross-Debarment among Multilateral Development Banks, in
The World Bank Legal Review, vol. 3, 189 (Hassane Cissé, Daniel Bradlow, & Benedict Kings-
bury eds., World Bank 2012).
83 See AfDB, Board of Governors Resolution Authorizing the Accession of the Republic of
South Sudan to the African Development Bank Agreement (Resolution B/BG/2012/05,
2012), available at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Boards-Docu
ments/2011%20Annual%20Meetings%20Oﬃcial%20Records.pdf (accessed May 12, 2013).
84 See AfDB, The First Interim Country Strategy Paper (CSP) for South Sudan Covering the Period
2012–2014 (AfDB 2012).
474 The World Bank Legal Review

A critical question is whether or not the AfDB is mandated to provide
some form of support to a nonmember country. In line with a purposive inter-
pretation of the AfDB Agreement, this question is answered by examining the
conduct of all the parties, including the African Union and the international
community. For example, the AfDB provided assistance to the AUHIP be-
cause the Republic of Sudan was a member of the AfDB that needed technical
assistance, and because that assistance will help a prospective member amica-
bly resolve issues that may aid in its a ainment of membership when the time
is ripe, especially if Sudan and South Sudan agreed on the “zero option” with
respect to the assets and liabilities of the former state of Sudan.85
Thus, the AfDB’s premembership intervention in South Sudan in the con-
text of the Cooperation Agreement with the Government of South Sudan in
September 2011 does not violate Article 38 and it does not compromise the
AfDB’s neutrality as an arbiter between the Republic of Sudan and the Repub-
lic of South Sudan.
The Republic of South Sudan is an interesting case study.86 For decades,
the Republic of Sudan and the now Republic of South Sudan have fought
over diﬀerences in ideology, politics, resources, land, and oil. These hostilities
culminated in the Comprehensive Peace Agreement and the independence
of South Sudan on July 9, 2011, and the subsequent recognition of its state-
hood by the United Nations.87 The Comprehensive Peace Agreement did not
address what is often cited by commentators as the “Abyei issue.” The Abyei
issue refers to the ownership and control of the oil-rich Abyei area. Thus, at
the heart of the dispute is the control of the oil-producing region of Southern
Kordofan and the Abyei area. A decision of an international arbitral tribunal,
which predated the independence of the Republic of South Sudan, redrew the
boundaries of Abyei,88 but that decision did not end hostilities. The two coun-
tries signed a cooperation agreement on September 27, 2012, mediated by the
AUHIP, but failed to agree on border areas, including Abyei. Thus, the two
countries continue to face security threats posed by the Abyei issue even after

85 Under the “zero option,” the Republic of Sudan will assume all external debts conditional
on (i) a joint outreach to the donor community by both countries; and (ii) Sudan beneﬁting
from debt relief within two years, failing which there will be debt apportionment between
the two countries.
86 It presents an interesting case study of the evolving development of the international law
principle in relation to the self-determination of peoples in the context of Africa. African
countries have retained their respective borders as handed over to them by the colonial ad-
ministrations. See Malcolm N. Shaw, International Law 205–206 (6th ed., Cambridge U. Press
2008). Even though there have been instances of border disputes, none has escalated into the
declaration of war by one country against another. Instead, the disputes have largely focused
on resources and issues of state control. See John Campbell, South Sudan’s Challenge to Africa’s
Colonial Borders (expert brief, Council on For. Rel., July 7, 2011), available at h p://www
.cfr.org/sudan/south-sudans-challenge-africas-colonial-borders/p25439 (accessed May 3, 2013).
87 See UN Security Council Resolution 1999 (2011) on admission of the Republic of South Sudan
to membership in the United Nations, available at h p://www.refworld.org/cgi-bin/texis
/vtx/rwmain?docid=4e2e54d52 (accessed May 3, 2013).
88 See h p://www.pca-cpa.org/showpage.asp?pag_id=1306 (accessed May 3, 2013).
Fostering Opportunity through 475
Development Finance in Africa

the independence of South Sudan, and the African Union is concerned about
resolving this issue.89
The AfDB has been visible in promoting the development agenda of
fragile states in Africa by emphasizing the importance of these states in its
long-term strategic plan and medium-term strategic planning.90 According to
the African Development Report, 2008/2009, the AfDB plays an active role in a
country’s postconﬂict reconstruction and development, and its point of entry
is after the cessation of hostilities and the establishment of a transitional gov-
ernment authority with the support of the international community.91 Bear-
ing this in mind, the AfDB’s postconﬂict reconstruction and development ef-
forts in the Republic of South Sudan are justiﬁed considering the support and
works of other leading MDBs, like the World Bank and the IMF. In the case of
South Sudan, both the World Bank and the IMF were involved in the negotia-
tion processes at some point. Furthermore, there is evidence in the literature to
justify the AfDB’s involvement in the Republic of South Sudan. For example,
Paul Collier has suggested that the right of a postconﬂict government to dis-
pose of mineral rights should be limited until the society has had the time to
properly establish a transparent mineral rights regime. In the African context,
he reasons, the exercise of sovereignty over mineral rights by postconﬂict gov-
ernments can be restricted by the African Union using the AfDB as its policing
implementation agency during the transition period.92

AfDB Presidential Directive No. 3 and Article 38
AfDB Presidential Directive No. 3 of 2010 (PD3/2010) sets out the procedures,
conditions, and guidelines that govern the AfDB group’s engagement with de
facto governments in RMCs. PD3/2010 deﬁnes de facto governments as gov-
ernments that have usurped the sovereign authority of lawful governments,
or that exist without actual lawful or legal authority, yet openly exercise the
powers and functions of the state. Such governments come into power through
unconstitutional means, such as by coup d’état, revolution, or abrogation or
suspension of the constitution or other relevant laws.

89 See Report of the Chairperson of the Commission on the Status of the Negotiations between the Re-
public of Sudan and the Republic of South Sudan on the Outstanding Issues in Their Post-secession
Arrangements (Peace and Security Council of the African Union, Feb. 14, 2012); see also Afri-
can Union, Communique on the Report (Peace and Security Council of the African Union,
Feb. 14, 2012).
90 See AfDB, Evaluation of African Development Bank Assistance to Fragile States (approach paper,
Jan. 2010), available at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Evaluation
-Reports/Evaluation%20of%20Fragile%20States%20Approach%20Paper%20FINAL%20JAN
%202010.pdf (accessed Apr. 25, 2013).
91 See AfDB, supra note 68.
92 See Paul Collier, Post-conﬂict Recovery: How Should Policies Be Distinctive? 2 (research paper, Ctr.
for the Study of African Economies, Dept. of Economics, Oxford U., May 2007), available at
h p://users.ox.ac.uk/~econpco/research/pdfs/PostConﬂict-Recovery.pdf (accessed Apr. 25,
2013).
476 The World Bank Legal Review

Paragraph 4 of the directive provides:
This Directive shall apply to all [AfDB] Bank Group Operations93
including, but not limited to: (i) public sector operations; (ii) private
sector operations; (iii) operations of trust funds such as the Techni-
cal Assistance Fund for Middle Income Countries; and (iv) special
funds and other [AfDB] Bank Group entities such as the African
Water Facility Special Fund and the Fragile States Facility amongst
others.
In line with this directive, the AfDB continued its operations in Tunisia,
Egypt, and Libya in a strategically cautious manner, being guided by four
main principles contained in paragraph 9 of the directive. These are
• Avoiding, to the extent possible, major deterioration of the economic situ-
ation of the population of the concerned RMC
• Avoiding major deterioration in the AfDB group’s investments or projects
• Taking actions informed by an adequate evaluation of the situation
• Being guided by the views, decisions and best practices of the interna-
tional community
In a February 14, 2011, press release, the president of the AfDB stated that
as “Africa’s leading development ﬁnance institution, the AfDB would like to be
at the forefront of helping Tunisia as it enters this delicate phase of its history,
and we call upon other partners to join us in this endeavor.”94 At the time of the
January 14, 2011, revolution, Tunisia had the second-largest portfolio of AfDB
projects and other commitments. The country strategy paper (CSP) approved
by the board of directors of the AfDB in 2007 was replaced by an interim country
strategy paper (I-CSP) for a two-year period (2012–2013). In the I-CSP, the
AfDB adopted a strategy for the 2012–2013 period that includes revolution-
induced priorities and varied factors inherent in the transition process.95
Egypt is one of the AfDB’s key shareholders and accounts for one of the
largest shares of the AfDB’s operations portfolio. The January 25, 2011, revo-
lution in Egypt saw the country being governed by the Supreme Council of
Armed Forces (SCAF) and supported by ministerial cabinets appointed by the
SCAF. The SCAF handed power to the newly elected president, Mohamed
Morsi, at the end of June 2011. The AfDB continued to assist Egypt by dis-
bursing funds for ongoing investment projects, notwithstanding the political
unrest. As of March 31, 2011, Egypt had 26 operations under implementation.

93 As understood in the context of the directive, “operations” include, inter alia, preparatory
and appraisal missions, nonobjections, agreement negotiation and signature, disbursements,
and presentation to the boards of directors and/or boards of governors.
94 See h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Generic-Documents/PRST
%20Press%20Statement%20%20Feb%202011%20ﬁnal%20ENG.pdf (accessed May 5, 2013).
95 See http://www.afdb.org/fileadmin/uploads/afdb/Documents/Project-and-Operations
/Catalogue%20Interim%20strategy%20Paper%20Anglais_Mise%20en%20page%201.pdf
(accessed May 5, 2013).
Fostering Opportunity through 477
Development Finance in Africa

The AfDB’s postrevolution interventions in Egypt are based, primarily, on
pursuing macroeconomic stabilization to support recovery and, secondly, on
promoting inclusive growth to reduce poverty.96
The political unrest in Libya was inspired by the revolutions in Tunisia
and Egypt. By February 27, 2011, the opposition had organized itself around
a structured governing body, the National Transitional Council (NTC). The
NTC set out detailed plans for the transition process and, in August 2011, is-
sued a temporary constitution according to which Libya is a democratic, inde-
pendent state with Tripoli as its capital, Islam its religion, sharia law the main
source of legislation, and Arabic its oﬃcial language. Although a founding
and relatively large shareholder of the AfDB, Libya has never borrowed from
the AfDB group. Hence, the AfDB group’s operational engagement with the
country has been limited to nonlending activities, mainly knowledge services.
Elsewhere, other regional security threats, including the reemergence of
military coups in Guinea Bissau and Mali, have highlighted the political fra-
gility and risks in some African countries. The continuous operation of the
AfDB in such RMCs cannot be discounted.

Would Democratic Considerations under Presidential Directive No. 3
Violate Article 38?
Although “democracy” has no universally accepted deﬁnition,97 the simplest
explanation of the term is that it is a government that rests on the consent of
the governed.98 Such consent of the governed is given in universally free elec-
tions. Democracy provides a mechanism for the governed to change the gover-
nors if they are dissatisﬁed with their performance. In any case, “democracy”
is a buzzword often used in tandem with another watchword: “good gov-
ernance.” Francis Botchway, in discussing the theoretical underpinnings of
the concept of good governance, extends the deﬁnition of that term to cover
such elements as democracy, rule of law, eﬀective bureaucracy, discretion,
and decentralization. In his view, the correlation between good governance
and development is not known; however, democracy is a sustainable means

96 See AfDB, Two-Year Interim Country Strategic Plan for Egypt Covering 2012–2013, available
at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Project-and-Operations/2012
-2013%20-%20Egypt%20-%20Interim%20Strategy%20Paper.pdf (accessed May 5, 2013).
97 To one scholar, it is a myth; see Ferdinand Lundberg, The Myth of Democracy (Carol Publish-
ing Group 1989); another scholar doubts it; see Bruce Gilley, Is Democracy Possible?, 20(1) J.
Democracy 113 (Jan. 2009), available at h p://www.journalofdemocracy.org/articles/gratis
/Gilley-20-1.pdf (accessed June 5, 2013).
98 See, generally, Anthony W. Bradley & Keith D. Ewing, vol. 1, 14 Constitutional and Adminis-
trative Law (Pearson Longman 2007); see also Ibrahim F. I. Shihata, Democracy and Develop-
ment, 46(3) Intl. Comp. & L. Q. 635–643 esp. at 635 (1997):
By democracy lawyers usually mean that form of government in which the sovereign
power resides in and is exercised by the whole body of citizens directly or indirectly
through a system of representation. More generally, it is a system where ordinary
citizens have a meaningful, even if indirect, role in the aﬀairs of the State, including the
formulation of policies and laws and their implementation.
478 The World Bank Legal Review

of building a united and cohesive nation.99 Nancy D. Erbe draws a link be-
tween good governance and mediation when she identiﬁes eight interdepen-
dent elements of good governance: (1) broad participation in governance that
reﬂects the diversity of the community (ethnic and gender) as well as freedom
of association and expression; (2) the rule of law, enforced fairly and impar-
tially; (3) transparency; (4) consensus-based mediation between the diverse
stakeholders stressed in the ﬁrst criterion above, where all discuss and agree
to sustainable decisions; (5) egalitarian and inclusive decision making among
the myriad societal interests referenced earlier; (6) eﬃcient use of resources;
(7) responsiveness to stakeholders’ interests; and (8) accountability.100
Democracy is mandated by the African Charter on Democracy, Elections,
and Governance of 2007.101 The charter seeks, among other things, to promote
adherence, by each state party, to the universal values and principles of de-
mocracy. It also seeks to promote and enhance adherence to the principle of
the rule of law premised upon the respect for, and the supremacy of, the con-
stitution and constitutional order in the political arrangements of state parties.
In Article 4, state parties commit themselves to promote democracy and the
principle of the rule of law.
In view of the above, one can argue that, being a creature of law, the
AfDB cannot act ultra vires its constitutive instrument. However, it is doubt-
ful whether the AfDB, as an international body, can cite its articles of agree-
ment to excuse itself from the performance of its international obligations.102
Although not a state party to the African Charter on Democracy, Elections,
and Governance, the AfDB, as the premier ﬁnancial institution for Africa, can-
not defeat the objects and purpose of the charter. Recently, the AfDB has con-
sidered good governance as pivotal to any eﬃcient legal and judicial system.
It has therefore highlighted legal and judicial reforms in its Policy on Good
Governance and the Governance Strategic Directions and Action Plan.103

99 See Botchway, supra note 65.
100 See Nancy D. Erbe, Appreciating Mediation’s Global Role in Promoting Good Governance,
11 Harv. Negot. L. Rev. 355 (Spring 2006).
101 African Charter on Democracy, Elections, and Governance, available at h p://au.int/en
/sites/default/ﬁles/AFRICAN_CHARTER_ON_DEMOCRACY_ELECTIONS_AND_GOVER
NANCE.pdf (accessed May 5, 2013). This was adopted on January 30, 2007, and entered
into force on February 15, 2012; by July 19, 2012, it had been ratiﬁed by 17 and signed by 41
African countries. For a list of countries that signed, ratiﬁed, or acceded to the charter, see
h p://au.int/en/sites/default/ﬁles/charter%20on%20democracy%20and%20governance_0.pdf
(accessed May 5, 2013).
102 See Vienna Convention, supra note 30, at art. 27.
103 AfDB, Governance Strategic Directions and Action Plan GAP 2008–2012 (research paper pre-
pared by the Governance, Economic and Financial Management Department, Apr. 17,
2008), available at h p://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Publications
/7000017_EN_OSGE%20anglais%20OK.pdf (accessed Apr. 23, 2013).
Fostering Opportunity through 479
Development Finance in Africa

Conclusion
This chapter has discussed Article 38 of the Agreement Establishing the Af-
rican Development Bank, which restricts the AfDB and its president, vice
presidents, oﬃcers, and staﬀ to economic considerations only in their work,
without partiality.
Despite this restriction and in response to recent challenges, the AfDB has
utilized innovative policy initiatives to foster opportunities and inclusion on
the continent, including the provision of premembership assistance to the Re-
public of South Sudan and the continuity of the bank’s operations under Pres-
idential Directive No. 3 of 2010 in postconﬂict RMCs. The AfDB has adopted
a long-term strategy designed to foster opportunities and inclusion through
development ﬁnancing. However, there are legal implications for the bank in
terms of its legal mandate in Article 38; this chapter thus suggests a purposive
interpretation of Article 38. Furthermore, it argues that the purposive inter-
pretation should be combined with a proportionality test that would allow a
careful, constructive, and creative stretching of Article 38 that does not lead
to its breach.
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PART V

EMPOWERMENT AND EQUITY FOR
DIVERSE COMMUNITIES
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Nation Building, State Reconstruction,
and Inclusiveness
Issues on South Sudan as a New State
and Somalia as a Failed but Reemerging State

VINCENT O. NMEHIELLE AND JOHN-MARK IYI

Since time immemorial, humans have sought ways to improve progress and
well being through the formation of associations, communities, societies,
countries, states, and regional blocs.1 Deprivations, inequalities, and injustices,
however, have often characterized how various segments of these entities re-
lated with one another. In a number of cases this has spawned conﬂicts that
have hindered human progress and development. Although our understand-
ing of the cycle of violent conﬂict caused by deprivation, exclusion, and in-
equality has deepened, our policy responses have not always been success-
ful in bringing about the institutional transformation necessary to break that
cycle.2 This is particularly the case in conﬂict-ridden states, postconﬂict states,
and new states emerging from conﬂict situations that need to be rebuilt to set
out on a new and coordinated path of rule of law‒driven development. The
cases of South Sudan and Somalia fall into the la er category.
Some writers have described nation building as comprising three phases:
stabilizing the crisis-ridden country, establishing governance institutions, and
enhancing the capacities of those institutions to foster socioeconomic devel-
opment.3 Development theorists diﬀerentiate between “nation building” and
“state building,” and between “reconstruction” and “development.”4 “Na-
tion-building is the process of constructing a new political order with a shared
identity and a community of shared values.5 State-building, in contrast, refers
to the process of constructing (or reconstructing) state political institutions or

1 Rosa Ehrenreich Brooks, Failed States, or the State as Failure?, 72(4) U. Chi. L. Rev. 1159, 1169
(2005).
2 Necla Tschirgi, The Security-Politics-Development-Nexus: The Lessons of State-Building in Sub-
Saharan Africa (Robert Schuman Ctr. for Advanced Stud. European Report on Dev., Euro-
pean U. Inst. Working Paper RASCAS 2010/35, 2010), available at h p://www.erd.eu/media
/tschirgi.pdf (accessed May 7, 2013).
3 Caio Cesar Paccola Jacon et al., Nation-Building in South Sudan: Past Struggles and Current
Challenges, available at h p://www.sinus.org.br/2012/wp-content/uploads/16-AU.pdf (ac-
cessed May 2, 2013) (hereinafter Nation-Building in South Sudan).
4 See Dan E. Stigal, Comparative Law and State-Building: The “Organic Minimalist” Approach to
Legal Reconstruction, 29 Loyola L.A. Intl. & Comp. L. Rev. 1, 4 (2007).
5 Id., at 4.

483
484 The World Bank Legal Review

promoting economic development.”6 “Reconstruction refers to the restoration
of war-torn or damaged societies to their preconﬂict situation.”7 “Develop-
ment, however, refers to the creation of new institutions and the promotion of
sustained economic growth, events that transform the society open-endedly
into something it has not been previously.”8
The meaning, scope, content, and measurement of development have
changed over the years. In the past, the concept of development focused on
economic advancement, but it now includes such variegated dimensions as
freedom from fear and want.9 Similarly, emphasis was on GDP as a reﬂec-
tion of the level of development, but it is now clear that there can be growth
without development and, even when development does occur, it may not
necessarily reach the majority of the population.10 Thus was born the concept
of human development encompassing all those elements reﬂective of human
progress, such as security, freedom from want and fear, opportunity, and other
elements outlined in the Millennium Development Goals and other related
documents.11 The rise of globalization fostered great economic prosperity in
the last half of the 20th century.12 However, it did not necessarily translate
into a reduction of poverty, hunger, the number of malnourished children in
Africa and other areas of the developing world, or the number of homeless
people.13 Tremendous results have been recorded in the deployment of tech-
nology to drive economic development and wealth creation; but inequity in
the distribution of this prosperity has also meant that more and more people
have been driven into extreme poverty.14 Thus, despite the remarkable success
of this phenomenon, increasingly more people are excluded from participat-
ing in global wealth and resources.15

6 Id. Experience shows that it is easier to achieve state building than nation building. “Nation-
building can be viewed in terms of its inputs―which, broadly speaking, are manpower,
money, and time―and its desired outputs”: peace, economic growth, and democratization.
Outputs are not directly proportional to inputs but depend to a high degree on the astute-
ness employed in the deployment and management of resources and the willingness of the
particular society to adapt to the changes and reforms being introduced.
7 Id.
8 Id., at 4‒5.
9 See United Nations, We the Peoples: The Role of the United Nations in the Twenty-First Century,
Report of the Secretary General, A/54/2000, paras. 66‒188 & paras. 189‒253 (hereinafter We the
Peoples). The number of people living on less than $1.25 fell from 47 percent in 1990 to 24 per-
cent in 2008. See h p://www.undp.org/content/undp/en/home/mdggoverview/mdg_goals
/mdgl/ (accessed May 6, 2013).
10 Joseph E. Stigli , Globalization and Its Discontents 4 (2002); No Future without Justice: Report of
the Civil Society Reﬂection Group on Global Development Perspectives, 59 Dev. Dialogue 1, 9, 11
(June 2012) (hereinafter No Future without Justice).
11 See We the Peoples, supra note 9.
12 Stigli , supra note 10, at 24.
13 See No Future without Justice, supra note 10, at 6.
14 Stigli , supra note 10, at 24.
15 Id. This imbalance was recently echoed thus: “We live in a world where the top 20 percent of
the population enjoy more than 80 percent of total income and those in the bo om quintile
Nation Building, State Reconstruction, and Inclusiveness 485

The story of the world since the 20th century has been a paradoxical one
of want in the midst of plenty. “Persistent poverty, unemployment, social ex-
clusion, and higher levels of inequality and insecurity are threatening care
systems, social cohesion and political stability,”16 as unmitigated globaliza-
tion continues to increase inequality between and within countries.17 The spin-
oﬀs of these conditions quickly led to a series of “Occupy” movements and
protests across the world in 2011‒12. However the debate is framed, whether
among nations or within countries, the challenge remains the same: how can
resources be distributed more inclusively and equitably, aﬀording everyone
the opportunity to achieve his or her potential and thereby end the cycle of
poverty that has up to now continued unabated? This challenge is greater for
a new country such as South Sudan and a reemerging state such as Somalia,
especially after decades of brutal conﬂicts and war.
While the emphasis here is on South Sudan and Somalia, it is safe to
say that the cycle of poverty and violent conﬂicts have been the lot of most
postcolonial African states. On several development indexes, African states,
particularly those emerging from long periods of conﬂict and the complete
disappearance of any semblance of statehood, occupy the bo om rung of the
statistical ladder.18 At a time when much intellectual capital is being spent on
a be er understanding of the conﬂict-development nexus, it is not surprising
that the dominant themes of opportunity, inclusion, and equity animate the
African discourse.
Upon independence, many African states embraced a strongly state-led
development model.19 However, for several reasons, many of which remain
controversial, these eﬀorts were unsuccessful and during the late 1970s and
early 1980s these states were forced to abandon their developmental-state
model and embraced the neoliberal development prescriptions of interna-
tional ﬁnancial institutions (IFIs).20 Again, by the end of the 1990s, develop-
ment thinkers in development institutions, donor governments, aid agencies,
and academia had to reassess the suitability of this model for Africa given
the stark evidence that most African states had become worse oﬀ than they
were before they embarked on neoliberal policies of liberalization and struc-
tural adjustment programs.21 The causes of the failure of the development

get 1 percent of global income.” See No Future without Justice, supra note 10, at 6.
16 Id., at 7.
17 Stigli , supra note 10, at 5.
18 See, for example, The World Bank World Development Report 2011: Conﬂict Security and Devel-
opment 344‒355 (2012). The new state of South Sudan was not featured in the report for the
obvious reason that it only came into existence on July 9, 2011. However, the mother state of
Sudan fared no be er.
19 See John-Mark Iyi, Democracy and the Development Crisis in Sub-Saharan Africa: Revisiting Some
Preconditions for a Developmental State Alternative, in International Economic Law: Voices of Africa
184, 189 (Emmanuel Laryea, Nokuhle Madolo, & Franziska Sucker eds., 2012).
20 Id., at 189.
21 See Stigli , supra note 10, at 5‒22, discussing the role of these policies expressed in the Wash-
486 The World Bank Legal Review

eﬀorts are still a subject of academic debate. What is se led, however, is that
this decline in economic fortunes combined with several other factors to spawn
series of violent conﬂicts across the continent, and where there was already
smoldering conﬂict, it rekindled and exacerbated it.22 Somalia ﬁts into the for-
mer category and the state of Sudan can be placed in the la er. What is impor-
tant to note in both cases is that, whereas dwindling economic development
weakened the ability of the state to perform its functions, it was the interplay
of deprivations, injustice, patronage, socioeconomic exclusion, inequalities in
governance, and the failure of the state to redress these grievances that ulti-
mately led aggrieved groups to take up arms and challenge the legitimacy of
the state. In Somalia, it brought down the Siad Barre government, and in the
former united Sudan, it reinforced the claim to self-determination and seces-
sion by the South.
Because of the above historical experiences of these countries it is impor-
tant to ensure that their building and reconstruction should lead to an ame-
lioration of a situation wherein the majority of people live in extreme poverty.
Whatever the development program designed for these countries, it must
ﬁnd a way of striking a balance between the need for economic development
and the promotion of social justice, equity, and inclusive poverty-reduction
strategies.23 This is crucial particularly because such grievances were partly re-
sponsible for the initial conﬂict; otherwise, the process risks rekindling those
grievances and could reignite the conﬂict and push the groups challenging
the legitimacy of the state to taking up arms again and stalling the overall
development process.24 How, then, can states created by postconﬂict situa-
tions, such as South Sudan, and those that are reemerging from failure, such
as Somalia, make equity, inclusion, and opportunity for all a component of
their development equation?
This chapter a empts to deal with this question. It examines the situation
of South Sudan and Somalia as new and reemerging states, respectively, in
terms of how to foster opportunity, inclusion, and equity in their quest for
development because of their uniquely fragile and diﬃcult circumstances. It
explores the possibilities in both countries based on their histories and on cur-
rent studies and suggests how the challenges of lack of opportunity, exclusion,
and inequity in governance could be addressed in the eﬀort to reconstruct the
Somali state and to build South Sudan into a viable developing country. To
these extents, this study is both analytical and prescriptive. The chapter is
divided into four sections, with this introductory background serving as the
ﬁrst. The second section gives a historical context to the issues surrounding

ington Consensus in the development malaise of much of the developing world.
22 Suleiman Mohammed, Civil War in Sudan: The Impact of Ecological Degradation, 15 Contribu-
tions in Black Stud., available at h p://www.scholarworks.umass.edu/cibs/vol15/iss1/7 (ac-
cessed May 3, 2013).
23 Robin Luckham, The International Community and State Reconstruction in War-Torn Societies,
4(3) Conﬂ., Sec. & Dev. 481, 494 (Dec. 2004).
24 Id.
Nation Building, State Reconstruction, and Inclusiveness 487

Somalia and South Sudan as well as a brief insight into how they arrived at
their present situations. In this regard, it is critical to understand the nature of
the root causes of the civil war and secession in formerly united Sudan and the
state failure in Somalia to be er comprehend the state reconstruction eﬀorts
in Somalia and nation building in Sudan through a law- and justice-focused
development process.
Relying on the issues raised in section two, section three examines how
both states can avoid repeating the mistakes that led to the protracted civil
war in formerly united Sudan and gave rise to South Sudan, and to the state
collapse in Somalia. In doing this, the third section articulates some policy
issues and discusses the institutional construction, reform, or reconstruction
necessary to establish a governance system that is development oriented and
anchored in the rule of law, that emphasizes inclusion and equity while pro-
viding opportunity for citizens’ participation to realize their potential, and
that, in the process, strengthens governance institutions and consolidates the
shared values of the peoples while minimizing the dangers of violent conﬂict
and the challenges to state legitimacy. The fourth section oﬀers some conclud-
ing remarks.

South Sudan and Somalia in Historical Context
On July 9, 2011, South Sudan came into existence as the world’s newest state
and the 54th state on the African continent. This was after more than three de-
cades of a bi er civil war between the South, led by the Sudan People’s Libera-
tion Army (SPLA), which later transformed into the Sudan People’s Liberation
Movement (SPLM), and the government of Sudan. Millions of people were
killed and hundreds of thousands displaced.25 Historically, Somalia and great-
er Sudan share a similar history of plunging into civil strife almost immediate-
ly after independence. As with many African countries, the root causes of the
conﬂicts that exploded into full civil wars after independence are traceable to
colonial legacies and unresolved postindependence ethnoreligious, econom-
ic, and political issues.26 In the case of Somalia, this was due to the political-
survival machinations of Mohamed Siad Barre, who, in a clan-dominated
society, played one clan against another to maintain political power.27 In the

25 For a detailed discussion of the subject, see, generally, M. W. Daly, Imperial Sudan: The Anglo-
Egyptian Condominium,1934‒56 (1991); Mansour Khalid, The Government They Deserve: The
Role of the Elite in Sudan’s Political Evolution (1990); Francis Manding Deng, War of Visions:
Conﬂict of Identities in the Sudan (1995); Juliet Flint & Alex de Waal Darfur, A Short History of
a Long War (2005); Susan E. Cook & Charles K. Mironko, Darfur: Understanding a Complicated
Tragedy, in Peace in the Balance: The Crisis in Sudan 123‒138 (Brian Raftopoulos & Karin Al-
exander eds., 2006); Douglas H. Johnson, The Root Causes of Sudan’s Civil Wars (2003); Ann
Mosely Lesch, The Sudan: Contested National Identities (1998); Ruth Iyob & Gilbert Khadiagala,
Sudan: The Elusive Quest for Peace 133‒166 (2006).
26 Daly, supra note 25, at 399.
27 Ken Menkhaus, Governance without Government in Somalia: Spoilers, State-Building and the Poli-
tics of Coping, 31(3) Intl. Sec. 74, 80 (Winter 2006‒2007); and Robert I. Rotberg, The New Nature
of Nation-State Failure, 23(3) Wash. Q. 85, 94 (2002).
488 The World Bank Legal Review

case of Sudan, it was the abrogation of political arrangements at independence
and the marginalization of a black African population of the South by the
Arab North that fueled alienation and helped sustain a bi er civil war.28
When the above socioeconomic and political mosaic is situated in the
context of the Cold War world of the 1960s, in which most African states, in-
cluding Sudan and Somalia, a ained self-rule, the ramiﬁcations and latent
peril become palpable. Linking all these pieces in the mosaic are the cultural
aﬃnities and identities that shaped the policies of most African states as they
struggled to build nations from the conglomeration of peoples within the ar-
bitrarily demarcated colonial borders inherited at independence.29
Somalia had been without an eﬀective central government since 1991 and
was thus the oldest textbook example of the so-called failed, or collapsed, state
in postcolonial Africa.30 Eﬀorts to reconstruct Somalia failed at various times.
The Transitional Federal Government established on the heels of the Nairobi
Peace Accords of 2004 struggled but was unable to reestablish eﬀective control.
The U.S.-backed Ethiopian intervention to dislodge Al Shabab, the deployment
of the African Union Mission in Somalia (AMISOM) since January 19, 2007,
and the incursion by Kenya are only some of the most recent eﬀorts to bring
peace to Somalia. The collective eﬀort of the African Union (AU), the United
Nations, and other partners recently resulted in the establishment of a govern-
ment following a parliamentary election and the election of a president.31
At the heart of the problem of a failed Somalia was the complete disinte-
gration and disappearance of state institutions and various trappings of state-
hood. Apart from becoming a breeding ground for terrorism, arms smuggling,
drug traﬃcking, piracy, and other manifestations of international criminality,
Somalia threatened regional security and stability. Besides the lack of a cen-
tral government, the fragmentation of the Somali state with the declaration of
independence by Somaliland and autonomy (rather than independence) by
Puntland further complicates the task of state reconstruction in Somalia. De-
spite lacking international recognition, Somaliland has functioned eﬀectively
for over a decade and has successfully conducted elections. Some commen-
tators now call for international recognition of Somaliland as a strategy for
resolving the Somali imbroglio.32

28 Lesch, supra note 25, at 36.
29 Georg Sorensen, An Analysis of Contemporary Statehood: Consequences for Conﬂict and Coopera-
tion, 23 Rev. of Intl. Stud. 253, 261 (1997).
30 Robin Geib, Armed Violence in Fragile States: Low Intensity Conﬂicts, Spillover Conﬂicts, and Spo-
radic Law Enforcement Operations by Third Parties, 91 Intl. Rev. of the Red Cross 127, 130 (2009).
31 Somali MPs Sworn in to Historic Parliament, BBC News, Aug. 20, 2012, available at h p://www
bbc.co.uk/news/world-africa-19314308 (accessed Aug. 8, 2012).
32 See Alison K. Eggers, When Is a State a State: The Case for Recognition of Somaliland, 30 B.C. Intl.
& Comp. L. Rev. 211 (2007), who argues that Somaliland met the objective criteria of state-
hood in international law and so qualiﬁed for international recognition.
Nation Building, State Reconstruction, and Inclusiveness 489

The Nation-State Concept and State Failure
A state is said to have failed when it can no longer provide social goods to its
people and the government loses its legitimacy.33 State failure passes through
phases, state collapse being the ﬁnal phase.34 Failed states exhibit several char-
acteristics. According to Robert Rotberg,
Failed states are tense, deeply conﬂicted, dangerous, and bi erly con-
tested by warring factions. In most failed states, government troops
ba le armed revolts led by one or more rivals. Oﬃcial authorities in
a failed state sometimes face two or more insurgencies, varieties of
civil unrest, diﬀering degrees of communal discontent, and a pleth-
ora of dissent directed at the state and at groups within the state. . . .
The absolute intensity of violence does not deﬁne a failed state.
Rather it is the enduring character of that violence (as in Angola, Bu-
rundi, and Sudan), the direction of such violence against the existing
government or regime, and the vigorous character of the political or
geographical demands for shared power or autonomy that rational-
ize or justify that violence that identiﬁes the failed state.35
In failed states, governance institutions are weak and there is rampant
and widespread violence. In the midst of a complete breakdown of law and
order, a failed state provides unparalleled opportunities for a few of the citi-
zenry and a breeding ground for criminality. Criminal gangs wield power
and substate actors operate diﬀerent systems of extracting resources. How-
ever, a distinction should be drawn between a weak state and a failed state.36
A state might be weak yet still not “failed” if, while being unable to exercise
sovereignty over a small portion of its territory, it can still maintain law and
order and provide security and other social goods to the majority.37 Examples
of weak states include Sri Lanka, where the Tamil Tigers controlled about
15 percent of the country until they were defeated, and Colombia, where the
FARC rebels controlled about 30 percent of the territory.38 Somalia, Sierra
Leone, Lebanon, and Afghanistan, at their critical stages, were classic exam-
ples of failed states.39

African States and the Nation-State Conundrum:
Demystifying State Failure
At independence, African nationalists, with few exceptions, accepted the Euro-
centric modern nation-state as a system of political organization, in complete

33 Rotberg, supra note 27, at 85.
34 Id.
35 Id.
36 Id., at 90‒91.
37 Id., at 87.
38 Id., at 91.
39 Id.
490 The World Bank Legal Review

disregard of Africa’s precolonial traditional political experiences.40 This by-
product of a racially induced colonial ideology, which was based on the ﬂawed
assumption that Africans were incapable of any form of political organization,
led to the dismantling of traditional political institutions and systems or, at
best, led to their being reduced to playing a secondary role in the scheme of
organizing governance.41 Surely, this was bound to have consequences, as the
“modern” postcolonial African state was modeled after the Eurocentric West-
phalian tradition despite the accepted historical fact that even in Europe the
nation-state emerged over centuries of political evolution in the presence of
diﬀerent cultural factors.42 Thus, African states have struggled to build nations
in the Westphalian sense because of their precolonial makeup and distinct
governance traditions, which, although relegated to the background, still have
implications for the stability of the so-called modern state. At the same time,
modern African states have found it diﬃcult to retrace their footsteps in terms
of organizing themselves along precolonial lines for obvious reasons that are
both political and a result of prevailing international relations and law.43 In all
of this, the latent fault lines were consecrated by the defunct Organization of
African Unity (OAU), which elected to treat colonial borders as “both artiﬁcial
and sacrosanct” through its doctrine of utipossidetis, but which continues to
be challenged by self-determination sentiments of various kinds based on the
reality of the political and ethnic makeup of the African continent.44

Somalia and State Failure
In July 1960, former British Somaliland (North) and Italian Somaliland (South)
were united to form the state of Somalia, with the South taking dominant
leadership.45 Even though the political arrangements were based on demo-
cratic compromise, inequality between the North and the South, pervasive
corruption, and a divisive clan-based politics soon generated discontent and
led to a coup in October 1969 that brought General Siad Barre to power.46
Initially, Barre led a popular government that brought about modernization,
fought corruption, and expanded education, all in an eﬀort at state building.47
He aligned with the USSR but soon fell out of favor with the populace, as his
policies became more repressive and dictatorial.48 Barre began to draw sup-

40 Jeﬀrey Herbst, Responding to State Failure in Africa, 21 Intl. Sec.120, 129 (Winter 1996‒1997).
41 Id., at 121, 122, 129. See also Tonya Langford, Things Fall Apart: State Failure and the Politics of
Intervention, 1(1) Intl. Stud. Rev. 59, 74 (1999).
42 Stephen Krasner, Abiding Sovereignty, 22(3) Intl. Pol. Sci. Rev. 229, 240 (2001).
43 Herbst, supra note 40, at 132, 134‒136.
44 Francis M. Deng, Africa and the New World Dis-order: Rethinking Colonial Borders, 11(2) Brook-
ings Rev. 32 (1993).
45 See Redie Bereketeab, Self-Determination and Secession in Somaliland and South Sudan: Chal-
lenges to Post-colonial State-Building 1, 5 (Nordic Africa Inst. Discussion Paper No. 75, 2012).
46 Id., at 5.
47 Id.
48 Ved P. Nanda, Thomas F. Muther, Jr. & Amy E. Eckert, Tragedies in Somalia, Yugoslavia, Haiti,
Nation Building, State Reconstruction, and Inclusiveness 491

port mainly from his own clan group, which, along with his other activities,
exacerbated dissatisfaction and alienation in the North.49 The project of nation
building and state construction had to take a backseat when rebels took up
arms in resistance to the Barre regime until it collapsed in 1991.50 The Somali
National Movement (SNM) arose as a major rebellious group in the former
British Somaliland. Barre used maximum force to quell it.51 Thus, the SNM
became more determined to topple Barre and to revisit the terms of the 1960
union of British and Italian Somaliland.52 One observation was that “the im-
mense suﬀering the Isaaq clan [one of the largest in Somaliland] were sub-
jected to by the Barre regime during the war and the domination of the Somali
state by southerners ﬁnally convinced the Isaaqs to opt for secession, with the
idea of independence coming later.”53
When Somalia collapsed in 1991, the United Somali Congress (USC) con-
trolled Mogadishu, while the SNM controlled Somaliland, which in May 1991
unilaterally declared independence from Somalia.54 This bold step was mo-
tivated by two factors: ﬁrst, the massive demand by the northern Isaaq clan
for independence from southern domination, and, second, the decision of the
USC to form a government excluding the SNM.55 But there was discontent
among non-Isaaq minority clans in the North that had earlier supported the
Barre regime.56 Somehow, through negotiations and dialogue, the Isaaq clan
was able to reach a compromise and broad-based consensus with the minority
clans to support Somaliland independence and statehood.57 Since then, So-
maliland has consolidated the democratic process by successfully conducting
four elections and smooth transitions from one government to another, with
the most recent elections being held in 2010.58 In this process, a blend of mul-
tiparty politics and traditional clan institutions has supported the process of
dialogue, reconciliation, and state reconstruction.59 Hence Somaliland insists
that its self-excision from Somalia was not an act of secession; rather, it was a
repossession of a sovereignty that it willingly gave up at independence in the

Rwanda and Liberia―Revisiting the Validity of Humanitarian Intervention under International
Law, pt. 2, 26 Denv. J. of Intl. L. & Policy 827, 831 (1997‒1998).
49 Abdi Ismail Samatar, Leadership and Ethnicity in the Making of African State Models: Botswana
versus Somalia, 18(4) Third World Q. 687, 689 (1997).
50 Bereketeab, supra note 45, at 5.
51 Id.
52 Id.
53 Id., at 7.
54 Menkhaus, supra note 27, at 81.
55 Bereketeab, supra note 45, at 7.
56 Id.
57 Id.
58 Id.
59 Id.
492 The World Bank Legal Review

union with the South.60 Yet, as of the time of writing, Somaliland has not been
recognized by the international community as a state.

South Sudan and Secession
Quite unlike Somalia, South Sudan had never really been an integral part of the
state of the old Sudan (The Sudan) even under British colonial rule. The Sudan
was administered in a system of “Condominium” and according to Mansour
Khalid, it was in this period that “many of the political forces which have since
shaped The Sudan’s post-independence political scene developed their most
important characteristics.”61 A study of the Condominium, by which arrange-
ment Britain and Egypt cooperated in the administration of The Sudan, re-
veals a pa ern of systematic discrimination in all spheres―economic, social,
and political, under British colonial rule, South Sudan was treated as a colonial
outpost of the North.62 In the economic, social, and political structure of The
Sudan, the British instituted a policy that systematically discriminated against
black Africans in the South and favored the Arab North.63 According to Khalid,
the colonial pa ern of development, though it had destroyed ear-
lier forms of economic exploitation, also installed its own conditions
for exploitation, and by favouring certain groups within the country
that system had set oﬀ the dynamics of marginalization leading to
perpetual tension between the diﬀerent regions.64
Fear of domination by the North led the South to convoke a conference
in 1954 to articulate the concerns of the South and work out acceptable ar-
rangements that would guarantee some degree of autonomy to the South in
an independent Sudan.65 These issues remained unresolved when Sudan at-
tained independence in 1956.66 Upon independence, the North adopted the
same policy it had seen the British deploy, a policy that regarded the South
as a wild frontier where law and order could be imposed only by force, and
in implementing it resorted to repression and suppression.67 These tensions
were quickly exacerbated by postindependence developments, resulting in a
protracted civil war that lasted over 17 years.68 This era of the war ended when
limited self-rule was granted to the South under the Addis Ababa Accord.69

60 Id.
61 Mansour Khalid,The Government They Deserve: The Role of the Elite in Sudan’s Political Evolu-
tion 45 (Kegan Paul Intl. 1990).
62 Id.
63 Id., at 58.
64 Bereketeab, supra note 45, at 9.
65 Gerard Prunier, Darfur: The Ambiguous Genocide 164 (Cornell U. Press 2005).
66 Khalid, supra note 61, at 56, 58‒60.
67 Deng, supra note 25, at 135.
68 Id.
69 Bereketeab, supra note 45, at 9.
Nation Building, State Reconstruction, and Inclusiveness 493

However, in 1983, the president of Sudan, Ghaﬀer El Niemeri, unilater-
ally abrogated this Addis Ababa Accord and imposed sharia law on the whole
country, even though the South was predominantly Christian and animist.
This triggered another round of civil war, spearheaded by the SPLA under
the leadership of John Garang, whose main objective was to lead a popular
movement to oust the elites in Khartoum and to usher in an inclusive and
plural society throughout Sudan. But this vision, following years of oppres-
sion and protracted conﬂict, diminished and collapsed when the Comprehen-
sive Peace Agreement was signed in 2005, paving the way for a referendum
that ultimately resulted in independence for South Sudan on July 9, 2011. It
has been observed that “many South Sudanese see the referendum of 2011 as
the fulﬁlment of the process of decolonisation that was denied them in 1956
when Sudan became independent,” and that “like the Somalilanders, many
South Sudanese invoked separate colonial rule to legitimise their quest for
self-determination.”70

State Reconstruction in Somalia and Nation Building in South
Sudan: Challenges of Opportunity, Inclusion, and Equity
State Reconstruction in Somalia
Analysts and practitioners often speak of “state reconstruction” with respect
to Somalia.71 This is because, unlike South Sudan, which was crippled by de-
cades of civil war, Somalia imploded from within, and when state institutions
and infrastructure that had existed to support the central government and
the state collapsed, they were replaced by rival warlords and conﬂict entre-
preneurs.72 So, to this end, state reconstruction in Somalia would entail a re-
establishment of those government structures and institutions that are neces-
sary for the functioning of a modern state.73 Among other things, there would
be political reform―to achieve good governance through democracy, rule of
law, and human rights.74 There has been ongoing debate on how Somalia can
achieve this objective, and series of conferences have been held at diﬀerent

70 Id.
71 Ismail I. Ahmed, The Heritage of War and State Collapse in Somalia and Somaliland: Local-Level
Eﬀects, External Interventions and Reconstruction, 20(1) Third World Q. 113 (1999).
72 At a time when over 50 militia groups were operating in Somalia, the provision of basic
services was taken over by traditional rulers, businessmen, and civil society organizations.
See Lars Ronnås, Prospects for Peace and Development in the Horn of Africa, in Horn of Africa
Conference: Good Governance and the Rule of Law as Keys to Peace, Democratization and Sustainable
Development 28 (Ulf Johansson Dahre ed., SIRC Horn of Africa Report No. 4, Lund U., Lund,
Sweden, Oct. 2005).
73 See Sharif Hassan Sheikh Aden, Statement on Somalia, in Horn of Africa Conference: Good Gov-
ernance and the Rule of Law as Keys to Peace, Democratization and Sustainable Development 40 (Ulf
Johansson Dahre ed., SIRC Horn of Africa Report No. 4, Lund U., Lund, Sweden, Oct. 2005).
74 See Ronnås, supra note 72, at 15.
494 The World Bank Legal Review

world capitals to discuss the ma er.75 Some analysts insist that the clan sys-
tem is crucial to any process of reconciliation and political reconstruction in
Somalia,76 whereas others maintain that the clan system must be managed
carefully as a component of the reconstruction process because it was partially
responsible for the state collapse in the ﬁrst place; what is needed is a total
political transformation that will minimize the role of the clans.77 The major
causes of conﬂicts in many countries in Africa are still linked not only to eth-
nic or religious diﬀerences but also to “control over resources, social justice
and marginalisation of groups.”78 Whichever system is adopted, it should be
informed by the changing context in Africa, because the causes of conﬂicts
are now shifting from predominantly ethnoreligious factors to questions of
control of resources, social inclusion, and economic equity.79
Abdi Samatar maintains that the problem was not the existing traditional
clan system of political organization but rather the manipulation of this sys-
tem by the elites for political purposes.80 The concept of good governance
and the rule of law in the reconstruction of Somalia must be localized and
should be a blend of contextualized modern state institutions and a reenact-
ment of preexisting traditional structures that Somalis have utilized in conﬂict
resolution and mitigation of a hostile environment with minimum external
involvement in the process.81 “A empts to promote legal reform as a develop-
ment project must reﬂect the strong inﬂuence of existing structures”; this is
particularly so for Somalia, where interclan rivalry remains a challenge.82 For
political reforms to achieve good governance there must be dedicated leader-
ship, democracy, and the rule of law, none of which is possible in the absence
of peace.83 So the key requirement will be political reform, to achieve good
governance and social reforms, to reduce poverty, and to ensure equal oppor-

75 Turkey Hosts Meeting on Somalia, Al Jazeera, available at h p://www.aljazeera.com/video
/europe/2012/05/201253162357945454.html (accessed May 7, 2013).
76 Clarissa Ruggieri, State Reconstruction and Economic Recovery in Somalia: An Alternative Op-
tion between Central-State and Clan-Based Systems of Governance, Middle E. J. of Geopolitics 25,
31‒33 (2004).
77 Abdi Ismail Samatar, Somali Reconstruction and Local Initiatives: Ahmoud University, 29 World
Dev. 641 (2001).
78 See Abdilahi Jama, Introduction, in Horn of Africa Conference: Good Governance and the Rule of
Law as Keys to Peace, Democratization and Sustainable Development 18 (Ulf Johansson Dahre ed.,
SIRC Horn of Africa Report No. 4, Lund U., Lund, Sweden, Oct. 2005).
79 Id., at 18.
80 See Samatar, supra note 49, at 687‒688.
81 See Christopher Clapham, Good Governance and the Rule of Law: What Can They Oﬀer the Horn?,
in Horn of Africa Conference: Good Governance and the Rule of Law as Keys to Peace, Democratiza-
tion and Sustainable Development 51 (Ulf Johansson Dahre ed., SIRC Horn of Africa Report
No. 4, Lund U., Lund, Sweden, Oct. 2005).
82 See Thomas F. Mclnerney, Law and Development as Democratic Practice 1(1) Voices of Dev.
Jurists 17‒18 (2004).
83 Ronnås, supra note 72, at 15.
Nation Building, State Reconstruction, and Inclusiveness 495

tunity and the rule of law.84 There must also be a deliberate eﬀort to combat
corruption and ensure transparency. An independent judiciary is crucial to
the rule of law,which is in turn necessary to separate and insulate institutions
from the ruling elites and to guarantee equality before the law; otherwise, the
state might come under the control of elite groups and the reforms compro-
mised.85 “So there are three principles to uphold rule of law: the right to equal
treatment and fair trials, the separation of state and the legal system and the
loyalty of the legal system to the law.”86
The process of social reform should reﬂect the increasing economic roles
of women through empowerment and inclusion in the development process.
Emphasis should be placed on the education of girls, microcredit systems, and
access to land and other means of production so they can contribute meaning-
fully to the process.87 Though often marginalized and discriminated against,
women occupy and play vital roles in the survival equation in conﬂict and
postconﬂict states’ reconstruction because of their unique abilities to adapt
diﬀerent coping mechanisms in extremely challenging circumstances. This
capacity can be tapped into and enhanced to help drive the development pro-
cess from below. This is in addition to their contribution to family stability
and the overall social cohesion they bring to society.88
When states fail, they produce transborder consequences for the entire re-
gion. Regional actors, such as the Inter-Governmental Development Author-
ity (IGAD) and the AU, have rightfully been concerned about and involved
in ﬁnding a solution to the Somali crisis. At this stage of state reconstruction,
they should also play important roles in creating a system that pursues de-
velopment in an inclusive and equitable way. Regional actors and neighbors
can help to provide the enabling environment for these values to thrive. The
African Peer Review Mechanism will be particularly useful in this regard, to
help the new leaders in Somalia develop new parameters for evaluating the
inclusive and equitable policies of governance institutions in the country.
A corollary to the above point is the question of internally displaced per-
sons (IDPs) and the return of refugees. Refugees and IDPs should be factored
into the reconstruction and development process. These groups are particularly
vulnerable but could contribute meaningfully to the development process if
adequately empowered. Therefore, the concepts of opportunity, inclusion,
and equity will be of particular signiﬁcance to these groups, most of which
will include people who have lost homes, property, and whatever economic

84 Id.
85 Morgan Johansson, State Building, Democracy and the Rule of Law, in Horn of Africa Conference:
Good Governance and the Rule of Law as Keys to Peace, Democratization and Sustainable Develop-
ment 26 (Ulf Johansson Dahre ed., SIRC Horn of Africa Report No. 4, Lund U., Lund, Swe-
den, Oct. 2005).
86 Id.
87 Ronnås, supra note 72, at 14‒15.
88 Id., at 14.
496 The World Bank Legal Review

resources they might have had before displacement. Eﬀective collaboration
and policy synergy between domestic institutions and development partners
will be key to success in this area. Finally, Somalia has a huge diaspora all over
the world, most members of which have acquired useful and critical skills that
will be necessary for the development of Somalia. Currently, this diaspora
community plays signiﬁcant roles through remi ances, but this can become
more institutionalized as part of investment and development funding.89
Building a democratic state with strong institutions can be a challenge
even for a homogeneous country like Somalia. The major challenge is fashion-
ing an inclusive process of democratization that can in turn establish demo-
cratic institutions based on equity and opportunity for all.90 This is even more
challenging because in Somalia there is contention regarding the outlook of
the future Somali state and the basis of political authority.91 For example, Al
Shabab, unlike groups that favor a secular state, conceives the relationship
between state and religion diﬀerently. In this respect, it would be helpful for
development programs to strengthen civil society organizations and religious
groups in order to build a democratic, inclusive, and equitable Somalia based
on the rule of law. Apart from providing a platform for dialogue on national
issues, civil society groups need to be able to facilitate consensus building
among contending social forces such as religious extremists and moderates
for forging an agenda or vision of the future of the Somali state.92
The role of international actors in the development process must be
handled with care because there is a tendency among development partners
and practitioners to foist particular development policy prescriptions on aid
recipients. Somalia has proven to be particularly diﬃcult, and development
programs should be sensitive to these tendencies. The United Nations, inter-
national NGOs, and aid agencies can guide Somalia in capacity building to
deliver public administration and provide other social goods, but the process
itself must be inclusive and Somalis should be allowed to take ownership and
drive the process. As David Anderson rightly points out, “clans and patrilin-
eality have transformed in the modern context, to reﬂect a broad set of inﬂu-
ences prevailing in present-day Somali culture that work upon and through
clan structures. Race, class, economic wealth, language, and access to resources
mediate and interact through clan relations to organise Somali society.”93 This
will enable the process to build on existing and viable preconﬂict structures or
institutions in a way that supports the new state and its development eﬀorts.94

89 Lisa Magloﬀ, Investing in Rebel States, in Horn of Africa Conference: Good Governance and the
Rule of Law as Keys to Peace, Democratization and Sustainable Development 73, 75, 79 (Ulf Johans-
son Dahre ed., SIRC Horn of Africa Report No. 4, Lund U., Lund, Sweden, Oct. 2005).
90 Luckham, supra note 23, at 500‒501.
91 Id., at 499.
92 Id., at 500‒501.
93 David M. Anderson, Clan Identity and Islamic Identity in Somalia 2 CEADS Papers 1, 14‒15
(Mar. 2012).
94 Luckham, supra note 23, at 499.
Nation Building, State Reconstruction, and Inclusiveness 497

For example, whereas the principle of equity and justice is well established in
intraclan relations, it is not the case in interclan associations.95 It is therefore
the Somalian state that can guarantee equality and social justice to all Somali
citizens without discrimination.96 Thus, purposeful leadership will be essen-
tial to steer the ship of national rebirth, reconstruction, and development.

Nation Building in South Sudan
Commentators have emphasized development, nation building, and con-
struction with respect to South Sudan, in contrast to the situation in Somalia.97
This assessment is informed by the fact that although South Sudan faces chal-
lenges similar to Somalia’s in many respects, its problems also diﬀer from
those of Somalia in more ways than one. First, there has never been a true
South Sudan state, let alone one to be reconstructed. Second, there never re-
ally was “construction” in South Sudan in terms of development and state
presence, so it would be anomalous to speak of “reconstruction.”98 Finally,
unlike Somalia, which is largely homogeneous, having a common religion,
language, and culture, South Sudan is multiethnic and has well over 17 diﬀer-
ent ethnic groups.99 Hence the concept of “nation building,” as distinct from
“state reconstruction,” be er captures the challenges of South Sudan as a new
state: to build a system that is inclusive and equitable among these multieth-
nic groups. While the civil war lasted, the tendency among writers was to
speak of the North-South conﬂict in the sense that
the civil war which has plagued southern Sudan over decades has
concerned issues of governance, in particular the degree to which
the south can act autonomously over its own aﬀairs and beneﬁt from
the extraction of the region’s rich natural resource base which his-
torically has been dominated by northern political and commercial
interests. The war itself has served to reinforce further the economic,
social, religious and political divides between the two regions.100
The above scenario misses the possibility, or even the existence, of a South-
South conﬂict.101 As long as the formerly united Sudan state was perceived by

95 Abdulkadir Osman Farah, Somalia: State Reconﬁguration and the Role of the Diaspora and Civil
Society, 2 Africa Renaissance 70, 73 (2005).
96 Id.
97 Mariam Jooma, Feeding the Peace: Challenges Facing Human Security in Post-Garang South Sudan
(ISS Situation Report No. 2, Aug. 23, 2005), available at h p://www.issafrica.org/publica
tions/situation-reports/situation-report-feeding-the-peace-challenges-facing-human-security
-in-post-garang-south-sudan-mariam-jooma (accessed May 2, 2013).
98 Id.
99 CIA Factbook, available at h p://www.cia.gov/library/publications/the-world-factbook
.geos/od.html (accessed May 6, 2013).
100 Joanna Macrae et al., Conﬂict, the Continuum and Chronic Emergencies: A Critical Analysis of the
Scope for Linking Relief, Rehabilitation and Development Planning in Sudan, 21 Disasters 223, 224
(1997).
101 Naglaa Elhag, A Tale of Two Wars: The Militarization of Dinka and Nuer Identities in South Sudan,
in Dilemmas of Development: Conﬂicts of Interest and Their Resolution in Modernizing Africa 164,
498 The World Bank Legal Review

the South as the oppressive North, the southerners were bound together by the
experiences of common suﬀering and united by the need to defeat a common
enemy, thus giving a somewhat false impression of a monolithic South.102
However, there is fear that interethnic cracks could soon begin to appear; if
not carefully managed, such situations could ignite a South-South conﬂict.103
This is the reason the concept of nation building, as opposed to mere state
construction, or reconstruction, and its component principles of opportunity,
equality, and inclusiveness will determine South Sudan’s viability and sur-
vival as a state. If South Sudan itself is to avoid fragmentation, it must eschew
the policies of exclusion, economic inequality, and social injustice that led the
South to take up arms against the North-dominated government of Sudan,
which resulted in secession in the ﬁrst place.
In view of the foregoing, the ﬁrst issue South Sudan will have to deal
with will be the question of national identity.104 What should be the identity
of a South Sudan state? As demonstrated above, the policy of Arabization and
Islamization pursued by the former Sudan was a major cause of disagreement
and conﬂict between the North and the South. To avoid this pitfall, South
Sudan must bring its multiethnic groups together to agree on a vision of the
national identity of South Sudan or what that state should look like.105 This is
a tough challenge, but it is not insurmountable. To achieve this, South Sudan
leaders must, from the outset, implement policies and build institutions that
will entrench the principles of equality, inclusion, and social justice for all
ethnic groups. Again, the rule of law and good governance will be crucial to
this task. Luckham sums up the challenge thus:
The central issues tend therefore to concern the future identity of
the state more than just its reconstruction. Issues include whether
and how to accommodate the demands of separatist groups . . . ; and
how to make existing state institutions more inclusive through pow-
er-sharing, constitutional reforms, or more equitable distribution
of the beneﬁts of development. Even if the state is ultimately parti-
tioned, [as is the case with South Sudan now] the same issues tend
to recur, sometimes in an aggravated form, since partition tends to

165 (Jon Abbink & Andre Dakkum eds., 2008).
102 Adam Branch & Zachariah Mampilly, Winning the War but Losing the Peace: The Dilemma of
SPLM/A Civil Administration and the Tasks Ahead, 43(1) J. of Mod. African Stud. 1, 3‒4 (2005).
103 Nation-Building in South Sudan, supra note 3, at 511.
104 The Sudan had consisted of two sharply contrasting national identities always in conﬂict:
a northern Arab–Islam versus a southern African–Christian/indigenous identity. This has
been fueled by ethnic, racial, cultural, and religious diﬀerences, which continue to reinforce
one another in a vicious circle of violence. See Francis M. Deng, Sudan: A Nation in Turbulent
Search of Itself, 603 Annals of the Am. Acad. of Political and Soc. Sci. 155, 155‒156, 157 (Jan.
2006).
105 Nation-Building in South Sudan, supra note 3, at 506. This is a tough challenge, though not
insurmountable. See Stigal, supra note 4, at 4.
Nation Building, State Reconstruction, and Inclusiveness 499

create new national majorities, . . . many of whom have no more
commitment to inclusive politics than their former oppressors.106
Though obscured by the North-South war, the fault lines in the question
of the identity of a South Sudan state had long been manifested by the intra‒
SPLM/SPLA squabbles that resulted in splinter groups led by Riek Machar (a
Nuer), who accused John Garang (a Dinka) of ethnic domination.107 Although
the Dinka and Nuer are the two largest ethnic groups in South Sudan, the
ethnic animosities between them run deep, with the la er accusing the former
of pursuing a Dinka domination agenda, and the former accusing the la er of
betraying the southern struggle for self-determination and collaborating with
the Sudan government.108
The leaders of South Sudan must be able to transcend primordial loyal-
ties to mobilize the diﬀerent ethnic groups around a common South Sudan
identity not deﬁned by any particular group but based on the values of equal
opportunity, equality before the law, economic inclusion, and social justice.
Emphasis should be on tolerance and shared values in order to stimulate na-
tionalist fervor, in which loyalty is given to the South Sudan state ﬁrst, rather
than to individual ethnic groups.109 The government can draw on the deep
sense of traditional practices of dialogue and mediation that pervades most of
the southern ethnic groups, who have coexisted for centuries in this regard,
to build consensus on national issues.110 The ﬁrst concrete evidence of such
inclusive policies from the perspective of the ethnic groups would be a de-
velopmental approach based on equal opportunity in access to social goods
such as education, health, housing, and employment, among others.111 Hu-
man rights and fundamental freedoms will only have meaning for people
who perceive themselves to be part of the development process and thus feel
a moral obligation to be loyal to the state and to obey the law of the land. This
in turn reinforces the leaders’ legitimacy and the state’s political authority. A
lot, therefore, will depend on South Sudan’s ﬁrst postindependence leaders.
The government must focus on how
to reconstitute national citizenship on a more inclusive basis, whilst
also recognising and respecting religious, ethnic, gender, and other
societal diﬀerences. How to do this, and whether to place the em-
phasis on universal rights or on power sharing and the institution-
alisation of cultural diﬀerences, is best left to national dialogue and
debate.112

106 See Luckham, supra note 23, at 499.
107 Nation-Building in South Sudan, supra note 3, at 506.
108 Jooma, supra note 97, at 14.
109 Nation-Building in South Sudan, supra note 3, at 508.
110 See Ronnås, supra note 72, at 14‒15.
111 Id., at 15.
112 Luckham, supra note 23, at 498.
500 The World Bank Legal Review

Striking a balance between the need for merit and the demands of equal
representation will need careful a ention at all levels of public life. Because of
its own history of discrimination and exclusion, South Sudan must pay close
a ention to the establishment, location, and distribution of state institutions
and resources.113 This must be done in the most inclusive way possible to give
a sense of belonging to all ethnic groups in the country.114
Experience shows that under a united Sudan, the racial, ethnic, religious,
and cultural diﬀerences had been exacerbated by socioeconomic exclusion and
inequality between northerners and southerners.115 Beyond the North-South
conﬂict, which has been largely a ributed to socioeconomic exclusion based
on religious and racial diﬀerences, it is important to realize that such exclusion
was also spawned by political patronage and the rent-seeking penchant of po-
litical elites that helped in creating and entrenching a system of socioeconomic
exclusion that was not only pervasive in the North-South relationship but also
in Darfur and the eastern region.116 Therefore, it is not just the presence of these
diﬀerences, but the failure to deal with them in a constructive manner and an
inclusive process of mediation and dialogue, that led to the conﬂict.117 On a
political level, South Sudan might be able to surmount this challenge through
some sort of federalism, and by allowing the diﬀerent ethnic groups to partici-
pate in decision making to take ownership of and to drive the development
and state-building process.118 Having coexisted for centuries, the diﬀerent
groups have always had traditional means of conﬂict resolution and commu-
nity development.119 Of importance would be to enhance such local initiatives
and leverage them in a peace-building process for local cooperation among
communities to provide an enabling environment for economic development.
International partners and regional actors such as NGOs, the IGAD, the
AU, and the United Nations have important roles to play. Aid donors and
development partners would be critical to development takeoﬀ in South Su-
dan, but there should not be overreliance on foreign aid, which could dry up
sooner than envisaged or promised.120 Furthermore, there may be a disconnect
between the policy focus of donors and the local needs of aid recipients. For
example, since the U.S. embassy bombings in Kenya and Tanzania, U.S. policy
focus in the Horn of Africa has shifted to ﬁghting Al Qaeda‒linked terrorist
groups and tackling other transnational crimes, such as piracy, in the region.
How this squared with local demands came to a head when the Council of

113 Magloﬀ, Investing in Rebel States, supra note 89, at 78.
114 Id., at 500‒501.
115 Nation-Building in South Sudan, supra note 3, at 508.
116 Jooma, supra note 97, at 4‒5.
117 Id., at 18
118 Id.
119 Elhag, supra note 101, at 169.
120 Derick W. Brinckerhoﬀ & Jennifer M. Brinckerhoﬀ, Governance Reforms and Failed States: Chal-
lenges and Implications, 68 Intl. Rev. Admin. Sci. 511, 516 (2002).
Nation Building, State Reconstruction, and Inclusiveness 501

Islamic Courts established control in Somalia in 2006. Although the council
was able to restore stability to Somalia, it did not receive international support
because of its fundamentalist postures. Policy makers must therefore balance
the needs of external aid with local demands and realities. South Sudan has
a racted huge international sympathy and development oﬀers, but its short-
term future will depend on how it leverages this assistance. The development
model to be pursued by South Sudan should not be foisted on it; it should be
one that recognizes existing pa erns of economic engagements and must rest
on the principles of inclusion and equality while providing opportunity for all
to participate. To this end, a democratic developmental state might be a good
recommendation, because of its eﬀectiveness in income redistribution and pov-
erty reduction in the process of industrialization and economic development.121
Fostering socioeconomic development in South Sudan through opportuni-
ty and inclusion would require addressing certain fundamental issues, includ-
ing the return of refugees and IDPs and enabling their integration into the so-
cioeconomic life of the state.122 When some of these refugees were forced to ﬂee
their homes because of the wars, they abandoned their lands and other means
of livelihood. Now, the government’s development programs must have as a
component the equitable distribution or redistribution of land and other de-
velopmental aid.123 There have been complaints that when the Equatorians (in-
habitants of the southern region of present-day South Sudan) ﬂed their villages
as a result of the war, the SPLM moved Dinkas into the abandoned lands and
villages to give them be er access to humanitarian and development aid, thus
treating Equatoria as “occupied territory.”124 This is likely to be a source of
tension as the Equatorians return to their former villages and lands; the SPLM
must ﬁnd a way of addressing this problem. As one observer commented:
The mass repatriation of Equatorians represents a political challenge
for the SPLM/A, since the returnees and those Equatorians who re-
mained demand rectiﬁcation of injustices, requiring the government
to return Dinka-occupied land to Equatorians and to give them
equal access to foreign-provided development and reconstruction
resources.125
This situation could provide an opportunity for the South Sudan govern-
ment to enhance its political authority among the diﬀerent ethnic groups, or
it could prompt an explosive interethnic contest over land and access to de-
velopment resources; much depends on how the government deals with the

121 See, generally, Iyi, supra note 19. Emmanuel Laryea, Nokuhle Madolo & Franziska Sucker
eds., Democratic Developmental State: Revisiting Some Preconditions for a Developmental State Al-
ternative, in International Economic Law: Voices of Africa (2012) argue for this path to economic
development for Sub-Saharan African States.
122 Nation-Building in South Sudan, supra note 3, at 508.
123 See Branch & Mampilly, supra note 102, at 5; Jacon et al., Nation-Building in South Sudan, supra
note 3, at 509.
124 Nation-Building in South Sudan, supra note 3, at 510.
125 See Branch & Mampilly, supra note 102, at 10‒11.
502 The World Bank Legal Review

situation.126 The fear of Dinka domination, whether based on reality or misper-
ception, will have to be addressed by the SPLM through inclusive policies.
The cause of the South had always been championed by the SPLM; even the
Comprehensive Peace Agreement that led to the independence of the South
was negotiated between the Dinka-led SPLM and the National Congress Party
of the North. The dominance of the Dinka in this regard is capable of breed-
ing mistrust and fear of postsecession political domination.127 There is talk of
a decentralized government granting some degree of political autonomy to
regions in order to foster broad-based participation in the decision-making
process by marginalized ethnic groups and to whi le down the inﬂuence of
the Dinka.128 The fact that today all the facilities required for oil production
and transportation are located in the Sudan even though the actual oil wells
are located in the South is in itself evidence of the degree of marginalization
exclusion that the South had to endure under a united Sudan, and the exclu-
sion and deprivation, or lack of opportunity, that gave fervor to the struggle
for independence by the South.129
As a country primarily dependent on oil, a nonrenewable resource, South
Sudan will have to diversify its revenue base from crude oil, which currently
constitutes over 80 percent of its earnings.130 It can achieve this through major
reforms in agricultural policy. Again, the success of this policy will depend on
how inclusive it is, because resources such as land will have to be distributed
equitably. Other means of production in the agro-allied industries must be al-
located in a manner that provides opportunity for participation by all. This is
where inclusive policies must be pursued with respect to access to land, both
for returning refugees and IDPs, because access to land is crucial to any suc-
cessful agricultural development and expansion program as a developmental
project across the South.

Conclusion
Somalia and South Sudan share some signiﬁcant characteristics. Apart from
having been conﬂict zones in decades of civil wars, both states’ ethnic groups
and clans have a common history of political exclusion, social injustice, and
economic inequality. Both have also recently started out on the path of na-
tion building and state reconstruction. This chapter highlights the failure of
governance on the road to the present condition of both states; situated the en-
trenchment of some core values of governance as indispensable drivers of so-
cial cohesion, political stability, and socioeconomic development; and argued
that nation building and reconstruction eﬀorts in these countries must be an-

126 Id.
127 Nation-Building in South Sudan, supra note 3, at 512.
128 Id.
129 Id., at 515.
130 Id., at 516.
Nation Building, State Reconstruction, and Inclusiveness 503

chored on these norms. Whatever systems of government and approaches to
development that the states choose to adopt, the rule of law, social justice,
political inclusion, and equitable participation in the economic life of the state
must be the cornerstone of government policies in Somalia and South Sudan.
The role of diﬀerent actors is important, but the reconstruction eﬀort must be
driven from the bo om and ownership of the process must be localized in a
way that blends existing traditional institutions and coping mechanisms with
transformation into a modern, developing nation-state. Somalia and South
Sudan must build a national identity by designing policies that emphasize
uniting factors and ﬁnd a way of addressing grievances and other structural
issues that heighten group diﬀerences.
The secession of South Sudan, on the face of it, has implications for post-
colonial Africa, where the doctrine of utipossidetis seems to have taken root,
but with clear fault lines based on arbitrary colonial demarcations that did not
take into account homogeneous identity, culture, and religion. In the same
vein, the doctrine continues to be challenged by state practice of egregious hu-
man rights violations, lack of good governance, or a form of governance that
marginalizes portions of society and the undermining of the rule of law and
justice. To a larger degree, the self-determination struggle of South Sudan,
like the earlier one of Eritrea and to a lesser extent Somaliland and Puntland,
demonstrates these fault lines that point to state fragmentation. It therefore
cannot be stressed enough that African states must worry about how various
ethnic groups and nationalities are treated in state arrangements, governance,
and development. To ensure lasting discouragement of such groups from tak-
ing up arms (in the hope that they would receive international sympathy in
their struggle for secession), the principles of opportunity, inclusion, and eq-
uity must be the watchword and must ﬁnd resonance in governance and the
development process of African states.
Accordingly, the journey ahead for South Sudan and Somalia is indeed
a tough one, because of the divisions and tension among the diverse ethnic
groups in the case of South Sudan, on the one hand, and the clan mistrust
in Somalia, on the other. The challenge of constructing a national identity
for South Sudan, as compared with the essentially “state reconstruction” re-
quired by Somalia, could make the task of South Sudan even more challeng-
ing. All things being equal, the homogeneity of Somalia could be a catalyst for
entrenching opportunity, equity, and inclusion and could also serve as a ve-
hicle of national identity around which state reconstruction and national de-
velopment can revolve. However, South Sudan needs to work harder to truly
entrench elements of inclusive government, equal opportunity, and social jus-
tice for all its component ethnic groups in order to forge a cohesive nation-
building process from the start; otherwise, the deﬁcits of the South Sudan
national identity crisis might become acute and give rise to a new round of
interethnic South-South conﬂict. In all, good governance that fosters opportu-
nity, inclusion, and equity will be important for these states not only because
they need it for internal survival but also because it has become the best way
to measure development.
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Enabling Equal Opportunities for Women
in the World of Work
The Intersections of Formal
and Informal Constraints

JENI KLUGMAN AND MATTHEW MORTON

Morocco is a middle-income country that has seen many legal changes that
support women’s economic opportunities. Compulsory primary education
was introduced in 1963. Since 1995, women have had legal authority to enter
into contracts to start businesses without their husband’s authorization. Inter-
national conventions for equal pay, nondiscrimination, and maternity protec-
tion have been ratiﬁed, and codiﬁed in domestic law in 2003. The 2004 Family
Code signiﬁcantly increased women’s rights in marriage, upon divorce, and
for inheritance and provided for greater protection from sexual harassment;
it has been hailed as one of the most progressive legal texts in the Middle East
and North Africa region.1
Yet, despite this largely supportive legal framework, women’s economic
opportunities remain limited in Morocco. Women’s labor force participation
stood at only 27 percent in 2011 (compared to 78 percent for men), unchanged
since 1990.2 Less than 1 percent of women are employers, compared to nearly
3 percent of men,3 and Morocco ranks 128th out of 135 countries on women’s
economic opportunity in the World Economic Forum’s gender gap ranking.4
These challenges are not unique to Morocco, and, as in many other countries,
men’s labor force participation declined over the same time period (from 83
to 78 percent). Nonetheless, the case illustrates that informal constraints can
run counter to the potential positive impacts of legal reforms on women’s
economic empowerment, a recurring theme in this chapter.
As both the World Development Report 2013: Jobs and the World Develop-
ment Report 2012: Gender Equality and Development (WDR2012) illustrate, jobs
can have intrinsic value for many women, and women’s jobs can catalyze

Many thanks to Sarah Twigg, Tazeen Hasan, Sarah Iqbal, and the editors for helpful com-
ments and feedback.
1 F. Sadiqi, Morocco (Sanja Kelly & Julia Breslin eds., Freedom House 2010).
2 World Bank, Gender Data Portal, available at h p://datatopics.worldbank.org/gender/
(accessed Apr. 14, 2013).
3 Id.
4 R. Hausmann et al., Measuring the Global Gender Gap, in The Global Gender Gap Report 2012
(Insight Report, World Econ. Forum 2012).

505
506 The World Bank Legal Review

development. Yet, major gender gaps remain in labor markets.5 Globally,
women represent about half the world’s population, but only 41 percent of
the total formal sector workforce. Trends suggest that gains in women’s la-
bor force participation worldwide over the past 30 years have been small and
slow, still hovering around 51 percent globally but as low as 21 percent in the
Middle East and North Africa.6 And labor force participation rates by them-
selves mask important diﬀerences in how and when women and men partici-
pate in the world of work.
Gender gaps persist in terms of the types of jobs that women and men
have, how much they are paid, and the extent of their unpaid work, with sig-
niﬁcant regional variation as well. In South Asia, over 69 percent of women
worked in agriculture in 2011, compared to less than 44 percent of men.7 In
a recent analysis of 41 low- and middle-income countries for which gender-
disaggregated data were available, 30 countries had higher shares of women
than men in nonagricultural informal employment.8 The majority of em-
ployed women in developing countries work in the informal economy, which
includes nonagricultural work not regulated or protected by the state. For
example, 56 percent of women in Peru were in nonagricultural informal em-
ployment in 2009 (compared to 48 percent of men) and 62 percent of women
in Uganda (compared to 55 percent of men).9 Meanwhile, survey data from
13,000 ﬁrms in 135 countries indicate that less than one in ﬁve ﬁrms (18 per-
cent) have a female top manager.10
This chapter is grounded in the recognition that women have unequal op-
portunities in the world of work. Taking a global perspective, it examines legal
constraints on women as entrepreneurs as well as constraints on women as
employees. While advocacy for legal reforms often focuses on the la er, as will
be seen, the legal constraints beyond labor codes, such as those that can limit
women’s access to assets to use as collateral, can limit the growth of ﬁrms.
We begin by outlining a framework for thinking about the role of laws,
along with other factors, in enabling or constraining women’s economic op-
portunities. After brieﬂy reviewing the international legal context for women’s
economic rights, we examine how informal factors, including cultural norms

5 See World Bank, World Development Report 2012: Gender Equality and Development (2011)
(hereinafter World Development Report 2012); World Bank, World Development Report 2013:
Jobs (2012), available at h p://www.worldbank.org/wdr2012 and h p://www.worldbank
.org/wdr2013 (accessed Apr. 14, 2013).
6 See supra note 2.
7 E. Ekkehard & S. Kapsos, Global Employment Trends 2012: Preventing a Deeper Jobs Crisis (Intl.
Lab. Oﬃce 2012).
8 International Labour Organization Statistical Update on Employment in the Informal Economy
(2012).
9 International Labour Organization Key Indicators of Labour Market Database, available at
h p://kilm.ilo.org/kilmnet/ (accessed Apr. 14, 2013).
10 World Bank, Enterprise Surveys Database, available at h p://www.enterprisesurveys.org/
(accessed Apr. 14, 2013).
Enabling Equal Opportunities for Women in the World of Work 507

and exclusionary practices, can interact with laws to complement or compete
with one another to shape women’s economic outcomes.

A Framework
Many factors, from low education to high fertility, can limit women’s eco-
nomic opportunities. As will be seen in detail later, laws—as part of formal
institutions—can limit or exclude women from economic opportunities by
treating them diﬀerently simply because of their gender. Some of these laws
arise in the realm of labor regulation, such as limits on night work or sector of
employment. Importantly, however, legal constraints on women’s work often
exist beyond discrimination in the workplace.
Women are disproportionately represented in part-time, temporary, non-
wage, and domestic work, all of which frequently fall outside the focus of most
labor legislation.11 A recent International Labour Organization (ILO) study es-
timated that women represent 83 percent of domestic workers worldwide; the
study further found that many of these workers are not covered by labor laws,
including those guaranteeing maximum weekly working hours, minimum
wages, and maternity leave.12 In some cases, labor laws can be extended to
aspects of the labor force in which women are disproportionately represented
and unprotected. In Brazil, for example, the constitution explicitly includes
domestic workers within its equality provisions that guarantee, among other
things, minimum wages, parental leave, retirement pensions, and social secu-
rity.13 In other cases, labor laws will have no or li le direct impact on many
women workers. Some of the most pertinent legal constraints on women in
formal or informal work arise upon marriage, including codes that give men
control over female spouses’ decisions and actions, such as consent require-
ments for various contracts, papers, and business-related transactions and re-
strictions on the use of property through titling and inheritance laws.
Laws do not, of course, exist in a vacuum, and adverse social norms and
exclusionary practices can have pervasive eﬀects despite progressive legisla-
tion. Social norms can constrain women’s mobility, fuel intimate-partner vio-
lence and sexual harassment, and keep girls out of school and women out of
work. Figure 1 identiﬁes social norms as among the informal institutions that
aﬀect women’s economic opportunities.

11 S. Walby, The European Union and Gender Equality: Emergent Varieties of Gender Regime, 11 Soc.
Pol.: Intl. Stud. in Gender, St. & Society (2004).
12 International Labour Organization Domestic Workers across the World: Global and Regional
Statistics and the Extent of Legal Protection (Intl. Lab. Oﬃce, 2013), available at h p://www
.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms
_173363.pdf (accessed Apr. 14, 2013).
13 S. Fredman, Anti-discrimination Laws and Work in the Developing World: A Thematic Overview
(background paper for the World Dev. Rpt., 2013).
508 The World Bank Legal Review

Evidence from Organisation for Economic Co-operation and Develop-
ment (OECD) countries shows that women’s rates of employment fall when
larger shares of the population believe men should be given priority on jobs.14
In some cases, well-intended laws that intersect with norms can even have
adverse eﬀects on women’s economic opportunities. Such is the case with
generous government subsidies to households in Algeria, Egypt, Kuwait, and
Yemen, which have tended to discourage female labor force participation.15

Figure 1. Legal constraints and women’s economic opportunities

Data & Gender Equality
evidence

MARKETS
ECONOMIC
OPPORTUNITIES

FORMAL
INSTITUTIONS HOUSEHOLDS
(laws, public AGENCY ENDOWMENTS
systems)

INFORMAL
INSTITUTIONS
(norms, exclusionary
practices)

Source: Adapted from World Bank, World Development Report 2012: Gender Equality and Development
(Washington, D.C.: World Bank, 2012), h p://www.worldbank.org/wdr2012.

How markets operate ma ers as well. Conventional economic theory
would suggest that free market economics would eventually eradicate gender
discrimination in the workforce.16 Indeed, many companies are increasingly
recognizing the business case to investing in women’s economic inclusion.17
At the same time, some economists have argued more nuanced models.18 They
suggest that discriminating employers can be marginalized in the economy
but, more often, market failures can allow ineﬃciencies, including prejudicial

14 N. M. Fortin, Gender Role A itudes and the Labour-Market Outcomes of Women across OECD
Countries, 21 Oxford Rev. Econ. Policy (2005). In Morocco, 65 percent of men and 37 percent
of women believe that men should have priority in jobs.
15 Tara Vishwanath, Opening Doors: Gender Equality in the Middle East and North Africa (World
Bank 2012), available at h ps://openknowledge.worldbank.org/handle/10986/12552 (ac-
cessed Apr. 14, 2013).
16 F. Edgeworth, Equal Pay to Men and Women for Equal Work, 32 Econ. J. (1922).
17 IFC Corporate Relations, Women and Business: Drivers of Development; Telling Our Story,
vol. 5, no. 2 (2011), available at h p://www.ifc.org/wps/wcm/connect/e6d87700484e76dda
3f5af5f4fc3f18b/TOSwomen_Sep2011.pdf?MOD=AJPERES (accessed Apr. 14, 2013).
18 J. E. Stigli , Approaches to the Economics of Discrimination, 63 Am. Econ. Rev. (1973).
Enabling Equal Opportunities for Women in the World of Work 509

norms, to persist. Since competition may or may not drive out gender discrim-
ination, there is a need for laws and policy interventions to support women’s
fair inclusion in the labor market.19
Notably, ﬁgure 1 highlights the role of data and evidence in greasing the
wheels of institutions to promote gender equality. It is essential to improve,
regularize, and make publicly available key data to monitor the implementa-
tion of legal reforms, institutional conditions, and gender-disaggregated out-
comes. The lack of internationally comparable country-level data to monitor
outcomes is striking. Gaps include pay and earnings and relative numbers of
female and male judges and police oﬃcers.20 Information about the incidence
and prevalence of workplace sexual harassment and assault, and experiences
with workplace discrimination, is also generally lacking. Sound monitoring
and evaluation eﬀorts are vital to track progress over time on both implemen-
tation and outcomes and to develop a be er understanding of what works.

International Agreements and Conventions:
The Human Rights Context
International law provides a remarkably supportive foundation for equal eco-
nomic opportunities between women and men. This may inﬂuence the evolu-
tion of international norms, including societal and political norms concerning
gender equality, and aﬀect government actions and behaviors.21 International
treaties may also encourage accountability through monitoring and reporting
mechanisms.
The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), adopted by the United Nations General Assembly in 1979
and ratiﬁed by 187 states, is a key foundation for women’s human rights glob-
ally. It includes, for example, the right to work (Article 11.1a), the right to the
same economic opportunities as men (Article 11.1b), equal pay for work of
equal value (Article 11.1d), equal beneﬁts (Article 11.1e), and freedom from
discrimination on grounds of marriage or maternity (Article 11.2). The United
States signed CEDAW under President Carter but has yet to ratify it, along
with Iran, Palua, Somalia, South Sudan, Sudan, and Tonga.
Several ILO conventions, the ﬁrst dating back to 1951, endorse principles
of gender equality related to economic opportunities. ILO Convention 100,
for example, provides for equal pay for work of equal value; Convention 111
assures equal right to work; and Convention 183 stipulates maternity pro-
tection. The Domestic Workers Convention (No. 189) and accompanying

19 D. Weichselbaumer & R. Winter-Ebmer, The Eﬀects of Competition and Equal Treatment Laws on
Gender Wage Diﬀerentials, 22 Econ. Policy (2007).
20 Data on a range of social, institutional, health, and economic indicators can be found through
the World Bank’s Gender Data Portal, available at h p://datatopics.worldbank.org/gender/
(accessed Apr. 14, 2013). These indicators are limited, however, by the country data available.
21 H. Koh, How Is International Human Rights Law Enforced?, 74 Ind. L.J. (1999).
510 The World Bank Legal Review

recommendation (No. 201), both adopted in 2011, extend labor law protection
to this group. These global treaties are reinforced by several regional agree-
ments, notably the African Protocol,22 the Inter-American Declaration,23 and
the European Union Charter.24
The extent to which human rights treaties make a diﬀerence in practice
has long been debated. This is compounded by the diﬃculty in assessing com-
pliance to, and the eﬀects of, such treaties. The available evidence is mixed.
Multicountry analyses of the eﬀects of human rights treaties have found that
treaty ratiﬁcation does not unconditionally predict be er human rights prac-
tice.25 In fact, these studies indicate that when regimes are autocratic and civil
society is weak, ratiﬁcation of human rights treaties actually predicts worse hu-
man rights practice. More encouragingly, a meta-analysis of 263 studies across
62 countries by Weichselbaumer and Winter-Ebmer found positive changes in
gender wage gaps to be associated with ratiﬁcation of the CEDAW and ILO
conventions on equal treatment of women and men.26 The la er study may
indicate that the eﬀects of human rights treaties on women’s economic em-
powerment take time to materialize.
The mixed evidence about the impacts of international treaties on state
practice and women’s economic empowerment reinforces the need to identify
and address domestic legal and other constraints that stall and undermine
progress.

Key Legal Constraints to Women’s Work
As the Women, Business & the Law (WBL) study outlines, legal barriers to
women’s economic opportunities take many forms. They can limit women’s
economic opportunities, for example, by restricting their ability to access in-
stitutions, use property, build credit, or get a job. The WBL study assessed
legal gender diﬀerentiations based on 26 speciﬁc aspects of existing national
laws (see box 1).27 Of the 143 economies studied, 128 had at least one legal dif-
ferentiation in 2011. In some economies, women face the cumulative eﬀects of
multiple legal constraints. The challenge is particularly acute in the Middle

22 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa
(July 11, 2003), available at h p://www.achpr.org/instruments/women-protocol/.
23 Declaration on Equal Rights and Opportunity for Women and Men and Gender Equity in Inter-
American Legal Instruments (June 2, 1998), available at h p://www.oas.org/juridico/english
/ga-res98/eres18.htm (accessed Apr. 14, 2013).
24 Charter of Fundamental Rights of the European Union (Dec. 7, 2000), available at h p://www
.europarl.europa.eu/charter/pdf/text_en.pdf.
25 See E. Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, 49
J. Conﬂict Res. (2005); O. A. Hathaway, Do Human Rights Treaties Make a Diﬀerence?, 111 Yale
L.J. (2002).
26 Weichselbaumer & Winter-Ebmer, supra note 19.
27 World Bank & International Finance Corporation, Women, Business and the Law 2014 (forth-
coming).
Enabling Equal Opportunities for Women in the World of Work 511

East and North Africa region, where women experience at least ten legal dif-
ferentiations. Yet, it is also notable that legal diﬀerentiations persist even in
some OECD countries, including France, where women are excluded from
some industries, and Germany, where there are restrictions on the hours that
pregnant or nursing women may work.

Box 1. Types of legal diﬀerentiation that aﬀect women’s work

Legal diﬀerentiations that may be applicable to both married and unmarried women:
1. Applying for a passport
2. Traveling outside the country
3. Traveling outside the home
4. Ge ing a job or pursuing a trade or profession without permission
5. Signing a contract
6. Registering a business
7. Being “head of household” or “head of family”
8. Conferring citizenship on their children
9. Opening a bank account
10. Choosing where to live
11. Obtaining a national ID card
12. Having ownership rights over property
13. Having inheritance rights over property
14. Absence of gender/sex nondiscrimination clause in the constitution
15. Working the same night hours
16. Doing the same jobs as men
17. Enjoying the same statutory retirement age
18. Enjoying the same tax deductions or credits
19. Having their testimony carry the same evidentiary weight in court
20. Validity of customary law if it violates constitution
21. Validity of personal law if it violates constitution

Legal diﬀerentiations that apply only to married women:
22. Being able to convey citizenship to her nonnational husband
23. Being required by law to obey her husband
24. Having inheritance rights to the property of her deceased spouse
25. Administering marital property
26. Absence of legal recognition for contributions to marital property which are not
mentioned

Source: World Bank & Intl. Fin. Corp., Women, Business and the Law 2012: Removing
Barriers to Economic Inclusion (2011), h p://wbl.worldbank.org.

Removing Legal Constraints to Gender Equality Can
Make a Difference
The evidence indicates that legal diﬀerentiations are important barriers in
practice. In economies with higher numbers of legal gender diﬀerentiations,
women are less likely to participate in the labor force, own businesses, or serve
512 The World Bank Legal Review

in management.28 One recent study found that women comprise 50 percent of
the self-employed in Sub-Saharan Africa but only 25 percent of employers;
while country GDP appears to have no eﬀect on the share of employers who
are female, countries with more gaps in women’s economic rights had lower
rates of females being employers.29
Many governments have made progress on the associated legislative front.
Between March 2011 and May 2013, the WBL study recorded 47 legal changes
toward more gender parity in 39 economies; no negative changes were record-
ed. Côte d‘Ivoire, for example, reformed its laws to increase women’s access
to institutions and incentives to work. There is encouraging evidence on the
role that gender-smart laws can play in enabling both women’s formal and
informal work. This section considers examples from laws related to equal
treatment, parental leave and ﬂexibility, and access to assets.

Equal Treatment Laws
Many governments have enacted laws against discrimination. Measuring the
eﬀectiveness of labor regulations to prevent discrimination is particularly
diﬃcult, however, because of the challenge of constructing a plausible coun-
terfactual. Nonetheless, Weichselbaumer and Winter-Ebmer’s analysis dem-
onstrated that laws constraining women’s working hours or types of employ-
ment—which exist today in about 75 countries, including Costa Rica, Nigeria,
and the United Arab Emirates30—limit women’s employment opportunities
and signiﬁcantly increase gender wage gaps. Such evidence suggests that the
passage and enforcement of equal treatment laws could make a diﬀerence.31

Parental Leave and Flexibility Laws
Laws that alleviate some of women’s disproportionate caregiving responsi-
bilities can also make a diﬀerence. Evidence from high-income countries has
shown that paid maternity leave and ﬂexible work policies have positive ef-
fects on women’s economic opportunities. These kinds of laws can be critical
in light of the major “motherhood penalty”32 on many women’s capacity to
work. One study of panel data across 97 countries estimated that, on aver-
age, a birth reduces a woman’s labor supply by almost two years during her

28 Id.
29 M. Hallward-Driemeier & T. Hasan, Empowering Women: Legal Rights and Economic Op-
portunities in Africa (World Bank 2013), available at h p://web.worldbank.org/WBSITE
/EXTERNAL/TOPICS/EXTGENDER/0,,contentMDK:23389392~pagePK:210058~piPK:210062
~theSitePK:336868,00.html (accessed Apr. 14, 2013).
30 World Bank & International Finance Corporation, supra note 27.
31 Weichselbaumer & Winter-Ebmer, supra note 19.
32 R. De Silva De Alwis, Examining Gender Stereotypes in New Work/Family Reconciliation Policies:
The Creation of a New Paradigm for Egalitarian Legislation, 18 Duke J. Gender L. & Policy 305
(2011). Available at h p://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1190&con
text=djglp.
Enabling Equal Opportunities for Women in the World of Work 513

reproductive years.33 The gender diﬀerences in the eﬀects of having children
on caring responsibilities and work are substantial. In Australia, for example,
when men have one child under ﬁve, their full-time employment on average
increases by about 27 percent, whereas when women have one child under
ﬁve, their full-time employment drops by 20 percent.34
Research investigating the eﬀects of maternity and parental leave on
mothers’ labor force participation in OECD countries has found positive
eﬀects:
• Analyses of Canadian labor market panel data illustrate that company-
extended maternity leave increases the time mothers spend with their
children—which could improve children’s well-being—and increases the
likelihood that new mothers will return to their prebirth employer.35
• Legal expansions of maternity leave in Germany have had signiﬁcant ef-
fects on mothers’ return-to-work behavior after childbirth, and reduced
turnover preserved good job-employee matches and job-speciﬁc human
capital.36
• Expansions of parental leave have also been shown to increase mothers’
incomes and career opportunities in Denmark.37
Additionally, evidence from the United Kingdom suggests that ﬂexible
work options may increase men’s caring responsibilities, thus enabling women
to participate more in the labor force.38 While there has been less investiga-
tion into the impacts of paid paternity and parental leave policies than into
maternity leave, robust parental leave options seem preferable to maternity
leave; this allows both men and women equal opportunities to contribute to
domestic responsibilities as carers. Workplace accommodation can also be ex-
tended beyond children to include caring for the disabled, chronically sick, or
elderly;39 the la er issue is emerging as very important in a number of coun-
tries, including, for example, China.40

33 D. Bloom et al., Fertility, Female Labor Force Participation, and the Demographic Dividend, 14 J.
Econ. Growth (2009).
34 Australia Human Rights Commission, Investing in Care: Recognising and Valuing Those Who
Care (vol. 2, Technical Papers, 2013).
35 M. Baker & K. Milligan, How Does Job-Protected Maternity Leave Aﬀect Mothers’ Employment?,
26 J. Lab. Economics (2008).
36 C. Dustmann et al., Expansions in Maternity Leave Coverage and Children’s Long-Term Outcomes,
4 Am. Econ. J.: Applied Economics (2012).
37 On Germany, see C. K. Spiess & K. Wrohlich, The Parental Leave Beneﬁt Reform in Germany:
Costs and Labour Market Outcomes of Moving towards the Scandinavian Model (IZA Discussion
Paper No. 2372, Oct. 2006); on Denmark, see A. W. Rasmussen, Increasing the Length of Parents’
Birth-Related Leave: The Eﬀect on Children’s Long-Term Educational Outcomes, 17 Lab. Econom-
ics (2010).
38 A. Hegewisch & J. C. Gornick, The Impact of Work-Family Policies on Women’s Employment: A
Review of Research from OECD Countries, 14 Community, Work & Fam. (2011).
39 De Silva De Alwis, supra note 32.
40 Sylvia Ann Hewle & Ripa Rashid, Winning the War for Talent in Emerging Markets: Why
514 The World Bank Legal Review

Land and Inheritance Laws
Eliminating legal diﬀerentiations that impede women’s access to assets is
important, including for women who work on family farms, who are self-
employed, and who run household enterprises. Often, the most important of
such constraints relates to property. There is some evidence that land reforms
can reduce gender gaps. An encouraging experience comes from the Hindu
Succession Act Amendment (HSAA) in India.
The HSAA provided for explicit inheritance rights of daughters equal to
rights of sons and was enacted in four states from 1986 to 1994, which created
a natural experiment allowing World Bank economists to assess the impacts
of the change on women and children in reform states relative to nonreform
states.41 This study found signiﬁcant positive eﬀects not only on women’s like-
lihood to inherit land—which was 15 percent higher for women in reform
states than for those in nonreform states—but also on their daughters’ age
of marriage and education a ainment. While the reform has not fully erased
gender inequalities in inheritance and socioeconomic outcomes, it did dem-
onstrate a positive impact.
Nevertheless, changing laws without also addressing informal constraints
can often limit eﬀectiveness. As the Moroccan case in the introduction illus-
trates, when progressive legal changes confront oppositional social, cultural,
and systemic constraints, more diversiﬁed and strategic actions are required
to translate laws into progress on the ground. The focus now turns to infor-
mal constraints that can compound legal constraints or compete with legal
reforms to exacerbate gender inequalities in the world of work.

When Laws and Informal Constraints Intersect
This section considers how informal constraints in the forms of inadequate or
inaccurate information, social norms, and institutional biases can counteract
positive laws to reinforce gender disadvantages in the labor market.

Information
Progressive laws can fail to translate into outcomes in part because men
and women are unaware of their rights. A review of 70,000 land records in
Sub-Saharan Africa, for example, found that coregistration only increased to
3.4 percent by 2002 (from 1.3 percent at the inception of joint titling in 1980),
due to lack of awareness and education, logistical challenges with coregis-

Women Are the Solution (Harv. Bus. Rev. Press 2011).
41 K. Deininger et al., Women’s Inheritance Rights and Intergenerational Transmission of Resources
in India, 48 J. Human Resources (2013).
Enabling Equal Opportunities for Women in the World of Work 515

tration, and cultural a itudes.42 Similar implementation challenges have been
documented in other land reform cases around the world.43
Research in such countries as Ethiopia and Mozambique has found wide-
spread lack of awareness related to key laws and provisions on land rights,
particularly in rural areas.44 Similarly, data from the multicountry qualitative
study On Norms and Agency indicate that most men and women, especially
those in rural areas, have very limited awareness of laws related to gender
equality.45 Even when respondents had heard of laws―through friends and
family, radio, or other media, for example―women often felt that the laws
did not apply to them or their community. Given the well-documented re-
strictions on women’s mobility, technologies, and social networks in many
cultural contexts, women can be at a particular disadvantage. In India, for ex-
ample, only 44 percent of women own cell phones (compared to 66 percent of
men), and a meager 4 percent of women use the Internet regularly (compared
to 9 percent of men).46
In Uganda, a study found that key aspects of a major new land law were
unknown to the majority of the sample and that awareness was lower among
women than men.47 At the same time, knowledge of the law’s provisions
predicted signiﬁcantly more positive land use outcomes. This indicates that,
while knowledge of rights can be suboptimal, awareness-raising eﬀorts could
yield positive payoﬀs.
Some initiatives aim to extend awareness through rights-based educa-
tion.48 Examples include community-based awareness campaigns, paralegal
services, and consultations with local oﬃcials, as in Colombia, Cambodia, and
the Democratic Republic of Congo, to increase women’s and local leaders’
awareness of property rights.49 Outreach eﬀorts in Pakistan helped women

42 E. Cooper, Inheritance and the Intergenerational Transmission of Poverty in Sub-Saharan Africa:
Policy Considerations (Chronic Poverty Research Ctr. Working Paper No. 159, Oxford U., May
2010).
43 J. W. Bruce et al., Land Law Reform: Achieving Development Policy Objectives (World Bank 2006),
available at h ps://openknowledge.worldbank.org/handle/10986/7198.
44 See UN-HABITAT, Land Registration in Ethiopia: Early Impacts on Women: Summary Report
(2008); R. Villanuea, The Big Picture: Land and Gender Issues in Matrilineal Mozambique (re-
search report, Landesa Ctr. for Women’s Land Rights, 2011).
45 A. M. Boudet et al., On Norms and Agency: Conversations about Gender Equality with Women and
Men in 20 Countries (World Bank 2013).
46 Pew Trust. Data from Spring 2012 Pew Global A itudes Survey, retrieved from the Pew
Trust. Available at h p://www.pewglobal.org/2012/04/20/spring-2012-survey-data/.
47 K. Deininger et al., Legal Knowledge and Economic Development: The Case of Land Rights in Uganda,
84 Land Economics (2008).
48 Examples of rights-based education initiatives can be found through the UN Women’s
website, h p://www.endvawnow.org/en/articles/943-provide-rights-based-education-and
-awareness.html (accessed Apr. 8, 2013).
49 S. Pallas & L. Miggiano, Women’s Legal Empowerment: Lessons Learned from Community-Based
Activities (Intl. Land Coalition brieﬁng note, 2012).
516 The World Bank Legal Review

complete marriage forms in ways that strengthened their property rights.50
Hallward-Driemeier and Hasan suggest that social media, such as radio
stations and other technologies, and social networks, such as women’s col-
lectives and cooperatives, can be good delivery mechanisms for spreading
rights-based education.51 To date, however, limited evidence is available as
to the impacts of such interventions and delivery models on changing knowl-
edge or behaviors related to women’s rights.
While there is li le evidence on interventions to diﬀuse rights-based
knowledge, there is a growing body of evidence in other areas—notably pub-
lic health—in which innovative solutions are aﬀecting knowledge and behav-
iors. Several studies, for instance, have shown positive eﬀects of using short-
message service (SMS) texting to spread messages about topics ranging from
HIV prevention to smoking cessation.52 While the appropriate strategies are
context dependent, these types of innovations from other disciplines could
inform the design, implementation, and evaluation of rights-based education
interventions to improve women’s equality.

Social Norms
Social norms are beliefs widely held by a society about what people should
and should not do.53 They can be held at multiple levels, including in the
home, the community, and the workplace. Oppositional social norms may
mean that some progressive laws are never realized. In Mali, for example, a
new Family Code was adopted by the legislature, but it was withdrawn before
it made it to law due to strong social opposition to provisions such as girls’
inheritance rights and women’s equality with their husbands in the home. The
Family Code that ultimately became the new law in 2012 preserved many of
the discriminatory provisions of the original 1962 law.54 In other cases, despite
oppositional social norms, laws with progressive provisions pass with strong
advocacy and political leadership, but they fail to translate into practice. The
prospects of compliance and eﬀectiveness are particularly vulnerable when
laws (formal regulations) conﬂict with social norms (informal regulations).
Examples of laws failing to translate into practice in the context of com-
peting social norms are many, including from the literature on land and inher-
itance laws. While the Indian example of the Hindu Succession Act Amend-
ment mentioned above is encouraging for land reform, the evidence more
generally is weak and varied. Inheritance reforms were ineﬀective in Laos, for

50 See E. Scalise, Women’s Inheritance Rights to Land and Property in South Asia: A Study of Afghani-
stan, Bangladesh, India, Nepal, Pakistan, and Sri Lanka (2009); Pallas & Miggiano, supra note 49.
51 Hallward-Driemeier & Hasan, supra note 29.
52 B. J. Fjeldsoe et al., Behavior Change Interventions Delivered by Mobile Telephone Short-Message
Service, 36(2) Am. J. Preventive Med. (2009).
53 L. Bierman & R. Gely, “Love, Sex and Politics? Sure. Salary? No Way”: Workplace Social Norms
and the Law, 25(1) Berkeley J. Empl. & Lab. L. 167 (2004).
54 S. T. Diarra, Women’s Rights in Mali “Set Back 50 Years” by New “Family Code” Law, Guardian
Weekly (May 1, 2012).
Enabling Equal Opportunities for Women in the World of Work 517

example, where gender-neutral inheritance laws enacted in the 1990s failed to
account for the fact that inheritance transactions require paperwork and head-
of-household status; as such, they still largely favor men, who are more likely
to be literate and head of the household.55
In Jordan, women legally—both by statutory and sharia religious law—
are entitled to own, share, and be jointly titled on land as well as to property
inheritance from their husbands. Yet, only 10 percent of Jordanian women
own land,56 and they typically renounce their rights to property in favor of
their husbands or other male relatives, thus muting the impacts of their le-
gal rights.57 When these tensions are identiﬁed, policy makers can respond
with more gender-informed statutes and actions. The Jordanian government
amended the law, mandating that the decedent’s property be registered im-
mediately in the name of the female relative and that a three-month waiting
period for waiving inheritance rights be enforced, to minimize women’s sus-
ceptibility to relinquishing land to men who approach them immediately after
a death. Other countries, such as Tanzania, have responded to oppositional
social norms by passing targeted mandatory joint-titling legislation that en-
sures spousal co-ownership.
In the ﬁnancial sector, only 2 countries (the Democratic Republic of Congo
and Niger) out of the 141 covered by WBL legally restricts women from open-
ing a bank account in the same way as men,58 yet only 47 percent of women
globally have opened an account at a formal ﬁnancial institution, compared
to 55 percent of men.59 In many countries, the gap is much wider. In India, for
example, 26 percent of women have an account at a formal ﬁnancial institu-
tion, compared to 44 percent of men. In such cases, diﬃculties related to social
norms and access to ﬁnancial services seem to be more inﬂuential than what
is wri en in the law.
Likewise, qualitative research with male participants in sexual harassment
information interventions has found that underlying gender norms are a sig-
niﬁcant obstacle.60 Even when workplace norms do not endorse harassment

55 Andrew D. Mason & Elizabeth M. King, Engendering Development through Gender Equality
in Rights, Resources, and Voice (policy research report, World Bank 2001), h p://documents
.worldbank.org/curated/en/2001/01/891686/engendering-development-through-gender
-equality-rights-resources-voice (accessed Apr. 14, 2013).
56 UNIFEM, The Status of Jordanian Women: Demography, Economic Participation, Political Partici-
pation and Violence (2004), available at h p://ns.iknowpolitics.org/en/2007/02/status-jordanian
-women-demography-economic-participation-political-participation-and (accessed Apr. 14,
2013).
57 A. Hadadin, Good Practices and Lessons Learned in Realizing Women’s Rights to Productive
Resources: The Case of Jordan (UNHROHC 2012), available at h p://www.unwomen.org
/wp-content/uploads/2012/07/EP-Good-practices-and-lessons-learned-in-realizing-womens
-right-to-productive-reources-the-case-of-Jordan.pdf (accessed Apr. 14, 2013).
58 World Bank, Global Financial Inclusion (Global Findex) Database (accessed Apr. 14, 2013).
59 World Bank & International Finance Corporation, supra note 27.
60 J. E. Tinkler et al., Can Legal Interventions Change Beliefs? The Eﬀect of Exposure to Sexual Harass-
ment Policy on Men’s Gender Beliefs, 70 Soc. Psychol. Q. (2007).
518 The World Bank Legal Review

or discrimination per se, they may buoy an informal “code of silence” that
undermines laws with inaction and underreporting.61
The good news is that gender norms can and do change. As the On Norms
and Agency study shows, younger generations of women are demanding more
control over marriage and child bearing than older generations, and they are
participating more and more in these decisions.62 These changes, however,
can be slow and fraught with tension. In response to new gender laws, for
example, some male respondents in Tanzania expressed perceptions that the
laws contributed to women’s “big headedness” and that the laws would need
to be revised to reinstate women’s “respect and discipline.”63
Some norms that discriminate against women relate to perceptions of
what makes an “ideal worker.” These norms can privilege men when they
intersect with gender norms about the respective roles of men and women in
domestic responsibilities. Speciﬁcally, workplace norms about what makes an
ideal employee typically favor those who work full-time (and, increasingly,
more than full-time) and are easily accessible throughout the day.64 While
workplace time norms may appear gender neutral out of context, they can
reinforce gender discriminations in the workforce, given the strong social and
cultural pressures on women to assume the majority of domestic responsibili-
ties. In these cases, policies that increase workplace ﬂexibility or provide more
part-time options may bring more women into the workforce, but they may
not overcome the barriers to women’s upward mobility unless biased time
norms are addressed or men take on a larger share of domestic work.
Interventions to change social norms have grown as an area of focus and
evaluation, particularly in the public health community. From nutrition, to
substance abuse, to violence, many health-related behaviors and a itudes
have strong normative foundations.65 While many of the trials are small and
with short follow-up times, there is also a growing body of evidence from
evaluations of gender-transformative interventions that well-designed pro-
grams can change men’s and boys’ a itudes toward gender roles and rela-
tionships and produce lasting positive eﬀects.66 Similar eﬀorts to build the evi-
dence base on changing societal and workplace norms to reduce constraints
on women’s work are needed.

61 Bierman & Gely, supra note 53.
62 Boudet et al., supra note 45.
63 Id.
64 See Bierman & Gely, supra note 53; B. M. Smith, Time Norms in the Workplace: Their Exclusion-
ary Eﬀect and Potential for Change, 11 Colum. J. Gender & L. 271 (2002).
65 See E. L. Paluck & L. Ball, Social Norms Marketing Aimed at Gender Based Violence: A Literature
Review and Critical Assessment (report, Intl. Rescue Comm., 2010); World Health Org., Chang-
ing Cultural and Social Norms That Support Violence (research brief, 2009).
66 G. Barker et al., Questioning Gender Norms with Men to Improve Health Outcomes: Evidence of
Impact, 5 Global Pub. Health (2010).
Enabling Equal Opportunities for Women in the World of Work 519

Laws themselves may help foster changes in gender-related norms. For
example, 15 years after corporal punishment was banned in Sweden, survey
data indicated that the share of parents who reported that they were inclined
to hit their children had fallen from approximately 50 to 11 percent.67 In the
United States, Title IX, the 1972 legislation to ensure women and girls equal
educational opportunities, including in school athletics, has been largely cred-
ited with contributing to changing, though still not leveling, gender norms
in the country, particularly in schools and colleges.68 Again, more analytical
work is needed to determine whether laws aimed at increasing women’s eco-
nomic rights—such as equal-pay, work ﬂexibility, land reform, and parental
care legislation—correlate similarly with changes in gender norms over time.
In sum, while discriminatory social norms, whether at the level of the
workplace, the community, or the nation, can be both powerful and stubborn,
they are not immovable. A concerted, multipronged front including smart and
consistent laws, policy interventions, and private-sector initiatives can ad-
vance women’s economic empowerment despite discriminating norms, and
it might even change those norms over time. The path to progress, however,
demands a stronger evidence base generated through be er monitoring sys-
tems and rigorous evaluation that helps identify what works, and what does
not, in diﬀerent contexts.

Institutional Biases
Often, institutions responsible for enforcing and interpreting the law embody
systematic biases that can reinforce gender discriminations. This section fo-
cuses speciﬁcally on gender sensitivity in judiciaries, the key institutions re-
sponsible for interpreting and applying the law.
Justice systems rarely reﬂect the diversity of the people they serve, and
they often lack appropriate system capacity and design to address gender
discrimination.69 As the WDR2012 demonstrated, this is problematic because,
even when relatively few people access the courts directly, the decisions made
by courts have broader inﬂuence—positive or negative—on the future behav-
ior of institutions and citizens. For example, on the positive side, courts in
Nepal have struck down legal provisions that discriminated against women
through inheritance laws; in Botswana, they have guaranteed women’s equal
property rights, thus se ing a precedent for unfair customary laws to be chal-
lenged; and in India, they have interpreted the constitution and international
conventions as making sexual harassment unlawful.70 Conversely, judges can
set discriminatory precedents or thwart the implementation of progressive

67 World Health Org., supra note 65.
68 L. Kuznick & M. Ryan, Changing Gender Norms? Title IX and Legal Activism: Comments from the
Spring 2007 Harvard Journal of Law and Gender Conference, Harv. J. L. & Gender (2008).
69 E. Rackley, Women, Judging and the Judiciary: From Diﬀerence to Diversity (Routledge 2013).
70 See World Development Report 2012, supra note 5, at 348; A. Laing, Women Can Inherit the Earth
Rules Botswana Judge, Telegraph (Oct. 12, 2012).
520 The World Bank Legal Review

legal reforms, as was the case in Saudi Arabia, where judges refused to accept
women’s ID cards, thus forcing them to be represented by male “guardians”
in presenting cases.71
Some countries have sought to make judiciaries more gender sensitive by
creating special courts (e.g., courts on rape and sexual oﬀenses or domestic
violence courts) or gender units within the courts to help women navigate
judicial processes as well as access broader services. The Democratic Republic
of Congo, for example, has implemented mobile gender courts in order to fa-
cilitate women’s access to justice related to gender-based violence in remote,
conﬂict-aﬀected areas of the country.72
Women are underrepresented in the judiciary globally, making up only
small minorities of judges, magistrates, and court oﬃcers.73 The United King-
dom, Italy, Egypt, India, and Pakistan are among the many countries with less
than 1 in 10 women on their high courts.74 Views vary as to how much diﬀer-
ence this makes. The ﬁrst woman to serve on the U.S. Supreme Court, Sandra
Day O’Connor, once said that a wise female judge will come to the same con-
clusion as a wise male judge. Yet, her female justice colleagues, Ruth Bader
Ginsburg and Sonia Sotomayor, have stated sympathies to the view that one’s
personal experience, including being female, does ma er in the courtroom. In
a case involving the strip-searching of a 13-year-old girl, for example, Gins-
burg argued that her male counterparts were at a disadvantage in interpreting
the sensitivity of being an adolescent girl and subject to intrusive practices.75
While gender may not be the primary determinant of how cases are decided,
some evidence indicates that the judicial demographic skew does have an in-
ﬂuence. An analysis of 556 gender-coded cases related to sexual harassment
or sex discrimination in the United States revealed that cases were twice as
likely to succeed when a female judge was represented on three-judge appel-
late panels.76 In fact, the presence of female judges increased male judges’ pro-
pensity to support the plaintiﬀ in cases of sexual harassment and sex discrimi-
nation. In a more recent study in the United States, Boyd et al. found similar
results, with female judges having a 10 percent higher probability than their
male colleagues of ruling in favor of the plaintiﬀ in sex discrimination cases.77
Male judges serving alongside female judges were also more likely than other

71 E. A. Doumato, Saudi Arabia, in Women’s Rights in the Middle East and North Africa: Progress
Amid Resistance (Sanja Kelly & Julia Breslin eds., Freedom House, Rowman & Li leﬁeld
2010).
72 Open Society Justice Initiative, DRC Mobile Gender Courts (2011).
73 Hallward-Driemeier & Hasan, supra note 29.
74 Rackley, supra note 69.
75 N. Lewis, Debate on Whether Female Judges Decide Diﬀerently Arises Anew, N.Y. Times (June 3,
2009), available at h p://www.nytimes.com/2009/06/04/us/politics/04women.html?_r=0.
76 J. L. Peresie, Female Judges Ma er: Gender and Collegial Decisionmaking in the Federal Appellate
Courts, 114 Yale L.J. (2005).
77 C. L. Boyd et al., Untangling the Causal Eﬀects of Sex on Judging, 54 Am. J. Pol. Sci. (2010).
Enabling Equal Opportunities for Women in the World of Work 521

male judges to rule in favor of the party alleging discrimination. Interestingly,
of the 13 areas of law examined in this study, sex discrimination disputes were
the only area of law in which female and male judges ruled diﬀerently.
Increasing women’s representation on the bench is another way to in-
crease the gender sensitivity of the law in practice, although this has not yet
been a common area of focus for development agencies.78

Customary and Religious Law
Many countries have plural legal systems that formally recognize religious
or customary laws as valid sources of law under the constitution—around
52 countries globally, and most commonly in Sub-Saharan Africa, where 25
countries constitutionally recognize at least one customary or religious legal
system.79 Legal pluralism is generally welcome. It reﬂects the right of com-
munities to protection of their culture and traditional belief systems. Multiple
systems of law, however, can also create a complex web of overlapping sys-
tems, which can create barriers to accessing justice and inconsistencies in the
laws’ treatment of women’s rights.
Customary and religious laws can involve both formal and informal in-
stitutions, depending on whether and how they are recognized by national
constitutions or statutory laws, but, either way, they are often governed by
informal norms and practices. Fifty-two economies recognize customary or
personal law as a valid source of law under the constitution.80 In half of those
economies, including, for example, Ecuador, Pakistan, and South Africa, the
national constitution reigns, and discriminatory traditional laws and practices
can be declared illegal under the constitution, which leaves 28 economies in
which discriminatory customary or personal laws can undercut women’s eco-
nomic opportunities despite any progressive constitutional provisions.81
Such legal pluralism can in some cases diminish the rights aﬀorded by
statutory laws.82 In Africa, customary courts are often biased toward men
and can sometimes require women to be represented by men in presenting
a case.83 An analysis of local customary courts in Sierra Leone, for instance,
found that many cases brought to the court involved the rights of women
(e.g., grievances related to child support or husbands’ extramarital aﬀairs)
but rarely involved implicated women in the proceedings.84 Even in cases in
which women’s rights should be protected by statutory law, customary courts

78 J. Doherty, Women’s Representation in Judiciaries Worldwide: Arguments in Favor of Increasing
the Gender Diversity on the Bench (Inst. for Global & Intl. Stud. 2012).
79 World Bank & International Finance Corporation, supra note 27.
80 Id.
81 Hallward-Driemeier & Hasan, supra note 29.
82 Id.
83 Id.
84 Id.
522 The World Bank Legal Review

may overstep their jurisdiction. While customary and religious courts can be
important mechanisms for preserving culture and values, and in some cases
can even protect women’s rights be er than the statutory laws in place,85 they
also invite more entry points for informal constraints to challenge gender
equality. This reality reinforces the need for clear constitutional and statutory
provisions for gender equality, as well as strong enforcement systems and
complementary interventions to promote women’s rights.

Conclusions
The case for eliminating legal constraints to women’s economic opportunities
is clear. Yet, the scale and complexity of the challenges involved in enabling
equal economic opportunities for women and men are formidable. Women
often face multiple constraints—both formal and informal and throughout the
life cycle that shapes their economic opportunities. The legal framework, and
how it functions in practice, is one important part of the puzzle. At the same
time, complementary eﬀorts are needed to address informal barriers and
overlapping disadvantages. Over time, eﬀorts on several fronts should serve
to improve translation of the spirit of progressive laws into measurable gains
for gender equality in the world of work.

85 For instance, statutory laws that introduced privatization of land during certain period of
East African history were viewed as disempowering to women who had greater rights to
land usage under customary systems. See, for example: A. Tripp, Women’s Movements, Cus-
tomary Law, and Land Rights in Africa: The Case of Uganda, 7 African Stud. Q. (2004).
The Role of Law in Promoting the Right
to Health for Diverse Communities
DAVID PATTERSON, ELISA SLATTERY, AND NAOMI BURKE-SHYNE

The World Health Organization (WHO) deﬁnes health expansively: “Health
is a state of complete physical, mental and social well-being and not merely
the absence of disease or inﬁrmity.”1 This holistic vision of health means that
health policies should be integrated into, and should be seen as aﬀected by, all
aspects of international development policy. Similarly, reforms in legal frame-
works and justice systems should be recognized as having direct and indirect
eﬀects on population health, broadly deﬁned.
Increases in gross domestic product are rarely equally distributed. Blan-
ket improvements in national health indicators usually hide pockets of in-
equality. These pockets often contain women, girls, and diverse populations.
The health inequalities are the result of multiple factors, including a lack of
access to appropriate health services for disease prevention and treatment.
Health inequalities range across as well as within countries and regions. In
the least developed countries of Sub-Saharan Africa, infectious diseases cause
most morbidity and mortality. In the rest of the developing world and in Or-
ganisation for Economic Cooperation and Development (OECD) countries,
noncommunicable diseases (NCDs), such as cancer, cardiovascular and lung
diseases, and diabetes, take the largest toll. Concentrated epidemics of human
immunodeﬁciency virus (HIV) infection are found in men who have sex with
men and in injecting drug users in societies whose relative aﬄuence usually
puts them beyond the reach of other infectious epidemic diseases, such as
malaria and typhoid. Anomalies exist—even where NCDs are broadly linked
to increased income, such as type 2 diabetes or smoking-related cancers, the
very wealthy typically fare be er than the middle classes.
An enabling legal environment is essential for eﬀective health policies,
access to health services, and delivery of health programs. Without the rule
of law, investments in health may be drained through corruption. But even
where laws are enforced, poorly designed legal responses to diseases such
as HIV can limit access to prevention and treatment programs. An enabling
legal environment is more than just legislation. It includes the implemen-
tation of laws through regulations, decisions of courts, police practices,
prosecutorial discretion, legal literacy and empowerment of diverse

Any statements of fact, opinion, or analysis expressed herein are entirely those of the
author(s) and are not a ributable to the International Development Law Organization.
1 Constitution of the World Health Organization, preamble.
523
524 The World Bank Legal Review

populations, and the availability of aﬀordable, high-quality legal services for
these communities.
In the case of HIV, the availability of aﬀordable, skilled lawyers for people
living with HIV and those most at risk of HIV infection will partly determine
how these communities can address discrimination and other HIV-related le-
gal issues. The Joint United Nations Programme on HIV/AIDS (UNAIDS) has
issued speciﬁc guidance on the central role of the law in the national response
to HIV, including on the importance of legal services in national planning and
responses to HIV.2
The Commission on Macroeconomics and Health, established in 1999,
argued that improved population health is a precondition for economic de-
velopment, not merely a beneﬁt of economic development.3 How can the law
serve to improve population health both as a human right and as a contribu-
tion to economic development? How can the law contribute to the elimination
of inequities in population health?4
This chapter identiﬁes lessons and trends in public health law aﬀecting
diverse communities in developing countries. It commences by reviewing
experiences in relation to HIV and explores the lessons for other global chal-
lenges to health. HIV is an infectious disease with a relatively long latency
period. Antiretroviral treatments mean that many people today live decades
with HIV infection—the responses to HIV also provide lessons for how to
handle NCDs. The chapter then examines other populations, including peo-
ple with disabilities, and discusses the additional challenges for women with
disabilities. It canvasses the legal obstacles to access to high-quality, aﬀord-
able medicines in the development context. It then provides examples of the
health implications of discrimination for people of diﬀerent sexual orienta-
tions or gender identity, and concludes with recommendations for capacity
building of the legal sector on health issues and for the health sector on legal
issues.

2 Key Programmes to Reduce Stigma and Discrimination and Increase Access to Justice in National
HIV Responses (Guidance Note, UNAIDS 2012).
3 Jon Liden, The Grand Decade for Global Health: 1998–2008 (Cntr. Global Health Security Work-
ing Group Papers, Working Group on Governance Paper 2, Chatham House, Apr. 2013). See
also Amartya Sen & Jean Dreze, India: Economic Development and Social Opportunity (Oxford
U. Press 1995).
4 Since 2009, the health law program of the International Development Law Organization
(IDLO) has explored these questions, with initiatives in 23 developing countries in Asia and
the Paciﬁc, Latin America, the Middle East, and North and West Africa. The program com-
menced with a focus on HIV, and in 2011, it included legal aspects of noncommunicable
diseases. See h p://www.idlo.int/healthlaw.
The Role of Law in Promoting the Right to Health 525
for Diverse Communities

HIV, Law, and Development
The Response to HIV
The enabling legal environment for the response to HIV has been examined,
debated, and contested in almost every country. Because the sexual behaviors
and drug use that spread HIV infection are often stigmatized or illegal, an ap-
propriate legal environment is crucial to ensuring access to HIV prevention,
treatment, and care services and to addressing HIV-related discrimination.
Years of experience have shown that HIV-related stigma and discrimination
undermine HIV prevention eﬀorts by deterring people from seeking health
services and information about how to reduce their risk of exposure to HIV.
Fear of stigma and discrimination discourages people living with HIV from
disclosing their status and undermines their ability to adhere to HIV treat-
ment, which in turn hampers HIV prevention.
In 1981, when the U.S. Centers for Disease Control reported the ﬁrst cases
of the condition that came to be known as “AIDS,” international human rights
law, including on the right to health, was already well deﬁned in interna-
tional human rights treaties. Seven years later, the World Health Assembly
adopted the ﬁrst resolution addressing HIV-related discrimination,5 and in
1989, the United Nations Centre for Human Rights and WHO convened the
ﬁrst international consultation on HIV/AIDS and human rights.6 In 1996, the
human rights–based response to the global HIV pandemic was adopted as a
cross-cu ing program theme, along with gender, by the newly created UN-
AIDS. These principles were expanded at an international expert consulta-
tion convened by UNAIDS and the Oﬃce of the High Commissioner for Hu-
man Rights (OHCHR), and published as the International Guidelines on HIV/
AIDS and Human Rights in 1998. The guidelines were revised in 2002 to reﬂect
the breakthroughs in treatment for HIV infection and the intellectual prop-
erty issues arising as donor agencies and developing country governments
struggled to deliver new drugs for treating AIDS to the developing world at
aﬀordable prices.7
In 2001, human rights–based approaches and law reform were anchored
in the United Nations General Assembly’s Declaration of Commitment on
HIV/AIDS. They have been aﬃrmed in subsequent General Assembly resolu-
tions, including the 2011 Political Declaration on HIV/AIDS: Intensifying Our
Eﬀorts to Eliminate HIV/AIDS.

5 Avoidance of Discrimination in Relation to HIV-Infected People and People with AIDS
(World Health Assembly Resolution WHA 41.24, May 13, 1988).
6 World Health Organization (WHO) and Oﬃce of the United Nations High Commissioner
for Human Rights (OHCHR), Report of an International Consultation on AIDS and Human
Rights, Geneva, 26–28 July 1989 HR/PUB/90/2 (1990).
7 Joint United Nations Programme on HIV/AIDS (UNAIDS) and OHCHR, International Guide-
lines on HIV/AIDS and Human Rights: 2006 Consolidated Version (2006).
526 The World Bank Legal Review

UN General Assembly, Political Declaration
on HIV/AIDS, 2011
In 2011, UN member states commi ed
to intensify national eﬀorts to create enabling legal, social and
policy frameworks in each national context in order to elimi-
nate stigma, discrimination and violence related to HIV and
promote access to HIV prevention, treatment, care and sup-
port and non-discriminatory access to education, health care,
employment and social services, provide legal protections for
people aﬀected by HIV, including inheritance rights and re-
spect for privacy and conﬁdentiality, and promote and protect
all human rights and fundamental freedoms with particular at-
tention to all people vulnerable to and aﬀected by HIV.*
Member states also promised to review laws impeding HIV prevention,
treatment, care, and support programs.
* UN General Assembly, Political Declaration on HIV/AIDS: Intensifying Our Eﬀorts to
Eliminate HIV/AIDS, A/RES/65/277 (June 10, 2011), para. 77.

The UN monitoring framework for responses to HIV contains the National
Commitments and Policies Instrument, which includes explicit indicators on
national policies and laws protecting the rights of people living with HIV and
key aﬀected populations. State reports are voluntary, and technical assistance
is available from UNAIDS to complete the reports. In 2012, 186 out of 193
member states submi ed reports on national progress on AIDS.8 This is an
extraordinary record of compliance with a voluntary monitoring mechanism.
Thanks to these reports, improvements in the enabling legal environment
in states and across countries and regions can be tracked. These data are com-
piled by UNAIDS, and the UN secretary-general reports the trends to the UN
General Assembly. The rigorous and continuing reporting of national and
global policy and legislative responses to HIV is unique and oﬀers valuable
lessons for global responses to other health and development challenges, such
as NCDs.
The global focus on rights and law brought many constituencies into na-
tional debates on HIV: organizations working with children, women’s groups,
and employers, and organizations of people living with HIV, drug users, and
sex workers. Rights language in international and national law framed the
discussions. Compulsory HIV testing and quarantine were rejected, and the
“AIDS paradox” was asserted as policy: in order to limit the spread of HIV in

8 See h p://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/201
2countries/.
The Role of Law in Promoting the Right to Health 527
for Diverse Communities

the general population, the rights of people most vulnerable to HIV infection
must be protected.9
The most common complaint of discrimination concerns health care set-
tings.10 People living with HIV are more likely to seek health care, and also to
experience discrimination in these se ings because of their HIV status. Peo-
ple living with HIV and key aﬀected populations report denial of treatment,
substandard treatment, breach of conﬁdentiality, and nonconsensual medical
treatment.
The global People Living with HIV Stigma Index initiative includes health
care se ings as part of its broader study of stigma and discrimination.11 For ex-
ample, respondents to an extensive study in Nepal reported discrimination by
health personnel.12 Women living with HIV tend to seek health care services
more frequently than men do because of reproductive and maternal health
care needs. Rights violations of women with HIV in health care se ings, such
as coercive sterilization and verbal and physical abuse, are well documented
in many parts of the world.13
In recent years, legal action has been taken to stop the forced sterilization
of women living with HIV.14 In a ﬁrst-of-its-kind case in southern Africa, three
women living with HIV were told they could have a cesarean section (reducing
the chances of passing the HIV virus on to their children) only if they agreed
to be sterilized at the same time. The Namibian High Court granted a partial
victory for these women, conﬁrming that the human rights of these women
were violated when they were coerced into being sterilized while they gave
birth. However, the judge dismissed claims that the sterilization amounted
to discrimination based on the women’s HIV status.15
Since the World Health Assembly resolution on discrimination in the con-
text of AIDS in 1988, many countries have adopted legislation to prohibit HIV-
related discrimination. For example, in Papua New Guinea, the HIV and AIDS

9 Michael Kirby, Law, Discrimination, and Human Rights: Facing Up To the AIDS Paradox (speech
at the Third International Conference on AIDS in Asia and the Paciﬁc, Nov. 10, 1995), avail-
able at h p://www.michaelkirby.com.au.
10 David Stephens & Mia Urbano, HIV and Legal Empowerment, in Legal Empowerment: Practitio-
ners’ Perspectives (IDLO 2010).
11 The People Living with HIV Stigma Index is a tool to measure and detect changing trends
in relation to stigma and discrimination experienced by people living with HIV. See h p://
www.stigmaindex.org/.
12 The Nepal Stigma Index Study included 1,696 men and 1,614 women living with HIV in
Nepal.
13 Open Society Foundations, Against Her Will: Forced and Coerced Sterilization of Women World-
wide (2012), available at h p://www.opensocietyfoundations.org/sites/default/ﬁles/against-
her-will-20111003.pdf.
14 Pooja Nair, Litigating against the Forced Sterilization of HIV-Positive Women: Recent Develop-
ments in Chile and Namibia, 23 Harv. Hum. Rights J. 223 (2010), available at h p://harvardhrj
.com/wp-content/uploads/2010/10/223-232.pdf.
15 LM and Others v. Government of the Republic of Namibia, High Court of Namibia (July 30, 2012).
528 The World Bank Legal Review

Management and Prevention Act of 2003 (HAMP Act) is designed to protect
people “infected or aﬀected by HIV/AIDS” from discrimination. The HAMP
Act states that a
person infected or aﬀected by HIV/AIDS means a person who (a)
is, or is presumed to be, infected by HIV or has, or is presumed to
have, AIDS; or (b) has had, is having, is seeking to have or has re-
fused to have an HIV test; or (c) is related to or is associated with a
person who is, or is presumed to be, infected by HIV or has, or is
presumed to have, AIDS; or (d) is, or is presumed to be, a member
of or associated with a group, activity or occupation, or living in an
environment, which is commonly associated with, or presumed to
be associated with, infection by, transmission of, HIV.16
Similar inclusive approaches have been taken in HIV bills in India and
Nepal, and, to a lesser extent, Pakistan.17
Today, 8 million people have access to antiretroviral treatment (compared
to just a few tens of thousands 10 years ago), human rights are entrenched
as a key part of the response to HIV, and the number of new HIV infections
has decreased worldwide by 25 percent in ﬁve years. HIV infection rates and
AIDS deaths are falling in all but two regions (Middle East/North Africa and
Eastern Europe/Central Asia).18
The public health victories over HIV contain lessons for other diseases.
They include the contribution of the human rights discourse and its expres-
sion through an enabling legal environment, the importance of multisectoral
approaches at international and national levels, and the crucial role of com-
munities living with and directly aﬀected by the diseases in law and policy
development as well as program delivery.

Lessons Learned from HIV for Other Challenges
to Global Health
A Human Rights–Based Approach Is Imperative
First championed in the 1980s by Jonathan Mann at the WHO Global Programme
on AIDS, the human rights–based approach was adopted by UNAIDS as a
cross-cu ing theme in 1996. The UN International Guidelines on HIV/AIDS and
Human Rights (1998, revised 2006) linked international human rights law and

16 Section 2. Interpretation. HIV/AIDS Management and Prevention Act 2003 of Papua New
Guinea.
17 IDLO, United Nations Development Programme (UNDP), & South Asian Association for
Regional Co-operation in Law (SAARCLAW), Regional Legal Reference Resource: Protective
Laws Relating to HIV, Men Who Have Sex with Men, and Transgender People in South Asia (2013),
available at h p://www.snap-undp.org/elibrary/Publications/HIV-2013-Regional-Legal
-Reference.pdf.
18 World AIDS Day Report (UNAIDS 2012).
The Role of Law in Promoting the Right to Health 529
for Diverse Communities

national responses. The guidelines were disseminated widely and followed by
toolkits for legislators, national dialogues, and monitoring.*

Activism and Social Mobilization Play a Vital Role
Organizations led by people living with HIV were actively supported with
funding and technical assistance. Human rights organizations and community
groups addressing civil, political, economic, and social rights were engaged, as
were women’s organizations, child rights, religious, and youth groups, and many
others.

Key Populations Must Be Empowered and Legal Professionals
Must Be Trained
Capacity building was provided on HIV-related human and legal rights for peo-
ple living with HIV, key aﬀected populations, and legal professionals. People
facing discrimination and other rights violations were linked to legal services,
including trained paralegals and community outreach workers.

Engage the Media
Advocacy messages were clear. “Silence = Death”; “Action = Life.” Fearful mes-
sages were avoided in favor of solutions. Messages were nonjudgmental, targeted
to speciﬁc communities.

Take a Multisectoral Approach
In many of the hardest-hit countries, responsibility for coordinating the national
response to HIV was elevated from ministries of health to a more senior govern-
ment level with multisectoral responsibilities, such as the oﬃce of the president.
At the global level, UNAIDS, created in 1996, now comprises 10 UN agencies with
a shared division of labor.

Focus on Gender and Key Affected Populations
The social, economic, cultural, and legal factors contributing to the vulnerability
of women and key aﬀected populations were rapidly identiﬁed and informed
programming.

Science, Evidence, and Documentation Are Key
Policymakers were presented with evidence that HIV prevention approaches
such as needle and syringe programs, youth sex education, and condom distribu-
tion are eﬀective.

Treatment and Prevention Are Linked
Even before it was proven that HIV treatment assists in preventing new cases of
HIV infection, the push to oﬀer HIV care, treatment, and support was seen as es-
sential to engaging with key aﬀected populations.
530 The World Bank Legal Review

An Enabling Legal Environment Frames National Responses
The legal environment encompasses laws and practices, including the capacity
of judges, prosecutors, and police to support public health goals. Access to high-
quality, sensitive, and aﬀordable HIV-related legal services for people living with
HIV and key aﬀected populations was promoted.

Conduct Global Monitoring and Require Transparency
and Accountability
The 2001 UN General Assembly Declaration of Commitment on HIV/AIDS and
the monitoring guidelines developed by UNAIDS to track compliance are pow-
erful tools for national and international advocacy and accountability. National
monitoring reports submi ed to UNAIDS are posted on the UNAIDS website.†

* See h p://hrbaportal.org for more on rights-based approaches.
† The reporting framework includes the National Commitments and Policies Instrument.
See h p://www.unaids.org/en/dataanalysis/knowyourresponse/ncpi/2012countries/

Noncommunicable Diseases (NCDs)
Outside of Sub-Saharan Africa, most ill health is no longer a ributable to bac-
teria, viruses, or parasites. Rather, most avoidable illnesses and premature
deaths are caused by unhealthy pa erns of consumption of tobacco, animal
and certain vegetable fats, sugar, salt, and alcohol. In 2011, the WHO reported
that “of the 57 million deaths that occurred globally in 2008, 36 million—al-
most two-thirds—were due to NCDs, comprising mainly cardiovascular dis-
eases, cancers, diabetes and chronic lung diseases.”19 This ﬁgure includes more
than 14 million people ages 30–69 in developing countries—more than seven
times the estimated number of people who died of AIDS in 2008 (2 million).
Poor families are often heavily burdened by the costs of caring for ill or
disabled family members suﬀering from NCDs, including out-of-pocket pay-
ments for health care expenses and the loss of breadwinners. As with HIV, a
comprehensive, rights-based, multisectoral response engaging aﬀected com-
munities is required to address the burden of NCDs and their impact. Accord-
ing to the World Bank, NCDs are expected to account for three-quarters of the
disease burden in middle-income countries by 2030. In Sub-Saharan Africa,
NCDs will account for almost half (46 percent) of all deaths by 2030.20
As the global trends in morbidity and mortality shift to NCDs, new legal
challenges are arising. Tobacco and alcohol have long been aggressively pro-
moted in many developing countries, which often have weak laws and lim-

19 Global Status Report on Noncommunicable Diseases 2010 (WHO 2011).
20 The Growing Danger of Non-communicable Diseases: Acting Now to Reverse Course (World Bank
2011).
The Role of Law in Promoting the Right to Health 531
for Diverse Communities

ited capacity to enforce the regulation of advertising and sales. Increasingly,
dangerous levels of fats, sugar, and salt are found in highly processed foods
and beverages. These products are often marketed in developing countries by
multinational corporations—the new vectors of preventable disease.
Legal frameworks and the law have the capacity to regulate marketing
and require the disclosure of product contents and potential impacts, enabling
consumers to make more informed choices. The UN Commi ee on Economic,
Social, and Cultural Rights (CESCR) has emphasized that positive measures
are required in order to satisfy the right to health. CESCR stipulates that the
right to health, like all human rights, imposes three types or levels of obli-
gations on state parties: the obligations to respect, protect, and fulﬁll.21 The
obligation to fulﬁll requires states, inter alia, to take positive measures that
enable and help individuals and communities to enjoy the right to health, in-
cluding by ensuring that the state meets its obligations in the dissemination
of appropriate information relating to healthy lifestyles and nutrition and the
availability of services; and by supporting people in making informed choices
about their health.22
The CESCR also stipulates that violations of the obligation to protect the
right to health include the failure of a state to “take all necessary measures to
safeguard persons within their jurisdiction from infringements of the right to
health by third parties.” This encompasses omissions such as
the failure to regulate the activities of individuals, groups or corpo-
rations so as to prevent them from violating the right to health of
others; the failure to protect consumers and workers from practices
detrimental to health, e.g. by . . . the failure to discourage produc-
tion, marketing and consumption of tobacco . . . and other harmful
substances.23
Limited liability corporations are legal creations: tobacco, alcohol, food,
and beverage corporations are all subject to legal regulation. To be eﬀective,
21st-century national and global health policy must have a ﬁrm grip on national
and international law.24 The WHO Framework Convention on Tobacco Con-
trol, to which there are 176 parties, is a concrete expression of the opportunities

21 The obligation to respect requires states to refrain from interfering directly or indirectly
with the enjoyment of the right to health. The obligation to protect requires states to take
measures that prevent third parties from interfering with the guarantees espoused in the
International Covenant on Economic, Social, and Cultural Rights, art. 12. Commi ee on Eco-
nomic, Social, and Cultural Rights, General Comment No. 14, Substantive Issues Arising in
the Implementation of the International Covenant on Economic, Social and Cultural Rights,
The Right to the Highest A ainable Standard of Health (Article 12 of the International Cov-
enant on Economic, Social and Cultural Rights), E/C.12/2000/4, para. 33.
22 Id., at para. 37.
23 Id., at para. 51.
24 See Roger Magnusson & David Pa erson, Role of Law in Global Response to Non-communicable
Diseases, 378 Lancet 859–860 (Sept. 2011).
532 The World Bank Legal Review

oﬀered by anchoring global health policy in international law.25 Yet there is
limited national capacity to implement the convention, and tobacco compa-
nies employ the brightest and most highly paid lawyers to challenge govern-
ments in the courts on proposals to limit tobacco advertising and sales. To-
bacco companies are entrenched in developing country societies via ﬁnancing
for sporting, education, music, and youth events—all areas subject to legal
regulation.
The Australian Tobacco Plain Packaging Act 2011 strips all branding from
cigare e packaging and requires boxes to be a dull green color with a large
health warning and a photo of health damage caused by smoking. In 2012,
the High Court of Australia rejected two challenges to this legislation on the
grounds of the breach of intellectual property rights: British American Tobacco
Australasia Limited and Ors v. Commonwealth of Australia and J T International
SA v. Commonwealth of Australia. Philip Morris Asia then took action in the
Permanent Court of Arbitration, alleging that the Tobacco Plain Packaging
Act breaches the 1993 Agreement between the Government of Australia and
the Government of Hong Kong SAR, China for the Promotion and Protection
of Investments.26
Litigation to promote tobacco control is not limited to OECD countries.
Full-page color tobacco advertisements in magazines placed by Philip Morris
Pakistan were found to violate the Prohibition of Smoking in Enclosed Places
and Protection of Non-smokers Health Ordinance of 2002. Although the court
found against Philip Morris Pakistan, the punishment was minimal: a small
ﬁne and a warning that the director of marketing would face up to three
months in jail for a second oﬀense.27
An example from Bangladesh demonstrates the impact of strong civil so-
ciety engagement on public health and law. Work for a Be er Bangladesh is a
civil society organization that holds public awareness activities, mobilizes citi-
zens to report violations of the Smoking and Tobacco Product Usage (Control)
Act of 2005, and works with mobile courts to ensure enforcement of this law.28
Civil society lobbying in Bangladesh was a signiﬁcant catalyst for the 2013
amendment of the Smoking and Tobacco Product Usage (Control) Act of 2005.
The amended law adds tough tobacco control measures, including measures
related to smokeless tobacco products. These include a comprehensive ban
on tobacco advertisement, promotion, and sponsorship; a ban on sale to and
by minors; pictorial health warnings on tobacco packages; and a ban on the
use of misleading descriptors (like light and mild) on tobacco packs. The law

25 See h p://www.who.int/fctc/signatories_parties/en/.
26 Australian Government, A orney General’s Department, Investor-State Arbitration: Tobacco
Plain Packaging, available at h p://www.ag.gov.au/Internationalrelations/InternationalLaw
/Pages/Tobaccoplainpackaging.aspx.
27 The State of Pakistan v. Tarar (Mar. 20, 2012), available at h p://www.tobaccocontrollaws.org
/litigation/advancedsearch/?type_litigation=Government%20Enforcement%20Action.
28 See h p://www.wbbtrust.org/.
The Role of Law in Promoting the Right to Health 533
for Diverse Communities

applies to products consumed by a majority of Bangladeshis: powdered to-
bacco (gul) and chewing tobacco ( jorda and khoinee).29
Many developing country governments still seek to maintain tight control
of civil society organizations: freedom of speech and association and access
to legal and other information are often limited. A 2013 study of the legal re-
sponses to overweight, obesity, and diabetes in four countries in the Middle
East and North Africa found some governments unwilling to share even basic
information on relevant legal frameworks. The research also revealed concerns
about the lack of eﬀective legislative frameworks and their implementation. In
Tunisia, for example, a 2008 decree on food product labeling was largely ig-
nored by the food industry: 700 out of 750 processed food products surveyed
in 2010 had no or inadequate labeling.30 The study also noted the lack of legal
sector capacity to support public health legal and policy reform in the region.

Other Populations: Persons with Disabilities
The global increase in NCDs has seen a related increase in disabilities. In
Mexico, for example, diabetes is the leading cause of blindness and a primary
cause of amputations. Disability-related discrimination is of growing concern.
The International Diabetes Federation identiﬁed addressing discrimination as
one of the three objectives of its Global Diabetes Plan 2011–2021.31
People with disabilities face discrimination in employment, housing,
and access to goods and services. Promoting equality and health requires ad-
dressing stigma, discrimination, and abuse in health care se ings. Even when
there is no outright denial of services, mistreatment or fear of mistreatment by
health care professionals undermines public health initiatives by discourag-
ing people from seeking the care that they need.
The Convention on the Rights of Persons with Disabilities provides sig-
niﬁcant opportunities for developing an enabling legal environment on dis-
ability rights.32 The convention reﬂects the shift away from a medical model
of disability to an interactive social model, enriching understanding of how to
promote health and equality.
The interaction between HIV and disability is a compelling example of
how social factors, inequity and discrimination, and health status interact. In
its discussion of disability and HIV, UNAIDS, WHO, and OHCHR note:

29 See http://www.fctc.org/index.php/news-blog-list-view-of-all-214/opinion-pieces/1007
-positives-outweigh-negatives-in-bangladeshs-amended-tobacco-control-law.
30 Report on Law and NCDs in MENA Region: Overweight, Obesity and Diabetes (IDLO, Ain
Shams University, Center for Development Services 2013), available at h p://www.idlo.int
/healthlaw.
31 Global Diabetes Plan 2011–2021 (International Diabetes Federation 2011).
32 Convention on the Rights of Persons with Disabilities, GA Res 61/106, UN Doc A/RES/61/106
(Dec. 13, 2006) (hereinafter, CRPD).
534 The World Bank Legal Review

The Convention does not explicitly refer to HIV or AIDS in the deﬁ-
nition of disability. However, States are required to recognize that
where persons living with HIV (asymptomatic or symptomatic) have
impairments which, in interaction with the environment, results in
stigma, discrimination or other barriers to their participation, they
can fall under the protection of the Convention. States parties to the
Convention are required to ensure that national legislation complies
with this understanding of disability. Some countries have accorded
protection to people living with HIV under national disability leg-
islation.33
The HIV incidence among people with disabilities has been found to be
three times higher than that among people without disabilities in some stud-
ies. Factors that increase the risk of HIV infection for people with disabilities
include a higher risk of violence and lack of legal protection; lack of sexual
health education, including information about HIV prevention and safe sex;
and barriers to prevention methods such as condoms, often based on false as-
sumptions that people with disabilities are not sexually active.34
Women with disabilities suﬀer signiﬁcantly higher rates of violence than
men with disabilities and women without disabilities. The Convention on the
Rights of Persons with Disabilities recognizes “that women and girls with dis-
abilities are often at greater risk, both within and outside the home, of vio-
lence, injury or abuse.”35 The International Network of Women with Disabili-
ties notes that “violence against women and girls with disabilities is not just a
subset of gender-based violence: it is an intersectional category dealing with
gender-based and disability-based violence.”36 In 2012, the UN special rap-
porteur on violence against women noted that “social sanctions relating to
poverty, race/ethnicity, religion, language and other identity status or life ex-
periences can further increase the risk of group or individual violence against
women with disabilities.”37
In much of the developing world, legal aid services are absent, or scarce
and under-resourced. Legal professionals who work on disability rights may
not be familiar with the issues that arise for women with disabilities. Women’s
legal aid organizations may not have a speciﬁc background in disability, and
services are often not provided in a way that is logistically or structurally ac-

33 UNAIDS, WHO, and OHCHR, Policy Brief: Disability and HIV 1 (Apr. 2009), available at
h p://www.who.int/disabilities/jc1632_policy_brief_disability_en.pdf.
34 Human Rights Watch, Fact Sheet: HIV and Disability (2011), available at h p://www.hrw.org
/news/2011/06/08/fact-sheet-hivaids-and-disability.
35 CRPD, supra note 32, preamble (q).
36 International Network of Women with Disabilities, Violence against Women with Disabilities:
Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities 2 (Center for Women
Policy Studies, Washington DC 2011) (hereinafter, INWWD paper), available at h p://
www2.ohchr.org/english/issues/women/docs/VAWHRC20/OtherEntities/INWD.pdf.
37 Rashida Manjoo, Report of the Special Rapporteur on Violence against Women, Its Causes and
Consequences, A/67/227, para. 20 (2012).
The Role of Law in Promoting the Right to Health 535
for Diverse Communities

cessible to women with disabilities. Legal professionals may also ﬁnd that
they have to address their own stereotypical and stigmatizing beliefs about
the marginalized and stigmatized groups they work with. Of particular im-
portance, legal professionals must understand how intersectional or com-
pounded discrimination aﬀects their clients.

Report of the Special Rapporteur on Torture, 2012
The United Nations special rapporteur on torture has noted that
some women may experience multiple forms of discrimination
on the basis of their sex and other status or identity. Targeting
ethnic and racial minorities, women from marginalized com-
munities and women with disabilities for involuntary steriliza-
tion because of discriminatory notions that they are “unﬁt” to
bear children is an increasingly global problem. Forced ster-
ilization is an act of violence, a form of social control, and a
violation of the right to be free from torture and other cruel,
inhuman, or degrading treatment or punishment. . . .
[There are people with disabilities] either neglected or detained
in psychiatric and social care institutions, psychiatric wards,
prayer camps, secular and religious-based therapeutic board-
ing schools, boot camps, private residential treatment centres.
. . . Severe abuses, such as neglect, mental and physical abuse
and sexual violence, continue to be commi ed against people
with psychosocial disabilities and people with intellectual dis-
abilities in health-care se ings.*

* Juan E. Mendez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, A/HRC/22/53 (2013), paras. 48 and 57.

People with disabilities often have limited awareness of the law, the legal
system, and their rights. Furthermore, people with disabilities may not know
how to claim their rights or whom to report to for the purposes of initiating a
complaint process.
Violations of the reproductive rights of women with disabilities—such as
involuntary sterilization and coercive family planning practices—in health
care se ings and other institutional se ings are a particularly egregious ex-
ample of discrimination and abuse in health care se ings. The UN special
rapporteur on violence against women has stated that “research shows that
no group has ever been as severely restricted, or negatively treated, in respect
of their reproductive rights, as women with disabilities.”38

38 Id., para. 28. For a more detailed national-level documentation of these violations, see, for
example, Women with Disabilities Australia, Dehumanised: The Forced Sterilisation of Women
and Girls with Disabilities in Australia (WWDA Submission to the Senate Inquiry into the In-
536 The World Bank Legal Review

Violence against Women with Disabilities
Discrimination and violence against people with disabilities often occur in insti-
tutional se ings. A 2011 study found that
researchers and policy makers rarely identify situations, such
as physical abandonment or psychological cruelty, as maltreat-
ment. Further, if an intervention is made in a situation where
the violence was perpetrated by a personal assistant, a family
member or a friend, the incident is often addressed only by the
social service system and is rarely considered to be a crime that
should be addressed by the police and/or the criminal justice
system. There is a lack of credibility accorded to women who
require assistive communication or reasonable accommodation
in communication and to women who have already been la-
belled with a psychiatric diagnosis or an intellectual disability.*

* International Network of Women with Disabilities, Violence against Women with Disabili-
ties: Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities (Center for
Women Policy Studies, Washington, DC 2011), 8.

Access to High-Quality, Affordable Medicines
Multiple legal issues aﬀect the availability of high-quality, aﬀordable medi-
cines in developing countries. These include intellectual property law frame-
works that regulate the production, importation, and sale of research-based
and generic pharmaceutical products; the growing problem of falsiﬁed and
substandard medicines; drug theft and illegal diversion of legitimate prod-
ucts; and limited or no access to drugs for pain relief and palliative care.
Challenges involve international legal frameworks, national legislation
and regulations, and justice sector capacity to adapt and apply these frame-
works. As with other areas of health law, multisectoral approaches are re-
quired, involving ministries of health, justice, trade, and ﬁnance. The experi-
ence in scaling up access to medicines for the treatment of HIV infection has
shown that the engagement of civil society organizations and representatives
of aﬀected communities in law and policy reform is crucial. Litigation can also
be a tool in expanding access to medicines.39

voluntary or Coerced Sterilisation of People with Disabilities in Australia, Mar. 2013), avail-
able at h p://www.wwda.org.au/sterilise2011.htm.
39 Hans V. Hogerzeil, Melanie Samson, & Jaume Vidal Casanova, Ruling for Access: Leading
Court Cases in Developing Countries on Access to Essential Medicines as Part of the Fulﬁlment
of the Right to Health (WHO 2004), available at h p://www.who.int/medicines/areas/human
_rights/Details_on_20_court_cases.pdf.
The Role of Law in Promoting the Right to Health 537
for Diverse Communities

Intellectual Property Law
World Trade Organization member states (159 as of March 2013) are required
to amend their national intellectual property legislation to comply with the
Agreement on Trade–Related Aspects of Intellectual Property Rights (TRIPS).
This agreement, although generally protecting the rights of patent hold-
ers, provides speciﬁc exceptions for pharmaceutical products under certain
circumstances. TRIPS permits national legislation to provide for compul-
sory licenses for the production or importation of generic medicines. These
medicines may be available at substantially lower prices than the equivalent
product from the patent holder, usually the research-based pharmaceutical
company that developed the product. This is a complex and evolving area of
international law, and developing countries need support to ensure that their
national legislation and procedures take full account of the ﬂexibilities pro-
vided by TRIPS to provide high-quality, aﬀordable medicines for the preven-
tion and treatment of diseases of public health signiﬁcance.40
In April 2013, the Indian Supreme Court repudiated “ever-greening,” the
practice of extending patents for nonessential changes to existing patented
drugs. The case involved a patent application for a reformulation of a cancer
drug, Gleevec, by the pharmaceutical company Novartis. The Indian Supreme
Court acknowledged Novartis’s intellectual property rights but limited these
rights in reference to the right to health. The court’s reference to Article 7 of
TRIPS, which links intellectual property to a nation’s welfare, set an important
national and international precedent.41
There has been strong civil society advocacy on intellectual property and
access to medicines in both India and Thailand, which has played a consider-
able role in shaping the debate on access to medicines.

Falsiﬁed and Substandard Medicines
Developing countries face a ﬂood of falsiﬁed and substandard medicines.42
Organized crime has permeated the pharmaceutical market, and this illicit
trade is transnational, lucrative, and extensive. The results are devastating
for patients and their families. Multiple drug-resistant strains of bacteria and
parasites resulting from substandard antibiotics and other drugs pose a global
public health threat. Ineﬀective and dangerous products risk undermining
public conﬁdence in research-based and generic pharmaceutical industries
and even science-based medicine over the longer term. Factors contribut-
ing to this assault on public health include a lack of communication between

40 See, for example, Improving Access to Treatment by Utilizing Public Health Flexibilities in the
WTO TRIPS Agreement (UNDP 2010).
41 See Irene Khan, PuĴing Intellectual Property to Good Use, Huﬃngton Post (Apr. 29, 2013).
42 In this chapter, the term falsiﬁed and substandard medicines is used rather than spurious/falsely
labelled/falsiﬁed/counterfeit (SFFC) to distinguish between medicines that are harmful to the
public health—substandard and falsiﬁed—and those that infringe on a registered trade-
mark—counterfeit. See Lawrence O. Gostin et al., Stemming the Global Trade in Falsiﬁed and
Substandard Medicines, 309(16) JAMA 1693 (2013).
538 The World Bank Legal Review

relevant ministries and departments (health, justice, police, customs, and
others), weak legal and regulatory frameworks, and a lack of resources and
skills to prosecute and convict.
Although these products may involve copyright infringement, it is now
generally recognized that criminal law, rather than intellectual property law,
is the preferred framework for addressing the problem. The penalties under
national law for copyright infringement often do not reﬂect the grave conse-
quences of these crimes for individual and population health. Where serious
injury and loss of life are likely to result, penalties including heavy ﬁnes and
lengthy terms of imprisonment are appropriate.
In October 2011, the Council of Europe Council of Ministers opened for
signature the Convention on the Counterfeiting of Medical Products and Sim-
ilar Crimes Involving Threats to Public Health (the Medicrime Convention).43
The convention expressly excludes issues related to intellectual property
rights and proposes criminal sanctions for oﬀenses, including manufacturing,
supplying, and traﬃcking in fraudulent and substandard medical products.
Where trade is undertaken by criminal organizations, the convention pro-
poses that this be taken into account as an aggravating factor in sentencing,
providing for even tougher penalties.
The Commission on Crime Prevention and Criminal Justice has recom-
mended that the United Nations Convention against Transnational Organized
Crime (TOC) be invoked to reinforce international cooperation in response to
falsiﬁed and substandard medicines. Mechanisms may include mutual legal
assistance, extradition, and recovery of the proceeds of crime.44
Where states impose maximum terms of imprisonment of four years or
more for crimes related to falsiﬁed and substandard medicines, and where the
oﬀenses are transnational in nature and involve organized criminal groups,
the TOC provides a framework for regional and international cooperation to
address transnational organized crime, which is essential to a comprehensive
global response to the problem. It is therefore important that state legislation
provide for suﬃcient and appropriate penalties to allow the TOC to operate
in this ﬁeld.45

Drug Theft and Illegal Diversion of Medicines
A related issue is the theft and sale of medicines intended for public sector
programs. In April 2011, Africa Fighting Malaria, an NGO in South Africa,
reported that antimalaria drugs (speciﬁcally artemisinin-based combination
therapies), which had originally been obtained for public sector distribution,
were increasingly appearing for sale in the private sector.46 In December 2011,

43 See h p://www.edqm.eu/en/the-medicrime-convention-1470.html.
44 Commission on Crime Prevention and Criminal Justice, Resolution 20/6 (2011).
45 Counterfeit Medicines and Organized Crime (UNICRI 2012).
46 Roger Bate, Partners in Crime: National Theft of Global Fund Medicines (brieﬁng paper, Africa
The Role of Law in Promoting the Right to Health 539
for Diverse Communities

the Global Fund to Fight AIDS, Tuberculosis, and Malaria convened an in-
ternational consultation on drug theft. The recommendations of that meet-
ing called for strengthened law enforcement, speciﬁcally for stakeholders to
“[w]ork with law enforcement to promote advocacy and awareness of con-
sequences of theft. Consider partnering with law enforcement to strengthen
chain of custody controls. Remove barriers to prosecution, and cooperate on
investigations and prosecutions.”47
Capacity building is needed, including for police, prosecutors, and the
judiciary. Given that stolen drugs often appear in neighboring countries or
farther aﬁeld, the TOC may provide a framework for strengthened interna-
tional cooperation. Most important, however, is that all parties understand
the implications for public health beyond the monetary value of stolen medi-
cines, and hence the importance of appropriate penalties as a deterrent. Just
as with falsiﬁed drugs, an interrupted supply of essential medicines due to
theft will lead to increased morbidity and mortality and increased risk of drug
resistance.

Access to Drugs for Pain Relief and Palliative Care
A 2008 study by the International Narcotics Control Board (INCB) found that
per capita morphine consumption in Africa was almost 20 times less than the
global average (0.33 mg per capita compared with 5.98 mg).48 Morphine, the
main opioid treatment for pain, is relatively aﬀordable and easy to administer.
However, because of its status as a controlled medicine, many countries have
legal and regulatory barriers to access. Only a handful of African countries
have palliative care polices. Factors limiting access also include
• burdensome prescription procedures and limits on the length of opioid
prescriptions that result in repeated visits to doctors by patients or family
members, draining human and ﬁnancial resources;
• limitations on the right to prescribe opioids to specialists or to doctors,
which undermines access in countries that have a shortage of doctors and
rely on midlevel providers, such as clinical oﬃcers and nurses, for the
majority of health care provision; and
• invasive and stigmatizing surveillance of patients receiving opioids and
of health care workers handling controlled substances, which can deter
patients from seeking care and health care workers from providing it.
A 2010 study on cancer treatment by the Union for International Cancer
Control (UICC) and partners conﬁrmed the observations of the INCB study
and highlighted the critical role of the law in facilitating access to health care.

Fighting Malaria, 2011).
47 High Level Meeting: Theft and Illegal Diversion of Medicines: Meeting Report (Global Fund to
Fight AIDS, Tuberculosis and Malaria 2011).
48 International Narcotics Control Board, Narcotic Drugs: Estimated World Requirements for
2008—Statistics for 2006 (United Nations 2008).
540 The World Bank Legal Review

The study canvassed 81 countries, representing 87 percent of the global popu-
lation.49 Another study by the UICC Global Access to Pain Relief Initiative
(GAPRI) estimated that worldwide, in 2010, at least 2.9 million people died of
HIV or cancer in untreated pain, with 99 percent of these deaths occurring in
developing countries.50
The UN special rapporteur on torture and other cruel, inhuman or de-
grading treatment or punishment has noted that obstacles that unnecessarily
impede access to morphine and adversely aﬀect its availability include overly
restrictive drug control regulations and, more frequently, misinterpretation of
otherwise appropriate regulations.51
Innovative approaches are needed to overcome the legal obstacles to pain
relief and palliative care, including capacity building of both medical and le-
gal professionals to understand current legislative frameworks and their limi-
tations, and the sharing of good practices in the prescription and monitoring
of morphine and other drugs for pain relief.

Health and Rights of People of Diverse Sexual Orientation
and Gender Identity
In 1994, the United Nations Human Rights Commi ee, which monitors global
compliance with the International Covenant on Civil and Political Rights, de-
termined that criminal laws prohibiting consensual sex in private between
men were in breach of the covenant.52 The commi ee speciﬁcally rejected the
suggestion that such laws were needed to prevent the spread of HIV.
In 2009, the Delhi High Court reached a similar conclusion regarding sec-
tion 377 of the Indian Penal Code (which criminalized same-sex behavior).
The court declared the provision unconstitutional and noted that a human
rights approach protecting the rights of vulnerable populations is critical to
HIV prevention.53
In 2011, the United Nations Human Rights Council adopted the ﬁrst reso-
lution on “human rights, sexual orientation and gender identity” (SOGI).54

49 See European Society for Medical Oncology, First International Survey on the Availability of
Opioids for Cancer Pain Management (2010), available at h p://www.esmo.org/Policy/Interna-
tional-Access-to-Opioids-Survey.
50 Global Access to Pain Relief Initiative (GAPRI), Access to Essential Pain Medicines Brief (2010),
available at h p://www.gapri.org/understand-problem.
51 WHO estimates that in 2012, 5.5 billion people were living in countries with low or no access
to controlled medicines and had no or insuﬃcient access to treatment for moderate to severe
pain. Juan E. Mendez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, A/HRC/22/53, paras. 51–56 (2013).
52 Toonen v. Australia, CCPR/C/50/D/488/1992, UN Human Rights Commi ee (Apr. 4, 1994).
53 Naz Foundation and Others v. Government of NCT of Delhi and Others, High Court of Delhi at
New Delhi (July 2, 2009).
54 Human Rights Council, Human Rights, Sexual Orientation and Gender Identity, A/HRC/
The Role of Law in Promoting the Right to Health 541
for Diverse Communities

These rights were also highlighted in the 2012 report of the United Nations
Global Commission on HIV and the Law. The report recognized that legal
frameworks that criminalize consensual same-sex sexual relations do serious
harm, perpetuating discrimination and isolating those most vulnerable so that
they cannot access the preventive or curative health services they critically
need.55
Notwithstanding the recognition of SOGI-related rights at an international
level, the issue remains a sensitive topic in many countries.56 Contextual and
structural factors entrench the sensitivity of the issue and amplify the vulnera-
bility of people of diverse SOGI. These factors include poverty and inequality;
stigma and discrimination; cultural impediments to sex education and sexual
discourse; marginalization; violence; and social exclusion.
Most notable is the eﬀect of stigma and discrimination on access to disease
prevention and treatment services. People of diverse SOGI may be reluctant to
seek medical assistance, fearing stigma, discrimination, and breaches of con-
ﬁdentiality. Accordingly, stigma and discrimination against people of diverse
SOGI often results in exclusion from mainstream health programs, which may
have signiﬁcant consequences for a person’s long-term health and enhance
the person’s isolation. Poor health is likely to result in lower social engage-
ment, reduced capacity to work, and reduced ability to contribute to society,
as well as increasing isolation. In parallel, exclusion from public health pro-
grams has signiﬁcant public health consequences. Proper treatments for HIV
and sexually transmi ed infections and the use of condoms can eﬀectively
limit transmission. Stigma and discrimination are compounded by punitive
and discriminatory legal frameworks, the criminalization of same-sex sexual
relations, and law enforcement practices.57 In this context, these populations
are less likely to access health care services.58
Eﬀective prevention, treatment, care, and support services for these popu-
lations for HIV and other diseases require consideration of their life course
and speciﬁc vulnerabilities, as well as consideration of the broader environ-
ments that aﬀect the delivery of and access to health services. Health care
services cannot be eﬀectively delivered to populations hiding from formal or

RES/17/19 (July 14, 2011). See also Human Rights Council, Discriminatory Laws and Prac-
tices and Acts of Violence against Individuals Based on Their Sexual Orientation and Gender
Identity, A/HRC/19/41 (2011).
55 Risks, Rights and Health: Report of the Global Commission on HIV and the Law 44–48 (UNDP
2012).
56 See, for example, Shereen El Feki, Sex and the Citadel: Intimate Life in a Changing Arab World
(Pantheon 2013).
57 John Godwin, Legal Environments, Human Rights and HIV Responses among Men Who Have Sex
with Men and Transgender People in Asia and the Paciﬁc: An Agenda for Action (UNDP & Asia
Paciﬁc Coalition on Male Sexual Health [ASPCOM] 2010), available at h p://regionalcentre
bangkok.undp.or.th/practices/hivaids/documents/874_UNDP_ﬁnal.pdf.
58 Id.
542 The World Bank Legal Review

state systems because of punitive laws or fear of stigma, discrimination, or
prosecution.
The Supreme Court of Nepal addressed the rights of people of diverse
SOGI, speciﬁcally transgender people, in the 2007 case of Sunil Babu Pant v.
Government of Nepal. The Supreme Court judgment focuses on the exclusion of
transgender people (metis). Metis were routinely denied citizenship cards, pre-
cluding their access to a range of entitlements and public services. The Court
emphasized that people of the third gender were entitled to all rights protect-
ed by the constitution and international law and ordered that metis be given
citizenship cards that reﬂected their gender (as the third gender). The Court
further ordered that protections against discrimination on the basis of gender
identity and nondiscrimination be enshrined in the new constitution, stating it
was the “responsibility of the State to create the appropriate environment and
make legal provisions accordingly for the enjoyment of such rights.”59
In 2012–13, research was undertaken by national human rights institu-
tions (NHRIs) in seven South and Southeast Asian countries to document re-
sponses to SOGI rights in the context of HIV.60 This research noted that NHRIs
with the most developed capacity to address SOGI-related rights had a num-
ber of common characteristics. These included, but were not limited to, strong
and open leadership, the presence of an institutional focal point on SOGI or
HIV (or on marginalized or vulnerable groups), and the commitment to com-
munication with civil society, government, and multilateral stakeholders. The
study emphasized that a critical factor for catalyzing NHRI engagement on
the rights of people of diverse SOGI is the eﬀorts of civil society and the com-
munity of people of diverse SOGI. Based on the countries studied, community
unity and leadership, combined with diplomatic and persistent advocacy on
the rights of people of diverse SOGI, give rise to productive relationships with
NHRIs and foster ongoing collaboration and partnership.
In October 2012, at a dialogue of the community of people of diverse
SOGI and the National Human Rights Commission (NHRC) of Bangladesh
(under the above-mentioned initiative), NHRC Bangladesh announced that,
for the ﬁrst time, it had advocated for the rights of people of diverse SOGI in
its submission under the universal periodic review process. The submission
of NHRC Bangladesh stated:

Excluded groups (including Dalits and transgenders) remain some
of the poorest people in Bangladesh and face marginalization and

59 International Community of Jurists, Casebook on Sexual Orientation and Gender Identity, ch. 2,
available at h p://www.icj.org/sogi-casebook-introduction/chapter-two-universality
-equality-and-non-discrimination/.
60 IDLO, UNDP, & Asia Paciﬁc Forum of National Human Rights Institutions, Assessing the
Capacity of National Human Rights Institutions to Address Human Rights in Relation to Sexual
Orientation, Gender Identity and HIV (2013) (NRHI SOGI Project). The NHRI SOGI Project
aimed to build understanding of the capacity and response of selected Asian national human
rights institutions to the human rights issues faced by people of diverse SOGI.
The Role of Law in Promoting the Right to Health 543
for Diverse Communities

discrimination. In addition the NHRC Bangladesh notes that the
Government of Bangladesh did not respect the recommendation
with respect to sexual minorities. The NHRC Bangladesh under-
stands the need for the law to be in harmony with the cultural and
social mores of the people. Nevertheless, the NHRC Bangladesh be-
lieves that it is now time to ensure that all groups, including those
who are transgender, intersex or sexual minority, are protected from
discrimination.61
Research in Asia and the Paciﬁc has also shown that legal environments
that are protective and empowering can help combat stigma and discrimina-
tion and underpin health promotion eﬀorts that rely on the voluntary coop-
eration of populations in changing behaviors and accessing health services.62
In 2011, Brazil’s Supreme Court ruled that same-sex unions were legal and
that same-sex couples are entitled to the same rights as heterosexual couples,
including health, pension, and inheritance beneﬁts. In addition, under a le-
gal framework developed by Brazil’s Federal Medicine Council, the Brazilian
public health system provides free sex-change operations.63 The adaptation of
the legal environment to the needs of diverse populations can thus facilitate
their access to health care services.
Globally and regionally, lawyers and public health activists are sharing
experiences and strategies to advance the health rights of diverse communi-
ties. In 2012, at the Asia Paciﬁc Regional Consultation on HIV-Related Legal
Services and Rights, lawyers from Vietnam and China described their work
to obtain personal identiﬁcation documents for clients so they could access
health services.64 Although every country is diﬀerent, there is great value in
recognizing the common challenges and in sharing creative solutions to assur-
ing the right to health for diverse populations.

Conclusion: Health, Diverse Communities, and the Law
The right to health is an important avenue through which associated rights,
such as the right to equality and nondiscrimination, the right to an adequate
standard of living, the right to freedom from torture, the right to privacy,
and the freedoms of thought and conscience, speech and expression, can be
advanced. Even when other human rights of diverse populations may be

61 For all periodic review reports for Bangladesh, see h p://www.ohchr.org/EN/HRBodies/
UPR/Pages/BDSession16.aspx.
62 Godwin, supra note 58.
63 See h p://www.as-coa.org/articles/explainer-lgbt-rights-latin-america-and-caribbean.
64 IDLO, Report of the Asia Paciﬁc Consultation on HIV-Related Legal Services and Rights (2012),
available at h p://www.idlo.int/Publications/120318AsiaPaciﬁcHIV.pdf. Since 2009, IDLO
has conducted 11 international and regional consultations on HIV-related legal services and
rights. See h p://www.idlo.int/healthlaw.
544 The World Bank Legal Review

rejected, public health goals tend to be accepted and recognized in both the
developed and the developing world.65
Experience in the context of HIV provides valuable lessons for protecting
and promoting the right to health for diverse communities. Not only do all hu-
man rights aﬀect the realization of the right to health, but also health can be an
entry point for addressing other rights of diverse communities. Multisectoral
approaches are essential—not only at the national level, for example, in gov-
ernment and academia, but at regional and international levels among inter-
governmental organizations and donor agencies. Regional and international
collaboration is also essential to address the threats to global health posed
by transnational organized crime. The legal issues are increasingly complex.
There are growing limitations on national sovereignty to legislate on health
ma ers due to increasingly stringent international legal frameworks to pro-
mote trade and investment.
The experience in multiple regions and contexts has led to the conclusion
that an enabling legal environment is essential to protect and promote the
right to health for diverse communities. There are also broader public health
and economic beneﬁts of preventing and treating infectious and noncommu-
nicable diseases.
There is an urgent need for capacity building in public health law based
on human rights. This should include collaboration in research and teaching
among university faculties of law, medicine, and other health sciences and
the active involvement of civil society organizations representing people liv-
ing with health conditions and those most vulnerable. Above all, civil society
organizations representing communities most aﬀected must be engaged in
policy development and program implementation.

65 See David Pa erson, Shereen El Feki, & Khadija Moalla, Rights-Based Approaches to HIV in
the Middle East and North Africa Region, in Current Legal Issues vol. 16 (Oxford U. Press forth-
coming).
The International Development Law Organization has copyright over this chapter. Not-
withstanding, the World Bank has permission to include this chapter in the book and
make it available under the CC BY license. See the copyright page for more information.
The Right to Health and Development
The Case of Uganda

SIOBHÁN MCINERNEY-LANKFORD AND MOSES MULUMBA

Improved health is both a factor and an outcome of sustainable development.1
This chapter explores the right to health as a development priority and the
role of the law in advancing it, particularly for the poorest and most vulner-
able in developing countries. It draws on approaches that argue for a human
rights paradigm as a means of linking health with laws, policies, and practices
that underpin sustainable development and foster accountability.2 It analyzes
the interface of human rights law3 and development and presents the right to
health as an example of the convergence between human rights and develop-
ment and the ways in which the respect, protection, and fulﬁllment of human
rights can help secure the conditions for people to live in dignity. Notwithstand-
ing the still-contested parameters of the right to health,4 this chapter builds on
the growing body of literature that asserts the centrality of the right to health
in shaping health policy and the delivery of health services around the world.5
The chapter draws on the legal content of the right to health to suggest ways
in which human rights can add value to development policies and programs.6

The authors thank Nathan Lankford and Alicia Yamin, for comments on earlier drafts of
this chapter, and Christian Jimenez Tomas and James Samuel Zeere for research assistance.
Responsibility for errors or omissions remains with the authors. The views expressed in this
article are those of the authors and do not necessarily reﬂect the views of the Board of Execu-
tive Directors of the World Bank or the governments they represent.
1 This chapter emanates from a panel on the Health Law and Rights Access to Justice and
Inclusion for Society’s Most Marginalized Populations, during the 2012 World Bank Law,
Justice and Development Week; Opportunity, Inclusion, and Equity, in which the authors
participated as chair and panelist, respectively.
2 UN System Task Team on the Post-2015 UN Development Agenda, Health in the Post 2015 UN
Development Agenda—Thematic Think Piece UNAIDS, UNICEF, UNFPA and WHO (May 2012),
8: “Health as a contributor to the achievement of sustainability goals; health as a potential
beneﬁciary of sustainable development; and health as a way of measuring progress across all
three pillars of sustainable development policy.” See A. Yamin, The Right to Health under Inter-
national Law and Its Relevance to the United States, 95(7) Am. J. Pub. Health 1156–1161 (2005).
3 This chapter does not seek to engage in the moral and political philosophy discussions that
have burgeoned around the right to health and retains a focus on international law and its
potential value added to development and health policy.
4 See J. Ruger, Towards a Theory of a Right to Health: Capability and Incomplete Theorized Agree-
ments, 18 Yale J.L. & Hum. Rights 273; B. Toebes, The Right to Health as a Human Right in
International Law (Intersentia 1998).
5 J. Harrington & M. Stu aford eds., Global Health and Human Rights (Routledge 2010).
6 Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the
Highest A ainable Standard of Physical and Mental Health, A/HRC/17/25 (Apr. 12, 2011).

545
546 The World Bank Legal Review

This chapter charts the contours of the right to health under international
law, examining the meaning of this right as a normative goal as well as its
potential instrumental role for other goals, particularly poverty reduction and
the a ainment of the Millennium Development Goals (MDGs), half of which
relate to health. The chapter explores in preliminary terms what such a legal
norm could oﬀer to the pursuit of health goals in development policy and
programming at the international level and the domestic levels, using Uganda
as an example. The chapter examines how the legal provision of the right to
health aﬀects the protection of poor people’s access to health services, including
through constitutional health rights litigation. Using the example of Uganda,
the analysis considers how a substantive constitutional provision enshrining
the right to health deﬁnes the role of the state in guaranteeing health rights
and empowers the public and civil society to enforce those rights. It looks
speciﬁcally at the litigation of maternal health rights in a developing country,
which lacks a substantive constitutional provision on the right to health, to
assess the value of formal and enforceable legal protection for a human right.

Right to Health under International Law
In this chapter, “right to health”7 is employed as shorthand for the right of
everyone to the enjoyment of the highest a ainable standard of physical
and mental health,8 as enshrined in the World Health Organization (WHO)
Constitution,9 Article 25 of the Universal Declaration of Human Rights
(UDHR), Article 12 of the International Covenant on Economic, Social, and
Cultural Rights (ICESCR),10 and a range of other international human rights
treaties, such as, the International Convention on the Elimination of All

7 See, generally, J. Wolﬀ, The Human Right to Health (Norton 2012).
8 See, generally, J. Tobin, The Right to Health in International Law (Oxford U. Press 2011).
9 Preamble, Constitution of the World Health Organization (1948). The constitution was
adopted by the International Health Conference held in New York June 19 to July 22, 1946,
signed on July 22, 1946, by the representatives of sixty-one states (Oﬀ. Rec. World Health
Org., 2, 100), and entered into force on April 7, 1948.
10 Art. 12:
1. The States Parties to the present Covenant recognize the right of everyone to the enjoy-
ment of the highest a ainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full real-
ization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for
the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other
diseases;
(d) The creation of conditions which would assure to all medical service and medical
a ention in the event of sickness.
Adopted December 16, 1966; entry into force January 3, 1976, in accordance with art. 27,
U.N.T.S.; I.L.M.
The Right to Health and Development 547

Forms of Racial Discrimination,11 the Convention to Eliminate All Forms of
Discrimination Against Women (CEDAW),12 the Convention on the Rights
of the Child (CRC),13 the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families (MWC),14 and
the Convention on the Rights of Persons with Disabilities (CRPD), as well as
regional instruments such as the African Charter on Human and Peoples’
Rights,15 the Protocol of San Salvador,16 and the European Social Charter.17 In

11 Art. 5(e)(iv) of the International Convention on the Elimination of All Forms of Racial Dis-
crimination of 1965.
12 CEDAW makes several provisions for the protection of a woman’s right to health, in particu-
lar arts. 11(1)f, 12, and 14(2)b.
13 CRC contains extensive and elaborate provisions on the child’s right to health, including
art. 24, which is fully dedicated to the right to health of the child, and arts. 3(3), 17, 23, 25, 32,
and 28, which contain protections for especially vulnerable groups of children.
14 Art. 25(1): “Migrant workers shall enjoy treatment not less favourable than that which ap-
plies to nationals of the State of employment in respect of remuneration and: (a) Other condi-
tions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety,
health, termination of the employment relationship and any other conditions of work which,
according to national law and practice, are covered by these terms.”
Art. 28: “Migrant workers and members of their families shall have the right to receive any
medical care that is urgently required for the preservation of their life or the avoidance of
irreparable harm to their health on the basis of equality of treatment with nationals of the
State concerned. Such emergency medical care shall not be refused them by reason of any
irregularity with regard to stay or employment.”
15 Art. 16 of the African Charter: “1. Every individual shall have the right to enjoy the best at-
tainable state of physical and mental health. 2. States Parties to the present Charter shall take
the necessary measures to protect the health of their people and to ensure that they receive
medical a ention when they are sick.”
16 Additional Protocol to the Interamerican Convention of Human Rights (Protocol of San Sal-
vador).
Art. 10: Right to Health:
1. Everyone shall have the right to health, understood to mean the enjoyment of the highest
level of physical, mental and social well-being.
2. In order to ensure the exercise of the right to health, the States Parties agree to recognize
health as a public good and, particularly, to adopt the following measures to ensure that
right:
a. Primary health care, that is, essential health care made available to all individuals
and families in the community;
b. Extension of the beneﬁts of health services to all individuals subject to the State’s
jurisdiction;
c. Universal immunization against the principal infectious diseases;
d. Prevention and treatment of endemic, occupational and other diseases;
e. Education of the population on the prevention and treatment of health problems; and
f. Satisfaction of the health needs of the highest risk groups and of those whose poverty
makes them the most vulnerable.
17 Art. 11: The right to protection of health
With a view to ensuring the eﬀective exercise of the right to protection of health, the Con-
tracting Parties undertake, either directly or in co-operation with public or private organisa-
tions, to take appropriate measures designed inter alia:
548 The World Bank Legal Review

addition to these treaties, a range of soft law measures such as the Rio Declara-
tion18 protect particular aspects of the right to health or elaborate on the right
in greater detail.19 For the purposes of this chapter, however, Article 12 of the
ICESCR and the processes connected with the covenant are the framework for
analysis, providing legally binding provisions that apply to all individuals in
the 146 ratifying states.
As the Commi ee on Economic, Social, and Cultural Rights (CESCR) con-
ﬁrmed in its general comment on the right to health,
Health is a fundamental human right indispensable for the exercise
of other human rights. Every human being is entitled to the enjoy-
ment of the highest a ainable standard of health conducive to liv-
ing a life in dignity. The realization of the right to health may be
pursued through numerous, complementary approaches, such as
the formulation of health policies, or the implementation of health
programmes developed by the World Health Organization (WHO),
or the adoption of speciﬁc legal instruments. Moreover, the right to
health includes certain components which are legally enforceable.20
Thus, the right to health is both a freestanding right, and instrumental
to, or constitutive of, other rights in that its realization is a prerequisite to the
enjoyment or deﬁnition of such rights. Without the right to health, the realiza-
tion of rights to education, work, and a host of civil and political rights as well
as other economic, social, and cultural rights is not possible. Conversely, the
right to health is closely related to and dependent on a range of other human

1. to remove as far as possible the causes of ill health;
2. to provide advisory and educational facilities for the promotion of health and the
encouragement of individual responsibility in ma ers of health;
3. to prevent as far as possible epidemic, endemic and other diseases.
18 Principle 1 of the Rio Declaration: “Human beings are at the centre of concerns for sustain-
able development. They are entitled to a healthy and productive life in harmony with na-
ture.” Health pervades the outcome document of the Rio+20; UNCSD, The Future We Want,
A/Res/66/288 (Sept. 11, 2012), see esp. paras. 138–146.
19 For example, the 1993 Vienna Declaration and Program of Action Principles for the Pro-
tection of Persons with Mental Illness and the Improvement of Mental Healthcare and the
Declaration on the Elimination of Violence against Women. Resolutions of the commission,
including on access to medication (2002/32) and disabilities (2002/61), articulate the right to
health, reaﬃrming its status as a human right. The Programme of Action of the International
Conference on Population and Development held in Cairo in 1994, as well as the Declaration
and Programme for Action of the Fourth World Conference on Women held in Beijing in
1995, contain deﬁnitions of reproductive health and women’s health, as well as HR Council
and Commission resolutions. For a detailed list of international instruments relevant to the
right to health, see Paul Hunt, Report of the Special Rapporteur on the Right to Health to the Com-
mission on Human Rights, UN Doc. E/CN.4/2003/58 (Feb. 13, 2003), Annex 1.
20 Commi ee on Economic, Social, and Cultural Rights, General Comment No. 14, Substantive
Issues Arising in the Implementation of the International Covenant on Economic, Social,
and Cultural Rights, The Right to the Highest A ainable Standard of Health (art. 12 of the
International Covenant on Economic, Social, and Cultural Rights), E/C.12/2000/4 (Aug. 11,
2000). For example, the principle of nondiscrimination in relation to health facilities, goods,
and services is legally enforceable in numerous national jurisdictions.
The Right to Health and Development 549

rights21 that are determinants of the right to health, such as access to food,
water, sanitation, housing, work, and education; privacy; freedoms of associa-
tion, assembly, and movement; and nondiscrimination. As such, the right to
health under Article 12 of the ICESCR protects health in a strict sense, as well
as the underlying determinants of health.

Content of the Right to Health
As with many human rights, deﬁning the normative content of the right to
health with precision can be challenging. Nevertheless, the guidance and in-
terpretations of the commi ee and the special rapporteur are resources that
can help provide a deﬁnition and extrapolate its content.22
The right to health is not to be understood as a right to be healthy.
The right to health contains both freedoms and entitlements. The
freedoms include the right to control one’s health and body, includ-
ing sexual and reproductive freedom, and the right to be free from
interference, such as the right to be free from torture, non-consensual
medical treatment and experimentation. By contrast, the entitle-
ments include the right to a system of health protection which
provides equality of opportunity for people to enjoy the highest
a ainable level of health.23
In this way, the right to health implies freedom from interference in the
health and well-being of individuals, as well as entitlement to a certain mini-
mum standard of treatment and the provision of essential elements that are
underlying determinants of the right to health, such as water and sanitation,
food, and housing.
In terms of a practical deﬁnition of the content of the right to health, the
CESCR has identiﬁed four qualitative vectors:24 availability, accessibility, ac-
ceptability, and quality.25

21 Commi ee on Economic, Social, and Cultural Rights, General Comment No. 15, Substantive
Issues Arising in the Implementation of the International Covenant on Economic, Social,
and Cultural Rights, The Right to Water (arts. 11 and 12 of the International Covenant on
Economic, Social, and Cultural Rights), E/C.12/2002/11 (Jan. 20, 2003), para. 3.
22 As John Tobin astutely observes, “the act of interpretation is not simply the process of at-
tributing a meaning to the right to health but ultimately an act of persuasion, an a empt to
persuade the relevant interpretive community that a particular interpretation of the right to
health is the most appropriate meaning to adopt.” J. Tobin, Introduction 16 (Melbourne Leg.
Stud. Research Paper No. 562, 2011).
23 General Comment No. 15, supra note 21, at para. 8.
24 General Comment No. 14, supra note 20, at para. 12.
25 Note that the WHO, successive Special Rapporteurs on the Right to Health, and others sub-
scribe to this formula.
550 The World Bank Legal Review

Availability
Functioning public health and health care facilities, goods, and services, as
well as programs, must be available in suﬃcient quantity within a state. This
includes safe and potable drinking water and adequate sanitation facilities;
hospitals, clinics, and other health-related buildings; trained medical and pro-
fessional personnel receiving domestically competitive salaries; and essential
drugs, as deﬁned by the WHO Action Programme on Essential Drugs.

Accessibility
Health facilities, goods, and services must be accessible to everyone without
discrimination within the jurisdiction of the state. Accessibility has four over-
lapping dimensions, a number of which have direct relevance for develop-
ment and health interventions for the poorest and most marginalized: nondis-
crimination; physical accessibility; economic accessibility (aﬀordability) such
that health facilities, goods, and services are aﬀordable for all; and informa-
tion accessibility.26

Acceptability
All health facilities, goods, and services must be respectful of medical ethics
and culturally appropriate. In this, they must be respectful of the culture of in-
dividuals, minorities, peoples, and communities and sensitive to gender and
life-cycle requirements, as well as being designed to respect conﬁdentiality
and improve the health status of those concerned.

Quality
Health facilities, goods, and services must be scientiﬁcally and medically ap-
propriate and of good quality. This requires, inter alia, skilled medical person-
nel, scientiﬁcally approved and unexpired drugs and hospital equipment, safe
and potable water, and adequate sanitation.

Obligations Arising from Article 12 of the ICESCR
As with all rights enshrined in international human rights treaties, the right
to health generates obligations to respect, protect, and fulﬁll for parties to the
covenant.27 As with other rights in the covenant, the interpretation of the right

26 Commi ee on Economic, Social, and Cultural Rights, General Comment No. 12, Substantive
Issues Arising in the Implementation of the International Covenant on Economic, Social,
and Cultural Rights, The Right to Adequate Food (art. 11 of the International Covenant on
Economic, Social, and Cultural Rights), E/C.12/1999/5 (May 12, 1999), para. 12. In respect to
aﬀordability, the general comment emphasizes equity, stating that payment for health care
services, as well as services related to the underlying determinants of health, must be based
on the principle of equity, ensuring that these services, whether privately or publicly pro-
vided, are aﬀordable for all, including socially disadvantaged groups. Equity demands that
poorer households not be disproportionately burdened with health expenses as compared
to richer households.
27 According to General Comment Nos. 12 and 13, the obligation to fulﬁll incorporates an ob-
ligation to facilitate and an obligation to provide. The obligation to fulﬁll also incorporates an
The Right to Health and Development 551

to health remains contested, and, as John Tobin observes, “an adequate norma-
tive account of a human right requires that it have a well speciﬁed counterpart
obligation.”28 Tobin argues that despite the apparently amorphous nature of
the counterpart obligation(s) pertaining to the right to health, “it remains pos-
sible to articulate a persuasive account of how states can implement this obli-
gation in a way that is principled, practical, coherent, and context sensitive.”29
This section traces the contours of the counterpart obligation(s) arising from
the right to health.
The obligation to respect requires states to refrain from interfering directly
or indirectly with the enjoyment of the right to health. This obligation requires
that states refrain from denying or limiting equal access for all persons to pre-
ventive, curative, and palliative health services; avoid enforcing discriminato-
ry practices as a state policy; and abstain from imposing discriminatory prac-
tices relating to women’s health status and needs. The obligation also requires
states to refrain from limiting access to contraceptives and other means of
maintaining sexual and reproductive health, and refrain from unlawfully pol-
luting air, water, and soil, for example, through industrial waste from state-
owned facilities.30
The commi ee has interpreted the obligation to protect as requiring states
to take measures that prevent third parties from interfering with Article 12
entitlements. This may imply an obligation to adopt legislation or to take other
measures ensuring equal access to health care and health-related services pro-
vided by third parties to ensure that privatization of the health sector does not
constitute a threat to the availability, accessibility, acceptability, and quality of
health facilities, goods, and services.31 This obligation is particularly relevant
to development interventions given its emphasis on measures to protect all
vulnerable or marginalized groups of society, such as women, children, ado-
lescents, and older persons.
Finally, the obligation to fulﬁll has been understood by the commi ee to
require states to adopt appropriate legislative, administrative, budgetary, ju-
dicial, promotional, and other measures toward the full realization of the right
to health. This obligation requires state parties, inter alia, to give suﬃcient rec-
ognition to the right to health in the national political and legal systems, pref-
erably by way of legislative implementation, and to adopt a national health
policy with a detailed plan for realizing the right to health. States must ensure
the provision of health care, including immunization programs against the
major infectious diseases, and ensure equal access for all to the underlying

obligation to promote because of the critical importance of health promotion in the work of
WHO and elsewhere.
28 Tobin, supra note 22, at 18.
29 Id., at 19.
30 General Comment No. 14, supra note 20, at para. 34.
31 Id., at para. 35.
552 The World Bank Legal Review

determinants of health, such as nutritiously safe food and potable drinking
water, basic sanitation, and adequate housing and living conditions.32
Consistent with the international obligations identiﬁed in General Com-
ment No. 3,33 the commi ee has also identiﬁed international obligations under
Article 12 requiring state parties to respect the enjoyment of the right to health
in other countries, including preventing third-party violations. Consistent
with its interpretations in other contexts, this obligation may require states to
provide ﬁnancing to facilitate access to essential health facilities, goods, and
services in other countries.34

Progressive Realization
The covenant provides for progressive realization35 in order to accommodate
the incremental process of realizing economic and social rights and resource
constraints.36 As Alston and Quinn observe, it is the “lynchpin of the entire
Covenant [. . .] upon its meaning turns the nature of state obligations. Most of
the rights granted depend in varying degrees on the availability of resources
and this fact is recognized and reﬂected in the concept of ‘progressive achieve-
ment.’ ”37 The commi ee has insisted that the “progressive realization” of the
covenant rights requires the taking of “deliberate, concrete and targeted” steps
and the notion of a “minimum core” provides an understanding of the direc-
tion that those steps should follow and an indication as to when their direction

32 General Comment No. 14, supra note 20, at para. 36. In addition, the general comment obliga-
tion to fulﬁll (facilitate) requires states inter alia to take positive measures that enable and
assist individuals and communities to enjoy the right to health. State parties are also obliged
to fulﬁll (provide) a speciﬁc right contained in the covenant when individuals or a group
are unable, for reasons beyond their control, to realize that right themselves by the means at
their disposal. The obligation to fulﬁll (promote) the right to health requires states to under-
take actions that create, maintain, and restore the health of the population (para. 37).
33 Commi ee on Economic, Social, and Cultural Rights, General Comment No. 3, Substantive
Issues Arising in the Implementation of the International Covenant on Economic, Social,
and Cultural Rights, The Nature of States Parties Obligations (Art. 11 of the International
Covenant on Economic, Social, and Cultural Rights), E/1991/23 (Dec. 14, 1990). This is based
on the covenant’s obligation of all state parties to take steps, individually and through in-
ternational assistance and cooperation, especially economic and technical, toward the full
realization of the rights recognized in the covenant.
34 General Comment No. 14, supra note 20, at para. 39.
35 The literature treats “progressive realization” as either an obligation or a concept. It is per-
haps best understood as an overarching concept that deﬁnes the nature of all substantive
obligations in the covenant.
36 Despite this obligation, the commi ee has refused to rule that deliberately retrogressive
measures are a prima facie violation. This has been criticized by Ma hew Craven, The In-
ternational Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development
131‒132 (Oxford U. Press 1995).
37 P. Alston & G. Quinn, The Nature and Scope of States Parties’ Obligations under the International
Covenant on Economic, Social and Cultural Rights, 9(2) Hum. Rights Q. 156–229, 172 (1987).
The Right to Health and Development 553

becomes retrogressive.38 In addition, the covenant imposes obligations of im-
mediate eﬀect, requiring that state parties take steps to realize the right to
health and that the right be realized and exercised without discrimination of
any kind. “Such steps must be deliberate, concrete, and targeted towards the
full realization of the right to health.”39
A corollary to progressive realization is the presumption against retro-
gressive measures. If any deliberately retrogressive measures are taken, the
state has the burden of proving that the measures were introduced after the
most careful consideration of all alternatives and that they are duly justiﬁed
by reference to the totality of the rights provided for in the covenant in the
context of the full use of the state party’s maximum available resources.40 The
concepts of both progressive realization and maximum available resources
are open-ended and continue to be discussed at a high level of generality,
and concrete tools have yet to be developed to enable an eﬀective assessment
of their meaning in practice.41 More recent analyses and tools have emerged
to guide states in the resolution of resource allocation dilemmas arising from
such obligations.42 A number of these center on the nature of the process of
decision making and the need for it to be shown to be principled, evidence
based, consultative, transparent, and evaluative.
Thus, far from allowing the notion of progressive realization to provide
a means to delay or avoid obligations under the ICESCR, the CESCR has bol-
stered it through its interpretations of other component parts of Article 2(1)
ICESCR. As a result, the obligation appears to require “a continuous improve-
ment of conditions over time without backward movement of any kind—in
what may be described as a form of ‘ratchet eﬀect.’ ”43

Minimum Core
The concept of a “minimum core” of ICESCR rights derives from General Com-
ment No. 3, in which the commi ee conﬁrmed its view that “a minimum core
obligation to ensure the satisfaction of, at the very least, minimum essential

38 Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of
Content, 33 Yale J. Intl. L. 113, 121 (2008), available at h p://www.yale.edu/yjil/PDFs/vol_33
/Young%20Final.pdf.
39 General Comment No. 14, supra note 20, at para. 30.
40 Id., at para. 32. See also the more recent Interim Report of the Special Rapporteur on the Right
of Everyone to the Enjoyment of the Highest A ainable Standard of Physical and Mental Health
Related to Health Financing Since the Full Realization of the Right to Health Is Contingent upon the
Availability of Adequate, Equitable and Sustainable Financing for Health at Both the Domestic and
International Levels, A/67/302 (Aug. 13, 2012).
41 R. Robertson, Measuring State Compliance with the Obligation to Devote the “Maximum Available
Resources” to Realizing Economic, Social, and Cultural Rights, 16(4) Hum. Rights Q. 693–714, 703
(1994).
42 E. Felner, Closing the “Escape Hatch”: A Toolkit to Monitor the Progressive Realization of Economic,
Social, and Cultural Rights, 1(3) J. Hum. Rights Prac. 402 (2008); Tobin, supra note 8, at ch. 2.
43 Craven, supra note 36, at 131.
554 The World Bank Legal Review

levels of each of the rights is incumbent upon every State party.”44 The com-
mi ee aimed to establish a common, minimum legal standard45 in the face of
“the inherent relativism of the programmatic standard of ‘progressive realiza-
tion’ ” and to provide “an understanding of the direction that the steps should
follow and an indication as to when their direction becomes retrogressive.”46
The concept of a minimum core is not a clear or ﬁxed one, and commenta-
tors have struggled to establish its genesis, justiﬁcation, and organizing prin-
ciples. Even as deﬁned in relation to minimum core obligations, the concept
has not been interpreted consistently by the commi ee.47 According to Young,
three basic approaches can be identiﬁed:48 a minimum legal content for the
notoriously indeterminate claims of economic and social rights; a baseline of
socioeconomic protection across countries and across varied economic poli-
cies and vastly diﬀerent levels of available resources; and a manageable and
moderate legal measure in the context of global redistributive debates.49
In respect to the right to health, the commi ee has elaborated on the core
obligations that ensure the satisfaction of minimum essential levels of the right
to health; many of these have potential relevance to development interven-
tions through their emphasis on poor, vulnerable, or marginalized groups:50
• To ensure the right of access to health facilities, goods, and services on a
nondiscriminatory basis, especially for vulnerable or marginalized groups.
• To ensure access to the minimum essential food that is nutritionally ad-
equate and safe, to ensure freedom from hunger to everyone.
• To ensure access to basic shelter, housing, and sanitation and an adequate
supply of safe and potable water.
• To provide essential drugs, as from time to time deﬁned under the WHO
Action Programme on Essential Drugs.
• To ensure equitable distribution of all health facilities, goods, and services.
• To adopt and implement a national public health strategy and plan of
action, on the basis of epidemiological evidence, addressing the health
concerns of the whole population. The strategy and plan of action shall
be devised, and periodically reviewed, on the basis of a participatory and

44 General Comment No. 3, supra note 33, at para. 10.
45 Even in this respect, Young notes that the commi ee has variously equated minimum core
with a presumptive legal entitlement, a nonderogable obligation, and an obligation of strict
liability; Young, supra note 38.
46 Id., at 121.
47 Id., at 154.
48 Normative essence (a moral standard for prescribing the formulation of rights); minimum
consensus; or minimum core obligation or set of obligations. These three basic approaches
are summarized at id., 116–117.
49 Id., at 113.
50 See also Paul Hunt, The Right of Everyone to Enjoy the Highest A ainable Standard of Physical and
Mental Health, A/58/427 (Oct. 10, 2003), para. 53.
The Right to Health and Development 555

transparent process. The strategy and plan shall include methods, such as
the right to health indicators and benchmarks, by which progress can be
closely monitored. The process by which the strategy and plan of action
are devised, as well as their content, shall give particular a ention to all
vulnerable or marginalized groups.51
However, as Young points out,
It is diﬃcult to determine whether the Commi ee designated these
obligations as core because of their immediate practicability or their
greater moral salience; on both grounds, the core obligations are
subject to criticism. The Commi ee’s response to the practicability
of the core obligations (and by implication, their aﬀordability) is to
posit a duty of assistance and cooperation on both state parties and
non-state actors who are “in a position to assist.”52

Monitoring the Right to Health
Although limited progress has been made in developing monitoring tools to
assess compliance with economic and social rights,53 a growing range of tools
exists to monitor the progressive realization of such rights, including the right
to health. In Uganda, for example, with the support of the United Nations De-
velopment Programme (UNDP), the Uganda Human Rights Commission de-
veloped the Toolkit for Data Collection and Monitoring the Enjoyment of the
Right to Health.54 The principal mechanism for monitoring the right to health
under the covenant is the periodic reporting process, although a complaints
mechanism now exists with the entry into force of the Optional Protocol to the
ICESCR.55 Key components in the eﬀective monitoring of the right to health
are human rights indicators and benchmarks, as well as analysis of budget
expenditure allocation by sector.56 As the special rapporteur noted, the reli-
ance on indicators is especially important because of progressive realization
and the fact that what is expected of a state will vary over time.57 States must
select appropriate indicators to help them monitor diﬀerent dimensions of the
right to health, and each indictor requires disaggregation of data on the vari-
ous prohibited grounds of discrimination.
Distinguishing features of right to health indicators58 include their deri-
vation from the speciﬁc right to health norms and the purpose to which the

51 General Comment No. 14, supra note 20, at para. 43.
52 Young, supra note 38, at 156.
53 Felner, supra note 42, at 408.
54 Uganda Human Rights Commission, Toolkit for Data Collection and Monitoring the Enjoyment
of the Right to Health (2010).
55 The protocol entered into force on May 5, 2012, three months after being ratiﬁed by 10 par-
ties. It currently has 10 state parties and 32 signatories.
56 See Felner, supra note 42, at 411–414.
57 Hunt, supra note 50, at para. 5.
58 See also Gunilla Backman et al., Health Systems and the Right to Health: An Assessment of 194
556 The World Bank Legal Review

indicator is put—that is, the right to health monitoring with a view to hold-
ing duty bearers to account.59 Such right to health indicators fall into three
categories: structural indicators, process indicators, and outcome indicators.
The categories are not immutable and may overlap, and some indicators may
qualify for more than one category:60
• Structural indicators address whether or not key structures, systems, and
mechanisms that are necessary for or conducive to the realization of the
right to health are in place.61 These might include whether a state constitu-
tionalizes the right to health; whether it has a national human rights insti-
tution with a mandate that includes health, a national strategy, and a plan
of action to reduce maternal mortality; and an essential medicines list.62
• Process indicators can be designed to help a state monitor the variable
dimension of the right to health that arises from the concept of progres-
sive realization.63 These indicators monitor eﬀort rather than outcome
and could include indicators such as the percentage of births a ended by
skilled health personnel or the percentage of people with advanced HIV
infection receiving antiretroviral combination therapy.64
• Outcome indicators measure the results achieved by health-related poli-
cies, such as MDG indicators.65 These might include indicators such as the
number of maternal deaths per 100,000 live births, HIV prevalence among
the population aged 15–24 years, and incidence and death rates associated
with malaria.

Right to Health and Its Potential Relevance to Development
Health as a Development Priority
In 2006, the World Development Report recognized that health has both intrinsic
and instrumental importance:

Countries, 372 Lancet 2047–2085 (2008), which includes 72 indicators of the right to health.
This list comprises structural, process, and outcome indicators.
59 Hunt, supra note 50, at para. 10.
60 See more generally the work of the Oﬃce of the High Commissioner for Human Rights
(OHCHR) on human rights indicators, including Human Rights Indicators: A Guide to Mea-
surement and Implementation (2012). See also OHCHR, Report on Indicators for Monitoring Com-
pliance with International Human Rights Instruments, HRI/MC/ 2006/7 (May 11, 2006), and Re-
port of the UN High Commissioner for Human Rights Focused on the Use of Indicators in Realizing
Economic, Social, and Cultural Rights, E/20011/90 (Apr. 26, 2011).
61 Hunt, supra note 50, at para. 18.
62 Id., at para. 19.
63 Id., at para. 22.
64 Id., at para. 27.
65 For the oﬃcial list of the indicators, see h p://mdgs.un.org/unsd/mdg/Host.aspx
?Content=Indicators/OﬃcialList.htm.
The Right to Health and Development 557

Alongside the intrinsic importance of health as a dimension of wel-
fare, poor health can directly include an individual’s opportuni-
ties—his or her earnings capacity, performance at school, ability to
care for children, participation in community activities and so on.
This important instrumental function of health implies that inequali-
ties in health often translate into inequalities in other dimensions of
welfare.66
Health is central to development.67 The speciﬁc links between promoting
health and sustainable development have long been acknowledged. It is gen-
erally recognized that securing a certain level of health-related development
is a prerequisite for the overall economic development of a country,68 and that
diseases such as HIV/AIDS and malaria can have long-term negative impacts
on economic growth.69
Thus, assessing development and poverty reduction in terms of
capabilities,70 one can see that the right to health may have both constitutive
and instrumental relevance. As Anand Grover, the special rapporteur on the
right to health, notes:
The right is constitutive insofar as ill health and adequate protection
of the right to health are symptoms and constituent parts of inad-
equate human development and poverty, and instrumental in that
the enjoyment of the right to health is instrumental in securing other
human rights, such as the right to education and work, which are
essential to the achievement of human development.71
Paul Hunt, the former special rapporteur, put it in the following way:
“Good health is central to creating and sustaining the capabilities that poor
people need to escape from poverty. . . . Good health is not just an outcome of
development: it is a way of achieving development.”72

66 World Development Report, Equity and Development 29 (Oxford U. Press 2006).
67 UN System Task Team, supra note 2.
68 Jocelyn E. Finlay, The Role of Health in Economic Development (PGDA Working Papers 2107,
Program on the Global Demography of Aging 2007), states: “Accounting for the simultane-
ous determination of the key variables—growth, education, fertility—the results show that
the indirect eﬀect of health is positive and signiﬁcant.”
69 J. Gallup & J. Sachs, The Economic Burden of Malaria 7 (CID Working Paper No. 52, July 2000);
J. Sachs & P. Malaney, The Economic and Social Burden of Malaria, 415(7) Nature 780–785 (Feb.
2002); S. Dixon, S. McDonald, & J. Roberts, AIDS and Economic Growth in Africa: A Panel Data
Analysis, 13 J. Intl. Dev. 411–426 (2001); United Nations Department of Economic and So-
cial Aﬀairs/Population Division, The Impact of AIDS (United Nations 2004), especially ch. 8,
81–89.
70 Amartya Sen, Human Rights and Capabilities, 6(2) J. Hum. Dev. (July 2005); Martha Nussbaum,
Creating Capabilities: The Human Development Approach (Harv. U. Press 2011).
71 Grover, supra note 6, at paras. 12‒13.
72 Paul Hunt, The Right of Everyone to the Enjoyment of the Highest A ainable Standard of Physical
and Mental Health, 2002/31 E/CN.4/2003/58 (Feb. 13, 2003), para. 46.
558 The World Bank Legal Review

It is unsurprising then that health has become an increasingly important
focus of development work. Health is a prominent theme in both the Mil-
lennium Declaration (2000) and the Millennium Development Goals (MDGs):
3 of the 8 MDGs address health directly and others address underlying deter-
minants of health.73 Moreover, at least 8 of the 16 MDG targets, and 17 of the
48 related indicators, are health related. The 2010 High-Level Plenary Meeting
of the General Assembly conﬁrmed states’ commitment to promoting global
public health to achieve the MDGs and to ensure respect for human rights,
to “promote gender equality and the empowerment of women as essential
means of addressing the health of women and girls, and to address the stig-
matization of people living with and aﬀected by HIV and AIDS.” According
to the MDG Report for Uganda, several of the health targets, including those
related to child and maternal mortality, access to reproductive health, and the
incidence of malaria and other diseases, have progressed slowly.74 The report
notes that every day in Uganda, an estimated 16 women die in childbirth, av-
eraging one death every 90 minutes and nearly 6,000 every year. Indeed, MDG
Goal 5 (improve maternal health) is one of the goals toward which progress
has been observed to be too slow, and the report devotes a special section to it.

Links between Poverty and Health
The multilayered connections between poverty and health are also widely rec-
ognized.75
As Paul Hunt, the former special rapporteur on the right to health,
observed,
Ill-health causes poverty by destroying livelihoods, reducing work-
er productivity, lowering educational achievement and limiting
opportunities. Because poverty may lead to diminished access to
medical care, increased exposure to environmental risk, the worst
forms of child labour and malnutrition, ill health is also often a con-
sequence of poverty. In other words, ill health is both a cause and a
consequence of poverty: sick people are more likely to become poor
and the poor are more vulnerable to disease and disability.76

73 UN Enable, The Millennium Development Goals: Goal 4: Reduce child mortality; Goal 5:
Improve maternal health; Goal 6: Combat HIV/AIDS, malaria, and other diseases. Available
at h p://www.un.org/millenniumgoals/.
74 Government of Uganda, Millennium Development Goals Report for Uganda: Special Theme:
Accelerating Progress towards Improving Maternal Health (Ministry of Finance, Planning and
Economic Development, Kampala 2010).
75 See, generally, Chris Beyrer & H. F. Pizer eds., Public Health and Human Rights: Evidence-Based
Approaches (Johns Hopkins U. Press 2007).
76 Hunt, supra note 72, at para. 45.
The Right to Health and Development 559

Similarly,
Securing the sexual and reproductive health of populations has
an integral role in eliminating poverty and promoting economic
growth, alongside its direct eﬀects on individuals’ health. Ensuring
access to reproductive services, including family planning, is a vital
step in disrupting the “repetitive cycle” of poverty, inequality and
slow economic growth that is perpetuated by limited reproductive
choices.77
In sum, a number of observations are apposite: ﬁrst the deep and multi-
tiered relevance of health for development; second, the interdependence of
health (and the right to health) and other elements of welfare (and other hu-
man rights);78 and third, the importance of recognizing that both health and
the right to heath are important for instrumental and intrinsic reasons.
What has arguably been missing, however, is greater recognition of
the potential role of the normative and legal framework in a aining health
outcomes79 and, more particularly, the role of the right to health itself in
achieving the MDGs.80 Recognition of these roles is addressed in the next
section.

Potential Contribution of the Right to Health
What Is Distinct about an Approach Predicated
on the Right to Health?
The realization of the right to health depends on an eﬀective and integrated
health system that encompasses medical care and addresses the underlying
determinants of health.81 However, not all approaches to improving health
and strengthening health systems necessarily advance the right to health. For
instance, the WHO identiﬁes six essential building blocks that make up health
systems: health services (medical and public health); a health workforce; a
health information system; medical products, vaccines, and technologies;

77 Grover, supra note 6, at para. 5, citing the United Nations Population Fund (UNFPA), The
ICPD and MDGs: Close Linkages, XV–3, available at h p://www.un.org/esa/population/publi
cations/PopAspectsMDG/14_UNFPA.pdf.
78 On health and human rights, see P. Farmer, Rethinking Health and Human Rights: Time for
a Paradigm Shift, in Pathologies of Power: Health, Human Rights and the New War on the Poor
213–246 (U. Calif. Press 2003); see, generally, Beyrer & Pizer, supra note 75.
79 Report of the Special Rapporteur on the Right to Health (main focus: health-related Millenium
Development Goals), para. 15.
80 For a general discussion of the role of international human rights in advancing achievement
of the MDGs, see S. McInerney-Lankford, Legal Accountability: From Human Rights Obligations
to Development Policy and the MDGs, ch. 7 in Malcolm Langford, Andy Sumner, & Alicia Ely
Yamin eds., MDGs and Human Rights: Past, Present and Future (Cambridge U. Press 2013).
81 P. Hunt & G. Backmann, Health Systems and the Right to the Highest A ainable Standard of
Health, 1(1) Health & Hum. Rights (2008).
560 The World Bank Legal Review

health ﬁnancing; and leadership, governance, and stewardship. However, as
some experts have noted, although these can be thought of as building blocks
for the realization of the right to health, “a health system might have all these
building blocks but still not serve human rights. For example, the system
might include both medical care and public health but not secure fair access,
or there might be a health information system but key data might not be suit-
ably disaggregated.”82
In order to fully realize the right to health and fully serve human rights,
health system needs to reﬂect the following features:
• Legal recognition: The right to health must be recognized in national law
and by ratifying relevant human rights treaties.
• Standards: Health systems must include detailed standards, which
strengthen general legal provisions.
• Participation: Health systems must include institutional arrangements for
active and informed participation in strategy development, policy mak-
ing, implementation, and accountability by all relevant stakeholders, in-
cluding disadvantaged individuals, communities, and populations.
• Transparency: Information on the quality, availability, and pricing of es-
sential medicines must be accessible by those in the public, private, and
nonproﬁt sectors.
• Equity, equality, and nondiscrimination: Health systems must be accessible
to all, including those living in poverty, minority groups, indigenous
people, women, children, people living in slums and rural areas, people
with disabilities, and other disadvantaged individuals, communities, and
populations. Additionally, health systems must be responsive to the par-
ticular health needs of women, children, adolescents, and elderly people.
Outreach programs should ensure that disadvantaged people have the
same access as more privileged people.
• Respect for cultural diﬀerences: Health systems must be respectful of medi-
cal ethics and culturally appropriate, that is, respectful of the culture of
individuals, minorities, peoples, and communities and sensitive to gender
and life-cycle requirements.
• Quality: All health-related services and facilities must be of good quality.
• Planning: States must have comprehensive national health plans, encom-
passing both the public and private sectors, for the development of health
systems.
• Referral systems: Health systems should have a mix of primary (community-
based), secondary (district-based), and tertiary (specialized) facilities and
services, providing a continuum of prevention and care.

82 Backman et al., supra note 58.
The Right to Health and Development 561

• Coordination: Health systems and the right to health depend on eﬀective
coordination across a range of public and private stakeholders (including
nongovernmental organizations) at the national and international levels.
• International cooperation: Health systems have international dimensions,
which are also reﬂected in countries’ human rights responsibilities of in-
ternational assistance and cooperation.
• Legal obligation: Crucially, the right to the highest a ainable standard of
health gives rise to legally binding obligations.
• Monitoring and accountability: Individuals and communities should have
the opportunity to understand how those with responsibilities have dis-
charged their duties and provide those with responsibilities the opportu-
nity to explain what they have done and why. Where mistakes have been
made, accountability requires redress. Accountability is not a ma er of
blame and punishment but a fair and reasonable process to identify what
works, so it can be repeated and revised as necessary.
Similarly, in an eﬀort to unpack the right to health, the special rapporteur
on the right to health identiﬁed ten key elements that underpin the right to
health framework:83
• Identiﬁcation of relevant national and international human rights laws,
norms, and standards
• Recognition that the right to health is subject to resource constraints and
progressive realization, requiring the identiﬁcation of indicators and
benchmarks to measure progress over time
• Recognition that the right to health imposes some obligations that are of
immediate eﬀect, and are not subject to progressive realization
• Recognition that the right to health includes freedoms and entitlements
• The objective of ensuring that all health services, goods, and facilities shall
be available, accessible, acceptable, and of good quality
• That states have duties to respect, protect, and fulﬁll the right to the high-
est a ainable standard of health
• That special a ention should be given to issues of nondiscrimination,
equality, and vulnerability
• Opportunities are required for the active and informed participation of
individuals and communities in decision making that has a bearing on
their health
• Developing countries have a responsibility to seek international assis-
tance and cooperation, whereas developed states have some responsibili-
ties toward the realization of the right to health in developing countries

83 Grover, supra note 6.
562 The World Bank Legal Review

• That eﬀective, transparent, and accessible monitoring and accountability
mechanisms must be available at the national and international levels

What Can the Right to Health and Its Normative Framework Offer
Health-Related Development Interventions?
A fundamental premise of this discussion is that the right to health is impor-
tant for both instrumental and intrinsic reasons, and, in relation to the la er,
that it may advance a range of other goals, including some related to develop-
ment.84 According to the special rapporteur on the right to health, “the right to
health framework complements current development approaches by under-
lining the importance of aspects such as participation, community empower-
ment, and the need to focus on vulnerable populations.”85 In the context of
deﬁning the post-2015 agenda for the MDGs,86 the UN System Task Team has
proposed that “a human rights based approach to health is essential” to ad-
dress health issues more eﬀectively.87
This section builds on the distinct contribution that the right to health may
make to development. The discussion centers on two themes: ﬁrst, the require-
ment that special a ention be given to issues of nondiscrimination, equality,
and vulnerability; and second, the importance of identifying relevant national
and international human rights laws, norms, and standards. The la er implic-
itly recognizes that the right to health imposes obligations and requires eﬀec-
tive, transparent, and accessible monitoring and accountability mechanisms
at the national and international levels.

Focus on the Poor, Vulnerable, and Marginalized
According to Paul Hunt, former special rapporteur on the right to health, “The
right to health—and other human rights—has a signiﬁcant and constructive
role to play in poverty reduction. Policies that are based on national and in-
ternational human rights are more likely to be eﬀective, sustainable, inclusive,
equitable, and meaningful to those living in poverty.”88
The contribution of the right to health perspective to development must
be understood in the broader context of the general contribution that human
rights may make to development through a focus on nondiscrimination and
inequality; the participation of the poor, rendering policy choices that have a

84 A useful background resource to this chapter, and to this section in particular, is Stephen P.
Marks ed., Health and Human Rights: Basic International Documents (3d ed., Harv. Series on
Health and Hum. Rights, Harv. U. Press 2012).
85 Paul Hunt, The Right of Everyone to the Enjoyment of the Highest A ainable Standard of Physical
and Mental Health, A/59/422 (Oct. 4, 2004), para. 15.
86 See also WHO, Positioning Health in the Post-2015 Development Agenda (WHO discussion pa-
per, Oct. 2012).
87 UN System Task Team, supra note 2, at 6. On rights-based approaches to health, see Elvira
Beracochea, Corey Weinstein, & Dabney Evans, eds., Rights-Based Approaches to Public Health
(Springer 2010).
88 Hunt, supra note 85, at para. 44.
The Right to Health and Development 563

disproportionately harmful impact on the poor impermissible; and the role
of international assistance and cooperation.89 This element is particularly im-
portant in the context of the MDGs, whose the focus on aggregate measures
of achievement has been a frequent criticism.90 Participation of poor people is
essential to rights-based approaches to development, including the right to
health.91
In the context of health, Hunt suggests that a poverty reduction strategy
based on the right to health would emphasize improving poor people’s access
to health services, for example, by identifying diseases that have a particular
impact on the poor and introducing immunization and other programs specif-
ically designed to reach the poor; improving the eﬀectiveness of public health
interventions to the poor, for example, by implementing basic environmental
controls, especially regarding waste disposal in areas populated by the poor;
reducing the ﬁnancial burden of health protection on the poor, for example,
by reducing or eliminating user fees for the poor; and promoting policies in
other sectors that bear positively on the underlying determinants of health, for
example, supporting agricultural policies that have positive health outcomes
for the poor.92
From a diﬀerent perspective, development interventions in the area of
health which respect human rights are also likely to be more eﬀective. For
example,
“naming and shaming” people who test positive to HIV, in violation
of their right to privacy and conﬁdentiality, creates stigma and de-
ters others from seeking out testing and counseling; a development
intervention designed to combat the spread of HIV that respects the
human rights of those directly aﬀected by and those most at risk of
HIV will ultimately be more eﬀective in achieving its stated goals.93
As the Alma-Ata Declaration conﬁrmed, an eﬀective health system relies
on core elements of right to health and human rights principles such as equity,
community participation,94 health promotional activities, and international coo
peration. In respect of essential health interventions, the declaration under-
scored key determinants of the right to health that are consistent with the more
holistic views of health contained in interpretations of both the CESCR and the

89 Id., at para. 56.
90 M. Langford, A Poverty of Rights: Six Ways to Fix the MDGs, 41(1) IDS Bull. 83 (2010).
91 A. Yamin, Suﬀering and Powerlessness: The Signiﬁcance of Participation in Rights-Based Approaches
to Health, 11 Health & Hum. Rights 5 (2011).
92 Hunt, supra note 85, at para. 57.
93 Grover, supra note 6, at paras. 41 & 42, at footnote 1. See also UN System Task Team, supra
note 2, at 8.
94 “The people have the right and duty to participate individually and collectively in the plan-
ning and implementation of their health care.” Adopted at the International Conference on
Primary Health Care (Sept. 6–12, 1978).
564 The World Bank Legal Review

special rapporteur on the right to health.95 These include education, food sup-
ply and nutrition, and the adequate supply of safe water and basic sanitation.

Enhanced Accountability of Duty Bearers
Notwithstanding claims about the indeterminacy of the right to health, in-
cluding in relation to the deﬁnition of its minimum content;96 inconsistencies
in its interpretation by the CESCR; and the diﬃculty of determining whether
the minimum content is the same in developing countries as it is in developed
countries, the right to health possesses a distinct quality in being grounded
in a legal obligation under international law97 and in enforceable legal norms
within domestic legal frameworks across the world.98 “Perhaps the most im-
portant source of added value in the human rights approach is the emphasis
it places on the accountability of policy-makers and other actors whose ac-
tions have an impact on the rights of people. Rights imply duties, and duties
demand accountability.”99 Through the leverage provided by the law,100 the
right to health may help increase accountability for health interventions by
oﬀering a legal standard against which to assess health interventions through
the norms enshrined in law, as well as the indicators and benchmarks devel-
oped based on those norms.101 This facilitates monitoring and evaluation, as
well as more formal compliance with the right to health, and in some cases
provides recourse mechanisms and remedies for aggrieved individuals and
groups. As noted by Paul Hunt, the former special rapporteur on the right to
health, the legal genesis of the right to health implies “the notion of obligation
and thus the requirement of eﬀective, transparent, and accessible mechanisms
of accountability.”102 Put diﬀerently, an approach predicated on the right to
health considers that “the ‘how’ of health and development is as important
as the ‘what’ ”103—in this way, it emphasizes process and means as much as
outcomes.

95 See also UN System Task Team, supra note 2, at 7.
96 See, for example, Young, supra note 38.
97 See also J. Brunnée, International Legal Accountability through the Lens of the Law of State Respon-
sibility, 36 Netherlands Y.B. Intl. L. 21–56 (2005).
98 See M. Langford, ed., Social Rights Jurisprudence: Emerging Trends in International and Com-
parative Law (Cambridge U. Press 2008).
99 P. Hunt, S. Osmani, & M. Nowak, Summary of the Draft Guidelines for a Human Rights Approach
to Poverty Reduction (OHCHR 2004).
100 Id., at 737.
101 This may include monitoring and evaluation. Realizing that accountability as it is under-
stood within the human rights framework relies on transparency, access to information
and active popular participation are necessary in order for accountability to be realized. See
A. Ely Yamin, The Central Role of Accountability in Applying a Human Rights Framework to
Health, 10(2) Health and Hum. Rights 1, 2 (2008).
102 Hunt, supra note 85, at para. 56.
103 UN System Task Team, supra note 2, at 8.
The Right to Health and Development 565

The legal accountability underpinning human rights norms is enshrined
in international rule of law and is reﬂected in the complaints procedures un-
der human rights treaties104 (and, to a less formal extent, in the work of treaty
monitoring bodies), which are strengthened by assessment methodology and
the development of human rights indicators.105 These international norms add
value by operating at diﬀerent levels, whether international, domestic, or lo-
cal. Some experts opine that despite variances in countries’ constitutional ap-
proaches to international law obligations, once ratiﬁed, human rights treaties
are typically transposed into domestic legal frameworks, which can in turn
generate rights-based policy that gives meaning to international treaty obliga-
tions and provides for individual causes of action, ensuring human rights ac-
countability for local health advancement.106 As a result of health rights litiga-
tion aimed at the enforcement of human rights,107 human rights now provide
the structure of legal accountability for national policy in a number of de-
veloping countries.108 The remainder of this chapter considers these elements
and the inﬂuence of the right to health on accountability for health policy and
outcomes in the context of Uganda.

Domestic Enforceability: The Case of Uganda
Brief Description of Uganda
Uganda is a landlocked country located in and part of the East African Com-
munity, whose other members are Kenya, Tanzania, Rwanda, and Burundi.
Uganda has demonstrated an intention to recognize the right to health and
is a signatory to a number of international covenants that recognize the right.
Uganda ratiﬁed the Covenant on Economic, Social, and Cultural Rights in
1966, the Convention on Elimination of All Forms of Discrimination Against
Women in 1981, the Convention on Rights of the Child in 1986, the Covenant

104 See, for example, ICCPR Optional Protocol of December 16, 1966 (entered into force Mar. 23,
1976) 999 U.N.T.S. 302; CRC Optional Protocol and ICESCR Optional Protocol of December
10, 2008 (not yet in force).
105 See h p://www.ohchr.org/EN/Issues/Indicators/Pages/HRIndicatorsIndex.aspx.
106 B. Mason Meier et al., Bridging International Law and Rights-Based Litigation: Mapping Health-
Related Rights through the Development of the Global Health and Human Rights Database, 14
Health & Hum. Rights 1 (2012).
107 See, for example, M. Langford, ed., Social Rights Jurisprudence: Emerging Trends in International
and Comparative Law (Cambridge U. Press 2008); V. Gauri & D. Brinks, Courting Social Justice:
Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge U. Press
2008); A. Yamin & S. Gloppen, Litigating Health Rights: Can Courts Bring More Justice to Health?
(Harv. U. Press 2011).
108 Meier et al., supra note 106, at 2.
566 The World Bank Legal Review

on Civil and Political Rights in 1995,109 and the African Charter on Human and
Peoples’ Rights in 1986.110
With a total population estimated at 33 million people, Uganda has a life
expectancy of 54 and 57 years for males and females, respectively, with a child
mortality rate of 90 per 1,000 births.111 Malaria is responsible for the largest
proportion of deaths arising from medical conditions, with 5,958 of the 231,873
malaria cases being fatal in 2012.112 The country’s progress in the ﬁght against
HIV/AIDS has slowed down; UNAIDS estimates the number of people liv-
ing with HIV/AIDS in Uganda to be 1,400,000,113 or 7.2 percent of the adult
population, up from 5 percent in 2000.114 Only 54 percent of the people living
with HIV/AIDS have access to antiretroviral treatment,115 and of these, only
50 percent of the women living with HIV/AIDS have access to antiretroviral
therapy for the prevention of mother-to-child transmission; yet the maternal
mortality rate stands at 310 deaths per 100,000 live births,116 which exceeds the
MDG target of 131 deaths per 100,000 live births.117 The implication of these
statistics is that although some progress has been made in providing basic
health services to the public, a signiﬁcant percentage of people still lack access
to basic health services.
To discharge its obligation to provide a minimum standard of health care,
the Ugandan government has deployed a comprehensive multitier system of
health service delivery primarily involving hospitals spread across the country
supported by health centers established at each of the local levels of political
administration. At the top of the pyramid are general hospitals, national refer-
ral hospitals, and regional referral hospitals. General hospitals provide pre-
ventive, promotive, curative, maternity, in-patient, surgery, blood transfusion,
laboratory, and medical imaging services. National referral hospitals provide
comprehensive specialist services and conduct health research and teaching
in addition to providing the services oﬀered by general hospitals. Regional

109 See h p://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4
&lang=en.
110 See h p://www.achpr.org/instruments/achpr/ratiﬁcation/, Ratiﬁcation Table: African Char-
ter on Human and Peoples’ Rights.
111 WHO, Country Statistics, Uganda, available at h p://www.who.int/countries/uga/en/.
112 Global Health Observatory Data Repository, Uganda Statistics Summary (2002–Present), avail-
able at h p://apps.who.int/gho/data/node.country.country-UGA?lang=en/.
113 Uganda Aids Commission, Global AIDS Response Progress Report 2 (Country Progress Report
Uganda, Apr. 2011), available at h p://www.unaids.org/en/dataanalysis/knowyourresponse
/countryprogressreports/2012countries/ce_UG_Narrative_Report%5B1%5D.pdf.
114 UNAIDS Country Proﬁle, Uganda Statistics, h p://www.unaids.org/en/regionscountries
/countries/uganda/.
115 Global Health Observatory Data Repository, supra note 112.
116 WHO, Countdown to 2015 Launches the 2012 Report, available at h p://www.who.int/pmnch
/topics/part_publications/countdown_2012_report/en/index1.html.
117 Uganda Maternal and Child Health Data, available at h p://www.countdown2015mnch
.org/country-proﬁles/uganda.
The Right to Health and Development 567

referral hospitals, which are spread across the country, provide specialist clini-
cal services such as psychiatry; ear, nose, and throat services; ophthalmology;
higher-level surgical and medical services; and clinical support services (labo-
ratory, medical imaging, pathology), in addition to teaching and research.118
Down the pyramid are health centers I, II, and III.119 Health center (HC)
IIIs provide basic preventive, promotive, and curative care; support supervi-
sion of the community and HC IIs under their jurisdiction; and provide labo-
ratory services for diagnosis, maternity care, and ﬁrst referral cover for the
subcounty. HC IIs provide the ﬁrst level of interaction between the formal
health sector and the communities and provide out-patient care and com-
munity outreach services. An enrolled comprehensive nurse is essential to
the provision of comprehensive services and linkages with the village health
teams, which play a supervisory role in maintaining and promoting basic
health care in their respective villages. In 1997, administration of health ser-
vices was transferred from the central government to the local government
units of administration under the Local Government Act.120 These structures
are meant to demonstrate the government’s undertaking of its obligation to
provide health services in accordance with its international obligations; how-
ever, the fact that the structures exist does not necessarily mean that the state
is satisfying its obligations.
These structures play an important role in increasing access to basic health
care facilities for Ugandans across the country, and although it is debatable
whether the right to highest a ainable standard of health is being realized, the
statistics available on health service provision across the country demonstrate
some progress in the realization of the right.

Health as a Development Issue in Uganda
Health is a key contributing factor to poverty for the majority of communities
in Uganda.121 To implement health programs in line with the national Poverty
Reduction Strategy Paper (PRSP), Uganda developed the Health Sector Stra-
tegic Plan (HSSP), which has been revised as HSSPI, HSSP II, and the Health
Sector Strategic and Investment Plan.122 The current HSSP clearly articulates
that it was partly developed to operationalize the health sector component of
the national PRSP, now referred to as the National Development Plan (NDP).123

118 Health Sector Strategic Plan III, cl. 2.1.2.
119 Id., at cl. 2.1.5.
120 The Local Government Act, 1997.
121 Moses Mulumba, Mainstreaming Disability into the Poverty Reduction Processes in Uganda: The
Role of the Human Rights–Based Approach to Development (thesis in fulﬁllment of the require-
ment for the MPhil degree in rehabilitation, U. of Stellenbosch, 2010).
122 Id.
123 Ministry of Health, Health Sector Strategic and Investment Plan: Promoting People’s Health to En-
hance Socio-economic Development, 2010/11–2014/15 (Ministry of Health, Uganda, July 2010).
568 The World Bank Legal Review

The NDP is Uganda’s PRSP, formerly known as the Poverty Eradication
Action Plan (PEAP), developed and launched in 1997 as a framework for ad-
dressing the key poverty challenges.124 Since then, poverty levels have reduced
from 56 percent to 31 percent.125 The PEAP provided an overarching frame-
work to guide public action in a bid to eradicate poverty.126 The NDP extends
until 2040 and is intended to build on the achievements registered during the
PEAP period, while recognizing the need to improve planning and utilize re-
source approaches. With the focus on poverty reduction, the NDP process is
targeting resource utilization for be er economic growth, thus transforming
the country from peasantry into modernization.127
The NDP cohesively assesses the progress the government has made in re-
alizing national objectives and proposes strategies by which the government
intends, through each of its sectors, to realize some of the objectives. The NDP,
while recognizing the progress made by the health sector in the provision of
health services, acknowledges the shortcomings of the sector inter alia in the
reduction of the maternal mortality rate;128 the resurgent HIV/AIDS rate;129 in-
adequate human resources at the health centers across the country130 despite
an eﬀort by the government to widen health service provision by constructing
more health centers around the country;131 and inadequate funding, which has
jeopardized the realization of the Uganda National Minimum Health Care
Package (UNMHCP).132
To address these shortcomings, the NDP proposes various measures, such
as strengthening the organization and management of the national health sys-
tem, mobilizing suﬃcient resources to ﬁnance health sector programs, ensur-
ing universal access to the UNMHCP, emphasizing vulnerable populations,
and building and utilizing partnerships between the private and public stake-
holders in the provision of health services.133 To implement these strategies
and policies, the government launched Uganda Vision 2040, which proposes to
reduce the infant mortality rate to 4 deaths per 1,000 live births and reduce the
maternal mortality rate to 15 deaths per 100,000 live births before the year 2040.

124 MFPED, Poverty Eradication Action Plan (PEAP).
125 Id.
126 Moses Mulumba, Facilitating Disability Inclusion in the National Development Agenda in Uganda:
What Role Can the Human Rights–Based Approach Play?, J. Hum. Rights & Peace Ctr. (2012).
127 National Development Plan, 2010/11–2014/15, Growth, Employment, and Prosperity for Socio-
economic Transformation (Republic of Uganda, Apr. 2010), available at h p://www.npa.ug
/docs/NDP2.pdf.
128 Id., at para. 601.
129 Id., at para. 598.
130 Id., at para. 608.
131 Id., at para. 610.
132 Id., at cl. 7.5.2, para. iv.
133 Id., at cl. 7.5.3.
The Right to Health and Development 569

The national plan’s strategies and objectives as set forth in Uganda Vision
2040 provide benchmarks against which the government’s commitment to
protect, provide, and fulﬁll the right to health is evaluated and portray the ef-
forts to be taken by the state to that eﬀect. Although these strategies and objec-
tives are ambitious and laudable, they have remained largely aspirational and
have not been implemented. Recent budgetary allocations for government
ﬁnancing of the health service were signiﬁcantly reduced despite the govern-
ment’s stated intention to increase health sector ﬁnancing and curb corrup-
tion in the sector. These developments have led human rights activists to call
for greater government accountability for health. These advocates rely on the
right to health as a framework for accountability and as a mechanism to assess
the progress of implementation of health policies and strategies.

Policy Framework for the Realization of the Right to Health
in Uganda
As part of its obligation to fulﬁll—by giving suﬃcient recognition to the right
to health in the national political and legal systems—Uganda has taken a
number of steps, including the adoption of a national health policy with a de-
tailed plan for realizing the right to health. These steps are aimed at providing
guidance and streamlining the provision of health services across the coun-
try. The National Health Sector Strategic Plan deﬁnes the UNMHCP, which
obliges the government to provide component services and entitlements as
expeditiously as possible. The UNMHCP bears similarities to the concept of
“minimum core” as elaborated by the Commi ee on Economic, Social, and
Cultural Rights in General Comment No. 3. The package itself comprises the
same elements as those identiﬁed as “obligations of comparable priority” in
General Comment No. 14.134

National Health Sector Strategic Plan III (2011–2015)
The National Health Sector Strategic Plan (HSSP) sets forth in clear terms the
government’s intention to provide health services to the public. It explicitly
recognizes the right to the highest a ainable standard of health as a funda-
mental right and undertakes to implement its objectives in the national con-
text. The HSSP protects the right to health by recognizing the right to access
information about health, including diagnosis, treatment, costs, and progno-
sis as avenues through which informed consent to medical treatment can be
made. It further acknowledges that the right to health entails not only the

134 General Comment No. 14, supra note 20, para. 44: “The Commi ee also conﬁrms that the
following are obligations of comparable priority: (a) To ensure reproductive, maternal (pre-
natal as well as post-natal) and child health care; (b) To provide immunization against the
major infectious diseases occurring in the community; (c) To take measures to prevent, treat
and control epidemic and endemic diseases; (d) To provide education and access to informa-
tion concerning the main health problems in the community, including methods of prevent-
ing and controlling them; (e) To provide appropriate training for health personnel, including
education on health and human rights.”
570 The World Bank Legal Review

right to access basic health services but also to access safe and adequate water
supplies, sanitation, education, and a safe environment, among others.135
In its own provision of core obligations, as envisaged by General Com-
ment No. 14, the government proposes the UNMHCP, which is a set of basic
health care services that should be accessible to everyone.136 The package is
composed of clusters, including health promotion, disease prevention, and
community health initiatives, encompassing epidemic and disaster prepared-
ness and response, maternal and child health, nutrition, prevention, manage-
ment and control of communicable diseases, and prevention, management
and control of noncommunicable diseases.137
Although the HSSP III lays out strategies and objectives of the govern-
ment in extending basic health services to the public, it falls short of specifying
the basic, minimum services that every Ugandan should be able to access and
it does not specify the obligations of the government in respect to these so that
the government might be held accountable for them. An obligations-based
approach to the minimum core could help ensure the full realization of the
right to health in two ways.138 First, a focus on the state’s obligations would
demand a full analysis of the particular actions incumbent on the government
in order to implement the right to health. This could facilitate the analysis of
realistic, institutionally informed strategies for rights protections. Second, an
analysis of state obligations would include an inventory of activities that the
state must refrain from undertaking because they interfere with the realiza-
tion of the right to health.139 By not prescribing the speciﬁc services to be pro-
vided in the UNMHCP and not explicitly enumerating the obligations of the
state in realizing the UNMHCP, mechanisms for holding the government ac-
countable for health outcomes are severely inhibited. The government thereby
fails to realize the minimum core of health services that should be accessible
to everyone in Uganda, and it cannot be held accountable for this failure due
to the absence of clear standards against which its actions or omissions can
be measured. The realization of the right to the highest a ainable standard
of health depends, therefore, on the speciﬁc articulation of the services to be
provided in the UNMHCP as well as a clear articulation of the obligations
implied in its provision.

Uganda National Health Policy II (2010)
The Uganda National Health Policy is informed by the National Development
Plan and was created to provide for the development of service provision in
the health sector: its principal focus is the UNMHCP as the primary vehicle
through which the highest a ainable standard of health care should be pro-

135 National Health Sector Strategic Plan III (2011–15), cl. 5.4.1.
136 Id., at cl. 6.3.
137 Id.
138 Young, supra note 38.
139 Id., at 152.
The Right to Health and Development 571

vided in Uganda. As a policy objective, the government undertakes to ensure
universal access to quality promotive, preventive, curative, rehabilitative, and
palliative services for all prioritized diseases and conditions to all people in
Uganda, with emphasis on vulnerable populations.140 To realize this, the gov-
ernment commits to provide an optimal level of all necessary health resourc-
es, including human resources, medicines and other health supplies, health
infrastructure, and ﬁnancing.141
Primary health care remains the principal means for providing health ser-
vices through the district health systems supported by the hospitals in the
national health systems.142 As with HSSP III, the main shortcoming of this
policy is its failure to outline with clarity the obligations of the government in
its provision of health services to the public. Although the Uganda National
Health Policy is explicit in its aim to provide basic services, the core content
of the health services which the government undertakes to provide, as well as
the government’s obligations in their regard, remain indeﬁnite. These policies
are supplemented by strategic plans and guidelines for the provision of health
services and the administration of speciﬁc sectors, including the Uganda Hos-
pital Policy (2006), the National Reproductive Health Policy (2012), and the
National Adolescent Health Policy (2004).
An assessment of the policies put forward by the government makes it
clear that the right to the highest a ainable standard of health is recognized in
Uganda. However, weaknesses and shortcomings arise in terms of implemen-
tation because of the inadequate commitment of human and ﬁnancial resourc-
es. Another complicating factor is that the health sector in Uganda remains
largely funded by donor sources, with the government commi ing compari-
tively li le; when donor funding becomes unpredictable or is withdrawn, the
entire health sector is negatively aﬀected.

Legal Framework for the Provision of Health Services in Uganda
Central to the realization of health rights is the incorporation of the right to
health into national legal and regulatory frameworks in terms that articulate the
obligations to respect, protect, promote, and fulﬁll in its regard.143 In Uganda,
the national constitution is the supreme law of the country, and any law that
is inconsistent with the constitution’s provisions has no force or eﬀect, to the
extent of the inconsistency.144 This means that enshrining a right as a constitu-
tional right oﬀers it a heightened standing and renders it a benchmark to assess
the government obligations to respect, protect, promote, and fulﬁll that right.

140 Government of Uganda, Uganda National Health Policy II (2010), cl. 6.5.1.
141 Id., at cl. 6.6.
142 Id., at cl. 2.4.
143 Moses Mulumba et al., Constitutional Provisions for the Right to Health in East and Southern
Africa (EQUINET Discussion Paper 81, 2010).
144 See art. 2 of the constitution.
572 The World Bank Legal Review

The Constitution of the Republic of Uganda of 1995 is divided into two
parts: the National Objectives and Principles of State Policy and the Articles
of the Constitution. The former is designed to guide the organs of the state
in interpreting the constitution and implementing state policies, whereas the
la er are binding substantive provisions. The constitution lacks a substantive
provision on the right to the highest a ainable standard of health, but it does
make mention of the right under the Directive Principles of State Policy. This
means that the right to the highest a ainable standard of health is a socio-
economic objective to guide the government’s actions, rather than a binding
constitutional right.
Under the National Objectives and Principles of State Policy, the state un-
dertakes to provide basic medical services to the population,145 to take steps
to provide a basic water management system at all levels,146 and to provide
adequate resources for organs of the government for their eﬀective function-
ing at all levels.147 The national objectives are important to the realization of
the right to health because they stipulate the primary responsibilities of the
government with respect to the right. Their inﬂuence was reinforced by a con-
stitutional amendment of 2005, which clariﬁed that the government ought to
govern on the basis of the National Objectives and Principles of State Policy.148
This amendment rendered the National Objectives and Principles enforce-
able in a manner analogous to the Articles of the Constitution. Although this
amendment also rendered the National Objectives and Principles justiciable,
the import of Article 8A has not yet been tested in the Ugandan courts of law.
The closest case was the 2011 petition Center for Health Human Rights and De-
velopment & 3 Ors v. AG, on maternal health. The case was thrown out of court
on preliminary grounds and was not considered on substance.149
Chapter 4 of the Articles of the Constitution contains Uganda’s Bill of
Rights, and although it does not expressly include the right to health, the
right is included by reference through Article 45, which incorporates all other
rights and freedoms of international covenants and treaties to which Uganda
is party, including the Covenant on Economic, Social, and Cultural Rights.
Furthermore, other rights essential to the realization of the right to the highest
standard of health are incorporated by the constitution, including the right to
a clean and healthy environment,150 the right to access to information,151 the

145 Objective 20.
146 Objective 21.
147 Objective 8.
148 The Constitution of the Republic of Uganda as Amended by Constitution (Amendment) Act
No. 11 of 2005.
149 Center for Health Human Rights and Development & 3 Ors v. AG, Constitutional Petition No. 16
of 2011 (unreported).
150 Art. 39.
151 Art. 41.
The Right to Health and Development 573

protection of freedom and the right to life,152 the protection of human dig-
nity and from inhumane treatment,153 the rights of women,154 and the rights
of children.155
Although Uganda has ratiﬁed most of the international covenants and
treaties providing for the right to health and these have been reﬂected in its
health policy instruments, very li le progress has been made in implementing
the same provisions in the health regulatory framework. Processes have been
initiated to reform the laws providing for the regulation of the health sector
to bring the old laws into conformity with Uganda’s international obligations.
Examples include the Public Health Act (October 15, 1935, last reviewed in
1970), the Mental Treatment Act (August, 31, 1938, last reviewed in 1970), the
Pharmacy and Drugs Act (June 15, 1971, last reviewed in 1993), and the Vene-
real Diseases Act (September 30, 1977).
Although the eﬀorts to update Uganda’s regulatory framework are laud-
able, some of the laws proposed by the parliament contain provisions that
would signiﬁcantly inhibit the realization of the right to health. In respect
to HIV/AIDS, although the criminalization of the transmission of HIV/AIDS
might in some instances be argued to have the eﬀect of curbing the transmis-
sion of HIV/AIDS, the stigmatization and discriminatory eﬀect would be sig-
niﬁcant. Such initiatives could result in the denial of the right by encouraging
people to conceal their HIV status, thereby jeopardizing eﬀorts to promote
HIV testing and oﬀer access to antiretroviral therapy. The proposed 2009 Anti-
homosexuality Bill carried serious implications for the right to health because
it sought to stigmatize people based on their sexual orientation and could com-
pel such people to shun centers where they could access health care for the fear
of being unfairly treated based on their sexual orientation or subjected to crim-
inal proceedings. The amendment of the intellectual property laws through
the Industrial Property Bill has largely updated the current laws,156 which
did not exploit the ﬂexibilities aﬀorded developing countries in the TRIPS
Agreement157 to promote access to medicines.158 Agreements like the August
30 decision,159 which permits the government to issue compulsory licenses for

152 Art. 22.
153 Art. 24.
154 Art. 33.
155 Art. 34.
156 The Patent Act, ch. 216, Laws of Uganda.
157 Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex to the WTO
Marakesh Agreement (1994), available at h p://www.wto.org/english/docs_e/legal_e
/27-trips.pdf.
158 For example, the WTO Doha Declaration on the TRIPS Agreement and Public Health, Min-
isterial Conference, Fourth Session, Doha (Nov. 9–14, 2001).
159 Implementation of Para. 6 of the Doha Declaration on the TRIPS Agreement and Public
Health, Decision of the General Council of Aug. 30, 2003, Ministerial Conference, Fourth
Session, Doha (Nov. 9–14, 2001), available at h p://www.wto.org/english/tratop_e/trips_e
/implem_para6_e.htm.
574 The World Bank Legal Review

essential medicines in emergency circumstances, have not been relied on or
utilized despite the limited ability of people to access proper medication.
Thus, although some progress has been made in updating the national
regulatory framework governing the health sector, the absence of a substan-
tive provision deﬁning the obligations of the various stakeholders in the
health sector remains a signiﬁcant gap in the protection of the right to health
in Uganda.

Enforcement of the Right to Health in Uganda
A cornerstone of implementing the right to health is its enforcement by the
Courts of Judicature established under the constitution that have the mandate
to exercise judicial power.160 The Court of Appeal, si ing as the Constitutional
Court, is mandated to entertain all ma ers involving interpreting the provi-
sions of the constitution.161 The constitution is the supreme law of Uganda, and
therefore all authority, power, and acts must be exercised in conformity with
the constitution.162 It is from this supremacy that the Constitutional Court de-
rives its jurisdiction to entertain all ma ers involving the violation of human
rights, which are provided for in Chapter 4 of the constitution. The court’s
remedial powers include the power to declare certain acts unconstitutional
and to order redress as appropriate in the circumstances. Because the right to
health is primarily provided for in the constitution (through the constitutional
amendment that incorporated the National Objectives and Principles of State
Policy), the Constitutional Court is central to the enforcement of the right to
health through litigation used to assess whether acts of the government vio-
late the right to health. In Joyce Nakacwa v. AG and 2 Ors, where a preliminary
objection was raised regarding the jurisdiction of the court to determine the
constitutionality of a ma er involving health rights, the Constitutional Court
ruled that it had the jurisdiction to entertain any ma er that involved interpre-
tation of the constitution.163
Although the Constitutional Court’s powers are limited to the interpreta-
tion of provisions of the constitution, the High Court of Uganda is empowered
to adjudicate cases of human rights violations and provide adequate redress.164
The powers of the High Court are mainly remedial and can be invoked only
when health rights have actually been violated or threatened, whereas the
Constitutional Court’s powers are mainly declaratory in determining whether

160 Constitution of the Republic of Uganda (1995), art. 126(1).
161 Id., at art. 137(3).
162 Id., at art. 2(2).
163 Joyce Nakacwa v. The A orney General of Uganda, Kampala City Council, Mrs Miwanda as the
LC1 Chairperson, Nakawa Trading Centre, Constitutional Petition No. 2 of 2001, available at
h p://www.globalhealthrights.org/wp-content/uploads/2013/02/CC-2002-Joyce-Nakacwa-v.
-A orney-General-and-Ors..pdf (accessed Apr. 11, 2013).
164 Constitution of the Republic of Uganda, art. 50.
The Right to Health and Development 575

an act is a violation of the constitution or not. The powers of the Constitutional
Court are therefore more appropriate for upholding the right to health when
the government—through an act of Parliament or through any other exercise
of public power—violates or threatens to violate the right to health. The pow-
ers of the High Court, on the other hand, are most appropriate for providing
redress when an individual’s right to health has been violated. Both courts
play a key role in promoting health rights advocacy by raising awareness on
the justiciability of the right to health and clarifying the rights and responsibil-
ities of the stakeholders in the provision of health services. In an eﬀort to pro-
mote accessibility and counter the signiﬁcant ﬁnancial burdens of litigation,
the constitution enables any person to pursue a constitutional claim when the
rights of another person have been violated.165 This has enabled civil society
organizations to pursue judicial remedies on behalf of the poor and indigent
whose rights have been violated.
Quasi-judicial bodies have been established to supplement the role of the
courts in adjudicating claims of health rights violations. The Equal Opportu-
nities Commission (EOC) was established by the Equal Opportunities Com-
mission Act of 2007 to monitor, evaluate, and ensure that policies, laws, plans,
programs, activities, traditions, cultures, usages, and customs of state organs
are compliant with equal opportunities and aﬃrmative action in favor of mar-
ginalized groups.166 The commission can investigate on its own initiative, or
on a complaint by any person, any act or omission that seems to constitute
discrimination or marginalization or to otherwise undermine equal opportu-
nities; and examine any law, proposed law, or policy likely to impair equal
opportunities to persons in employment or enjoyment of human rights.167 The
EOC’s judicial powers include the power to require the a endance of any per-
son before it to give evidence and to receive evidence and draw such conclu-
sions from the evidence as it deems ﬁt.168 The commission also has the power
to refer any ma er to any institution that can be er handle the ma er in its
opinion and to recommend or order any institution or person to perform any
action necessary to promote equal opportunities. The EOC therefore plays a
key role in addressing discriminatory practices that impair the realization of
the right to health.
The Uganda Human Rights Commission169 can investigate on its own ini-
tiative or upon a complaint made by any person any violation of the right
to health and also monitors the government’s compliance with international

165 Id., at art. 50
166 Equal Opportunities Commission Act of 2007, sec. 14(1).
167 Id., at sec. 14(2).
168 Id., at sec. 15.
169 Id., at art. 51 of the Constitution of the Republic of Uganda. The Uganda Human Rights
Commission is chaired by a judge of the High Court of Uganda or a person qualiﬁed to be a
judge of the High Court of Uganda.
576 The World Bank Legal Review

treaty and convention obligations on, for example, the right to health.170 The
commission has a wide range of administrative powers, including the power to
issue sermons or other orders requiring any person to a end the commission
and the production of any document or record relevant to an investigation,
question any person on any ma er under investigation, require any person
to disclose any information within his or her knowledge relevant to any in-
vestigation by the commission, and commit persons for contempt of its or-
ders.171 The commission can, if it is satisﬁed that there is an infringement of
a human right or freedom, order appropriate remedies, such as the release of
the detained person, the payment of compensation, or other legal remedy or
redress.172
Although progress has been made in litigation on rights such as the right
to a clean and healthy environment, which is provided under the Ugandan
constitution, very li le litigation has been brought on the right to health. This
may be a ributable to the absence of a substantive constitutional provision
on the right to health, limited awareness of legal provisions protecting health,
and a widely held perception among sizable proportions of the population
that essential services in Uganda remain a privilege provided by the govern-
ment. Some observers argue that an insuﬃciently progressive judiciary and
human rights commission have hampered the few a empts to litigate the
right to health.

Litigation of the Right to Health in Uganda:
The Maternal Health Case
Maternal mortality and morbidity are well-established benchmarks used
to measure the quality of health care available to mothers.173 Most maternal
deaths are caused by ﬁve major complications of pregnancy: hemorrhage (the
risk of which is increased if a woman is anemic), sepsis, hypertensive dis-
orders of pregnancy, obstructed labor, and unsafe abortion; nearly all these
deaths can be prevented by good-quality health care.174
In Uganda, the situation remains grave even with a 50 percent reduction
in the maternal mortality rate between 1990 and 2010, with the number of
deaths per 100,000 live births in 2010 at 310.175 This is far above the MDG target
of 131 deaths per 100,000 live births, and if the projections of the Countdown

170 Constitution of the Republic of Uganda (1995), as amended in 2005, art. 52(1).
171 Id., at art. 53(1).
172 Id., at art. 53(3).
173 Id.
174 Joint UN Expert Technical Opinion on Maternal Health and the Right to Health, in the Ma er of
Constitutional Petition No. 16 of 2011 6 (Jun. 20, 2011), available at: h p://www.cehurd.org
/wp-content/uploads/downloads/2012/02/JOINT-UN-EXPERT-OPINION-ON-MM-20th-of-
June-2011-FINAL.pdf (accessed Sept. 14, 2012).
175 WHO, Countdown to 2015 Launches the 2012 Report, available at h p://www.who.int/pmnch
/topics/part_publications/countdown_2012_report/en/index1.html.
The Right to Health and Development 577

to 2015 Report are accurate, Uganda will not make that target by 2015.176 Ma-
ternal health care is central to the realization of the right to the highest a ain-
able standard of health for women given their natural reproductive and ma-
ternal functions. It is therefore a violation of a woman’s right to health if she
is unable to access the basic health care necessary for her condition, including
both prenatal and postnatal care. The minimum core content of the right to
health in this regard requires that mothers before, during, and after labor be
able to access the basic health care necessary for their condition, and it is the
obligation of the state to ensure that every mother has access to such services.
Women’s right to health is supported in the Ugandan Constitution by
gender rights, including those providing for aﬃrmative action for women.
Article 33 obliges the state to provide facilities and opportunities necessary
to enhance the welfare of women to enable them to realize their potential and
advancement, and to protect women and their rights, taking into account
their unique status and natural maternal functions. The failure to provide ba-
sic health services to mothers goes beyond a violation of the right to health
as envisaged in international instruments and amounts to a violation of the
equality provisions of the Ugandan Constitution.
Other jurisdictions have made signiﬁcant progress in litigating maternal
health as a central component of the right to health for mothers where the state
has failed in its obligation to provide basic maternal health care to mothers.
In Brazil, for instance, the state was held to be in violation of the right to health
and the right to life for failure to secure safety during pregnancy and child-
birth that led to the death of a petitioner’s daughter. The mother was medi-
cally induced to deliver a dead fetus, having waited in a coma for more than
eight hours for an ambulance to transport her to a referral hospital. She, too,
died.177 In South Africa, the constitutional court condemned a government
program that inhibited the provision of Neviripine, which was necessary to
prevent the transmission of HIV from mother to child.178
In 2011, following several cases in which mothers lost their lives due to
failure to access maternal health care when they needed it, the Center for
Health Human Rights and Development, a civil society organization, brought
a case before the Constitutional Court of Uganda to challenge the failure by
the government to provide adequate maternal health care services to mothers
around the country despite its reiteration of a commitment to do so.179 Inspired

176 Uganda Maternal and Child Health Data, available at h p://www.countdown2015mnch
.org/country-proﬁles/uganda.
177 Maria de Lourdes da Silva v. Brazil, Commi ee on the Elimination of Discrimination Against Women
(CEDAW), 49th Session, (July 11–29, 2011).
178 Minister of Health and Others v. Treatment Action Campaign and Others (No. 2) (CCT8/02) (2002)
ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (July 5, 2002), available at h p://www.saﬂii
.org/za/cases/ZACC/2002/15.html.
179 Center for Health Human Rights and Development, Professor Ben Twinomugisha, Rhoda Kukiriza
and Inziku Valente v. A orney General, Constitutional Court, Petition No. 16 of 2011, available at
h p://www.cehurd.org/wp-content/plugins/download-monitor/download.php?id=26.
578 The World Bank Legal Review

by the plight of mothers trying to access quality health care to no avail,180 the
case, known as Petition 16, was based on two women who lost their lives be-
cause they could not access medical assistance during childbirth when they
needed it.
Sylvia Nalubowa bled to death at Mityana Hospital, a government facil-
ity, having failed to secure an emergency operation to remove the baby from
her womb. She delivered a baby at a Health Center III facility only to ﬁnd out
that she was carrying twins and needed an emergency operation to remove
the second baby, which the Health Center III was not equipped to conduct.
When she was transferred to Mityana Hospital, she spent the ﬁnal moments
of her life in excruciating pain while bleeding and begging for an emergency
operation to remove the baby, who lived.
Jennifer Anguko went to Arua Hospital, a government facility, when her
labor pains started, hoping to be assisted in delivering her baby. Ten hours
later, she had not been a ended to by any health practitioners, who neglected
her despite being asked repeatedly for help. By the time the hospital staﬀ did
tend to her, Jennifer had died, as had the baby she was carrying.
These two cases exemplify extreme failings in the protection of maternal
health rights and maternal health service delivery in Uganda. They formed
the basis of a constitutional challenge, the petition of which had initially been
based upon eleven grounds. After the scheduling conference, seven grounds
were agreed on to be submi ed for the court’s determination.
A preliminary objection by the government resulted in the case being
dismissed, and the petition did not proceed for consideration on the merits.
The government argued that the petition would require the court to make a
determination on political ma ers, thereby involving the court in what is the
exclusive preserve of the executive and the legislature under the constitution.
The petitioners in response argued that the preliminary objection was mis-
conceived because the petition required the court to make a determination on
the constitutionality of various acts and the omissions of the government as
assessed against the standards prescribed by the constitution, and that such
a determination is fully within the constitutional mandate of judicial review
reserved for the judiciary.
The court ruled in favor of the government, basing its decision on the
precedents of Marbury v. Madison, Coleman v. Miller, Baker et al. v. Carr et al.,
and Major David Tinyefuza v. A orney General, relying on the political question
doctrine.181 The court’s decision hinged on whether the acts and omissions of
the government in implementing the right to health can be litigated in courts
of law, and the court held that they could not. The court reasoned that some

180 Martin Okudi, Seven Pregnant Mothers Die in Labour, Daily Monitor, available at h p://www
.monitor.co.ug/News/National/Seven+pregnant+mothers+die+in+labour+++councillor/-/688
334/1498320/-/7crwua/-/index.html.
181 Marbury v. Madison, 5 U.S. 137, Coleman v. Miller, 307 U.S. 433, Baker et al. v. Carr et al., 369 U.S.
186 (1962), Major David Tinyefuza v. A orney General, Constitutional Petition No. 1 of 1997.
The Right to Health and Development 579

powers are placed exclusively within the jurisdiction of the executive or legis-
lative branch, such that courts of law cannot make judicial determination on
them because to do so would lead to an encroachment of the constitutional
discretion conferred on the executive and the legislature, thus violating the
doctrine of separation of powers.182 The preliminary objection was accordingly
upheld, and the petition was dismissed; the petitioners brought an appeal to
the Supreme Court, where it is pending.

The Way Forward for the Right to Health in Uganda
Although the petition is still pending, it is, in some signiﬁcant respect, already
a success story for the right to the highest a ainable standard of health in
Uganda. For the ﬁrst time in Uganda, the right to health was made the subject
of litigation and gained signiﬁcant recognition outside the courts.
The petition brought together civil society and academia in support of
the right to health by generating dialogue on justiciability. It ignited a social
movement around health rights and helped raise people’s awareness of their
entitlement to access health services as a ma er of government obligation, not
privilege. This is especially important in Uganda, where quality aﬀordable
health services should primarily be funded and provided for by the govern-
ment and where the services provided by the private sector are neither aﬀord-
able nor accessible to the average Ugandan. Uganda has made positive prog-
ress in developing policy frameworks to conform to international obligations,
although the problem of enforcement and implementation of these objectives
to ensure that people can in fact access health care services remains. Another
challenge in Uganda relates to accountability mechanisms where such access
is not aﬀorded and where the right to health is not upheld. Other challeng-
es that deﬁne the context for health in Uganda are widespread poverty, low
production capacity of pharmaceutical products, and understaﬃng of health
centers.
A key dimension of enshrining health as a legally binding and enforceable
right would be to add the right to health as a fundamental right and freedom
in the Ugandan Constitution’s Bill of Rights. This would constitute a key step
toward enumerating a comprehensive act providing for the government and
other stakeholders’ obligations, as well as enforcement provisions to protect
the right to health. This would also bolster the implementation of existing
legal and regulatory provisions by giving force to the overarching right to
health as a substantive constitutional right. Such a change would allow for an
enhanced role of civil society in helping the government identify priorities in
the health sector and in generating advocacy and dialogue on the obligations
of the government in relation to the right to health.
In sum, it is submi ed that it is enhanced accountability mechanisms—
particularly in respect to justiciability, implied by the right to health—which
can eﬀectively secure improved health outcomes in Uganda.

182 Id.
580 The World Bank Legal Review

Conclusion
Through its analysis of the right to health, this chapter has illustrated how
development can help create the conditions for the realization of human rights
and how law and rights can help advance development goals. Nevertheless,
signiﬁcant challenges remain, and enshrining the right to health in law is a nec-
essary but not suﬃcient condition for the realization of be er health outcomes
and sustainable development in the health sector. International commitments
must be eﬀectively translated into domestic legal provisions. Those domestic
laws must adequately and appropriately reﬂect the right to health and oﬀer
the right the requisite constitutional standing and comprehensive protection.
The law must be fully implemented and supported by the appropriate regula-
tory provisions that include suﬃciently detailed guidance for public bodies on
the nature and content of their obligations. Moreover, the law remains one ele-
ment and tool among many to advance those broader goals; other elements in-
clude a range of public policies, advocacy, public dialogue, awareness raising,
development research, and economic analysis, as well as grassroots political
mobilization. Moreover, the law itself is beset with limitations, including elite
capture, insuﬃcient access to justice; the limited impact of legal strategies in
certain circumstances, and the conﬁned power of international human rights
tribunals. It is clear that realizing the right to health in developing countries
demands a long-term, multitiered, and interdisciplinary approach in which
the law fulﬁlls just one among several key functions.
Mainstreaming the Marginalized
in Development
Conceptualizing the Challenges in India

PULAPRE BALAKRISHNAN

There is a movement within democracies across the globe arguing for public
policy to be judged by its inclusiveness. It is most evident in Brazil, India,
and South Africa, but it is also evident in the older democracies of the United
States and the United Kingdom. Thus, there is the slogan “No Child Left Be-
hind” in the United States, while the theme underlying India’s Twelfth Five-
Year Plan, launched in 2012, is “Inclusive Growth.” This chapter analyzes the
challenge of mainstreaming the marginalized in India within the overarching
theme “Fostering Development through Opportunity, Inclusion, and Equity.”
Apart from the fact that the author’s professional knowledge is mostly
conﬁned to India, there are two reasons why the choice of the context makes
good sense. First, the challenge of inclusion, though formidable, is not insur-
mountable in India presently. This renders a study of the Indian case highly
relevant. Second, long before the pursuit of inclusion as a criterion by which
to judge public policy a ained the prestige that it has today, the idea that the
deprived should somehow be central to policy making ﬁgured in the political
discourse of the country. This is most evident in the lines from Jawaharlal Ne-
hru’s speech to the Constituent Assembly over August 14‒15, 1947, in which
he saw Indian independence as the moment “[t]o bring freedom and oppor-
tunity to the common man, to the peasants and workers of India; to ﬁght and
end poverty and ignorance and disease; and to create social, economic and
political institutions which will ensure justice and fairness to every man and
woman.”1 That this project has yet to succeed does not render the Indian case
study irrelevant. On the contrary, it brings a certain urgency to a study of
continuing marginalization there, one that can serve to show how to structure
public policy to achieve inclusion—a lesson that may be of interest to govern-
ments in many parts of the world.
This chapter commences with an exploration of the relationship between
freedom, opportunity, and development. Drawing on the work of Amartya
Sen, it argues that at the core of this nexus is the notion of capability. It is now

I thank K. P. Sankaran, Amrit Tandon, and Biju Paul Abraham for discussions and com-
ments; R. Govinda and Madhumita Bandyopadhyay for assistance with the data; and N. R.
Madhava Menon for advice on what should go into the article. Errors, if any, are mine alone.
1 Jawaharlal Nehru, Speech to the Constituent Assembly on 14‒15 August, 1947, in Selected Works
of Jawaharlal Nehru, 2d ser., vol. 3, 135 (Jawaharlal Nehru Memorial Fund 1985).

581
582 The World Bank Legal Review

only a step away to propose that the marginalized be seen as those who lack
the basic capabilities enjoyed by the mainstream. Although India’s constitu-
tion is in many ways impressive, its provisions are, on their own, inadequate
to the task of mainstreaming the marginalized. After pointing out what is
needed to build the necessary capabilities, the chapter concludes, by reference
to some speciﬁc instances of governance failure, that the future of develop-
ment in India, now the world’s third-largest economy in terms of purchasing
power parity, lies squarely in the space of politics.

Liberty and Capability
As may be expected, given the vision of the republic held out by its founders,
the Indian constitution adopted in 1950 had in it provisions to address the
marginalized. That over six decades later India is still concerned with the is-
sue suggests that these provisions, discussed below, have not been universally
enabling. India remains seriously challenged in terms of the low income of a
substantial section of its population, the inadequate supply of public goods,
and the low level of social indicators generally.
In approaching the issue of mainstreaming the marginalized, it is vital to
start with a generic description of marginalization. This task is guided by the
concept of “capabilities” proposed by Sen.2 Capabilities are embodied endow-
ments that enable “functionings,” which are themselves in the nature of actions
that individuals consider valuable. Borrowing from mathematics, functioning,
then, can be seen as the mapping from capabilities to freedom. For Sen, “free-
dom” was the freedom to do or act, and this conception took him straight to
the idea of development as the expansion of freedoms.3 This view of develop-
ment constitutes a standpoint from which to understand marginalization.
The marginalized can now be seen as the unfree within a society, in that
they are not free to undertake the actions that they value. And working back-
ward from the conception of development as freedom, marginalization can
be located in the absence of what Sen referred to as “basic” capabilities. Now,
marginalization reﬂects “basic capability (in) equality.”4 That is, the marginal
in a society are those who, unlike the mainstream, do not possess the capabili-
ties that enable them to achieve the set of functionings considered valuable.
Further, and signiﬁcantly from a practical point of view, so long as these capa-
bilities are not genetic, society, provided that it can muster the resources, can
endow all its members with the same set of capabilities deemed basic.5 It is

2 See Amartya Sen, Equality of What?, in Tanner Lectures on Human Values, vol. 1 (S. McMurrin
ed., Cambridge U. Press 1980).
3 Amartya Sen, Development as Freedom (Oxford U. Press 1999).
4 See Sen, Equality of What?, supra note 2, at 219. Text in parentheses has been inserted by the
author.
5 The idea of capabilities, and their place in a theory of justice, has been contested. See the es-
says in Harry Brighouse & Ingrid Robeyns eds., Measuring Justice: Primary Goods and Capabili-
ties (Cambridge U. Press 2010).
Mainstreaming the Marginalized in Development 583

important when trying to understand marginalization that the numerical fac-
tor is irrelevant. The marginalized can well be the majority in a society, and it
is not necessary to go to the apartheid era in South Africa to encounter such a
situation. Some may argue that this is the case in India today, at least in certain
dimensions. While more work would be required to describe to the last detail
the capabilities that lead to the expansion of individual freedom, it is argued
here that is education that contributes most to the building of these capabili-
ties. Beyond its clear economic potentiality, education also has the capacity to
neutralize what has been recognized as cultural capital by Pierre Bourdieu.6
Those familiar with the Indian reality would recognize the role of cultural
capital in reproducing marginality in its society.
By adopting the premise of “development as freedom,” one can see that
the distribution of freedom in a society is closely tied to the distribution of
capabilities, because it is the range of an individual’s functionings that deﬁnes
the extent of his or her freedom. And these functionings are closely tied to
capabilities.
Although developed by Sen, this view of freedom derives from the work
of the political philosopher Isaiah Berlin. Clarifying that he used the terms
“liberty” and “freedom” interchangeably, Berlin imagined two concepts of
liberty: freedom from restraint and freedom to do. The ﬁrst he termed “nega-
tive” freedom, and the la er “positive” freedom. This compact formulation
calls for some clariﬁcation. For Berlin, the notion of negative freedom was best
understood as follows: “I am normally said to be free to the degree to which
no man or body of men interferes with my activity. Political liberty in this
sense is simply the area within which a man can act unobstructed by others.”7
On the notion of positive freedom, Berlin said: “The ‘positive’ sense of the
word ‘liberty’ derives from the wish on the part of the individual to be his
own master. I wish to be somebody, not nobody; a doer . . . conceiving goals
and policies of my own and realizing them.”8
Berlin’s work proved to be a mineﬁeld because he drew a distinction be-
tween notions of freedom that became central to the discourse on rights, jus-
tice, and welfare in at least one intellectual tradition. We are now able to see
that as there cannot be freedom to act so long as there are restraints, for Sen’s
idea of development to be actualized, both concepts of liberty are essential.
Negative and positive freedoms are, as it were, the “necessary” and “suﬃ-
cient” conditions, respectively, in the space of development. Each of the two
notions of freedom comes with its own implicit role for the state. For nega-
tive freedom to prevail in a society, the state must act as a “night watchman”
or “traﬃc policeman” to ensure that the liberty of an individual is not en-
croached on. Yet, Berlin left the answer to the question of the role of the state

6 Pierre Bourdieu, The Forms of Capital, in Handbook of Theory and Research for the Sociology of
Education 241‒58 (J. Richardson ed., Greenwood 1986).
7 Isaiah Berlin, Two Concepts of Liberty 3 (Clarendon Press 1958).
8 Id. at 8.
584 The World Bank Legal Review

in the case of positive freedom open-ended, pointing out only that the notion
of positive freedom has been used to rationalize authoritarian regimes in his-
tory. It is clear, however, that to endow individuals with capabilities, the state
would have to be more than a mere night watchman. Agreement on the role of
the state in development is, of course, unlikely to be a ained easily.
As has been stated, if “development” means “the expansion of freedoms,”
and freedom itself derives from capabilities, a deﬁnition of the essential or
basic capabilities is necessary. Sen himself desisted from drawing up such
a list, arguing that it ought to be left to a democratic process to arrive at the
functionings a society considers valuable enough for its members to achieve.
He thought of the notion of basic capability as quite a general one and imag-
ined that its application would have to be culture dependent, especially in
the weighting of diﬀerent capabilities. Other philosophers, such as Martha
Nussbaum, while fully immersed in Sen’s capability-based approach to devel-
opment, have taken the view that a list is indispensable. Nussbaum actually
drew up such a list.9
However, Sen, while refusing to be tied down to any particular set of
capabilities, nevertheless provided an important insight into the question of
how to deal with marginalization. As individuals do not come into the world
rigged with capabilities, and resources are needed to equip them accordingly,
extending the basic capabilities across the population would require a collec-
tive commitment to the expansion of individual freedom. Despite its philo-
sophical ring, this is actually a practical suggestion. And despite its idealistic
tone, it is downright economistic in inspiration. Collective or public action
is needed to equip individuals with capabilities; if individuals could endow
themselves, they would not remain marginal.
This implies that empowering individuals requires what Sen has referred
to as “public action,” or a collective eﬀort in a democracy. As for the inspira-
tion from economic theory that was previously referred to, a parallel may be
seen between the need for public action in the present context and that of the
appropriate response to market failure in an unfe ered economy. Recall that
market failure is the failure of an economy of private agents to a ain the de-
sired optimum, thus validating some form of public intervention.10
It is necessary here to ﬂag a red herring in the discourse on marginaliza-
tion in India, namely, that a focus on quality detracts from the main concern.
If the development of capabilities is one of the goals of education, the eﬃcacy
of education must be the focus of our a ention. For example, once the impor-

9 See Martha Nussbaum, Human Rights and Human Capabilities, 20 Harv. Hum. Rights J. 21‒24
(2007). However, Sen and Nussbaum converge toward the position that it is education that
is central to capabilities. For further reference, see Melanie Walker & Elaine Unterhalter, The
Capability Approach: Its Potential for Work in Education, in Amartya Sen’s Capability Approach
and Social Justice in Education (Melanie Walker & Elaine Unterhalter eds., Palgrave Macmillan
2010).
10 See Francis M. Bator, The Anatomy of Market Failure, 72 Q. J. of Economics 351‒379 (1958).
Mainstreaming the Marginalized in Development 585

tance of “capabilities” is embraced, the outcome of an educational arrange-
ment cannot be ignored. It is diﬃcult to be satisﬁed with a halfway house for
the marginalized en route to the mainstream via the provision of education.
For example, those who have completed their schooling can either implement
diﬀerential calculus or they cannot; either they are able to read the classics of
their culture in their mother tongue or they cannot; either they can distinguish
between a cell and a tissue or they cannot. Moreover, they need to realize the
salience of citizenship, the core of which is to be able to balance rights with re-
sponsibilities under self-government. Education is meant to develop cognitive
skills, to train individuals to recognize pa erns, to distinguish between the
whole and the parts, and, above all, when faced with a rapidly changing tech-
nology environment, to learn to learn continuously. Where these capabilities
have not been developed, the original educational initiative must be deemed
to have failed, whatever may be the rhetoric accompanying its provision.
The recognition of capabilities as the foundation of freedom implies that
the quality of education deﬁnes its eﬃcacy. There is a tendency in India to de-
nounce as “the pursuit of elitism” any initiative intended to make India’s pub-
lic education system more eﬀective by raising quality. Such denunciations are
a form of avoidable sentimentality. Even as the marginalized have revealed
their own preference by voting with their feet,11 as far as public education is
concerned, sticking with the demonstrably indiﬀerent quality of public educa-
tion in the country would be self-defeating12 within a project of mainstream-
ing the marginalized. In fact, it is such sentimentality that has turned many
Indian initiatives aimed at the marginalized over the past half century into
a form of provisioning for poverty through income support, rather than an
enabling of individuals to lead productive and fulﬁlling lives. This is in stark
contrast with the global experience in democracies.
It may have something to do with the legacy of the caste system in India,
whereby hierarchy is glossed over when not actually justiﬁed by reference
to the benevolence of the ruler, a practice that has a residual presence even
among elected governments in its democracy. Whatever the provenance of
India’s public policy toward the marginalized, its consequence is that goods
are distributed but power is not. Be that as it may, income support to the poor
does not constitute a program of building capabilities, which is the strategy
that should be central to the project of mainstreaming the marginalized.
To sum up, while capabilities ultimately reside in individuals, when barri-
ers exist to a aining them, a social commitment to equipping individuals with
the basic capabilities is needed. The next section proposes what should be the
core of such an approach, but not before examining what has been a empted
in India.

11 Data point to the growing share of private schools in catering to India’s growing population.
12 The reader is cautioned against interpreting this observation as making a case for privatiza-
tion. The author’s view on the ma er will become apparent in the next section of the chapter.
586 The World Bank Legal Review

Formal Rights and Substantive Opportunity
The founders of the Indian republic were high-minded men,13 and this is re-
ﬂected in its idealistic constitution. These well-meant constitutional provi-
sions, however, have failed to usher in development as freedom as envisaged
by Sen. In light of the framework expounded here, the founders failed, be-
cause, even though they were alert to the importance of negative freedoms,
those freedoms were insuﬃcient to ﬁll the foundational role of capabilities in
a credible project to expand positive freedoms. For example, of what use is the
“right to property” when one does not have the opportunity to earn a liveli-
hood, or earns so low a wage as not to be able to save? Similarly, of what use
is the constitutional provision “freedom of expression” when one is illiterate
or poorly educated?
India’s founding fathers did not completely overlook these possibilities;
they conceived of the Directive Principles of State Policy.14 These principles
were meant to serve as a guideline to the state in the making of policy. They
include the goals of social justice and economic welfare and explicitly refer to
the provision of education. The principles, however, are not justiciable and are
of li le use when citizens are faced with career politicians devoted more to
maximizing their own “private” utility functions as opposed to some mythical
“social” welfare function.
It is now possible to see how India’s constitutional provisions, whether in
the form of the directive principles or of fundamental rights, may have proved
to be inadequate. By placing them in the context of the discourse on develop-
ment initiated by Sen, while the la er are justiciable, in that the violation of
the rights may be challenged in courts of law, they remain within the realm
of “negative” freedom. The directive principles can be invoked to build capa-
bilities, but they are not justiciable. Thus, if the Indian state represented by its
political class cannot be reined in to act decisively in the desired direction, the
directive principles are not of much use to the marginalized. Economists recog-
nize this as the “principal-agent problem.” The clearest instance may be in the
context of corporate governance, but it bears applicability in the social sphere.
The principal-agent problem can readily emerge in the governance of so vast
and diverse a society as India. However, the origins of the idea and its implica-
tions are most easily understood in the context of corporate governance.
Under contemporary capitalism, shareholding is widespread and ﬁrms
are run by the managers. This feature, Robin Marris has observed, eﬀectively
separates ownership from control.15 He identiﬁed the form as managerial capi-

13 The members of the Constituent Assembly that deliberated on the constitution were over-
whelmingly male.
14 The distinction between “fundamental rights” and “directive principles,” and the tension
that can arise when they are invoked at the same time, is central to understanding India’s
constitutional provisions. For a concise contemporary introduction, see Madhav Khosla, The
Indian Constitution (Oxford U. Press 2012).
15 See Robin Marris, The Economic Theory of Managerial Capitalism (Basic Books 1964).
Mainstreaming the Marginalized in Development 587

talism, as opposed to the entrepreneurial capitalism of the 19th century. The
implication of managerial capitalism is that there is now no guarantee that the
managers, who are the agents, will manage the ﬁrm in the interest of the prin-
cipals, who are the shareholders.16 Under actually existing democracy, as op-
posed to some idealized form, the principal-agent problem is an ever-present
threat. In a parliamentary democracy, citizens own democracy, so to speak,
but it is the legislature that governs the country via a permanent bureaucracy
that in theory is accountable to parliament but in reality is under no one’s con-
trol. The conundrum Quis custodiet ipsos custodes? “Who will guard the guards
themselves?” best captures the implication of such an arrangement. Coined
before the beginning of the Christian era to capture the challenge of enforcing
marital ﬁdelity, it has a direct bearing on the issue of governance.
As seen in the previous section, Sen asserted that there is no universally
accepted measure of capabilities; he refused even to list any on the grounds
that agreement should be arrived at by a democratic process. However, pov-
erty remains very high in India; that at least a third of its population is consid-
ered to be poor, according to a low poverty line, indicates that a substantial
proportion of the population is marginalized. This after 60 years of indepen-
dence, during which unending pronouncements have been made about the
rationale of economic policy being the eradication of poverty.
It is now 40 years since Indira Gandhi coined the slogan “Garibi Hatao,” or
“Eradicate Poverty,” meant to communicate the intent of the policies her gov-
ernment was adopting. While the economics of this failed experiment needs
to be understood, the framework outlined heretofore would have served to
predict the outcome. The means adopted by Indira Gandhi were mainly dra-
conian controls on the private corporate sector combined with an extortionate
tax rate rationalized as “socialism.” This by itself could do li le to lift the poor
out of poverty; in fact, the economy promptly contracted as private invest-
ment declined, as could have been predicted. In terms of the useful distinction
drawn by Berlin, controls eﬀectively restricted the area of liberty of the capi-
talists; that is, the controls constricted the negative freedom of capitalists but
could do li le to expand the positive freedom of the workers.
This experience of dealing with marginalization should hardly be surpris-
ing. In a market economy, individuals have two livelihood options: to work for
others or to work for themselves. While peasants are seen as working for them-
selves, this option is available only to those who own land. In a country with a
low land-man ratio, non-landowning peasants must seek employment or be-
come entrepreneurs. Capabilities endowed through education and training are
crucial to whether they will be able to earn their livelihoods as successful en-
trepreneurs or as productive laborers for hire in the market. The persistence of
poverty reﬂects the underinvestment in building capabilities that has plagued

16 Marris’ insight was to be vindicated some four decades later when managers of the ﬁnancial
sector came close to wrecking the global economy by taking excessive risks in the pursuit of
personal reward. See Paul Krugman, The Return of Depression Economics and the Crisis of 2008
(Norton 2009).
588 The World Bank Legal Review

public policy in India for over half a century. The ﬁnal section of this chapter is
devoted to this issue. But ﬁrst, the rest of this section oﬀers a critical appraisal
of India’s approach toward marginalization during the past half century.
Historically, there have been two approaches to dealing with poverty or
marginalization in India. The ﬁrst was prevalent in the 1950s, when policy
makers believed that a growing economy would lift the poor out of poverty.
While the idea that growth was a necessary condition for poverty alleviation
made good sense, the strategy could not succeed fully without the expansion
of education and the upgrading of skills. More recently, the approach appears
to have altered. Now the keyword is “inclusion,” chosen to reﬂect the intent
of public policy to mainstream the marginalized. What is meant by “inclu-
sive growth” is revealed in the government’s increasing resort to transfer pay-
ments of various kinds that have come to represent public policy. There has
also been a proliferation of so-called rights promulgated through acts of par-
liament such as the right to work or even the right to food. Apart from the fact
that it is not yet clear whether these rights are justiciable, if marginalization is
understood as unequal capabilities, these proclamations do not even address
the problem, as they leave the capabilities of the population untouched.17 In
fact, this approach is not really diﬀerent from annadanam, or the ritual feeding
of the poor in India’s temples. It not only smacks of paternalism but, more
signiﬁcantly, implies that the poor may never be enabled to go about on their
own, being permanently on state-sponsored drip.
A particular version of the approach may be found in a speech in 2008 by
the ﬁnance minister, Palaniappan Chidambaram: “India must touch a 10 per
cent growth and sustain it for 10, 20 and 30 years”18 to make poverty part of
history. The minister went on to say that growth was not an end in itself but
part of a strategy to “raise resources and acquire the capacity to spend more
money on the provision of goods and services that will mitigate the hard-
ship of millions of poor people and bring some cheer into their lives.” This
is perhaps the clearest articulation of the rationale of the Indian state in the
early 21st century. This approach does not square with one of mainstreaming
the marginalized through the building of capabilities, and it appears self-
defeating: as the government spends an increasing share of its revenues on
subsidizing consumption, there is li le left for public capital formation. The
growth of the economy must then slow down, and with it the growth of rev-
enues necessary to feed the government’s welfare schemes. Given their more
or less similar starting points in the early 1950s, the experience of China in
this dimension is relevant to India. China spent public funds on health and
education but made sure to maintain the high rate of public investment, nec-
essary for growth.

17 For an assessment of whether these rights have worked for the poor, see S. K. Das, India’s
Rights Revolution: Has It Worked for the Poor? (Oxford U. Press 2013). Of course, it must also
be acknowledged that not much time has elapsed since their promulgation.
18 Speech outlining the policies of his government delivered in Singapore. See C. Rajamohan, If
Poverty Has to Go, Growth Must Touch 10 Percent and Continue, Indian Express (Mar. 27, 2013).
Mainstreaming the Marginalized in Development 589

What Does It Take to Build Capabilities?
Education may be identiﬁed as the single most important input into the build-
ing of capabilities of a human being. To education may be added health, as
there is clinical evidence that learning can be thwarted by malnutrition.19 Re-
search in the ﬁeld of education points to three features. First, there are increas-
ing returns to learning. By this is meant that learning is a function of the stock
of knowledge already embedded in the individual; the initial educational in-
puts inﬂuence the productivity of later ones. Second, early child development
is crucial, as the development of neural circuits and the behavior that they
mediate are most plastic at this stage and therefore most receptive to envi-
ronmental inﬂuences. Third, a part of mental development is believed to be
prenatal and therefore related to the health of expecting mothers. All of this
adds up to the implication that some parts of an individual’s capabilities are
developed at a very early stage in the life cycle. This, in turn, has implications
for educational policy, particularly for how public spending should be dis-
tributed across educational levels. Somewhat surprisingly, studies from the
United States show the rate of return to public spending being highest at the
preschool level.20
Education has long been identiﬁed as the medium for the development of
human cognitive skills. However, while cognitive skills may be paramount,
there are also noncognitive skills—such as tenacity and perseverance, not to
mention a ributes such as motivation—that should be included in the list of
capabilities that may be counted as “basic.” These, too, can be inculcated. Ran-
domized control trials conducted in the United States have shown that spe-
cial school programs can make a diﬀerence in these areas. But there is a third
dimension to be considered. Education, including play school, takes place
during the period in a child’s life when values, such as empathy, develop.
Skills, both cognitive and noncognitive, through spillovers, and values such
as empathy, by contributing to social cohesion, generate externalities that are
not captured by the market. Social cohesion may be thought of as a public
good. It has been demonstrated in economic theory that in the presence of
externalities, and vis-à-vis public goods, private provision may be expected
to be suboptimal. This in turn suggests that there are sound reasons for the
government to take the lead in such instances. Very likely, it is because educa-
tion is believed to generate externalities that education has been largely pri-
vately provided in Western Europe and the United States since at least the
19th century.
Acemoglu and Robinson argue that one characteristic of successful na-
tions is the fairly equal distribution of power. Surely this is not unrelated to
publicly provided, uniform compulsory education. This arrangement ensures

19 See Mathew Jukes, The Long-Term Impact of Pre-school Health and Nutrition on Education, 26
Food and Nutrition Bull. S193‒S201 (2006).
20 See James Heckman, Skill Formation and the Economics of Investing in Disadvantaged Children,
312 Sci. 1900‒1902 (2006).
590 The World Bank Legal Review

a degree of equality of opportunity and brings about a sense of social cohe-
sion, thus widening the cohort of stakeholders in the progress of the country.
There is a potential virtuous cycle here. Of course, the movement toward a
more egalitarian provision of education, without sacriﬁcing quality, requires
a certain social transformation. This can be seen in the fact that the United
States, France, and Russia, each in a widely diﬀering region of the world but
sharing a fairly egalitarian school system, are united by a history of revolu-
tionary change, though of diﬀering forms. In the United States, the transfor-
mation began even before 1776, the se lers having rejected some of the values
of the mother country21 in the very act of migration to an alien land.
The importance of social transformation in context can be seen by return-
ing to India. Though unadorned by the language of academic philosophy,
education as an equalizing force was not only imagined by Gandhi but also
central to his vision of society in an independent India.22 He emphasized “ba-
sic” and “meaningful” education for all; however, because the social transfor-
mation necessary for his vision to become a reality did not gain ground in the
country, a credible project of mainstreaming the marginalized did not take oﬀ.

Table 1. Adult literacy rates worldwide, 2000‒2004
World 2000‒2004
Arab States 82
Central and Eastern Europe 70
Central Asia 97
East Asia and the Paciﬁc 99
Latin America and the Caribbean 92
North America and Western Europe 90
South and West Asia 99
Sub-Saharan Africa 59
India 61
Source: “Comparing Education Statistics across the World,”
Global Education Digest (Paris: UNESCO, 2006), p. 174.
Note: An adult is deﬁned as being 15 years old or older.

Given the argument that education has to be central to mainstreaming
the marginalized, the case of India proves instructive. Table 1 provides com-
parative ﬁgures on adult literacy rates in India and countries broadly grouped
throughout the world. India ﬁgures poorly in a global comparison, managing
to stay even only with Sub-Saharan Africa.

21 See Daron Acemoglu & James Robinson, Why Nations Fail: The Economic Origins of Power,
Prosperity and Poverty (MIT Press 2012).
22 See M. K. Gandhi, Constructive Programme: Its Meaning and Place (Navajivan Mudranalaya
1941), for a discussion of his “Constructive Programme.”
Mainstreaming the Marginalized in Development 591

Table 2 looks at the distribution of the population by educational a ain-
ment in India around 2010.

Table 2. Distribution of educational a ainment (persons per 1,000 by completed
level of education)
Illiterate Literate Primary Middle Higher Diploma Graduate Post-
without secondary graduate
formal
schooling
Rural:
Male 316 9 381 141 123 5 20 5
Female 489 7 329 93 69 2 9 2
All 400 8 355 118 96 4 14 4
Urban:
Male 178 8 301 150 211 17 96 28
Female 284 8 293 131 187 6 68 22
All 229 8 298 141 205 12 83 25
Source: Education in India: 2007‒08 Participation and Expenditure (National Sample Survey Report
No. 532; New Delhi: Government of India, 2010), pp. A16‒A21.

Even in the urban areas less than a quarter of the population has been
educated up to the secondary level. For the rural areas, the ﬁgure is less than
10 percent. These are disturbingly low ﬁgures. Given the distribution of the
Indian population between urban and rural segments, one would expect the
aggregate ﬁgure for those with a secondary education or higher to be around
16 percent. A comparative study would be useful. Taking the same indicator
of educational a ainment for the year 2000, the ﬁgures for China and Ma-
laysia were 48 percent and 41 percent, respectively. Viewed historically, the
fraction of the population that had completed secondary education in India
in 2005 was less than half of that in China in 1975.23 While China’s advantage
over India in the ﬁeld of education should come as no surprise, that this ad-
vantage is shared even by Malaysia may be seen as an eye-opening statistic to
many. There is also the gender dimension to be noted. Table 2 shows that at
every level, and in both the rural and urban areas, Indian women fare worse
than men in educational a ainment.

23 For comparative data on these three countries, see Michelle Riboud & Hong Tan, Improving
Skills for Competitiveness, in Accelerating Growth and Job Creation in South Asia (Ejaz Ghani and
Sadiq Ahmed eds., Oxford U. Press 2009). While recognizing China’s superior performance
vis-à-vis India as regards educational provision, it should be borne in mind that this was
achieved in an environment without political liberty and severe restrictions of various kinds
on the population. The India-China comparison should thus be seen as pointing to one of
the failings of India’s democracy rather than as a validation of the path adopted by China’s
dictatorship.
592 The World Bank Legal Review

Turning to the related issue of public provision for education, table 3 pro-
vides comparative data on public expenditure as a share of GDP over ﬁve
decades. Again, that public expenditure on education in India has generally
been less than that of East Asian nations is overshadowed by the ﬁnding that
it is also lower than in the East African economies included in the table.24

Table 3. Public expenditure on education as a percentage
of national income
1970 1980 1990 2000 2010
Ethiopia 1.8 3.3 4.9 4.8 4.7
Kenya 5.0 6.8 6.7 6.4 6.7

Bangladesh 1.4 1.5 2.0 2.5 2.2
India 2.8 2.8 4.0 4.1 3.2
Pakistan 1.7 2.0 2.6 1.8 2.4

Thailand 3.5 3.4 3.6 5.0 3.8
Republic of Korea 3.6 3.7 4.2 3.8 5.0

Peru 3.8 3.1 3.8 3.3 2.7
Brazil 2.7 3.6 4.6 3.8 5.7
Argentina 3.3 2.7 1.1 4.6 6.0

United Kingdom 5.3 5.6 5.4 5.3 5.4
France 4.9 5.0 5.8 5.8 5.9
United States 6.6 6.7 5.3 4.8 5.6
Japan 3.9 5.8 4.7 3.5 3.8
Sources: Statistical Yearbook (New York, United Nations) and
Global Education Digest (Paris: UNESCO, 2011, 2012).
Note: In (the minority of) cases where data were unavailable for the
ﬁrst year of a decade, data for the closest year have been entered.

To adjust for population and income, table 4 measures expenditure per
student as a percentage of GDP per capita. This serves as an index of public
expenditure in relation to a country’s capacity to pay for it. The data show that
spending for primary education in India is lower than in all the other coun-
tries in the panel except Bangladesh and Peru. Kenya, the only representative
from Sub-Saharan Africa in the table, spends substantially more than India
per student in primary education in relation to its per capita income.

24 The countries were chosen on the basis of data availability and with an eye on regional rep-
resentation.
Mainstreaming the Marginalized in Development 593

Table 4. Public expenditure per student across
level of education as a percentage of GDP per
capita (2009‒2010)
Primary Secondary Tertiary
Kenya 22.3 22.0

Bangladesh 8.8 12.0 27.7
India 8.9 16.2 55.0

Thailand 24.4 9.3 22.7
Republic of Korea 23.1 23.6 13.0

Peru 8.3 10.1 9.0
Brazil 20.5 20.9 28.9
Argentina 16.8 27.1 19.1

United Kingdom 24.3 31.1 20.6
France 18.4 29.3 39.8
United States 22.4 25.2 19.4
Japan 23.7 24.3 25.3
Source: “Comparing Education Statistics across the World,”
Global Education Digest (Paris: UNESCO, 2011), pp. 232‒234.

However, for tertiary education, the ﬁgure for India is the highest among
all the economies represented. Even for those aware of the top-heavy nature of
public spending on education in India, the factor by which spending per stu-
dent at the tertiary level exceeds that at the primary level must be unexpected,
especially in a global comparison. In this context, note that in the United States
and the United Kingdom, for example, public expenditure is higher for pri-
mary education than it is for tertiary education. The ranking is exactly the op-
posite in India. India has privileged the highest levels of education. The data
presented so far, then, show that in a country where the adult literacy rate in
2010 was around 65 percent, the pa ern of public spending on education con-
tributed li le toward mainstreaming the marginalized.
594 The World Bank Legal Review

Table 5. Public versus private expenditure on education (as a percentage of GDP,
2001–2002)
Public sector Private sector

Primary Secondary Tertiary Primary Secondary Tertiary

France 1.7 2.7 0.9 negligible 0.2 0.2

United Kingdom 1.8 2.5 0.8 0.1 0.4 0.3

United States 2.3 2.0 1.2 0.3 0.2 1.5

India 1.5 1.7 0.8 0.1 0.1 negligible

Source: “Comparing Education Statistics across the World,” Global Education Digest (Paris:
UNESCO, 2004), pp. 134‒141.

Table 5 looks at expenditure on education by the public and private
sectors. What is interesting is that spending on “schooling”―deﬁned here
as primary and secondary education―in the advanced Western econo-
mies is undertaken overwhelmingly by the public sector. In France, there is
negligible spending on schooling by the private sector. In India, the public
sector spends more on primary education than the private sector, but public
spending on schooling is substantially less than that of the richest countries
of the world.
The far greater levels of literacy and the stock of education measured by the
number of years of primary and secondary education in the advanced econo-
mies are surely related to public spending on education, especially schooling.
The data presented above may be interpreted to suggest that in a compari-
son with India, the rich economies of the world have invested more in devel-
oping the basic capabilities of their citizens via publicly funded education.
Observing this, we would want to understand why the process of building
capabilities is being held back in India? Is it solely a ma er of the inadequate
funding of education?
The rest of this chapter argues that the mainstreaming of the marginalized
by the enhancement of their capabilities is being held back because Indian de-
mocracy is facing a crisis of governance. What does it mean to be “governance
challenged”? There are no simple answers, but there must be a beginning if
there is to be an end to the drought of public action in the sphere of equalizing
capabilities. And a good beginning would be to recognize one of the symp-
toms of this crisis. Thus it is that India is unable to ensure that outcomes of
public intervention match intent. While there are many spheres in which this
is the case, the focus here is on public expenditure on education, health, and
infrastructure.
Since 2002, public expenditure on primary education has been on the in-
crease in India. But outcomes, as shown by one of the few independent audits
of learning―undertaken by the NGO Pratham―are very poor and ge ing
Mainstreaming the Marginalized in Development 595

worse. Pratham’s most recent report25 for rural India has stated the follow-
ing: “Reading levels [show] decline in many states. Nationally, reading levels
have declined in many states across North India. The All India ﬁgure for the
proportion of children in Std V able to read a Std II level text has dropped
from 53.7% in 2010 to 48.2% in 2011.” Further, “Arithmetic levels also show
a decline across most states. . . . Nationally, the proportion of Std III children
able to solve a 2-digit subtraction problem with borrowing has dropped from
36.3% in 2010 to 29.9% in 2011.” All this at a time when, as is documented in
the report, “private school enrollment is rising in most states.” Clearly the
global debate on the relative importance of resources versus restructuring26
of the system in raising educational a ainment is of great relevance to India,
but it is not reﬂected in the mainstream discourse, despite evidence of teacher
absenteeism alongside a worsening teacher-pupil ratio. Greater importance
appears to be given to spending rather than governance, of which restructur-
ing would be a part. The poor learning outcomes reported are not surprising
in light of one account of the governance of the ﬂagship program of the gov-
ernment of India aimed at early school students in Kashmir: “The Sarv Shik-
sha Abhiyan (SSA) had been launched with much fanfare with an objective to
beneﬁt lakhs27 of students, particularly those who live in rural areas and do
not have easy access to education. But due to its poor implementation, lack of
monitoring and allegations of irregularities, the scheme seems to be direction-
less in the state.” The author also warns of an inability of the state bureaucracy
to absorb such large fund infusions from the central government.28
Next, a look at the health sector. Studies on the eﬀectiveness of the
government-sponsored Integrated Child Development Scheme (ICDS), col-
lected and discussed in Lifting the Curse by Lawrence Haddad and Sushila
Zeitlyn, speak of the indicators of child nutrition in India worsening. The
authors explicitly identify “be er governance,” rather than resources, as the
input crucial to improving nutrition indicators for India’s children.29

25 Annual Status of Education Report 2011: Rural (Pratham 2012).
26 See E. A. Hanushek & L. Woesmann, Education Quality and Economic Growth (World Bank
2007). The global debate has a strong bearing on India, as seen in the substantial rise in both
public and private spending on education in the country.
27 A lakh is an Indian number equivalent to one hundred thousand.
28 Shujaat Bukhari, Education in the Country’s Heaven—The Hell We Care!, Governance Now
(Oct. 1‒15, 2012).
29 See Lawrence Haddad & Sushila Zeitlyn, Lifting the Curse: Overcoming Persistent Undernutri-
tion in India, 40 Inst. of Dev. Stud. Bull. (2009). Some four years later, the authors’ conclusion
on the working of the ICDS over the ﬁve-year period 2006‒10 has been validated by a report
of the comptroller and auditor general, India’s constitutional watchdog on the use of public
funds. The report identiﬁed poor infrastructure and the absence of hygiene in the anganwa-
dis, or public kindergartens. In the light of the argument being developed in this chapter, this
speaks of lapses such as medicine kits being unavailable due to “the failure of State Govern-
ments in spending funds released to them by the Centre.” CAG Audit Reveals Lapses in ICDS
Implementation, Hindu (Mar. 7, 2011). Resources do not seem to be the problem in India any
longer.
596 The World Bank Legal Review

The ﬁnal instance of governance failure is taken from the agricultural sec-
tor, in particular the case of irrigation. It has been known for some time now
that while public expenditure on irrigation has soared, the expansion of area
under irrigation has moved at a glacial pace.30 While the records for irrigation
give all-India ﬁgures, a recent application made under the Right to Informa-
tion Act in the state of Maharashtra has brought into the public domain pa-
thologies such as projects not having come onstream in over four decades.31
The ﬁgures quoted with respect to the estimated loss to the public exchequer
are disturbingly large.
These examples from diﬀerent areas of the economy reﬂect the challenge
faced by India’s democracy in ensuring that the intention is not carried
through in government programs. They also indicate that it is governance
alone that by now stands in the way of “mainstreaming the marginalized” in
the country, as eﬀective public policy is central to the task. The history of eco-
nomic development has shown that very few countries have been successful
in this dimension without expanding education, health, and infrastructure via
the public sector. At the same time, there are few countries that have so li le
to show for their public spending over decades as India.
It is possible to conceive of two ways of neglecting a problem. The prob-
lem may be neglected by not giving it suﬃcient a ention. Or it may be ne-
glected by starving its solution of the necessary resources. It could be said
that for about half a century after 1947, there was neglect of the problem of
marginalization on both counts; that is, there were neither suﬃcient resources
nor a ention. For about a decade now, with faster growth and, in the case
of education, more external funding, there has been a substantial increase in
public spending on the social sector but no visible improvement, possibly due
to worsening governance.
To return to the original concerns, if marginalization is what is wished to
be addressed, staying focused on the building of capabilities via schooling is a
must. Two considerations may be ﬂagged. First, the world is far more complex
today than it was in the 1950s, when modern India started out on its journey.
Early education now has to go well beyond the Three Rs. In the context of
the challenges posed by globalization, rapidly changing technology, emerging
ecological constraints, and making democracy work, learning to learn con-
tinuously must be part of the capability set of citizens. Second, inasmuch as
marginalization is related to inequality, the move toward a certain degree of
uniformity, at least at the level of primary and secondary education, has to
be contemplated. The diversity of school boards, and their divergent levels of
prestige, is marked in India today. As stated, uniformity can also contribute
to social cohesion.

30 See Pulapre Balakrishnan, Economic Growth in India: History and Prospect (Oxford U. Press
2010), for data on expenditure and the recorded outcome.
31 H p://ibnlive.in.com/newstopics/maharashtra-irrigation-scam.html (accessed Apr. 13, 2013).
Mainstreaming the Marginalized in Development 597

Conclusion
India is no longer a poor economy. In 2011 it overtook Japan as the third-
largest economy of the world when output is measured in purchasing power
parity terms. Possessing the resources needed to mainstream its marginalized
citizens is no longer a constraint. Then what is?
It is hoped that this article has, ﬁrst, demonstrated that India is now gov-
ernance challenged, and, second, proposed one way of seeing this, namely, in
terms of the ability to match outcome with intent in the public sphere. More
generally, India is unable to generate the public goods essential for main-
streaming the marginalized. From an economic point of view, it is salient to
view democracy as individuals combining to solve the coordination problem
that results in the absence of public goods in a society. Or, to put it positively,
citizens give themselves a democratic form of government mainly to ensure
that they have the public goods that they value. The Westminster model and
the political parties that populate it were meant as a mere instrumentality here.
In India, an acute case of the principal-agent problem has come to mean that
democracy ﬁrst beneﬁts the political parties, whose main objective, it seems,
is to capture the state apparatus to enrich their constituents. The extraordinary
increases recorded in the assets of politicians while they are in power reﬂects
precisely this. Interestingly, all parties govern in the name of the marginal-
ized. The present state of aﬀairs may be expected to continue in India so long
as a substantial section of the population is poor and ill educated, leaving
them unable to govern the actions of their elected representatives.
This chapter has refrained from speaking about the program of economic
reforms initiated in India in 1991, mainly liberalization of the policy regime,
which has been received positively in the West. This is not accidental. It should
have become clear by now that mainstreaming the marginalized cannot be
achieved by a program of increasing integration of India with the rest of the
world via trade and industrial policy reforms. The economic reforms were
aimed mainly at achieving such integration. While this project has merits, it
cannot be a substitute for a development policy. Mainstreaming the marginal-
ized requires that this objective be brought into the center of the public policy
agenda of the country. It requires that focus be trained on the interventions
that will beneﬁt the marginalized. A section of India will remain marginalized
as long as the development of their capabilities remains marginal.
This page intentionally left blank
The Right to Information as a Tool
for Community Empowerment
ANUPAMA DOKENIYA

The right of people to have access to information about the functioning of
post–World War II governments was incorporated into international human
rights conventions as a complement to the freedom of expression. Driven
by concerns about the erosion of accountability in the face of growth in the
public sector, a few countries also adopted legislation guaranteeing the right
to public information to their citizens (and in some cases, noncitizens) over
the subsequent decades.1
More recently, the right to information (RTI) has ascended to greater
prominence in the international human rights pantheon. It has been incor-
porated into the constitutions and legislative systems of a host of countries,
including several developing countries. The ﬁrst big wave was in Eastern Eu-
rope, where countries adopted RTI laws2 as part of the post-Soviet democratic
transition process, followed by other countries also going through a demo-
cratic transition, such as South Africa, in the wake of the end of apartheid,
and Mexico, with the victory of Vicente Fox and the Partido Acción Nacional
(PAN) in 2000. By 2013, 94 countries had enacted RTI laws, and several other
countries had active movements supporting the passage of such legislation.3
An RTI law gives citizens4 the right to access government records without
being obliged to demonstrate a legal interest or standing—a fundamental shift
in the principle guiding access to public information from “need to know”
to “right to know.” Further, global standards on RTI have converged on the
principle of maximum disclosure—meaning that the right of access extends to a

1 Alasdair S. Roberts, Blacked Out: Government Secrecy in the Information Age (Cambridge U.
Press 2006); John M. Ackerman & Irma E. Sandoval-Ballestero, The Global Explosion of Freedom
of Information Laws, 58(1) Admin. L. Rev. 85–130 (2006).
2 These laws are labeled in diﬀerent countries as right to information (RTI), freedom of infor-
mation (FOI), or access to information (ATI) laws. The idea of freedom is tied to the concept
of liberties, or freedom from restraints, for example, from censorship. The idea of a right, on
the other hand, connotes a positive right to something. Access to information is often char-
acterized as a positive right because it denotes a right to something—in this case, public
information. Several laws are also labeled ATI laws without denoting the principle of a legal
entitlement. This chapter uses the term right to information when referring to these laws, even
though some of them might be titled FOI or ATI.
3 93 Countries Have FOI Regimes, Most Tallies Agree (Oct. 19, 2012), available at h p://www
.freedominfo.org/2012/10/93-countries-have-foi-regimes-most-tallies-agree/; Rwanda Publishes
New Law on Right to Information (Mar. 13, 2013), available at h p://www.freedominfo.org
/2013/03/rwanda-publishes-new-law-on-right-to-information/.
4 In some instances, the right extends to all interested parties, including noncitizens.
599
600 The World Bank Legal Review

broad range of government documents, unless explicitly forbidden by a lim-
ited regime of exceptions to protect overriding public and private interests.5
Under an RTI law, therefore, a “presumption of disclosure” and transparency
supersedes the “presumption of secrecy” that has traditionally characterized
the functioning of government.6 These principles embody a fundamental re-
conﬁguration of state-society relations if the law is adequately implemented.
This chapter discusses the fundamental paradigm shift in the way that
RTI is conceptualized and used. For much of the 20th century, RTI was seen
as a complement to, or even a component of, freedom of expression and me-
dia rights. Over the past two decades, the potential of RTI as an instrument
for furthering the realization of economic and social rights has become clear.
Although most of the earlier laws were championed by political elites, civil
society groups—primarily domestic, supported by international nongovern-
mental organizations (NGOs)7—have been the driving force for the adoption
of newer laws. These groups highlight the potential of RTI as a tool to expose
high-level corruption, and one that can be used by even the poorest communi-
ties to hold government accountable for the expenditure of public resources
and the delivery of services, entitlements, and livelihood opportunities. The
second section of this chapter sketches this evolution and highlights cases in
which communities in some of the poorest and least-developed regions have
succeeded in using RTI in this way. These cases belie the perspective that ac-
cess to government information is reserved for educated and technically sav-
vy citizens and is beyond the reach of poor, illiterate communities.8
The chapter also presents lessons learned about what factors enable com-
munities to leverage the potential of RTI and what hinders them. Although
the cases discussed are compelling, inspirational, and indicative of the poten-
tial of RTI, they are relatively few. Most of the cases in this chapter are from
India and Mexico, two of the highest-proﬁle implementers of RTI over the
past decade, and a few are from other countries: South Africa, Argentina, and

5 The inclusion of a negative list that enumerates the categories of information exempted from
disclosure expands the scope of the law to all other categories of information. Exceptions are
subject to time limits; a harms test assessing if disclosure would cause harm to the protected
interest; and a public interest override, meaning that information should still be released if
the overall beneﬁt of disclosure outweighs the harm to a protected interest. Hard overrides
apply absolutely, for example, for information about human rights, corruption, or crimes
against humanity. RTI applies to public agencies, but the deﬁnition of what constitutes a
public agency has become challenging, given the increasing privatization of government
and the increasingly prominent role private bodies play in the delivery of public services.
Furthermore, measures for proactive disclosure; procedures for facilitating access, protect-
ing whistle-blowers, and providing adequate grievance redress mechanisms; and sanctions
for failure to disclose are all considered essential elements of good-practice laws.
6 Max Weber, Economy & Society (UC Press 1979).
7 Among them, the Carter Center, the Open Society Initiative, the Commonwealth Human
Rights Initiative, and Article 19.
8 Rob Jenkins & Anne Marie Goe , Accounts and Accountability: Theoretical Implications of the
Right-to-Information Movement in India, 20(3) Third World Q. 603–622 (1999), available at
h p://www.archonfung.net/docs/pal218/JenkinsGoe .AccountsAccount.pdf.
The Right to Information as a Tool 601
for Community Empowerment

Brazil. There are a number of countries where the laws that have been passed
have had li le meaning for communities or for development outcomes. The
third section of the chapter highlights factors that might explain why RTI has
empowered communities in some contexts and why it has had li le relevance
in others. For instance, in all the cases examined, civil society groups—both
grassroots and more organized formal groups—played a role in mobilizing
communities, raising awareness, pu ing pressure on local oﬃcials, and ad-
vocating for sanctions or reforms when RTI exposed corruption or nonperfor-
mance. But in areas where grassroots civil society groups have li le capacity
to fulﬁll this intermediary role, or where the state is less responsive to civil
society pressures, change has been diﬃcult.

RTI as an Enabler of Other Rights
A brief discussion of the international human rights framework—and espe-
cially the principle of interdependence—is helpful as a background to under-
standing the evolution of RTI as an enabler of other rights. The 1948 Uni-
versal Declaration of Human Rights (UDHR) provides the foundation for the
international human rights framework and enumerates key universal human
rights in its 30 articles. Subsequently, a number of international covenants9
created “soft” international law for the enforcement of these rights. These
rights have been characterized as three generations of rights:10
• First-generation human rights refer to civil and political rights such as
freedom of speech, the right to a fair trial, freedom of religion, and voting
rights.11
• Second-generation human rights are economic, social, and cultural, such
as the rights to food, housing, education, health care, social security, em-
ployment, unemployment beneﬁts, and an adequate standard of living.12
• Third-generation human rights refer to the collective rights of groups and
communities to self-determination, economic and social development, a
healthy environment, and intergenerational equity and sustainability.13

9 h p://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx.
10 Karel Vasak, Human Rights: A Thirty-Year Struggle: The Sustained Eﬀorts to Give Force of Law to
the Universal Declaration of Human Rights, 30 UNESCO Courier 11 (Nov. 1977). Although the
UDHR and international covenants based on it do speciﬁcally refer to three generations of
rights, the rights enumerated in these covenants easily ﬁt into one of the three categories.
11 Arts. 3–21 of UDHR and the International Covenant on Civil and Political Rights (ICCPR),
United Nations High Commissioner for Human Rights (1966), available at h p://www2
.ohchr.org/english/law/ccpr.htm#art19.
12 Arts. 22–27 of the Universal Declaration, and the International Covenant on Economic, So-
cial, and Cultural Rights (ICESCR) (1966), available at h p://www.ohchr.org/Documents
/ProfessionalInterest/cescr.pdf, and the International Covenant on Economic, Social and
Cultural Rights, adopted by the General Assembly of the United Nations (Dec. 16, 1966),
available at h p://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.
13 Although the UDHR does not deal extensively with third-generation rights, it underlines
the importance of the commons for the realization of other rights: “Everyone is entitled to a
602 The World Bank Legal Review

Most countries are signatories to these covenants and are required to un-
dertake measures to ensure the realization of these rights. The state’s obliga-
tions vis-à-vis ﬁrst-generation rights are primarily to refrain from imposing
restraints, for instance, by enacting laws that ensure freedom from restrictions
or control such as censorship. The second-generation social and economic
rights, on the other hand, are positive rights in that they impose on the state a
complementary duty to undertake measures to enable the realization of these
rights. Second-generation rights have been controversial because they can be
seen as sanctioning a more activist role by the state and because states may
not be able to ensure their full realization, at least in the short term, due to
resource limitations. Human rights are purported to be absolute, while eco-
nomic policy making inevitably entails trade-oﬀs, making enforceability of
these rights challenging.
Despite critiques, social and economic rights have established a ﬁrm place
in the international human rights discourse and policy arena, with the im-
plicit understanding that political and civil rights mean li le if people are not
able to access basic services, protections, and livelihood opportunities, and
an implicit recognition that the realization of human rights is likely to be pro-
gressive rather than immediate.14 International development aid is premised
on the need to ensure basic social and economic welfare to all. Multilateral
institutions such as the World Bank have implicitly integrated a ention to
these rights in their work, moving beyond the traditional focus on large in-
frastructure, economic management, ﬁnance, and trade issues to furthering
access to health services, education, and social protection, as well as launch-
ing initiatives for gender inclusiveness and community development. These
institutions build stringent social and environmental safeguards into projects
to ensure that development eﬀorts do not hurt the fundamental rights of ex-
istence and livelihoods of communities aﬀected by these projects.15 Countries
have also launched developmental projects and poverty-reduction strategies
to provide citizens with access to services and livelihood opportunities, an
implicit adherence to the aspiration to ensuring social, economic, and com-
munity rights for everyone.
The inherent synergy among these rights is highlighted by the principle
of interdependence, that is, the fulﬁllment of any right depends, wholly or in
part, upon the fulﬁllment of others.16 So, for example, the achievement of social

social and international order in which the rights and freedoms set forth in this Declaration
can be fully realized.”
14 ICESCR qualiﬁes states’ obligations with a progressive realization clause, requiring that ev-
ery state party “undertake . . . to take steps . . . to the maximum of [its] available resources,
with a view to achieving progressively the full realization of the right recognized in the . . .
Covenant.”
15 h p://www.worldbank.org/.
16 The Vienna Declaration and Program of Action (VDPA), adopted at the World Conference
on Human Rights (June 25, 1993), declares that all human rights are “universal, indivis-
ible and interdependent and interrelated”; available at h p://www.unhchr.ch/huridocda
/huridoca.nsf/(symbol)/a.conf.157.23.en.
The Right to Information as a Tool 603
for Community Empowerment

and economic welfare is necessary before citizens can exercise their political
and civil rights. The exercise of civil and political rights might itself aid in fur-
thering social and economic welfare goals. In other words, although each right
is itself of intrinsic importance—critical to ensure the dignity and equality of
all people—each right is also instrumental to the realization of other rights.
Sen’s seminal work on “development as freedom” provides perhaps the
most eloquent exposition of the inextricable links between rights (used in this
article synonymously with freedoms):
[T]here is strong evidence that economic and political freedoms help
to reinforce one another, rather than being hostile to one another (as
they are sometimes taken to be) . . . social opportunities of educa-
tion and health care, which may require public action, complement
individual opportunities of economic and political participation and
also help to foster our own initiatives in overcoming our respective
deprivations.17
In empirical work, Sen has pointed to the importance of freedom of ex-
pression of the media:
India has not had a famine since independence, and given the nature
of Indian politics and society, it is not likely that India can have a
famine even in years of great food problems. The government can-
not aﬀord to fail to take prompt action when large-scale starvation
threatens. Newspapers play an important part in this, in making the
facts known and forcing the challenge to be faced.18
Other research has demonstrated the importance of a free media in ensur-
ing greater accountability by the state, leading to be er social and economic
outcomes.19
Throughout much of the 20th century, RTI was cast in distinctly political
terms and seen as a complement to freedom of expression and media rights.
Although Resolution 59(1), adopted in the UN General Assembly’s ﬁrst ses-
sion in 1946, declared, “Freedom of information is a fundamental human
right and is the touchstone of all the freedoms to which the United Nations
is consecrated,” it also deﬁned the right as “the right to gather, transmit and
publish news [italics added] anywhere and everywhere without fe ers” and
one necessary “in any serious eﬀort to promote the peace and progress of the
world.”20 The political underpinning, especially when viewed in the postwar

17 Amartya Sen, Development as Freedom, Preface (Oxford U. Press 1999).
18 Amartya Sen, Food Ba les: Conﬂicts in the Access to Food, 10(1) Food & Nutrition 81–89 (1984).
19 State governments are more responsive to decreases in food production and crop ﬂood dam-
age via public food distribution and calamity relief expenditure where newspaper circula-
tion is higher and electoral accountability is greater; see Timothy Besley & Robin Burgess,
The Political Economy of Government Responsiveness: Theory and Evidence from India, 117(4), Q. J.
Econ. 1415–1451 (Nov. 2002).
20 Resolutions Adopted by the General Assembly During Its First Session (1946), available at h p://
www.un.org/documents/ga/res/1/ares1.htm.
604 The World Bank Legal Review

context, was clear. Article 19 of the UDHR, adopted two years later, closely
ties together the rights of free expression and access to information: “Every-
one has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”21 The
1966 International Covenant on Civil and Political Rights (ICCPR) adopted
the same language.22
In several countries, media have used RTI laws to access information on
high-proﬁle cases exposing corruption. A prominent recent example is the
parliamentary expenses scandal in 2010 in the United Kingdom, where a se-
ries of freedom of information (FOI) requests lodged by NGOs and investiga-
tive journalists revealed unethical and illegal claims under the parliamentary
expenses system; the responsible members of Parliament were subsequent-
ly convicted, reprimanded, or suspended.23 In India, Mexico, Romania, and
Peru, as well as in other countries, high-level corruption scandals have been
uncovered using RTI laws.24
In the past couple of decades, however, in the spirit of the ﬁrst sentence
in the UN General Assembly’s Resolution 59(1), RTI has begun to be viewed
as an enabler of the realization of social, economic, and community rights.
The environmental movement was a pioneer in underlining the importance
of information to safeguard the rights of the commons and enable communi-
ties to have a voice in concerns about their environment.25 This trend is re-
ﬂected in the 1998 Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental Ma ers (the Aar-
hus Convention).26 Although the Aarhus Convention is primarily a European
instrument, sponsored by the United Nations Economic Commission for Eu-
rope, it has been important in solidifying the principle of access to information
as an essential part of sustainable environmental governance.
Aid agencies have underscored the importance of RTI laws in further-
ing social and economic welfare by enabling citizens to participate in deci-
sion making; to monitor oﬃcials on the delivery of obligations, including by

21 Universal Declaration of Human Rights (1948), available at h p://www.un.org/en/documents
/udhr/.
22 International Covenant on Civil and Political Rights, adopted by the General Assembly of
the United Nations (Dec. 19, 1966), available at h p://treaties.un.org/doc/Publication/UNTS
/Volume%20999/volume-999-I-14668-English.pdf.
23 Robert Hazell, Ben Worthy, & Mark Glover, Does FOI Work? The Impact of the Freedom of In-
formation Act 2000 on British Central Government (Palgrave Macmillan 2010).
24 H. Mander & A. S. Joshi, The Movement for Right to Information in India: People’s Power for the
Control of Corruption (Paper presented at the Commonwealth Human Rights Initiative Con-
ference on Pan-Commonwealth Advocacy for Human Rights, Peace and Good Governance
in Africa, Jan. 21–24, 1999).
25 Vivek Ramkumar & Elena Petkova, Transparency and Environmental Governance, in The Right
to Know: Transparency for an Open World (Ann Florini ed., Columbia U. Press 2007).
26 h p://ec.europa.eu/environment/aarhus/.
The Right to Information as a Tool 605
for Community Empowerment

exposing corruption or nonperformance; and to access justice and grievance
redress mechanisms when their rights are violated. The World Bank’s 2004
World Development Report suggests that information enables citizens to exer-
cise direct inﬂuence over service providers (the short route of accountability)
and hold policy makers accountable, who in turn hold providers accountable
(the long route of accountability).27 For instance, publicly available and easy-
to-understand information on the standards of public service provision en-
ables citizens to put pressure on service providers through tools such as score
cards, report cards, and social audits, and to express their dissatisfaction to
politicians (for instance, through voting), who in turn hold service providers
accountable for adhering to these standards. The potential of access to infor-
mation to expose corruption is particularly important because corruption is
a major impediment to the realization of fundamental rights—for instance,
corruption in a public distribution system aﬀects the right to food, corruption
in a supply of pharmaceuticals hinders the right to health, and corruption and
teacher absenteeism hamper the right to education.
Research studies have also demonstrated the usefulness of access to in-
formation broadly, and RTI speciﬁcally, for community-level development
outcomes.28 A recent ﬁeld experiment on access to ration cards among New
Delhi’s slum dwellers found that slum dwellers who submi ed information
requests under India’s RTI law received their ration cards almost as fast as
those paying “speed money” to the administration, while most of those who
either presented a le er of support from a local NGO or applied for the card
through the standard process did not receive the card during the one-year
period in which the research was conducted.29
The role of civil society groups—both professional NGOs working on
behalf of citizens and grassroots NGOs working directly with communities,
helping them make information requests—in several developing countries,
and the success of these groups in using RTI to extract information salient
to poor citizens and communities, has been remarkable. In Mexico, rural, so-
cial, and civic movements have claimed the right to information as a tool for
their social, economic, and civic struggles.30 In India, starting with Mazdoor
Kisan Shakti Sangathan’s equation of the “right to know” with the “right to

27 World Bank, World Development Report 2004: Making Services Work for Poor People (World
Bank 2004).
28 Martina Bjorkman & Jakob Svensson, Power to the People: Evidence of a Randomized Field Ex-
periment on Community-Based Monitoring in Uganda, 124(2) Q. J. Econ. 735‒769 (2012); Claudio
Ferraz & Frederico Finan, Exposing Corrupt Politicians: The Eﬀects of Brazil’s Publicly Released
Audits on Electoral Outcomes, 123(2) Q. J. Econ. 703–746 (2008); S. Khemani, Does Community
Monitoring Improve Public Services? Diverging Evidence from Uganda and India (World Bank Re-
search Brief, Sept. 16, 2008); P. Pandey, S. Goyal, & V. Sundararaman, Community Participation
in Public Schools: Impact of Information Campaigns in Three Indian States, 17 Ed. Econ. 3 (2009).
29 Leonid V. Peisakhin & Paul Pinto, Is Transparency an Eﬀective Anti-corruption Strategy? Evi-
dence from a Field Experiment in India, 4(3) Reg. & Gov. 261–280 (2010).
30 Jonathan Fox, Carlos García Jiménez, & Libby Haight, Rural Democratization in Mexico’s Deep
South: Grassroots Right-to-Know Campaigns in Guerrero, 36(2) J. Peasant Stud. (2009).
606 The World Bank Legal Review

live,” grassroots movements have mobilized around RTI across the country.
In South Africa, the prominent NGO Open Democracy Access Center (ODAC)
has assisted communities in using RTI law to make information requests re-
lated to health care, development, and access to resources, as well as to obtain
information about how local government funds are being spent.31 In Bangla-
desh, several examples are emerging of communities using the country’s RTI
law to access information on entitlements under speciﬁc government pro-
grams, including food, agriculture and land distribution, health, and rural
employment, on land records, and on labor and environmental regulations,
as well as general information about government programs.32 Some of these
cases are highlighted below.

Mazdoor Kisan Shakti Sangathan, India
The most celebrated example of grassroots community mobilization around in-
formation access rights is that of the Mazdoor Kisan Shakti Sangathan (MKSS),
or the labor and farmers’ movement in the northwestern Indian state of Raj-
asthan.33 Aided by prominent activists, MKSS launched a successful mass mo-
bilization movement in the 1990s to access documents related to the payment
of wages under the government’s drought-relief schemes. These disclosures
showed that workers were being paid considerably below their stated incomes
and that allocations from the government were being pilfered by local oﬃ-
cials, who were billing the central and state governments for the full amount.
The disclosures were followed by a series of jan sunwais, or public hearings, at
which detailed accounts, derived from oﬃcial expenditure records and other
supporting documentation were read out loud to the villagers.
Although access to public information had been recognized as a right
with a Supreme Court ruling in the 1970s, MKSS tied the movement ﬁrmly to
the Indian constitution’s framework of basic social and economic rights, par-
ticularly provisions guaranteeing the right to life and livelihood, exempliﬁed
in slogans such as “the right to know is the right to live.”34 It also launched
a concerted campaign for RTI. Its sustained advocacy eﬀorts, along with the
formation, in 1996, of the National Campaign for People’s Right to Informa-
tion (NCPRI)—a coalition of grassroots organizations and other NGOs from

31 Richard Calland, Annex 3: Freedom of Information, in Review of Impact and Eﬀectiveness of Trans-
parency and Accountability Initiatives (Transparency and Accountability Initiative 2010).
32 The Power of Using the Right to Information Act in Bangladesh: Experiences from the Ground (Com-
monwealth Human Rights Initiative, Aﬃliated Network for Social Accountability South Asia,
and World Bank Institute), available at h p://wbi.worldbank.org/wbi/Data/wbi/wbicms
/ﬁles/drupal-acquia/wbi/Final%20version%20-%20The%20Beneﬁts%20of%20Using%20the
%20RTI%20Act%20in%20Bangladesh.pdf.
33 Aruna Roy & Nikhil Dey, The Right to Information: Facilitating People’s Participation and State
Accountability (10th International Anti-corruption Conference, Oct. 7–11, 2004); Aruna Roy
& Nachiket Udupa, Mass Job Guarantee, Himal South Asian (Oct. 2004), available at h p://
www.himalmag.com/The-mass-jobguarantee_nw4749.html.
34 Jenkins & Goe , supra note 8.
The Right to Information as a Tool 607
for Community Empowerment

across the country—accelerated the national momentum for the passage of an
RTI law, on the agenda since the 1970s, in 2005.35

Women’s Network for the Common Good, Mexico
In Guerrero, a peasant women’s health rights campaign, the Women’s Net-
work for the Common Good, mobilized hundreds of women in demanding
information on the federal government’s ﬂagship conditional cash-transfer
program, Oportunidades, on health-related laws, ministry regulations, and
program operating procedures that clearly deﬁne the basic health services to
which rural communities are entitled.36 Information requested included rules
governing basic public health services in rural communities, services, fees,
lists of medicines and supplies that health centers were supposed to have in
stock, the number of doctors and nurses allocated to health centers, and ex-
penditures of health centers. The requests led to the release of substantial in-
formation, although the federal government could not provide information
on the administration of resources in speciﬁc health centers, which are man-
aged by state governments. Yet, despite the remarkable mass mobilization,
improvement in the quality of public health services has been challenging.

Parivartan, India
In India, a Delhi-based NGO, Parivartan,37 mobilized urban communities to
demand information on corruption in the public distribution system that sup-
plies basic provisions at subsidized prices (or rations) to households below the
poverty line. Aided by Parivartan, these communities demanded information
about ration supplies from the food and civil supplies department, comparing
those records with the records of the ration shops, which frequently divert
supplies to the open market to sell them at higher prices. In the tradition of
MKSS, Parivartan organized jan sunwais, where comparison of government
records with the records of the shops revealed massive fraud. As a result, li-
censes for several shops were taken away and the local public distribution
system improved.

Open Democracy Advice Centre, South Africa
Villagers in Emkhandlwini used South Africa’s FOI law, with the help of the
Open Democracy Advice Centre (ODAC), to request the minutes of council
meetings on the provision of water, the municipality’s integrated develop-
ment plan, and its budget. When the documents revealed that the village was
supposed to receive access to clean water, villagers solicited the help of the
media to publicize the issue. The municipality installed ﬁxed water tanks
and delivered mobile water tanks to the community. When the supply be-
came erratic, villagers used the law again to request a service-level agreement

35 Id.
36 Fox, Jiménez, & Haight, supra note 30.
37 h p://www.parivartan.com.
608 The World Bank Legal Review

between the municipality and the company delivering water. Because such a
contract had not been created, constituting a breach of South Africa’s public
ﬁnance legislation, the municipality was reported to the auditor general for
investigation.38

Maderas del Pueblo del Sureste, Mexico
In 2006, Maderas del Pueblo del Sureste, an environmental NGO supporting
indigenous people and rural communities in Chiapas, Mexico, ﬁled access-to-
information requests using the federal Transparency Law, seeking informa-
tion about a sewage project that was negatively aﬀecting a village, which was
receiving waste from a neighboring town and had no access to clean water.
Information released through these requests showed that the water-treatment
system was not properly designed and needed a ﬁlter system that had not
been installed. The Cintalapa sewage project was halted, and authorities pub-
licly acknowledged that changes had to be made to ensure that water was
properly treated.39

FUNDAR, Mexico
In Mexico, prominent NGO FUNDAR pressed for the disclosure of informa-
tion related to subsidies for poor farmers and the supply of drugs for AIDS
victims. In 2007, FUNDAR requested information from the Ministry of Ag-
riculture on the list of beneﬁciaries of PROCAMPO, the largest federal farm
subsidy program in the country, designed to support the poorest farmers and
reduce inequality in the rural sector. Although the Ministry of Agriculture
responded to this information request, the information was issued in unread-
able formats and was incomplete. When more complete and legible infor-
mation was made available at the direction of the information commission
IFAI, it showed that the bulk of farm subsidies were being allocated not to the
country’s poorest and smallest farmers but to the richest and most produc-
tive farmers, and the corruption included nepotism and patronage. FUNDAR
and other NGOs created an online repository of this information to keep the
pressure on the ministry.40 Although the Minister of Agriculture was removed
from his post, no changes to the list of beneﬁciaries or the program’s rules of
operation were made. When subsequent investigations revealed continuing
evidence of corruption and nepotism, resignations followed, and the govern-
ment imposed ceilings on eligibility for subsidies. But abuses have contin-
ued.41 The information obtained through the federal Transparency Law was
crucial in uncovering corruption and misallocation of subsidies.

38 M. Dimba, Access to Information as a Tool for Socio-Economic Justice (International Conference
on Right to Public Information, Feb. 26–29, 2008).
39 Emilene Martinez-Moralez, Documents in Action: FOI Success Stories in Mexico (Mar. 20, 2009),
available at h p://www.freedominfo.org/2009/03/mexico-success-stories/ (accessed Nov. 30,
2011).
40 h p://www.subsidiosalcampo.org.mx.
41 Fox & Haight 2010, 140.
The Right to Information as a Tool 609
for Community Empowerment

Center for Environmental Law, Mexico
The Center for Environmental Law (CEMDA) used the federal Transparency
Law to generate information to bolster a court case against the proposed La
Parota dam. This legal strategy won many victories—including a 2007 injunc-
tion that suspended construction. CEMDA gained access to the environmen-
tal impact assessment, which revealed the illegality of the authorization to
proceed with construction without environmental clearance. In 2009, the Fed-
eral Electricity Commission’s response to an information request explicitly
recognized that the commission lacked valid legal permits and that it had not
been able to request the necessary change of land use approvals (because ne-
gotiations for community approval remained suspended).

Center for Legal and Social Studies, Argentina
In Argentina, the Center for Legal and Social Studies (CELS), a human rights
NGO, engaged in strategic litigation using international legal instruments
and local access to information laws42 to uncover information about child mal-
nutrition and child mortality in the wake of the economic crisis that hit the
country in the early 2000s. CELS and other social organizations demanded
malnutrition statistics from several local government oﬃces, such as the local
Ministry of Health, municipal hospitals, and other health-related establish-
ments. In most cases, the requests were denied or only partial documenta-
tion on malnutrition cases was provided, compelling CELS to take legal action
against a local Ministry of Health. Subsequently, the ministry admi ed that
its studies had found increased prevalence of low weight among children and
that its data were outdated and incomplete.

Lessons for Scaling up RTI
These cases illustrate the potential of RTI in helping communities realize so-
cial, economic, and community rights. But this potential has been far from
fully tapped. A recent study found that in many countries that have passed
RTI laws, there is li le evidence of awareness about, and use of, RTI laws by
ordinary citizens in rural or urban areas. And even in countries where RTI is
be er used, the largest user base continues to be urban professionals in the
media, private, public, and academic sectors.43 The cases discussed above, as
well as the complementary literature cited, provide some lessons about con-
ditions that enable or hinder the exercise of RTI. Many of these conditions
reﬂect fundamental political economy dynamics that are diﬃcult to address,
particularly for outside agencies. But a ention to these issues by both local
civil society groups and RTI implementers is critical if RTI is to be an eﬀective
tool for developmental gains.

42 Argentina has a presidential decree that guarantees access to information that applies only
to the national executive government and is not upheld in many instances.
43 Anupama Dokeniya, Implementing Right to Information: Experiences from Case Studies (World
Bank 2013).
610 The World Bank Legal Review

Link Information Rights with Issues of Particular Relevance
for and Concern to Local Communities
Poor communities, whether in rural or urban areas, living at the edge of sur-
vival, are concerned with fulﬁlling their basic needs—health, water, and sani-
tation, access to subsidized food, and livelihood opportunities. Access to in-
formation is relevant to them if it is clearly linked to these goals. In Mexico, for
example, Citizen A ention, a social welfare program, each year receives more
information requests than are directed to the entire executive branch, clearly
signaling that there is an appetite for information when the information is
relevant to social and economic priorities.
In many contexts, RTI is seen as a political rather than a developmen-
tal tool, one championed by large NGOs focused on political accountability
and corruption issues, rather than by smaller grassroots NGOs working in
poor communities and service delivery sectors. In Uganda, while governance-
focused NGOs in the capital, Kampala, are engaged on this issue, interviews
with a number of small NGOs working in service delivery sectors, conducted
as part of an RTI implementation study, showed that they were not aware of
the RTI law or did not see it as relevant to their needs. But RTI can indeed be
used as a tool by grassroots NGOs. In India and Mexico, grassroots organiza-
tions working on community development and in the service delivery sectors
have actively used RTI. In India, MKSS, which was critical to the struggle for
access to information, was formed in the early 1990s to ﬁght against failures in
the enforcement of minimum-wage laws and corruption in the public distri-
bution system for subsidized food and other essential commodities. The focus
on access to information emerged out of the need to hold oﬃcials accountable
for delivering on the entitlements of communities in these areas. In Mexico,
communities in the Guerrero and Acapulco-Coyuca regions used RTI to ex-
pose pilfering of education funds by local oﬃcials and the existence of ghost
teachers on the payroll.44

Harness the Power of Collective Action and Build Coalitions
Civil society coalitions focused on RTI have emerged both within and across
countries. In India, the Indian National Coalition for People’s Right to Infor-
mation (NCPRI) brought together urban professionals and rural activists in a
powerful national movement.45 More recent anticorruption movements that
have caught the popular imagination and led to unprecedented social mobili-
zation sprang directly from the RTI movement, with many of the same leaders a
nd groups championing the causes, most notable among them, veteran activist
Anna Hazare. In Mexico, the right-to-know movement bridged resistance-
oriented and negotiation-oriented social and civic movements to take ad-

44 Fox & Haight, supra note 41.
45 Amita Baviskar, Is Knowledge Power? The Right to Information Campaign in India (Sept. 2007),
available at h p://www.ids.ac.uk/ids/Part/proj/pnp.html.
The Right to Information as a Tool 611
for Community Empowerment

vantage of the state’s 2006 RTI law.46 The Self-Managed Social Development
Promoters (PADS) helped a diverse range of rural civil society groups from
pragmatic, nonideological groups that focus mainly on community-based
economic development for those engaged in contestation on issues such as
large infrastructure projects and human rights. Where grassroots organiza-
tions do not have eﬀective mobilizing capacity, the impact of RTI is limited.

Focus Advocacy Efforts on Strong, State-Level Laws
Some of the most salient issues of immediate and pressing concern to commu-
nities are the responsibility of the state governments. When national RTI laws
do not apply at the state level and state-level laws on RTI either do not exist or
are weak, communities may have li le recourse. For instance, in Mexico, the
national law applies only to federal public bodies, and the federal government
has no power to regulate openness at the subnational level. Concern has been
expressed that the RTI laws that have now been adopted by 32 subnational en-
tities do not meet minimum transparency standards.47 In India, although most
states have separate RTI laws and state-speciﬁc implementation institutions,
such as the state information commissions, the central law overrides state-
level laws. How this issue is addressed depends on the political tradition and
constitutional norms in each individual country, but the discrepancies point
to the need to direct advocacy eﬀorts toward state-level laws.

Ensure Capacity in Local-Level Institutions
Oﬃcial resistance and capacity constraints are signiﬁcant challenges to RTI
implementation in public administration. Control over information translates
into money for public oﬃcials—for instance, when bribes must be paid to
get information, or when corruption continues unchecked in the absence of
transparency. Relinquishing control over information reduces opportunities
for bribery, patronage, and kickbacks. Furthermore, RTI laws entail additional
responsibilities without necessarily providing additional resources or rebal-
ancing other responsibilities. In India, more than 30 percent of rural informa-
tion oﬃcers polled in one survey admi ed that they did not want RTI to be
part of their responsibilities, and more than 10 percent of public information
oﬃcers cited a lack of ﬁnancial and other incentives as the reason for their
reluctance.48 Thus, public oﬃcials and state actors have deployed a variety of
strategies to resist the implementation of RTI laws, from a empting to create

46 Fox, Jiménez, & Haight, supra note 30, at 200.
47 For a comprehensive analysis of access to information and transparency laws, see Diego
Ernesto Díaz, Métrica de la Transparencia (CIDE 2007).
48 RTI Assessment & Analysis Group (RaaG) & National Campaign for People’s Right to In-
formation (NCPRI), Executive Summary, Safeguarding the Right to Information: Report of the
People’s RTI Assessment 2008 (Oct. 2009), available at h p://rti-assessment.org/exe_summ
_report.pdf.
612 The World Bank Legal Review

restrictive amendments to harassment of requesters to mute refusals or releas-
ing incomplete or incomprehensible information.49
Training and awareness-raising initiatives, signaling and modeling be-
havior by both political and individual agency leaders, and appropriate incen-
tives and rewards are some strategies that could address these challenges. But
RTI implementation eﬀorts tend to stay focused on central-level institutions
without adequate a ention to state and local institutions, even though imple-
mentation challenges might be more pronounced at this level. In Mexico, for
instance, in the Oportunitades case, although rural women were able to access
federal documents, state documents that provided details on how money was
actually spent were much harder to access. State health oﬃcials were reluc-
tant to provide information and a empted to intimidate requesters by visiting
their homes to question them on why they wanted the information. In India,
respondents to a survey pointed out that when they ﬁled requests, particularly
in rural areas, oﬃcials often harassed them.50 Robust plans for local-level in-
stitutions, therefore, need to be an integral part of RTI implementation plans.
Information commissions and courts are important allies in enabling com-
munities to realize the right to information, as several of the cases above high-
light. But information commissions sit in the national or state-level capitals,
and poor, rural communities might not be able to aﬀord sustained litigation
for the release of information. Collective action and support from civil society
organizations can be vital to help raise the proﬁle of demands, as in the case of
MKSS. But collective action needs to be matched with appropriate grievance
redress mechanisms at the local level, including an internal appeals system
within local government agencies.

Tailor Solutions to Local Context
Local governments might ﬁnd it challenging to put in place information man-
agement systems and may have li le capacity or resources to do so. Taking
an incremental approach, organizing and cataloging the most urgent and fre-
quently sought documents, and educating the public about the availability
of these documents through the publication of registers of documents, notice
boards, and community outreach are feasible steps in these contexts. Although
technology-mediated solutions for information access might be eﬀective for
urban, well-educated, technically savvy professionals,51 in poorer communities,
the role of the information oﬃcer as an intermediary is crucial to help users
frame and direct their requests. Provision of information without fees and the
admission of oral requests when requesters cannot read and write are other
critical measures to take.

49 Dokeniya, supra note 43.
50 RaaG & NCPRI, supra note 48.
51 Mexico’s Sistema Informatizado de Solicitudes de Informacion (SISI) is among the most suc-
cessful; in fact, most requests at the central level in Mexico are lodged through this platform.
The Right to Information as a Tool 613
for Community Empowerment

Conclusion: From Access to Accountability
As the cases indicate, although the use of RTI has enabled access to informa-
tion, the record on translating this information into be er social and economic
outcomes is mixed. For example, mass mobilization around health rights un-
der Oportunitades resulted in important disclosures but did not immediately
translate into be er health outcomes. The exposés of patronage in PROCAM-
PO led to resignations, but abuses continued. In India, the recent cases of cor-
ruption demonstrate how intransigent this challenge is.
The results chain from the provision of information to changes in
the actions and choices of communities, and consequently the incentives and
behavior of oﬃcials, is relatively under-researched and inadequately under-
stood. If exposure of corruption or ineﬃciency, media outrage, or popular
discontent does not aﬀect the incentive structures of politicians or oﬃcials,
a empts at change are unlikely to be eﬀective. Strengthening understanding
of how incentives are aﬀected by the disclosure of information—through the
threat of reputational or ﬁnancial sanctions or loss of elections or employ-
ment—is crucial to strengthening the complex relationships of access to in-
formation, accountability, and development outcomes. For instance, stud-
ies have shown that the disclosure of corruption in local government might
reduce the likelihood of incumbent re-election,52 and speciﬁc and informed
policy proposals have had a positive eﬀect on turnout and electoral support
for the candidates, more so than targeted or clientelist electoral promises.53
Building a robust evidence base on these dynamics, through experimental re-
search, anecdotal data, and detailed case studies is critical to illuminating how
the right to know can actually translate to the right to live.

52 Ferraz & Finan, supra note 28.
53 Leonard Wantchekon, Can Informed Public Deliberation Overcome Clientelism? Experimental
Evidence from Benin (working paper, Princeton U. 2009).
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Conclusion
A Challenging New Era for Law, Justice,
and Development

HASSANE CISSÉ AND MARIE-CLAIRE CORDONIER SEGGER

In this book, diverse concepts of development guide both theoretical analyses
and discussions of practical lessons learned from recent examples of develop-
ment. Development as a concept has had a rich and interesting history since it
came to prominence after World War II. In the initial years, countries viewed
development with an aloofness that matched their suspicion of whether this
was yet another ploy by the West to dominate “underdeveloped” countries
or whether it was indeed a vehicle that could drive change.1 Later, countries
considered the question of how development should be deﬁned and what its
scope should be; for decades, scholars busied themselves with propounding
an all-encompassing deﬁnition of the concept of development. Ellio Burg, in
a brilliant deﬁnitional exposition, presented various theories of development
advanced by scholars and theorists. The economic growth approach deﬁned
development as a raise in per capita output, as a means of building strong
market economies, and, by extension, as the freedom to have a say in deci-
sions that shape one’s life or, at least, to have an opportunity to do so. Social
theory linked development to the distributional aspects of economic life and,
while conceding that growth is necessary, argued that such growth must be
matched with equitable distribution of both tangible and intangible resources.
From a legal and political perspective, theorists like Justice William Douglas
linked development to democratic institutions and a free society.2

The authors thank Elizabeth Hassan and Daniela Cuellar for their insights and invaluable
assistance in the preparation of this chapter. Opinions and submissions contained herein are
the authors’ and do not necessarily represent the views of their institutions. Responsibility
for errors and omissions remains with the authors.
1 See, generally, the introductory discussion in Arturo Escobar, Encountering Development: The
Making and Unmaking of the Third World ch. 1, particularly 3–11 (Princeton U. Press 2011).
2 For extensive discussion on theories of development, see Ellio M. Burg, Law and Develop-
ment: A Review of the Literature and a Critique of Scholars in Self-Estrangement, 25 Am. J. Comp.
L. 492 (1977). See also, Daniel Nyhart, The Role of Law in Economic Development, 1 Sudan L.J.
& Rpts. 394, 398 (1962); David Trubek & Marc Galanter, Scholars in Self-Estrangement: Some
Reﬂections on the Crisis in Law and Development Studies in the United States, Wis. L. Rev. 1062
(1974); Amartya Sen, Development as Freedom (Oxford U. Press 2011); Robert Seidman, Law
and Development: A General Model, 6 Law & Socy. (1972); and David Trubek, Toward a Social
Theory of Law: An Essay on the Study of Law and Development, 82 Yale L.J. 1 (1972).

615
616 The World Bank Legal Review

Prominently, the economic growth theory linked growth to prosperity.3
Multidimensional in some respects but limited in others, the theory gained
recognition among world leaders and still grounds much of present-day dis-
course. President Harry Truman, articulating what would later become part of
the Truman Doctrine, declared greater production to be the key to prosperity
and peace.4 Decades ago, this may have been a compelling submission; how-
ever, as Joseph Stigli notes, this perspective is too narrow and insuﬃcient in
today’s context. He argues that “it may be possible to raise productivity and
even change mindsets within an enclave of the economy without achieving a
true development transformation of the society as a whole.”5 Thus, Stigli em-
phasizes that eﬀorts should include broadly participatory processes—such as
voice, openness, and transparency—that promote truly successful long-term
development, noting that although these processes may not guarantee success
and may carry inherent risks, an understanding of these principles and values
nonetheless helps practitioners design strategies and processes that are more
likely to lead to successful and sustainable growth and development.6
There are many diﬀerent deﬁnitions of development, but none is neces-
sarily wrong. Development is broad and covers all the areas mentioned: de-
velopment is a body of interrelated concepts that work together. As the chap-
ters in this volume demonstrate, rule of law and justice are crucial elements of
the development process. Thus, one could easily agree with Arturo Escobar’s
submission that “one could criticize a given approach and propose modiﬁca-
tions or improvements accordingly, but the fact of development itself, and the
need for it, could not be doubted . . . development [has] achieved the status
of a certainty in the social imaginary.”7 As has been suggested, for sustainable
development to become a reality on the ground in developed and develop-
ing countries, an interactional corpus of embedded and eﬀective international
and regional treaties, national and local laws, rules, and governance systems
is needed, one that integrates social, economic, and environmental priorities

3 For detailed discussion on the theories of growth and development, see Barbara Ingham, The
Meaning of Development: Interactions between “New” and “Old” Ideas, 21(11) World Develop-
ment, 1803–1821 (1993).
4 See Harry Truman’s inaugural speech of January 20, 1949, as cited by Escobar, supra note 1,
at 3.
5 Joseph Stigli , Participation and Development: Perspectives from the Comprehensive Development
Paradigm, 6(2) Rev. of Dev. Econ. 163–182 (2002).
6 Similarly, Cissé, Biebesheimer, & Nash argue that today, “development equated solely with
‘growth,’ at all costs is no longer viewed by many around the world as the optimal means
for a country’s path towards prosperity. Indeed, all these terms—development, growth, and
prosperity—have over the years expanded to become broader and generally more inclusive.
. . . [M]ore and more indications seem to point towards a more vocal and powerful demand
from various quarters for more equitable and inclusive growth at the macro, meso and micro
levels.” See Hassane Cissé, Christina Biebesheimer, & Richard Nash, Toward Greater Justice
in Development, in The Law of the Future and the Future of Law vol. 2, 87 (Sam Muller et al. eds.,
Torkel Opsahl Academic Epublisher 2012); Gerald M. Meier & Joseph E. Stigli eds., Fron-
tiers of Development Economics: The Future in Perspective (World Bank 2002).
7 Escobar, supra note 1, at 5.
Conclusion 617

in a balanced way.8 In the face of this reality, the indispensability of devel-
opment has become apparent, and a ention has shifted to the elements and
scope of development, what approach should be adopted, what priorities or
values ought to be pursued, and what methodologies or strategies need to be
employed to achieve them. Just as development is constantly evolving and ex-
panding to accommodate new or persistent challenges, so must the thinking
and approach move with the times.

Current Development Landscape and Challenges
Traditionally, a great deal of emphasis was placed on tangible deliverables
of development or public goods, such as infrastructure and educational and
health care facilities. By all means, these are critical. However, in the current
development landscape, these are not the only deliverables that people ex-
pect. Traditional thinking has expanded to include intangible deliverables,
and there is a growing demand for values such as rule of law and justice, par-
ticipation and inclusion, equity, good governance, and sustainability over the
long term. The current development landscape requires more a ention to law
and justice, such that eﬀorts must now include or be hinged on these values.
In the last several years, the world has experienced a number of events
that have had far-reaching economic, political, and ﬁnancial impact on states,
from the 2007–8 global economic meltdown to the Arab Spring, as well as on-
going conﬂicts in some countries. These events have highlighted the intercon-
nectedness among legal, sociopolitical, and economic systems. They have also
exposed gaps in laws and policies and emphasized how the perception that
systems and institutions are unjust and exclusionary can lead to signiﬁcant
social and political unrest. Indeed, in spite of new international treaties and
laws on trade and investment that cover most countries of the world, there
are signiﬁcant challenges to integrating social and environmental concerns
into the economic policy and related rules for trade and investment regimes
that can deliver more sustainable development to citizens.9 Interestingly, the
need for more inclusion and equity is evident even in high-growth countries.
For example, although China has carried out signiﬁcant institutional and eco-
nomic reforms—especially in the areas of trade and commerce—that boosted
economic activities, studies show increasing inequalities and disproportion-
ate poverty reduction.10 The growth in GDP has not necessarily translated into
be er standards of living for the poor, at least not to the expected degree.

8 M.-C. Cordonier Segger & A. Khalfan, Sustainable Development Law: Principles, Practices and
Prospects (Oxford U. Press 2004).
9 Sustainable Development in World Trade Law (M.-C. Cordonier Segger & M. Gehring eds., Klu-
wer L. Intl. 2005); and Sustainable Development in World Investment Law (M. Gehring, M.-C.
Cordonier Segger, & A. Newcombe eds., Kluwer L. Intl. 2010).
10 Jayati Ghosh, Poverty Reduction in China and India: Policy Implications of Recent Trends,
DESA Working Paper No. 92st/Esa/2010/Dwp/92 5 (Jan. 2010), available at h p://sa.india
environmentportal.org.in/ﬁles/wp92_2010.pdf; see, generally, Augustin Kwasi Fosu, Growth,
Inequality, and Poverty Reduction in Developing Countries: Recent Global Evidence (background
618 The World Bank Legal Review

The World Development Report 2011 (WDR 2011) emphasizes that fragility
and conﬂict have become critical and urgent development challenges.11 It is
true that the world is experiencing a diminishing number of interstate and
civil wars. This is encouraging in the present and for the future. Yet, violence
is not always associated only with war. Local violence involving militias or
between ethnic groups, gang violence, local resource-related violence, and
violence linked to traﬃcking or associated with global ideological struggles
can have a serious impact on governance and the development of states. These
vicious circles have left states such as South Sudan, the Democratic Republic
of Congo, and East Timor fragile and vulnerable.12 Apart from being causes
of fragility and conﬂict, these forms of violence also weaken and diminish
or destroy the institutions that would otherwise contain conﬂicts and resolve
injustice peacefully. Unsurprisingly, most countries facing fragile and conﬂict
situations rank below average on the rule of law index for 2012–13.13
But the detrimental impact of fragility and conﬂict is not conﬁned to law
and justice systems. The entire development process is aﬀected. For example,
countries in fragile and conﬂict situations are lagging behind in achieving the
Millennium Development Goals (MDGs); at the present pace, they will not be
able to achieve a majority of the goals by the 2015 deadline. The WDR 2011
further points out that on average, a country that experienced major violence
during the period from 1981 to 2005 has a poverty rate 21 percentage points
higher than a country that saw no violence in that time frame, and the aver-
age cost of civil war is equivalent to more than 30 years of GDP growth for a
medium-size developing country. Fragility and conﬂict can lead to the loss of
progress for the span of an entire generation. This impact extends to human
development; more often than not, vulnerable groups are most aﬀected.14 In
this regard, the 2006 Geneva Declaration on Armed Violence and Develop-
ment, endorsed by more than 100 states, aﬃrmed that “living free from the
threat of armed violence is a basic human need.”15

paper for the Global Dev. Outlook—Shifting Wealth: Implications for Dev., OECD Dev. Ctr.
2010), available at h p://www.oecd.org/dev/pgd/44773119.pdf.
11 World Development Report 2011: Conﬂict, Security, and Development 53–55 (World Bank 2011).
12 See Harmonized List of Fragile Situations FY 14, available at h p://siteresources.worldbank
.org/EXTLICUS/Resources/511777-1269623894864/HarmonizedlistoﬀragilestatesFY14.pdf.
13 M. Agrast et al., WJP Rule of Law Index 2012–2013, particularly 158–181 (World Justice Project
2012–13), available at h p://worldjusticeproject.org/sites/default/ﬁles/WJP_Index_Report
_2012.pdf (accessed July 15, 2013).
14 Countries in fragile and conﬂict situations account for one-third of the deaths from HIV/
AIDS in poor countries, one-third of the people who lack access to clean water, one-third of
children who do not complete primary school, and one-half of all child deaths. See World
Bank, Fragility, Conﬂict, and Violence: Working Diﬀerently in Fragile and Conﬂict Aﬀected Situa-
tions, available at h p://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/STRATEGIES
/EXTLICUS/0,,contentMDK:22979282~menuPK:8150332~pagePK:64171531~piPK:64171507
~theSitePK:511778,00.html (accessed July 15, 2013).
15 See Geneva Declaration on Armed Violence and Development (2006), available at h p://
www.genevadeclaration.org/ﬁleadmin/docs/GD-Declaration-091020-EN.pdf.
Conclusion 619

Sadly, these are not the only challenges to grapple with. States continue
to struggle with the challenges of globalization and the economic, social, and
political changes prompted by ﬁnancial crises, environmental degradation
and climate change, food shocks, health crises, and natural disasters. As the
Commission on Growth and Development pointed out, developing countries
today must overcome some global trends their predecessors did not face, in-
cluding climate change; food security; a youth bulge in poor countries that is
not matched with adequate opportunities for growth; fragmentation of the
international development space; and weakly coordinated international re-
sponses to global challenges.16 How can states respond to these challenges?
How can they capitalize on recent experiences and use lessons learned as
building blocks for the future? With their focus on opportunity, inclusion,
and equity, the authors of the chapters in this volume explore the potentially
transformative role of eﬀective law and justice tools in addressing these chal-
lenges and achieving be er development outcomes.

The Increasingly Important Role of Law and Justice in Development
As is apparent in this volume, law is one tool that the international commu-
nity is placing on the front burner of development eﬀorts, and it is doing so for
a very good reason: law is an instrument of change. This instrumentalist ap-
proach can be traced back to the law and development movement of the 1960s,
which advanced law as a tool that can shape human behavior and achieve
development with emphasis on rules and the role of the state.17 Although the
movement was heavily criticized and declined in the following decade,18 it set
the pace for a deeper appreciation of the role of law in development—starting
with the rule of law revival of the 1990s19—and inspired more proactive eﬀorts
to include law in development.
In exploring this development thinking, one cannot overlook the need
for justice. Law and justice are inextricably linked—and, like two sides of the
same coin, complement each other.20 Whereas law concerns the rules, policies,
institutions, and systems that govern a society and facilitate the realization of
its goals, justice is a thread that runs through the entire fabric of society and
introduces a “people-conscious” dimension that ensures that development ac-
tually serves and impacts people in a fair, positive, and empowering manner.
In this regard, as Amartya Sen argues,

16 Commission on Growth and Development, The Growth Report: Strategies for Sustained and
Inclusive Development 9 (World Bank 2008), available at h p://siteresources.worldbank.org
/EXTPREMNET/Resources/489960-1338997241035/Growth_Commission_Final_Report.pdf
(accessed July 22, 2013).
17 See Trubek & Galanter, supra note 2.
18 See Burg, supra note 2.
19 See Thomas Carothers, The Rule of Law Revival, 77(2) Foreign Aﬀairs 95–106 (1998).
20 Rudolf Machacek, Law and Justice: Two Sides of the Same Coin 1(5) Facta universitatis: L. &
Politics 571–580 (2001).
620 The World Bank Legal Review

justice cannot be indiﬀerent to the lives that people can actually live
. . . institutions and rules are, of course, very important in inﬂuencing
what happens, and they are part and parcel of the actual world as
well, but the realized actuality goes well beyond the organizational
picture, and includes the lives that people manage—or do not man-
age—to live.21
An overwhelming body of literature expounds on the importance of law
and justice in development.22 But beyond theory, practical evidence spotlights
the role of law and justice in tackling the natural and the manmade crises high-
lighted above. Interestingly, these events have introduced new dynamics to
development thinking: they have brought to the fore people’s demand for im-
provements in their access to, the reach of, and the quality of public goods; and
they have increased pressure on states for systems that more adequately re-
spond to these needs and level societal imbalances and inequities. This justiﬁes
more a ention on norms and values that can help states meet these demands.

Assessing Law and Justice in Development: Are We There Yet?
Having noted the importance of law and justice in development, a useful
question to ask is, How far have we come in mainstreaming law and justice
into development and how has this contributed to achieving development
outcomes? It is diﬃcult to assess the impact of law and justice, but one can
draw from experiences that support the instrumentality of law and justice.
For instance, as Anupama Dokeniya notes in her chapter in this volume, “The
Right to Information as a Tool for Community Empowerment,” some commu-
nities in rural and extremely poor regions of India and Mexico have been able
to use the right to information as a tool to expose pilfering of resources meant

21 Amartya Sen, The Idea of Justice 18 (Harvard U. Press 2009).
22 For an informative theoretical discussion of the role law plays in development, see David
Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development, 82 Yale
L.J. 1 (1972). See also Robert B. Seidman, The State, Law, and Development (Croom Helm 1978);
David Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reﬂections on the Crisis in
Law and Development Studies in the United States, Wis. L. Rev. 1062 (1974); Daniel Nyhart, The
Role of Law in Economic Development, 1 Sudan L.J. & Rpts. 394, 398 (1962); John H. Merryman,
Comparative Law and Social Change: On the Origins, Style, Decline and Revival of the Law and De-
velopment Movement, 25 Am. J. Comp. L. 457 (1977); Brian Tamanaha, Review of “The Lessons of
Law-and-Development Studies,” 89(2) Am. J. Intl. L. 470–486 (Apr. 1995). For more recent litera-
ture, see Sen, supra note 21; Stephen Golub, The Commission on Legal Empowerment of the Poor:
One Big Step Forward and a Few Steps Back for Development Policy and Practice, 1 Hague J. on
Rule of L. 101–116 (2009); Pilar Domingo, Why Rule of Law Ma ers for Development (Overseas
Dev. Inst. 2009); Michael Sandel, Justice: What’s the Right Thing to Do?, 91 B.U. L. Rev. 1303
(2011); Hassane Cissé, Legal Empowerment for the Poor: Past, Present, Future, in The World Bank
Legal Review vol. 4, 31 (2012); Stephen Golub, Make Justice the Organizing Principle of the Rule
of Law Field, 1 Hague J. on Rule of L. 61–66 (2009). Recent reports on the post-2015 develop-
ment agenda are also informative. See, particularly, Delivering Justice: Programme of Action
to Strengthen the Rule of Law at the National and International Levels, Report of the Secretary-
General, U.N. Doc. A/66/749 (hereinafter Delivering Justice), and The Report of the High-Level
Panel of Eminent Persons on the Post–2015 Development Agenda, in A New Global Partnership:
Eradicate Poverty and Transform Economies through Sustainable Development (United Nations
2013), available at h p://www.un.org/sg/management/pdf/HLP_P2015_Report.pdf (ac-
cessed Aug. 7, 2013).
Conclusion 621

for basic services and entitlements by local oﬃcials. She found that in several
instances, the exposure of these infractions helped mobilize communities to
demand corrective actions, resulting in policy changes that ultimately enabled
be er access to services, entitlements, and livelihood opportunities.
In Indonesia, a recent law and justice initiative led to new laws requir-
ing courts to provide legal services to the poor and increased budgetary and
policy changes that enable women—who head almost 10 million Indonesian
households23—to access government services such as health insurance, rice
subsidies, and cash transfer payments.24 Justice sector reform was included
in Afghanistan’s reconstruction process and, as a result, more judicial insti-
tutions were built and judges and judicial oﬃcers were trained to enhance
access to justice and dispute resolution mechanisms.25 In Sierra Leone, where
delivery of health care services was impeded by corruption and mismanage-
ment, a justice reform scheme designed to increase access to justice for the
poor and social accountability has been able to train paralegals to provide
people with an understanding of what the state is supposed to provide and to
whom, as well as where pressure can be applied when the state fails. This has
empowered people by giving them the ability to demand and receive be er
health care services.26
As one reminisces on successes achieved and juxtaposes these with pre-
vailing challenges, three questions come to mind: Are we there yet? Are we
almost there? Or are we at least on the right track? Looking at the numerous
cu ing-edge technological advancements; at increased infrastructural facilities
covering various sectors, including health, education, energy, and agriculture;
and at the growth in GDPs and increased economic activities in many coun-
tries, one might believe that we are there or almost there. But smart develop-
ment looks beyond the apparent, to see how growth in tangibles translates into
be er lives for people by providing intangibles. Thus, as Escobar has noted,
early development eﬀorts can be critiqued for not looking deeper to deter-
mine whether or not people lived be er lives or were be er oﬀ than before.27
There is still no method to ensure that development eﬀorts have optimum
impact on primary beneﬁciaries—the people—and this is in part a result of
practices that hinder opportunity, inclusion, and equity. For example, as the
World Development Report 2012 shows, laws in many countries discriminate
against women, blocking opportunities for them to be er enjoy the beneﬁts of

23 Indonesian Bureau of Statistics (Badan Pusat Statistik), Statistik Gender 2009 18 (Bureau of
Statistics 2010).
24 See World Bank, Justice for the Poor, available at h p://web.worldbank.org/WBSITE/EXTER
NAL/TOPICS/EXTLAWJUSTICE/EXTJUSFORPOOR/0,,contentMDK:22906721~menuPK:79
14193~pagePK:148956~piPK:216618~theSitePK:3282787~isCURL:Y,00.html.
25 World Bank, Initiatives in Justice Reform 1992–2012 114–115 (World Bank 2012).
26 Justice for the Poor, supra note 24.
27 See Escobar, supra note 1.
622 The World Bank Legal Review

development.28 Women enjoy fewer legal protections and property rights than
men and are far more likely to work in low-paying, low-status occupations
and remain underrepresented in senior-level politics and management.29 The
rule of law index shows that many countries, especially low-income countries,
rank below average in terms of the strength of rule of law systems.30 In the
Arab Spring, most of the protests were dominated by cries for more inclu-
sion and opportunities for more equitable growth, jobs, and participation in
governance.
Based on this evidence, when one asks, Are we there yet, or are we almost
there? the answer is no. Development transcends institutions and systems;
it must include determining how institutions and systems improve people’s
lives in the form of tangible or intangible beneﬁts that only strong law and
justice institutions can help secure. This point is supported by Sen’s submis-
sion that “development requires the removal of major sources of unfreedom:
poverty as well as tyranny, poor economic opportunities as well as systematic
social deprivation, neglect of public facilities as well as intolerance or overac-
tivity of repressive states.”31
But are we at least on the right track? The answer is possibly yes, as in-
dicated by successes achieved thus far. More compellingly, the international
community is beginning to take overt actions to mainstream law and justice
into development. This is evident from the recent resolution of the UN High-
Level Meeting on the Rule of Law.32 The UN General Assembly declared that
rule of law and development are strongly interrelated and mutually reinforc-
ing. It emphasized that rule of law at the national and international levels is
essential for sustained and inclusive economic growth, sustainable develop-
ment, the eradication of poverty and hunger, and the full realization of all
human rights and fundamental freedoms, including the right to development.
Following this, as the UN Secretary-General’s report on delivering justice em-
phasizes, justice is key to economic, social, and political stability.33
The role of law and justice was further reaﬃrmed by the report of the
High-Level Panel of Eminent Persons on the Post–2015 Development Agenda.
The panel faulted initial MDG eﬀorts for not paying enough a ention to the
poorest and most excluded people as well as to the devastating eﬀects of con-
ﬂict and violence on development, stressing that the importance to develop-
ment of good governance and institutions that guarantee the rule of law, free
speech, and open and accountable government was not included, nor was the

28 World Development Report 2012: Gender Equality and Development (World Bank 2012).
29 Id.
30 World Justice Project, supra note 13, at 32.
31 Sen, supra note 2, at 3.
32 UN General Assembly, Rule of Law at National and International Levels, United Nations,
A/RES/67/97 (adopted Dec. 14, 2012).
33 Delivering Justice, supra note 22.
Conclusion 623

need for inclusive growth to provide jobs.34 The report proposed 12 universal
goals and national targets for the post-2015 agenda, highlighting the need for
strong institutions that increase participation, accountability, and access to jus-
tice while stemming conﬂict and violence.35 In the report, the 27-member panel
calls for the new post-2015 goals to drive ﬁve major transformational shifts:
• Move from “reducing” to ending extreme poverty, leaving no one behind.
• Put sustainable development at the core of the development agenda.
• Transform economies to drive inclusive growth.
• Build accountable institutions, open to all, that will ensure good gover-
nance and peaceful societies.
• Forge a new global partnership based on cooperation, equity, and human
rights.36
These developments evidence an increased willingness of the international
community to engage in and more actively pursue justice as a value, while
more ﬁrmly entrenching rule of law at the national and international levels.
Building on this trend, various chapters in this book explore the diﬀerent com-
ponents of law and justice and advance tools and recommendations on how
they can be more eﬀectively used to foster development.

Contributions of Law and Justice to Fair
and Sustainable Development
The chapters in this volume demonstrate lessons that legal scholarship and
practice can refer to, discoveries about how law and justice can contribute to a
truly sustainable development that opens opportunities in a way that is both
inclusive and equitable. In particular, three important lessons can be distilled
from the diverse themes and chapters included in this volume. First, access
to justice and rule of law can serve as a pathway for social inclusion, taking
into account progress in securing justice and rule of law reform, and in im-
proving governance through anticorruption. Second, regulatory innovation
might serve as a useful instrument to help people secure more sustainable
economic development opportunities, so that law supports economic devel-
opment that is sustainable and provides a framework for citizen engagement
in environmental protection and sustainable resources governance. Third,
legal empowerment can help secure greater equity for diverse communities
while ensuring through be er governance that the beneﬁts of social reforms
are accessed equitably.

34 A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Devel-
opment, Report of the High-Level Panel of Eminent Persons on the Post–2015 Development
Agenda 8 (United Nations 2013).
35 Id., at 30–31, 50–53.
36 Id., at 29.
624 The World Bank Legal Review

Access to Justice and Rule of Law as a Pathway for Social Inclusion
The ﬁrst lesson from this volume is that access to justice and rule of law can
serve as a pathway for social inclusion, taking into account progress in secur-
ing justice and rule of law reform and in improving governance through an-
ticorruption. This lesson is woven through several chapters, in terms of both
global and regional experiences, from countries as diverse as Jordan, Somalia,
Colombia, and India.
In Jordan, as Paul Pre itore makes clear, poor people currently face a
number of challenges in accessing justice services. “Targeting Justice Sector
Services to Promote Equity and Inclusion for the Poor in Jordan” examines the
impact on the poor of factors such as a lack of awareness of available services,
overly complicated procedures, relatively high court fees and legal costs, and
inadequate data on and analysis of the problem. Improving service delivery
to the poor will help level the playing ﬁeld in the justice sector, which is of-
ten tilted in favor of those with more ﬁnancial resources. If the poor have
greater recourse to the justice sector, Pre itore concludes, they will be be er
able to hold public sector entities accountable for nondelivery of services and
nonenforcement of rights, which will put the poor on a pathway to greater
inclusion.
The potential for law to serve as such a pathway is particularly impor-
tant when development, security, and migration are intertwined, as Emilio
C. Viano demonstrates in “The Search for Opportunity and Inclusion: Inse-
curity and Migration.” He argues that a fragile state, a failed state, a state
where insecurity is rampant and the rule of law is absent, can become the epi-
center of centrifugal forces that propel migration movements. He also notes
that worldwide concern about terrorism and the export of instability generate
centripetal forces that lead to and justify “securitizing” borders, limiting im-
migration, rejecting immigrants, and scrutinizing anyone of foreign origins.
Focusing on the security and the welfare of migrants, especially women, the
chapter explores measures and policies to avoid traﬃcking, exploitation, en-
slavement, and servitude, emphasizing the importance of respecting the rule
of law, especially international refugee law, in the countries of destination.
It suggests that law and justice, particularly improved law enforcement, can
prevent victimization of migrants on the part of the system, opening oppor-
tunities. In this way, the chapter provides evidence that law can be a pathway
for social inclusion.
Such pathways to inclusion and equity are equally important for deliver-
ing rule of law in postconﬂict societies, as two chapters about Somalia and
South Sudan conclude. In “Serving the Justice Needs of the People: Adopting
an Access to Justice Approach in Somalia’s Rule of Law Reform,” Nicholas Jo-
seph notes that access to justice is becoming increasingly important in rule of
law reform. He argues the need to direct eﬀorts to grassroots, bo om-up, and
pro-poor approaches to justice development rather than adopting a strictly
top-down approach of strengthening the state’s judicial and legal infrastruc-
ture. Learning from practice to date; analyzing Somalia’s legal, social, and po-
Conclusion 625

litical context; and assessing innovative approaches to justice reform in recent
years, Joseph discusses how the Somali government as well as interveners in
the country can focus on equity, inclusion, and opportunity in developing rule
of law cultures, rather than strengthening and often solidifying the elite status
of justice and legal institutions. These issues are further explored in an in-
sightful contribution from Vincent O. Nmehielle and John-Mark Iyi, “Nation
Building, State Reconstruction, and Inclusiveness: Issues on South Sudan as
a New State and Somalia as a Failed but Reemerging State.” As these authors
note, South Sudan and Somalia are both conﬂict zones that have experienced
decades of civil wars; the ethnic groups and clans of both states share histories
of political exclusion, social injustice, and economic inequality; and both re-
cently started out on the path of nation building and state reconstruction. The
chapter calls for the entrenchment of certain core values of governance as in-
dispensable drivers of social cohesion, political stability, and socioeconomic
development, arguing that nation-building and reconstruction eﬀorts in these
countries must be anchored on these norms. Both states must design policies
that emphasize uniting factors and ﬁnd a way to address grievances and other
structural issues that heighten group diﬀerences for any meaningful develop-
ment to take place. Taken together, these three chapters show that the law can
serve as a pathway for social inclusion in countries facing fragile and conﬂict
situations.
Equally intricate pathways can be identiﬁed for emerging economies, al-
though not all rule of law reforms are eﬀective for inclusion in all situations.
As David F. Varela and Anne e Pearson explain in “Institutional Responses
to Social Demands: Enhancing Access to Justice in Colombia,” since the 1991
Colombian Constitution created a variety of new access to justice measures,
the country has witnessed groundbreaking jurisprudence and institutional
development in many branches of the justice sector. However, a policy of ra-
tionalization for these new access options is needed, especially for vulnerable
social groups. In Colombia, changes in the way access to justice was deﬁned
led to the creation of wide-ranging programs to combat a number of barriers
that reduced access, especially for poor and vulnerable groups. Focusing on
smaller towns, especially small war-torn municipalities, where justice options
are very limited and articulation among justice services is weak, the chapter
ﬁnds that although mechanisms at the community and municipal levels avoid
many of the barriers that often limit access to justice (for example, physical
and cultural distance, legal formalism, and costs), such mechanisms are often
not suitable for enforcing the rights of vulnerable populations when there is a
clear imbalance of power among those involved in the conﬂict, particularly in
cases of violence against women and other violations of women´s rights. This
examination oﬀers an important caution as countries seek new ways to secure
social inclusion by improving rule of law and access to justice.
Indeed, as is clear in various chapters, such pathways for social inclusion
can be hijacked by governance challenges, especially corruption. For instance,
in “The Ba le between Corruption and Governance in India: Strategies for
Tipping the Scale,” Sriram Panchu and Avni Rastogi examine corruption in
626 The World Bank Legal Review

India against the backdrop of the myriad graft scandals that have erupted
over the past few decades and the Anna Hazare movement’s demand for the
institution of a strong anticorruption body—the lokpal. The chapter argues for
a focus on ﬁghting big-ticket corruption and proposes a strategy for tackling
such corruption, including the establishment of a high-proﬁle permanent au-
thority that would concentrate on the leadership of the governance structure.
Powers and procedures designed for the success of such a body are spelled
out, alongside a proposal for a separate mechanism for holding the judiciary
accountable. In both these chapters, it is clear that although law can open
pathways for social inclusion, societies must tailor their strategies, focusing
simultaneously on diﬀerent—yet embedded—levels of jurisdiction for insti-
tutional and individual transformation.
Recent experiences in addressing social inclusion through law are ex-
amined from a multilateral perspective in two other chapters. “Leveling the
Playing Field: A Race to the Top,” by Bart Stevens and Robert Delonis, starts
from the premise that the World Bank Group (WBG) and the private sector are
natural partners in anticorruption eﬀorts, given their mutual interest in fos-
tering development through opportunity, inclusion, and equity. The authors
argue that the WBG seeks to end exteme poverty through sustainable growth
and shared prosperity, and this can be achieved only with a thriving pri-
vate sector that operates in an environment of equal treatment under the rule
of law and fair competition when bidding for contracts. The chapter high-
lights three tools, developed by the WBG’s Integrity Vice Presidency (INT),
that ﬁght corruption through partnership with private ﬁrms: the Voluntary
Disclosure Program (VDP), Negotiated Resolution Agreements (NRAs), and
the Integrity Compliance Oﬃcer (ICO). By highlighting lessons learned from
the VDP, NRAs, and ICO through a case study of how they are used in INT’s
work, the chapter concludes that such programs can help replace a “race to
the bo om” of bribery with a “race to the top” in which all parties can access
and beneﬁt from inclusive, equitable competition. The utility of such multilat-
eral mechanisms for law and social inclusion is also highlighted by Kalidou
Gadio in “Fostering Opportunity through Development Finance in Africa: Le-
gal Perspectives from the African Development Bank.” With Article 38 of its
constitutive instrument expressly prohibiting consideration of noneconomic
ma ers such as “the political aﬀairs” or “the political character” of its mem-
bers, the African Development Bank is mandated to consider only economic
factors in intervention. Examining how such interventions comply with the
absolute prohibition of Article 38 in the absence of an exception, the chapter
argues that a purposive rather than a literal construction of Article 38 may
contribute to sustainable development. It suggests that a margin of apprecia-
tion could allow the bank, its president, vice presidents, oﬃcers, and staﬀ to
make innovative economic interventions in regional member countries with
minimal political considerations. In such ways, rule of law programming at
the international level can reinforce and support the eﬀorts of countries to use
law as a pathway for social inclusion.
Conclusion 627

These chapters provide an important lesson for the rule of law, justice,
and development sector. One can conclude that justice reforms can serve as a
pathway for social inclusion, although a great deal depends on ensuring access
to justice for the most marginalized actors while also improving transparency
and governance through anticorruption measures and careful reinterpreta-
tion of institutional mandates. Especially for those in the most desperate situ-
ations, such as migrants and women who have been victims of violence, the
key is to build people’s conﬁdence in justice systems at local, national, and
global levels so that all people are able to engage actively in securing rule of
law in their countries.

Regulatory Innovation as an Instrument for Sustainable Economic
Development Opportunities
A second lesson from this volume is that regulatory innovation might serve
as a useful instrument to help people secure more economic development
opportunities, whereby law supports sustainable economic development
and provides a framework for citizen engagement in environmental protec-
tion and resources governance. Certain chapters take a global or regional ap-
proach to such innovations, while others speciﬁcally examine how innovative
regulations are being activated to secure sustainable development in coun-
tries such as South Africa, Kenya, India, Brazil, and Ethiopia.
As the chapters in this volume make clear, in many developing countries,
regulatory regimes can serve to foster or frustrate economic opportunity and
sustainable development for people. Indeed, as Patricia O. Sulser and Cyril
Chern argue in “Keeping Public-Private Partnership Infrastructure Projects
on Track: The Power of Multistakeholder Partnering Commi ees and Dispute
Boards in Emerging-Market Infrastructure Projects,” expanding and improv-
ing traditional and social infrastructure and public services (such as water
and sanitation; electricity generation, transmission, and distribution; roads,
railways, ports, and airports; hospitals and clinics; schools; and prisons) are
intrinsic to sustainable economic growth and poverty alleviation. However,
the authors note, in public-private partnership (PPP) and private sector infra-
structure development projects, disputes inevitably arise during the course
of these projects, and PPP projects to date have not speciﬁed the use of con-
temporary dispute resolution methods such as facilitative mediation, dispute
boards, or conciliation, leading to high unplanned costs and delays when
disputes arise, as well as unnecessary damage to reputations and relation-
ships. The chapter proposes that stakeholders in complex multistakeholder
infrastructure projects structured as PPPs or fully private sector projects in
emerging markets adopt a culture and routine mechanism to anticipate, eval-
uate, and resolve disputes on a real-time basis through mechanisms such as
multistakeholder commi ees and standing dispute boards. By incorporating
the necessary processes into the project structure, selecting and empowering
boards, justifying cost, and maximizing eﬀectiveness, stakeholders can antic-
ipate be er results. Such regulatory innovations hold the potential to improve
economic opportunities in development.
628 The World Bank Legal Review

Reforms in the rules of insolvency can also make a contribution to eco-
nomic opportunity, as three chapters calling for innovative reforms demon-
strate. First, in “The Treatment of Insolvency of Natural Persons in South Afri-
can Law: An Appeal for a Balanced and Integrated Approach,” André Boraine
and Melanie Roestoﬀ point out that, although the South African system pro-
vides for both liquidation and repayment plans for overindebted consumer
debtors (that is, natural persons), there is no principled view and approach
regarding the treatment of the insolvency of consumer debtors in South Af-
rican law. The authors appeal to South African lawmakers to address this
weakness, providing suggestions for future insolvency law reform. Second,
as Hdeel Abdelhady argues in “Specialized Insolvency Regimes for Islamic
Banks: Regulatory Prerogative and Process Design,” there may be a need to
adopt specialized, administratively managed resolution regimes for Islamic
banks, and as Islamic banks grow in size and number, enabling legal and
regulatory environments will be required for sustainable growth. Abdelhady
argues that sharia insolvency rules must be interpreted in accordance with,
and furthering the objectives of, Islamic legal and historical views of market
regulation, which require that regulators be empowered to advance lawful
market conduct, market discipline, transparency, and consumer protection. It
is not suﬃcient to examine conventional insolvency regimes applicable only
to banks, because Islamic banking encompasses banking and capital market
activities. Taking into account the orderly liquidation framework adopted in
the United States, the chapter suggests that harmonized resolution frame-
works are required for Islamic banks, proposing a new model to address cur-
rent deﬁcits in relevant legal and regulatory environments, advance the sharia
policy of eﬀective market regulation, incorporate banking and capital market
provisions beﬁ ing the cross-market nature of Islamic banking, and advance
convergence of Islamic and conventional insolvency regimes. Third and more
broadly, in “The Role of Personal Insolvency Law in Economic Development:
An Introduction to the World Bank Report on the Treatment of the Insolvency of
Natural Persons,” José M. Garrido focuses on the Working Group of the World
Bank’s Insolvency Task Force, which completed its report on the treatment of
the insolvency of natural persons in 2013. The chapter describes the approach
taken by the report, explaining the main issues that a personal insolvency
regime needs to address in order to contribute to development and to coun-
teract the negative side eﬀects of increased access to ﬁnance. It argues that the
concept of discharge occupies a central role because it provides the possibility
for insolvent debtors to return to a productive life for their own beneﬁt and for
the beneﬁt of society as a whole. It is clear, from these three chapters, that in-
novative approaches to insolvency can secure greater economic opportunity
in development.
Chapters also explore recent experiences with regulatory innovations for
sustainable economic development, with three chapters on trade-related law
and policy innovations. In “Protecting Traditional Practices and Country of
Origin in Developing Countries through Fair Trade and Intellectual Property
Rights,” Beth Anne Hoﬀman and Charles Boudry consider legal and institu-
Conclusion 629

tional challenges and the potential for branding and trademarking products
on the international market. Examining experiences in Ethiopia, the authors
ﬁnd that the creation of coﬀee growers’ cooperatives, the production of spe-
cialty coﬀees, and accessing high-valued markets through speciﬁc labeling are
some ways that local producers in less developed countries have leveraged
the price of their products on the international market, particularly through
Fair Trade certiﬁcation. They demonstrate that Ethiopia’s legal and policy re-
sponses, particularly through branding and trademarking coﬀees on the inter-
national market, were able to bolster coﬀee exports, explaining the challenges
and the potential of these innovations to open economic opportunities for
more sustainable development. In “Tools for More Sustainable Trade Treaties
with Developing Countries,” Markus W. Gehring proposes that the applica-
tion of impact assessments to development policies and plans such as trade
agreements be expanded to take into account not just physical environmental
issues but also questions of equity, inclusion, and opportunity. With a focus on
the European Union’s sustainability impact assessment (SIAs), he argues that
such processes might identify and encourage more sustainable trade treaties
with developing countries. He highlights the connections among law, policy,
and development, demonstrating that, to serve as a useful tool for fostering
development opportunities through inclusion, SIAs could be expanded from
nation-states and trading blocs to multilateral approaches, for example in the
trade policy review mechanism of the World Trade Organization. Such trade
law innovations provide challenges and opportunities for sustainable devel-
opment, as is clear in “The Role of Law in the Green Economy: Challenges and
Opportunities for the Liberalization of Environmental Goods and Services,”
by Fabiano de Andrade Correa. The chapter shows that trade can be a driver
in the transition to a green economy by helping to create and strengthen mar-
kets for environmental goods and services (EGS). In the global context of the
frozen WTO Doha Round, the chapter draws a ention to the Asia-Paciﬁc Eco-
nomic Cooperation and to recent trade agreements concluded by the Euro-
pean Union and argues that although the inclusion of EGS liberalization in a
regional context can provide a building block for this issue to move forward
and incentive for the transition to a green economy, there may still be a need
to design a multilateral framework regulating this issue. As the three chap-
ters explain, although regulatory innovations may help transform economic
growth into sustainable development, international processes must take such
innovations into account for trade law and build on them.
The need for legal innovations to ensure that the green economy is inclu-
sive and equitable is analyzed by Marie-Claire Cordonier Segger and Yolanda
Saito in “Innovative Legal Measures for Climate Change Response in the
Green Economy: Integrating Opportunity, Inclusion, and Equity.” As the au-
thors eloquently explain, while “the future we want” that was envisioned by
the 2012 United Nations Conference on Sustainable Development calls for a
new green economy that responds to pressing priorities of poverty eradication
and climate-compatible sustainable development, at national and local levels,
in diﬀerent countries and legal systems, existing regulatory frameworks favor
630 The World Bank Legal Review

the old ways of doing business in spite of growing evidence of their unsus-
tainable character. The authors recommend that for a greener economy to
take root, participatory legal and institutional reforms are needed, opening
new economic opportunities for all. Indeed, innovative legal instruments are
being pioneered in many countries. To be just and implementable, however,
these reforms must address questions of inclusion and equity, ensuring that
the most poor and vulnerable can access the beneﬁts of the new global green
economy.
A regulatory innovation for achieving environmental protection for more
sustainable development is discussed in several chapters, including “The
Constitutional Basis of Public Participation in Environmental Governance:
Framing Equitable Opportunities at National and County Government Levels
in Kenya,” by Robert Kibugi. Recognizing that the 2010 Constitution of Kenya
frames public participation and sustainable development as binding values of
governance, and that various provisions of this law, if innovatively interpret-
ed, present viable legal and administrative opportunities to expand space for
equitable public participation in environmental decision making, the chapter
distills pathways that enhance public participation, including through de-
volved county government legislative and administrative authority. It also
looks forward, proposing several legal and administrative measures to en-
hance existing laws or to adapt them speciﬁcally to environmental decision
making. The utility of public participation, as a legal norm, depends on the
potential for practical implementation. Such structural challenges, and the
ability of regulatory innovation to enable more eﬀective responses to emerg-
ing global and national challenges, are also evident in the insightful contribu-
tion by N. R. Madhava Menon, “Toward a National Framework Law on Water
for India.” The chapter explains that, for 1.3 billion people in India who are
dependent on seasonal rains and on interstate rivers, management of water
resources has been a contentious issue in federal relations. Menon points to
a series of Indian Supreme Court judgments that recognize a right to water
and that read it into the guaranteed right to life and liberty, thereby placing
an obligation on the state to provide unpolluted drinking water to the people.
Menon notes that the Constitution of India gives the states (provinces consti-
tuting the Union of India) the authority to legislate on water and assigns to lo-
cal bodies the power to implement schemes to provide water; the only power
that resides with the central (federal) government is the regulation of inter-
state rivers and river valleys. The scheme of distribution of powers of water
management to the three levels of government has not been able to secure sus-
tainable use and management of water in accordance with a new national wa-
ter policy. Highlighting current a empts to legislate a framework law that es-
tablishes principles and procedures in water use and management binding on
all three levels of governments, the chapter underscores how, in an emerging
crisis in water availability and governance, such a law might be adopted and
eﬀectively implemented. Both chapters demonstrate how national-level legal
innovations can transform development toward sustainability in emerging
economies and highlight the need for a tailored and country-speciﬁc approach.
Conclusion 631

Some chapters in this volume examine advances and innovations in urban
planning laws and institutions. In “Planning Laws, Development Controls,
and Social Equity: Lessons for Developing Countries,” Rachelle Alterman
considers mandatory planning laws. She argues that planning regulations
and development controls enacted in developing countries are often modeled
on equivalents in advanced-economy countries, and considers whether plan-
ning regulations contribute to social justice or exacerbate social disparities.
She concludes that decision makers in developing countries—or representa-
tives of aid organizations—should assess proposed planning laws and instru-
ments carefully before suggesting transplantation from an advanced economy
to a developing one. Developing countries might consider a “back to basics”
approach, adopting graduated strategies for introducing planning laws and
regulations and being cautious with layers of planning regulations. In “The
Challenges of Reforming the Urban Legal Framework: A Critical Assessment
of Brazil’s City Statute 10 Years Later,” Edesio Fernandes provides a critical
assessment of the enforcement of Brazil’s 2001 City Statute. The chapter dis-
tills the real, as well as false, expectations around newly approved urban laws
in other countries. Considering the design of new urban laws governing land
rights and management, territorial organization, planning, and housing, Fer-
nandes explains what can be expected of these new urban laws in rapidly
urbanizing countries and what is required for them to be fully enforced for
social eﬀectiveness. Calling a ention to the broader sociopolitical process,
the chapter provides an innovative and critical analysis of the nature, pos-
sibilities, and constraints of progressive urban laws. In “Land Use Law and
the City: Toward Inclusive Planning,” Ma hew Glasser introduces the instru-
ments by which the law aﬀects development outcomes in cities. He explains
that when the law prescribes standards or processes that are impractical and
inappropriate for a substantial portion of the population, it divides the city
into a formal sector for those who can comply and an informal sector for those
who cannot. Those living outside the law cannot claim its protection; they are
vulnerable to eviction, conﬁscation of their property, and destruction of their
homes and investments and are largely without recourse. However, in some
places, laws expressly legitimize density that provides the poor with aﬀord-
able access to the city, jobs, and other opportunities. The chapter highlights
key court decisions from developing countries that have protected the rights
of those living in informal se lements, concluding by noting that good urban
law must consider aﬀordability and the importance of access to the city.
In all three chapters, it is clear that by avoiding unnecessary complexity in
urban planning laws and taking an approach that focuses on securing inclu-
sion through accountability and voice, regulatory innovations can help secure
development that is more sustainable and more equitable. The message that
ties these chapters together, across sectors and across regions of the world, is
that regulatory innovation has a role to play in enabling people to secure more
sustainable economic development opportunities. At national and global lev-
els, innovative legal measures, including carefully designed mechanisms for
transparency and citizen participation, can support more sustainable economic
632 The World Bank Legal Review

growth, whether through new forms of public-private partnerships, culturally
appropriate ﬁnance and insolvency regimes, fair trade and intellectual prop-
erty protections, sustainability assessment of trade negotiations, liberalization
of environmental goods and services, public participation, environmental
governance techniques, legal preparedness for climate change and the green
economy, interjurisdictional water governance, or pro-poor urban planning.
The diﬀerence between success and failure often depends on transparency
and inclusion and whether interventions are appropriate; tailored speciﬁcally
for the needs of stakeholders and to the national environmental, social, and
economic context; and locally owned by those who implement them.

Legal Empowerment as a Means to Secure Greater Equity
The third lesson from this volume is that legal empowerment can provide a
means to secure greater equity when citizen ownership of and engagement
with the law, policy, and institutions play a role in securing empowerment
and equity for diverse communities, while ensuring through be er gover-
nance that beneﬁts of social reforms are accessed equitably. Several chapters
highlight this message.
Legal empowerment can help secure greater equity for those struggling
with law and policy frameworks. In “Enabling Equal Opportunities for Women
in the World of Work: The Intersections of Formal and Informal Constraints,”
Jeni Klugman and Ma hew Morton highlight how multiple constraints in
markets, institutions, culture, and households reinforce gender inequalities,
including in the world of work. Legal discrimination presents one important
barrier, although legislative reforms can also be thwarted by implementation
challenges, notably poor information, adverse social norms, and institutional
biases. The chapter reviews key legal constraints that reinforce gender dis-
parities in jobs, as well as the ways in which informal constraints can inhibit
well-intended legal reforms from increasing women’s economic opportunities
and advancement. It concludes that various types of legal reforms and com-
plementary policy eﬀorts are needed to redress gender gaps in the world of
work. By engaging with women to take down legal and informal constraints,
thereby improving governance, reformers could secure greater equity.
The need for political as well legal empowerment to bring about greater
equity is highlighted in “Mainstreaming the Marginalized in Development:
Conceptualizing the Challenges in India,” by Pulapre Balakrishnan. The chap-
ter argues that capability is at the core of the nexus between freedom, oppor-
tunity, and development, and hence the marginalized in a society are those
who lack the capabilities enjoyed by the mainstream. Although India’s consti-
tution is in many ways impressive, Balakrishnan points out that its provisions
are, on their own, inadequate to the task of mainstreaming the marginalized.
In two chapters linking law, health, and development, policy change, le-
gal empowerment, and institutional strengthening are highlighted as crucial
for inclusion and equity, alongside the need for enabling legislation and its en-
forcement. In “The Role of Law in Promoting the Right to Health for Diverse
Conclusion 633

Communities,” David Pa erson, Elisa Sla ery, and Naomi Burke-Shyne note
that health is a human right under international law and many national con-
stitutions. However, as the authors explain, discrimination and stigma, as well
as weak legal and regulatory frameworks, are major impediments to realizing
the right to health. The law can be used to secure the right to health in the con-
text of infectious diseases such as HIV, as well as noncommunicable diseases
such as cancer and diabetes, for diverse communities, including people with
disabilities, women, and sexual minorities. Examples include ensuring that
intellectual property laws allow access to aﬀordable medicines and reducing
health threats from counterfeit drugs and drug theft. The chapter concludes
that an enabling legal environment is essential to the protection and pro-
motion of the right to health for diverse communities. Focused on a speciﬁc
developing country example in “The Right to Health and Development: The
Case of Uganda,” Siobhán McInerney-Lankford and Moses Mulumba argue
that improved health is both a factor and an outcome of sustainable develop-
ment. They explore the right to health as a development priority and the role
of the law in advancing it, particularly for the poorest and most vulnerable
in developing countries. The right to health is an example of the convergence
between human rights and development, and the authors consider the ways
in which the respect, protection, and fulﬁllment of human rights can help se-
cure conditions for people to live in dignity. This chapter builds on the grow-
ing body of literature asserting the centrality of the right to health in shaping
health policy and the delivery of health services around the world. It draws on
the legal content of the right to health to suggest ways in which human rights
can add value to development policies and programs.
Education, as well as health, is raised as a key ﬁeld in which legal em-
powerment is needed to secure equity and inclusion in “Fighting Corruption
in Education: A Call for Sector Integrity Standards,” by Mihaylo Milovano-
vitch. As a high-stakes sector, education is increasingly vulnerable to corrup-
tion, and there is a need to “translate” international anticorruption standards
into sector standards of integral behavior in education. The chapter urges the
adoption of a more sector-speciﬁc prevention approach that targets not only
criminal oﬀenses but also softer, yet equally harmful, forms of corruption,
calling for a cross-border agreement on what constitutes malpractice in educa-
tion. In essence, the chapter proposes both ways to improve regulatory frame-
works for education in order to achieve greater equity and means to increase
citizen accountability through law and governance reforms.
Similarly, in encouraging small business’s access to information, justice
and empowerment can play a role. In “The World Bank Group Sanctions
System and Access to Justice for Small and Medium-Size Enterprises,” Frank
Fariello and Giovanni Bo examine the challenges of inclusion for small and
medium-size enterprises (SMEs) in the context of a recently concluded pre-
liminary review of the World Bank sanctions system that found that the ma-
jority of respondent SMEs are simply not engaging with the system, during
adjudication or in the rehabilitative process that is meant to follow sanction-
ing. This chapter also ﬁnds that the World Bank’s sanctions system might be
634 The World Bank Legal Review

facing challenges in access to justice and suggests ways to make the system
more accessible to low-capacity respondents.
Three inspiring pieces discuss new legal empowerment tools for inclusion
and equity. As noted by Sean Fraser in “The Role of Access to Information
in Promoting Development,” although the right to development has gained
acceptance among states and scholars, its practical implementation has been
underwhelming in comparison to its vast potential. The failure to maximize
the beneﬁts of the right to development is due, at least in part, to the inacces-
sibility of information that groups and individuals can use to promote and
protect their human rights. In exploring the status of the right to development
in international law, the chapter discusses the obligations associated with the
right to development and the parties who bear duties of implementation and
demonstrates how access to information can promote the realization of the
right to development, drawing on decisions of various domestic courts and
international human rights bodies. By addressing the obstacles that face the
successful implementation of access to information laws, the chapter con-
cludes that it is possible to maximize the free ﬂow of information, which will
improve the day-to-day lives of individuals and peoples around the globe.
In “The Right to Information as a Tool for Community Empowerment,”
by Anupama Dokeniya, right to information laws are proposed as potential
tools for community empowerment. Dokeniya highlights cases from India and
Mexico in which communities in rural and extremely poor regions were able
to use right to information as a tool to expose pilfering of resources meant for
basic services and entitlements by local oﬃcials. In several instances, the expo-
sure of these infractions mobilized communities to demand corrective actions,
resulting in changes in policies. However, in other countries, the existence of a
right to information law has been of li le use because of low awareness, weak
civil society groups that play an essential role as intermediaries and mobiliz-
ers in accessing information, and low capacity and high unwillingness in local
government oﬃcials to release information. Incentives are aﬀected by the dis-
closure of information—through the threat of reputational or ﬁnancial sanc-
tions or the loss of elections or employment—and the relationship between
access to information, accountability, and development outcomes is complex.
In “Private Civil Actions: A Tool for a Citizen-Led Ba le against Corrup-
tion,” William T. Loris argues that the ﬁght against corruption can be expanded
and invigorated by providing ordinary citizens and legal entities a clear legal
framework for the pursuit of private civil actions against corruption. He pro-
poses a three-point conceptual framework of how civil actions may serve as
an additional weapon in the anticorruption arsenal by providing for speciﬁc
remedial and recovery measures, empowering victims of corruption, and en-
gendering social transformation around real cases on which media and civil
society can focus. To support the three points, Loris advocates the develop-
ment of regional conventions under which signatory states would expand
their obligations under the UN Convention Against Corruption by commit-
ting to establish and implement a legal framework for private actions against
Conclusion 635

corruption and including features similar to those in the Council of Europe
Civil Law Convention on Corruption.
As demonstrated by these chapters on the right to information and the
potential for civil action, legal empowerment techniques are not just helpful
in ensuring the right to development and greater equity for women and disad-
vantaged groups in diﬀerent sectors of social policy, such as labor, education,
and health. They can also improve the quality of governance itself, opening
space for small enterprise, ensuring access to information about development,
ﬁghting corruption, and securing community engagement in the develop-
ment process.

Designing a Smarter Law and Justice Framework for Development
Despite the unprecedented eﬀorts that have been made in achieving develop-
ment goals in the past two decades, the majority of people are not yet able to
enjoy the beneﬁts of development. Weak or broken laws and justice systems
disempower the poor or otherwise prevent them from exercising those basic
rights and beneﬁts so far achieved. The Commission on Legal Empowerment
of the Poor reported in 2008 that about 4 billion people are impoverished as
a result of their exclusion from the protection of the law.37 As various chap-
ters in this book demonstrate, weak governance, conﬂict and violence, ineq-
uity, and exclusionary policies or implementation of such policies all hinder
meaningful and optimum impact. The vulnerable in a society bear the brunt of
these hardships.38 The value of whatever progress is made is therefore limited
to the extent that these vices and challenges remain. There is a great deal more
to be done in this regard, and much depends on the approach used.
What, then, is a be er, smarter, and wiser approach to development than
the one we have tried in the past? As noted, this volume oﬀers three impor-
tant lessons. First, access to justice and rule of law can become a pathway for
social inclusion, although a great deal depends on progress in securing justice
and rule of law reform and on improving governance through anticorruption.
Second, regulatory innovation that is tailored to speciﬁc conditions can help
countries secure more sustainable economic development opportunities so
that law supports sustainable economic development and provides a frame-
work for citizen engagement in environmental protection and sustainable

37 See Making the Law Work for Everyone: vol. 1, Report of the Commission on Legal Empowerment of
the Poor 3 (Commn. on Leg. Empowerment of the Poor 2008).
38 Assessing the early impact of development eﬀorts, Escobar found that “wherever one
looked, one found the repetitive and omnipresent reality of development: governments de-
signing and implementing ambitious development plans; institutions carrying out develop-
ment programs in the city and countryside alike, experts of all kinds studying underdevel-
opment and producing theories ad nauseam. The fact that people’s conditions not only did
not improve but deteriorated with the passing of time did not seem to bother most experts.”
See Escobar, supra note 1, at 5. This observation is only partially true today—especially be-
cause development has appreciably impacted and improved the lives of many—but it re-
ﬂects some of the lapses or gaps in contemporary eﬀorts because a vulnerable part of society
remains either excluded or unable to adequately beneﬁt from progress made.
636 The World Bank Legal Review

resources governance, although a great deal depends on enabling local and
international contexts. Third, legal empowerment can provide a means to se-
cure greater equity when barriers are taken down and diverse communities
gain empowerment and equity, while ensuring through be er governance
that beneﬁts of social reforms are accessed equitably.
In considering the question of what is a be er, smarter, and wiser ap-
proach, three things should guide us: the values we must pursue to secure the
outcomes we desire; taking stock of past eﬀorts in order to learn what works
and what does not and in what context; and the application of tools that can
help achieve be er outcomes and turn ideals and aspirations into reality. To
get to this point, law and justice must play an enhanced role.
This book could not have come at a more critical or appropriate juncture.
At this writing, the international community is in the process of designing a
post-2015 development agenda that will guide and inform future directions
in achieving the MDGs.39 In relation to this, Jeﬀrey Sachs, the special adviser
to the UN Secretary-General on the MDGs, has proposed four pillars for the
post-2015 goals: an end to poverty in all its forms; an environmental agenda
including climate change; improved governance; and social inclusion and eq-
uity. The post-2015 agenda will also involve aligning the MDGs and Sustain-
able Development Goals (SDGs), as per the 2012 United Nations Conference
on Sustainable Development Rio+20 outcome document, The Future We Want.40

Future Directions: The Justice Lens of Development
The world has reached a redeﬁning period in history. Borrowing the words of
former UN Secretary-General Koﬁ Annan, we are in the process of “rebuilding
the fabric of modern life.”41 Thus, as Marie-Claire Cordonier Segger and C. G.
Weeramantry have argued:
a very important aspect of this fabric of modern life is found in our
evolving laws and justice systems. These systems are intricately
woven upon the shared values, morals and ethics of [an] increas-
ingly interconnected and interdependent world. Among the shared
values, there is found a growing sense of respect for the common
interest of all, a sense of responsibility for our common future. This

39 In July 2012, the UN Secretary-General appointed a 27-person High-Level Panel of Eminent
Persons on the Post–2015 Development Agenda to hold consultations and provide indepen-
dent analysis and recommendations on the process. Post-2015 thematic consultations have
covered inequalities, health, education, growth and employment, environmental sustain-
ability, governance, conﬂict and fragility, population dynamics, hunger, food and nutrition
security, energy, and water in more than 55 countries that involve youth, women, children,
labor groups, and civil society and aim to broaden participation in the post-2015 discus-
sions. An overview of the post-2015 agenda can be found at h p://www.un.org/millennium
goals/beyond2015-overview.shtml.
40 Rio+20 Outcome document, The Future We Want, available at h p://www.un.org/en/sustain
ablefuture.
41 Koﬁ Annan, speech delivered at the World Summit on Sustainable Development (2002).
Conclusion 637

responsibility, in certain instances recognized as a duty, engenders
special a ention to the needs of the most vulnerable and voiceless,
especially the world’s poor.42
A justice dimension should illuminate and guide future eﬀorts because, as
potent as the law is, it will take us only partway.43 Hence, it is also necessary
to approach development using a justice lens. By its very nature, justice em-
phasizes both “fair treatment and fair results,”44 ensuring a people-centered
approach that transcends institutional setups.45 It is a strand that cuts through
every fabric of society, and when matched with law, justice can unlock endless
possibilities for sustainable development outcomes and meaningful impact.
This justice lens triggers a new set of questions to be asked in the design
and implementation of every development project. First, will the outcomes be
both just and equitable, and will they be perceived as such by intended beneﬁ-
ciaries? Second, will the development processes, strategies, or tools help lead
to such outcomes, and can they be sustained over the long term? And third, are
voice, social contract, and accountability mechanisms systematically woven
into the process in a manner that gives people an opportunity to participate in
such a process and enjoy accruing beneﬁts? Voice ensures that all stakeholders
are heard and that there is the right scope of participation and degree of mean-
ingful consultation. Social contract ensures the full and fair deﬁnition of the
rights and obligations of parties and provides for the equitable sharing of
economic beneﬁts and social protections. Accountability mechanisms allow
intended beneﬁciaries to provide feedback, hold relevant actors up to their
responsibilities, and enforce their rights with adequate remedies when their
expectations are not met or when there is a failure to deliver. Ultimately, a
justice lens will inspire a more people-oriented approach that, if it is designed
and implemented appropriately, can make a diﬀerence in the quality and ef-
fectiveness of sustainable development outcomes.

42 Introduction to Sustainable Justice: Implementing International Sustainable Development Law, in
Sustainable Justice: Reconciling Economic, Social and Environmental Law 1–2 (Marie-Claire Cor-
donier Segger & C. G. Weeramantry eds., Martinus Nijhoﬀ 2005).
43 See also Golub’s submission on the limitations of rule of law as an organizing principle in
Make Justice the Organizing Principle of the Rule of Law Field, supra note 22.
44 Id.
45 Sen, supra note 21, at 18.
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Afterword
IRENE KHAN
DIRECTOR-GENERAL
INTERNATIONAL DEVELOPMENT LAW ORGANIZATION

The rule of law is an essential pillar for fostering development, whether in
countries emerging from conﬂict, striving towards economic recovery, or
seeking to enhance economic growth. Yet, around the world we see a deep
disconnect between the formal mechanisms of the rule of law and people’s
lived experience of justice and equity, and we hear a rallying cry for human
rights and human dignity for all.
The message is clear: sustainable development and economic growth
must be based upon principles of equity, empowerment, inclusion, and full
participation.
This volume of The World Bank Legal Review comes at a timely moment.
The themes explored in the Review highlight the urgency and complexity of
some of the more pressing development challenges facing our world today:
climate change, energy and food insecurity, great disparities among people
in ge ing fair access to natural resources, unfair trade rules and regulations,
seemingly intractable conﬂict and political instability, chronic job insecurity,
and population displacement. The contributors to this volume point to inter-
esting and innovative ways in which states, civil society, and businesses can
use the rule of law to bring about sustainable, inclusive, and equitable eco-
nomic growth and development outcomes.
As many contributors emphasize, if state institutions, laws, policies, and
practices are to be eﬀective and sustainable drivers of economic development,
they must be based on solid principles of justice, equality, and nondiscrimi-
nation. Poverty eradication and the reduction of social and economic inequality
require profound, human-centered, and sustainable social and economic trans-
formation based on rule of law frameworks that ensure inclusion, equity, em-
powerment, and participation.
Traditionally, the focus of justice sector development has tended to be
almost exclusively on state actors and institutions, but increasingly the world
has come to realize that citizens, civil society, and private actors play a key
role in supporting, promoting, and—most importantly—demanding trans-
parency, accountability, equity, and human rights, which are the bedrock of
good governance and the rule of law. More and more, successful and sustain-
able development initiatives are combining measures to strengthen institu-
tions and legal systems with initiatives to promote equitable participation and
empowerment of individuals, groups, and communities.
639
640 The World Bank Legal Review

The World Bank Legal Review presents some encouraging and interesting
examples of innovative legal practices, from tackling corruption to leveling
the playing ﬁeld for business, to protecting traditional practices through fair
trade and intellectual property rights, to empowering women, minorities, and
people with disabilities, to designing locally owned legal solutions to tackle
climate change and promote the green economy.
This volume is more than a summary of practical experiences and aca-
demic analyses. It is a reminder that fostering development through opportu-
nity, inclusion, and equity is not only about eﬀective policies and institutions;
it is also about promoting a culture of justice based on the rule of law. As we
move forward, that need to ensure justice for all must guide the international
community’s endeavors to set the post-2015 development agenda.
Index
Aarhus Convention, 200, 300, 311, 317, 604 African Commission, 202
Abdulmultallab, Umar Farouk, 217 Model Law on Access to Information in
access to Africa, 203
assets, 512 African Convention on the Conservation of
credit, 113–114, 120 Nature and Natural Resources, 311
education, 368, 371, 379 African Development Bank, 402, 626
ﬁnancial resources, 254 African Development Report, 2008/2009, 475
genetic resources, 50 Agreement Establishing the AfDB, Article
health services, 546 38, 453–479
high-value markets, 41–42, 58 Cooperation Agreement with the
information, 248 Government of South Sudan, 474
justice (See Access to justice) Governance Strategic Directions and
land, 44 Action Plan, 478
legal services, 249 operations in South Sudan, 473
medicines, 536 operations in Tunisia, 476
oﬃcial documents, 203 Policy on Good Governance, 478
public services, 330, 336 Presidential Directive No. 3, 475, 479
access to justice, 616, 619, 623–626, 635 Ten-Year Strategy, 453, 468, 470–471
barriers to, 166, 175, 176, 179, 182, 183, African Development Fund
186–187, 245 453
concept of, 166–168 African Peer Review Mechanism, 495
fast-track actions, 166–167, 186, 188 African Protocol, 510
vulnerable groups, 185 African Union, 267, 475, 495, 500. See also
acción de cumplimiento, 167 Organization of African Unity
acción de grupo, 167 High-Level Implementation Panel, 473–474
acción de tutela, 167–168, 173 African Union Mission in Somalia, 488
acción popular, 167 Afro-Colombian communities, 168, 175,
accountability mechanisms, 639 185–186
Adarsh Housing scam (India), 383 Agreement for Mutual Enforcement of
Addis Ababa, 57 Debarment Decisions, 472
Addis Ababa Accord, 492 Agreement on Trade-Related Aspects of
adjudication, in dispute resolution, 32–36 Intellectual Property Rights. See
administrative justice agencies, 169 TRIPS Agreement
ADR. See Alternative dispute resolution agricultural laborers, 304
AfDB. See African Development Bank (AfDB) agricultural production, 302
aﬃrmative action, 167, 186 agricultural products, and intellectual
aﬀordable housing, 330, 344, 346, 351–352, 357 property rights, 45–50, 51
Afghanistan, 621 aid agencies, 496
Africa, 355. See also speciﬁc countries AIDS paradox, 526–527
development models, 485 Akin-Olugbade, Adesegun, 463
migration from, 218 Al Qaeda, 267, 500
morphine consumption, 539 Al Shabab, 267, 488, 496
securitization of migration, 217 Albright, Madeleine, 266
Africa Fighting Malaria (NGO; South Africa), Algeria, 220
538 alimony, 246, 251, 253–254, 260
African Charter, 200, 312 Alma-Ata Declaration, 563
Declaration of Principles on Freedom of alternative dispute resolution, 29–31, 34–35
Expression in Africa, 203 167, 169, 170, 178–182. See also
African Charter on Democracy, Elections, and Dispute resolution
Governance, 478 alternative justice mechanisms, 165, 178
African Charter on Human and Peoples’ Amazon region, 282, 289
Rights, 445–446 Ambedkar, B. R., 7

641
642 Index

ambiguity, legal, 355 Berlin, Isaiah, 583, 587
American Convention on Human Rights, 200, Bien Mals Acquis cases (France), 437, 449, 451
446 binding vs. nonbinding decisions, in dispute
and deforestation in Chile, 200 resolution, 36n38, 39
Amnesty International, 219, 225 Bofors scam (India), 383
Angola, 489 Bolshevik Revolution, 333
governance, 468 border control policy, 225–226, 229
Anguko, Jennifer, 578 border guards, human rights training, 229
Annan, Koﬁ, 636 border security, 624
anticorruption, 490, 621, 625–626, 635, 636. See Boston, 23
also Corruption boundary disputes, 488
anticorruption ombudsman (oﬃce; India), 389 Bourdieu, Pierre, 583
Antrix Devas deal (India), 383 brands and branding, 55–56
appellations, 48 Brasilia 100 Regulations Regarding Access to
Arab Spring, 8, 218, 617, 621 Justice for Vulnerable Groups, 168
Arabization, 498 Brazil, 169, 220, 279–291, 356, 358, 360–361,
arbitration, in dispute resolution, 24–25, 364, 600, 627
28–30, 28–37 Belo Monte Dam project, 211–212
architectural rules, 340 City Statute (2001), 279–291, 358, 360, 364,
architecture, 340 633
Argentina, 212, 600 inclusive public policy, 581
Center for Legal and Social Studies, 609 legal culture, 287, 290
Arizona, migration law in, 225–228 National School Feeding Programme, 304
Arpaio, Joe, 227–228 São Paulo, 287
Article 38. See African Development Bank: technocratic perception of urban planning,
Agreement Establishing the AfDB 288
Asia-Paciﬁc Economic Cooperation agreement traditional perception of the state, 288
(2010), 147, 154, 160 bribery, 368, 405
Honolulu Declaration, regarding EGS, 153 bridge banks, 144–145
Asian Development Bank, 232, 402 British Australasia Limited and Ors v.
Assistance of Populations Displaced by Commonwealth of Australia, 532
Violence, 186 British Empire, 336, 492
association agreements (AAs), 155–156 British Somaliland, 490–491
Auditing Organisation for Islamic Financial building codes, 332, 335–336, 340, 341, 344–345
Institutions (AAOIFI), 132–133 building rights, 286
Auditor General (India) Bujagali Dam (Uganda), 205
role in anticorruption activities, 388, 391 Bulgaria, implementation of UNCAC 35, 445
Australia, 212 burden of proof, in corruption cases (India),
Austria 394
planning law, 337 bureaucracy, 288
automation of justice sector functions, 247– Burg, Elliot, 615
248, 261 Burundi, 489
awareness campaigns, government-
sponsored, 52 Caixa Econômica Federal, 284
Cambodia
Bangladesh, 237, 303 awareness of women’s rights, 515
right to information in, 606 Campaign for Participatory Master Plans, 287
Bank of Experiences (case study database), Canada
282–283 Cabinet Directive on Strategic
Banking Act (Great Britain), 127 Environmental Assessment, 81
banking regulations, 131 envioronmental impact assessments, 86
benami property, recovery of in corruption ﬂexibility laws, 513
cases (India), 394 Framework for Conducting Environmental
Benami Transactions Prevention Act (India), Assessment of Trade
388 Negotiations, 82
Bengal Irrigation Act (1873), 238 migration, 226
Index 643

zoning bylaws, 332 public investment in health and education,
Canadian Environmental Assessment Act, 588
81–82 Cissé, Hassane, 457
Canary Islands, 218 cities
Cancun Agreements, 299 division of into sectors, 354
capacity building informal sector, 355
in Fair Trade, 43, 56, 60 Cities Alliance, 280
in intellectual property rights, 54, 56, 60 citizen empowerment, 334
capitalism Citizen’s Grievance Redressal Bill (India), 389
managerial vs. entrepreneurial, 586–587 City Statute (2001). See Brazil: Brazil: City
carbon credits and taxes, 299–303 Statute (2001)
carbon ﬁnance, 402 civil disputes, 253
Caribbean Forum, 155 civil law, 250, 252
Cartagena Protocol on Biosafety to the civil protection law, 283
Convention of Biological Diversity, 50 civil society organizations, 246, 248, 258, 496
Carter, Jimmy, 509 civil war, 487, 492, 497, 624
casas de justicia, 170, 173, 174, 175, 176, 177, clan system, 491, 494, 496, 502
181, 187 Claude Reyes and Others v. Chile (Chile), 201
Caucasus, 367 Clean Development Mechanism, 303
CCII Systems Ltd. v. S. A. Fakie NO and Others climate change, 293–305
(South Africa), 204 climate ﬁnance, 293–294, 297–298, 303
cell phones, 220 Clinton, Bill, 79
Center for Decentralizing Judicial Services, Coalgate (India), 383
181 coﬀee
Central America as a specialty commodity, 41–42, 52–54
migration, 214 Harrar, 41, 48, 51–53, 55
trade agreements, 158–159 Limu, 55
Central American Free Trade Agreement Nekemte, 55
(CAFTA), 80–81 Sidamo, 41, 51–53, 55
Central Artery/Tunnel (Big Dig), 23 Yirgacheﬀe, 41, 51–52, 55, 57
Central Bureau of Investigation (India), coﬀee industry, 41–42, 45, 50–54, 57–61, 628
387–388 Collier, Paul, 475
Central Groundwater Authority, 236 Colombia, 165–188, 617
Central Vigilance Commission (India), 388 access to justice in, 165–188
Centre for Advanced Corporate and as a weak state, 489
Insolvency Law (South Africa), 108 awareness of women’s rights, 515
Centre for Media Studies (India), 382 Corporación Excelencia en la Justicia
centros de convivencia, 174, 177 study, 172–174
certiﬁcation marks, 46–47 equity conciliators, 167, 173, 176, 177, 178,
Champagne, 48 181
Channel Tunnel, 23 free trade agreements, 158
Chidambaram, Palaniappan, 588 personal insolvency regimes, 126
Chief Election Oﬃcer (India), role of in Colombia-Peru Free Trade Agreement, 158
anticorruption activities, 391 Colombian Family Welfare Institute, 183
child labor, 59 Colombian Judicial Superior Council, 169
child support, 246, 253–255, 258 colonialism, 355, 487–490, 492
Children and Adolescent Code, 176 comisarías de familia, 174, 175, 183–185
children, and migration, 224 Commission of Experts for Justice Reform,
Chile 165–166, 176, 187
deforestation, 201 Commission on Administrative Justice Act
China, 34, 237, 241 (Kenya), 320
displacement of farmers in, 212 Commission on Centre-State Relations, 231,
HIV/AIDS legal services, 543 235, 241
Internet access, 199 Commission on Growth and Development,
planning law, 334, 348 619
644 Index

Commission on Legal Empowerment of the construction industry, 26, 30–31n24, 33
Poor, 266, 635 interpretation of, 27–28
Commission on Macroeconomics and Health, PPPs, 31, 38
524 public procurement, 32n28, 33–34, 34–
Commi ee on Economic, Social, and Cultural 35n35
Rights, 548–549, 551, 553, 563–564, 569 standardization, 33–34
commodiﬁcation of cities, 285 Convention on Environmental Impact
commodities, specialty, 41–42, 57 Assessment in a Transboundary
communications technology, 214–215, 220 Context. See Espoo Convention
Communist countries, and planning laws, Convention on International Trade on
333–334 Endangered Species (CITES), 158
community empowerment, 636 cooperatives, 43, 50, 56–57
Community Justice Network, 177 Copyright and Neighboring Rights Protection
Community Land Titling Initiative (Somalia), Proclamation, 50
271 Corporación Excelencia en la Justicia, 172–174,
community representation, in PPPs, 30, 37, 39 178
community-based organizations, 303 Corporación Excelencia en la Justicia, 178
community-based resource management, 303 corporate integrity compliance, 413
compliance communities, 413 corruption, 285, 399, 403–404, 407, 411, 625. See
Comprehensive Peace Agreement (2005; also Anticorruption
Sudan), 493, 502 compared with malpractice, 375
Comptroller (India) deﬁnition, for educational sector, 377
role in anticorruption activities, 388, 391 prevention of, 374–377
conciliation centers (Colombia), 173–174, 178 Corruption Perception Index, 371
conditional release process, 412–413 Costa Rica
Condominium system, 492 equal treatment laws, 512
Conference of Finance Ministers, 470 Cotonou Agreement (2000), 218
Conference of the States Parties to the UN Council of Europe
Convention against Corruption, 379 Civil Law Convention on Corruption, 437,
Conferences of Parties, 295 441–443, 446
conﬁdentiality protection, 407, 409, 411 Convention on Access to Oﬃcial
conﬂict resolution, study, 173 Documents, 202
conﬂict, cost of, 618 Convention on the Counterfeiting of
Conseheria Presidencial para la Equidad de la Medical Products, 538
Mujer, 183 Criminal Law Convention against
Conservation of Natural Resources, 303 Corruption, 369, 376–377
Constituent Assembly (Brazil), 280 Group of States against Corruption, 378
Constitution Amendment Acts (India), 236 Council of Islamic Courts, 500–501
Constitutional Court (Colombia), 167–168, counseling, 257–258
177, 186 County Government Act (Kenya), 322
constitutions, 283 Court Formation Law, 247
Brazilian (1988), 283 Covenant on Economic, Social, and Cultural
Colombian, 625 Rights, 300, 546, 548–553, 555, 565
Colombian (1991), 165–168, 167, 174, 182, Article 12, 550
186 credit availability, 91–92
Indian, 233, 235, 241, 582, 586 credit, for smallholders, 44–45
Kenyan, 308–309, 312–319, 323, 362–363 criminal law, 250
South African, 109 Criminal Law Amendment Ordinance (India),
Ugandan, 572 388
construction industry Criminal Procedure Code, 247
contracts, 26, 30–31n24, 33 custody, 251
dispute resolution in, 25n12, 26–30, 33
Consultative Commi ee for Integration of the Damodar Valley Corporation, 241
Legal Systems, 270 Danish Refugee Council, 273
consumer debtors, 627 de Soto, Hernando, 266
contracts debarment, 403, 410, 412
Index 645

debt counselors, 101–107 distributional equity, 330–331
debt relief measures, 91–95, 99–101, 105–107 diverse communities, 15–17, 523, 632
decolonization, 215 divorce/separation, 251, 260
decommodiﬁcation, 53, 56 Dodd-Frank Wall Street Reform and
Defensoría del Pueblo, 178 Consumer Protection Act, 127, 143
deferment of court fees, 246, 252, 255, 259, 261 Doing Business (company), 56
Dejusticia (NGO), 188 domestic violence, 183–185, 258
delegation of national government duties to Dominican Republic, 356
municipalities, 166, 186–188 Douglas, William, 615
Democratic Republic of Congo, 618 dowries (Jordan), 246, 251, 253
governance, 468 Draft Handbook for Sustainability Impact
women’s rights, 515, 517, 520 Assessment, 76, 85–86
democratization, 334, 491, 496, 501 Draft National Water Framework Bill, 234
density instruments, 340, 341 Draft Uganda Organic Agriculture Policy, 302
Department for International Development drug traﬃcking, 212
(Somalia), 41, 51, 54, 57, 273 Dubai Financial Services Authority, 137,
Department of Statistics (Jordan), 246 140–141
deportation, 228 Dubai International Financial Centre, 136
deposit-taking banks, 144–145 Dublin International Conference on Water and
Derg, 50, 52, 57 the Environment, 233
design review, 340, 341
designation of origin, 47 Early Dispute Resolution program, 31
development, displacement and violence East African Community Protocol on
caused by, 211–212 Environment and Natural Resources
development (concept), 3–9, 483–484, 582, 615, Management, 317
622 East Timor, 195, 618
development (deﬁnition), 584 ecclesiastical courts, 255, 260
development law, 3–9, 363 economic empowerment, 8
development rights, allocation of, 330 economic growth, inclusive, 623
diﬀerential treatment for deprived groups, 167 economic partnership agreements, 154–156
Dinka people, 499, 501–502 Economics of Ecosystems and Biodiversity
Directive Principles of State Policy (India), 586 reports, 298
discharge of debt ecosystem services, 299
personal insolvency regimes, 124–126 education
South African Insolvency Act, 96–98 as a public service, 370–372, 378
disclosure of assets in corruption cases (India), as sustainable development strategy
396 (Kenya), 313, 317–318, 327
disclosure of misconduct to Bank Integrity national public expenditures on, 592,
Vice Presidency, 405, 407, 411 592–594
dispute boards, 25–26, 31, 39 stakeholders’ expectations, 370–371, 374
decisions, 35–36 standardization of behavioral integrity,
dispute adjudication boards, 33–34 376, 378
dispute review boards, 32 standardized tests, 371–372
forms of, 33n29 tolerance of malpractices, 376
negotiated se lements, 35–36 educational resources measured by PISA, 372
partnering commi ees, 22, 26, 29–30, 32, Egypt, 492
36–39, 627 African Development Bank in, 476–477
standing board members, 22, 32, 34–35, 37 banks and banking, 130, 142
dispute resolution women’s rights, 520
common forms, 24–25 Eisenhower Tunnel project, 33n29
construction industry, 25n12, 33n29 eminent domain, 332
ﬁve characteristics of, 178–180 emission reduction units, 296
informal, 32, 35 emission rights purchase agreement, 297
dispute review boards. See under dispute emissions trading schemes, 296–297
boards empowerment
disputes, early identiﬁcation of, 26, 30–32, 39 diverse communities, 521–522
646 Index

need for social commitment and, 585 ethnoreligious conﬂict, 494
public services, 584 EU. See European Union
enforcement of judicial decisions, 260 EU-Canada Comprehensive Economic and
England, 23 Trade Agreement (CETA), 76
English common law, 363 EU-CARIFORUM Economic Partnership
Environment and Land Court Act (Kenya), Agreement, 156
319 EU-Central America Association Agreement,
Environment Protection Act (India), 236 157–159
environmental and natural resources law, EU-Korea Free Trade Agreement, 157–158
11–14, 12–14 Europe, 215, 335
environmental decision making (Kenya), European Bank for Reconstruction and
324–327 Development, 402
environmental exploitation (Nigeria), 202 European Commission, 79
environmental goods and services, 629 Cooperation Council, 76
environmental governance, 630 Directorate General for Trade, 75
environmental impact assessments, 63–68, 72, European Convention on Human Rights,
307, 315 200–201, 446
Canada, 81–83 European Training Foundation, 380
Canada-Central America, 81–83 European Union (EU), 67, 69–72, 70–72, 147
U.S.-Canada, 79–84 economic partnership agreements, 154–156
environmental law, 299 External Borders Agency, 218
Environmental Management and intellectual property rights, 46–48
Coordination Act (Kenya), 307 regional trade agreements, 154–159
environmental policy, 288–289, 291 securitization, 217–219
environmental protection, 296, 340, 341, 348 eviction, forced, 356, 359
environmental quality and economic growth, exclusion. See also Inclusion
148 from land use, 352
environmental rights, enforcement of (Kenya), from opportunity, 351
319 expropriation, 286, 332
equality
social and economic vs. political, 7 Fainstein, Susan, 330–331
Equatoria, 501 fair competition, 399, 402
Equatorial Guinea, 449 Fair Trade, 61
equitable competition, 400–401, 411 certiﬁcation, 41–42, 45, 52, 58–59, 628
equity ecological and environmental practices, 43,
as a legal principle, 356–357 45
as a strategy for achieving development, gender, 60
5–9 labor, 43–44
Eritrea, 503 standards
Ertan Hydroelectric Dam project, 34 2-3, 5, 19
Escobar, Arturo, 616, 621 World Bank and, 53
Espoo Convention, 65, 69 falsiﬁed medicines, 537
Ethiopia, 41–42, 45–61, 212, 488, 627, 628 Family Code (Mali), 516
inheritance law, 60 Family Code (Morocco), 505
intellectual property rights, 41 family courts, 184–185
Poverty Reduction Strategy Paper, 50 family law, 250, 255
women’s rights, 515 farmers, 304
Ethiopian Coﬀee Exports Association, 51 farmers, coﬀee, 42–45, 52–53, 56–59
Ethiopian Coﬀee Purchase and Sales farming, subsistence, 43, 45
Enterprise, 52 Federal Deposit Insurance Corporation
Ethiopian Commodities Exchange, 57, 60 (FDIC), 143–144
Ethiopian Fine Coﬀee Stakeholder Commi ee, Federal Medicine Council (Brazil), 543
51 Fedesarrollo, 178
Ethiopian Intellectual Property Oﬃce, 41, feminization
54–56, 61 of migration and insecurity, 220–224
ethnic relations, 497, 502 fertilizer companies, 303
Index 647

ﬁnance, private-sector, 23–24 Great Britain
Financial Stability Forum, 112 Housing, Town Planning, Etc., Act, 336
Five-Year Plan, 12th (India), 231, 234 inclusive public policy, 581
fodder scam (India), 383 Legislative and Regulatory Reform Act
food security, 231, 304 (2006), 348
food sovereignty, 304 planning law, 337
Foreign Corrupt Practices Act (U.S.), 438 police powers, 226
Foreign Investment Commi ee (Chile), 201 terrorist a acks on, 211, 217
Forensic Medicine Institute, 174 Great Famine of 1840, 215
Forests Act (Kenya), 307 Greece, 218
forests and forestry, 303 green economy, 293–305, 629
Fox, Vicente, 599 and international law, 151–159
France conceived by UNEP as an economic
civil law cases in, 449 model, 148
women’s work, 511 need for a binding deﬁnition, 147
fraud, 399, 403–404, 407 Green Jobs Report, 298
free and prior informed consent, 302 greenhouse gas emissions, 295–296
free markets, 358 greening (term), 147
free trade agreements, 155 Greenwatch (U) Ltd. v. AĴorney General of
freedom (concept), 582 Uganda and Uganda Electricity Co. Ltd.
Freedom of Information Bill (Kenya), 316, 318, (Uganda), 205
321 Grootboom case (South Africa), 362
Future We Want, The, 149, 294, 636 Groups of States against Corruption
(GRECO), 443
G20 Financial Stability Board, 127 Grover, Anand, on the right to health, 557
Gandhi, Indira, 587 Guinea Bissau, military coup in, 477
“Eradicate Poverty” slogan, 587 Gujarat Infrastructure Act, 240
Gandhi, Mahatma, 390, 587, 590
Garang, John, 493, 499 Handl, Gunther, 471
gated communities, 282 Harshad Mehta stock market scam (India), 383
gender discrimination, 221 Hazare, Anna, 381, 389–390, 625
gender equality, 511–512 health as a development issue in Uganda,
General Electric Company, 31 567–568
General Law on Sustainable Forest health care services, 621
Development (Mexico), 302–303 high-value markets, 42, 51, 58
Geneva Declaration on Armed Violence and Hindu Succession Act Amendment (India),
Development, 618 514, 516
geographical indications, 45–49, 52 historic preservation, 340, 341
George, Henry, 358 HIV/AIDS, 221, 523–544, 556–558, 632
Germany HIV/AIDS Management and Prevention Act
ﬂexibility laws, 513 (HAMP; Papua New Guinea), 528
planning law, 337 housing
women’s work, 511 codes, 332, 341, 344–345
Gilgel Gibe III Dam project, 212 prices, 342–345, 348
Ginsberg, Ruth Bader, 520 standards, 332, 335, 336
Gleevec, 537 housing and building permits, 332
Global Corruption Report: Education, 439 Houston, 344
Global Europe: Competing in the World, 155 human rights
Global Fund to Fight Aids, Tuberculosis environment and, 298–299, 304
globalization, 484–485 generations of, 601–603
good governance (concept), 494 principles in practice, 302–305
governance and anticorruption, 14–15 Human Rights and Displacement Clinic, 185
Government GazeĴe (South Africa), 97 human traﬃcking, 212, 224–225
Government of India Act, 236 Hungarian Civil Liberties Union v. Hungary
Graduate Record Examination, 371 (Hungary), 201
Great Barrier Reef area, pollution in, 212 Hungary
648 Index

insolvency program, 111 Indonesia, 621
hunger reduction, 484 Islamic banking, 130
Hunt, Paul, on the right to health, 557–558, 564 Industrial Revolution, 335
informal se lements, 281, 283–286, 288–289,
354, 356–357, 361
Ibero-American Judicial Summit Meeting, information, dissemination of, 288, 290
14th, 168 infrastructure development
immigration policy, 224–228 ﬁnance, 23–24
In Hostile Terrain, 219, 225 private sector, 27, 29
incentivization, 334 public sector, 22, 25
inclusion as a strategy for achieving inheritance rights, 246, 251, 256–257
development, 5–9 20
inclusion, procedural vs. substantive, 357 insecurity
inclusionary zoning, 346 engendered by migration, 211–229
inclusiveness feminization of, 220–224
as a measure of public policy, 581 insolvency, 627
income redistribution, 501 law reform, 107–108
independence movements, 491–492 personal, 91–110
Independent Commission on International practitioners (South Africa), 105–107
Development Issues, 3 insolvency law, personal, 111–126
independent integrity compliance monitor, insolvency regimes
412 business, 111–113, 116–122
India, 6, 111, 231–243, 304, 362–363, 610, 612, formal, 121–122
624–625, 627, 630, 632 in Islamic banking, 127, 129, 131, 134,
12th Five-Year Plan, 581 138–139, 142
child nutrition, 595 informal (workouts), 120–121
educational a ainment, 591 insolvency, personal, 91–110
educational policy, 589–596 inspectores de policia–personerías, 174
governance crisis, 594–597 Instituto de Bienestar Familiar, 178
grand corruption, 383, 385–386, 391 intangible deliverables, 617
Hazare, Anna, 610–611 Integrate Water Resource Development: A Plan of
insolvency program, 111 Action, 238
international river policy, 237 Integrated Child Development Scheme
investment in farming, 242 (India), 595
judicial corruption, 396–397 integrated water resource management, 231,
Madoor Kisan Shakti Sangathan, 600, 233, 237, 241–242
605–607 integration of legal advice and community
marginalized groups, 581–597 justice services, 181
National Campaign for People’s Right to integrity compliance guidelines, 406
Information, 606–607 Integrity Compliance Oﬃcer, 400, 404, 406,
National Coalition for People’s Right to 412–414, 424–426, 432, 434, 436, 626
Information, 610–611 integrity compliance programs, 404–406,
Parivartan (NGO), 607 410–412, 414, 426
pe y corruption, 382, 386, 388–391 intellectual property rights, 41, 54–61, 628
public policy, 581, 596–597 and agricultural products, 45–50
river systems, 232 Intellectual Property Rights Center, 55
same-sex criminal law, 540 Inter-American Court, 201
state government, 238–242 Inter-American Development Bank, 402, 461,
terrorist a acks on, 211 470
water use, 232 Inter-Governmental Development Authority
women’s rights, 520 (IGAD), 495, 500
Indian Corruption Study series, 382 interest, prohibition of
Indian Easements Act (1882), 238 in Islamic banking, 132
indigenous peoples, 49, 61, 300 Intergovernmental Commi ee on Intellectual
aﬀected by development projects, 211–212 Property and Genetic Resources...
territorial jurisdictions for, 167 (IGC; WIPO), 49–50
Index 649

Interim Report on the Review of Administration Islamic Bank of Britain, 136n41
Orders, 108 Islamic banking
internally displaced persons, 168, 495, 501 investment risk return accounts, 136, 138
International Bank for Reconstruction and market regulation (hisba), 139–142, 141
Development, 22. See also World market supervisor (muhtasib), 141–142
Bank; World Bank Group murabaha (sale-based ﬁnancing), 132, 134
International Coﬀee Agreements, 50 proﬁt equalization reserve accounts, 136,
International Court of Justice, 65–66, 449 138
International Covenant on Civil and Political proﬁt-sharing investment account
Rights, 300 (mudaraba), 134–135, 136–137, 145
International Development Law Organization riba (term), 132
(IDLO), 270–271, 274 risk sharing, 135
International Diabetes Federation, 533 taﬂis (bankruptcy), 140
International Federation of Consulting Islamic Financial Services Board, 133
Engineers, 30–31n24, 32n28, 33 Islamization, 498
International Finance Corporation, 21n1, 30, Italian Somaliland, 490–491
402, 408, 413–414 Italy
International Guidelines on HIV/AIDS and migration, 217–218, 220
Human Rights, 525 victim compensation system, 438
International Institute for Conﬂict Prevention women’s rights, 520
and Resolution, 31
International Labour Organization (ILO), 298, J T International SA v. Commonwealth of
299, 507 Australia, 532
Domestic Workers Convention, 509–510 Jain Hawala case (India), 383, 387
international law, 617 Japan
international markets, 41–42, 52, 58–59 educational corruption, 372
International Monetary Fund (IMF), 131 police powers in, 226
International Narcotics Control Board, 539 jobs creation, 297, 299
International Network of Women with Johnson, Lyndon B., 6–7
Disabilities, 534, 536 Joint United Nations Programme on HIV/
international relations, human rights–based, AIDS. See UNAIDS
623–624 Jordan, 245–262
International River Network, 205 women’s rights, 517
international river policy, 237 Jordan Bar Association, 247, 255, 258
International Treaty on Plant and Genetic journey insecurity, 219, 222
Resources for Food and Agriculture, judicial accountability, 625
50 Judicial Service Council (Somalia), 268–269
International Tribunal on the Law of the Sea, Judicial Superior Council, 174, 181
65 Judicial Units for Municipalities, 174
Internet, 182, 198–199, 220, 247 Judicial Upgrading Strategy, 2004–2006,
interrogation, coercive, 225 246–247
interstate river basin authorities, 242 Judicial Upgrading Strategy, 2010–2012, 247
intervention in land property markets, 289 jueces de paz, 167, 173–174, 181
Investing in Africa’s Future, 454 Just City, The, 330
investment in low carbon-producing ﬁrms, justice (concept), 5
296 Justice Center for Legal Aid (Jordan), 248, 250,
investment regimes, 617 252, 255, 257, 259, 261
investment, and property rights, 358 justice for development (concept), 5
Iran justice lens, as an approach to development,
freedom of expression, 194 636–637
Ireland justice operators, increases in, 171
emigration, 215–216 Justice Sector Household Survey (Jordan),
irregular migration, 216–228 248–254, 259–260
irrigation, 232, 236, 238, 243 justice sector reform, 621
Irrigation Acts, 238–239 justice services. See also Legal services
Isaaq clan, 491 and poverty, 249
650 Index

decentralized delivery of, 176 Law School Admissions Test, 371
local, 166, 174, 176 legal access
public demand for, 165–188 to adequate housing, 361
rationalization of, 166, 176, 178–188 to cities, 353, 364
to courts, 361
K.H. and Others v. Slovakia (Slovakia), 201 to public services, 354
Kaberuka, Donald, 454 legal advice, 260
kampong-style development, 357 legal aid, 246, 250, 254, 258–261
Katse Dam project, 34 legal aid fund, 259
Kenya, 59, 307–327, 356, 488, 500, 627 legal best practices, 302
access to information, 315, 323 legal culture, 285, 290
education, 317, 319, 324–327 legal empowerment, 620, 623, 632––635
extension education, 318–319 legal empowerment (Somalia), 263–266,
public participation, 307–308, 314–315, 270–273
321–327 legal fees, 259–260
Kenya Citizenship and Immigration Act legal frameworks, 279–291
(2011), 326 legal innovations, 305
Kenya National Integrated Civic Education legal instruments, innovative, 629
Programme (K-NICE), 318, 327 legal language and writing, 289, 429
Key Issues of Civil Law in Corruption Cases in legal reform, 356–358, 361, 363–364
Bulgaria, 444 legal representation, 250, 255, 258
Khalid, Mansour, 492 legal representation (informal), 175
Kim, Jim, 414 legal services. See also Justice services
Klitgaard, Robert, 385 legal systems, 6–7
Korea, Republic of, 155 legal systems, formal, 355
free trade agreements, 158 legal training, 258
Kyrgyz Republic, 371 Legislative and Regulatory Reform Act (2006),
348
labor, 43–44 Legislative Guide on Insolvency Law, 112
child, 59 legitimacy, state, 486
female, 60 Ley General de Desarrollo Forestal
labor rights, 300 Sustentable, 302–303
land markets, exclusionary, 290 Liberia
land ownership, 60, 280, 285, 358 Community Land Titling Initiative, 271
land registration, 334 Libya
land tenure, legal security of, 281 African Development Bank in, 476–477
land titles, 351 licensing, 46, 51, 55, 58, 60
land use licensing, eﬃciency of, 370
controls, 341 Lifting the Curse, 595
determined by market forces, 331 liquidation of assets
determined by sociocultural and political in personal insolvency regimes, 122–124
norms, 331 Lisbon Treaty, 63
exclusion of poor, 352 literacy rates, worldwide, 590
instruments, 340 litigation, in dispute resolution, 24–25, 28, 31,
negative externalities, 334 37
pa erns, 353 local justice systems, in war-torn areas, 182
regulations, 346, 352, 355–357, 359–363 lokayukta (oﬃce; India), 389
standards, 332, 351–356 lokpals, 387, 390, 626
land use law, 631
Landlord-Tenant Law (Jordan), 247 Machar, Riek, 499
Latin America, 367 Mali, military coup in, 477
law as an instrument of change, 619 Mapuche, 212
Law Digest, 409, 431 marginalized groups, 214, 632
law enforcement, 624 market forces in determining land use, 331
excessive force, 227–228 Marris, Robin, on capitalism, 586–587
Law on the Organization of the Judiciary media-based outreach programs, 55
(Somalia), 270 mediation, 26, 29–32, 35, 38, 260
Index 651

mediators, independent, 170 My House, My Life housing program, 281,
men, violent sexual behavior of, 222 283–284
Methodologies for Environmental and Trade
Reviews, 73 NAFTA. See North America Free Trade
metropolitan regions, 281 Agreement
Mexico, 212, 302, 610, 612, 620 Nagoya Protocol on Access to Genetic
Center for Environmental Law, 609 Resources and the Fair and Equitable
diabetes, 533 Sharing of Beneﬁts, 50
FUNDAR (NGO), 608 Nairobi, 362
Maderas del Pueblo del Sureste (NGO), Nairobi Peace Accords, 488
608 Namati (organization), 271
migration, 214, 217, 219, 225 Narain, Vineet, 387
Oportunitades, 613 nation building (concept), 483
PROCAMPO, 613 nation building, three phases of, 483
right to information, 599–600, 605 nation-state (concept), 489–490
Self-Managed Social Development National Agenda (2006–2015), 247, 255
Promoters, 611 National Aid Fund (Jordan), 249, 262
Women’s Network for the Common Good, National Coﬀee Association (U.S.), 52
607 National Commitments and Policies
Micro Finance Regulatory Council (South Instrument, 526
Africa), 108 National Congress (Brazil), 280, 291
migrant labor, 44 National Congress Party, 502
migrants National Council of Cities (Brazil), 283–285
security of, 624 National Environment Council (Brazil), 284
women, 220–221 National Fund for Social Interest Housing, 283
migration, 211–229, 624 National Human Rights Commission
cross-border, 213, 216 (Bangladesh), 542–543
feminization of, 220–221 National Program to Promote Non-Violent
national controls, 211, 217 Family Relations (Haz Paz), 168
rural-to-urban, 334 National Rural Employment Guarantee Act,
securitization of, 211 304
military intervention, 488 national territorial policy, 289
Millennium Development Goals, 5, 9, 190, 468, negative externalities in land use, 334
484, 618, 622, 636 negotiated resolution agreements, 400, 403–
Mingst, Karen, 466 404, 406, 409–411, 414, 626
Ministry of Cities (Brazil), 283–285, 287, 289 Nehru, Jawaharlal, 386
Ministry of Justice (Jordan), 245–247 Netherlands, The
Ministry of Justice and Law (Colombia), 170 police powers in, 226
Ministry of the Interior and Justice new legal-urban order, 283–287, 291
(Colombia), 175, 177 NGOs, and capacity building, 496, 500
Morais, Herbert V., 457, 467 Niemeri, Ghaﬀer El, 493
Morsi, Mohamed, 476 Nigeria, 356
mortgage credit, 111 Nigerian National Petroleum Company, 202
Mozambique noncommunicable diseases (NCDs), 523–524,
Community Land Titling Initiative, 271 526, 530–533
multilateral development banks, 402, 456–459, North Africa
470, 472 Islamic banking, 130
Multilateral Investment Guarantee Agency North America Free Trade Agreement, 68, 79
(MIGA), 26n17, 30, 402, 408 North–South: A Programme for Survival, 3, 3n2
Mumbai, 351, 363 Notice of Sanctions Proceedings, 408, 423–424
municipal master plans (MMPs), 281, 283–284, Notice of Uncontested Sanctions Proceedings,
287–288 409
assessment, 288 Novartis, and intellectual property rights, 537
legal eﬃcacy, 288 Nuer people, 499
social eﬃcacy, 289 nuisance law, 337
municipalities Nussbaum, Martha, 584
classiﬁcation, 345–346 Nyerere, Julius, 3
652 Index

Occupy movements, 485 piracy, 500
OECD, 368, 523 Plan for Accelerated and Sustained Development
Anti-Corruption Network for Eastern to End Poverty, 50–51
Europe and Central Asia, 378–380 Plan to Accelerate Growth, 284
Convention on Combating Bribery of Planning Commission Working Group, 231
Foreign Oﬃcials in International planning culture, 290
Business, 372, 377 planning law, 352, 361
countries, 368 exclusiveness, 353–355, 363
educational integrity assessments, 372 inclusiveness, 359
Glossary of International Standards in legislation, 359, 361
Criminal Law, 377 reform, 358–359, 363
Programme for International Student standards, 353–355, 363
Assessment, 369, 372–373 planning laws
oil industry, 512 in Communist countries, 333–334
Ombudsman’s Oﬃce, 177 in developing countries, 334–335
Operation Murambatsvina (Restore Order), planning regulations, 329, 345, 348
356 “piling on” syndrome, 348
opportunities as exclusionary instruments, 336–338,
created by trademarks, 47 345–346
opportunity, as a key for development, 5–9 classiﬁcation, 338–342
opportunity, created by trademarks, 356 generations of, 345–346
Orderly Liquidation Authority, 143, 145 lack of comparative analyses across
organic compost industry, 303 countries, 343
organic farming, 302 social justice, 342–348
Organisation for Economic Co-operation and Plant Breeders’ Right Proclamation, 50
Development. See OECD police power (term), 336
Organization of African Unity, 490. See also Popular Amendment on Urban Reform, 280
African Union Pound, Roscoe, 358
Oromia Coﬀee Farmers Cooperative Union, 57 poverty, 216
Our Common Future, 64 poverty (concept), 214
overindebtedness of consumers (South poverty reduction, 21, 23, 50, 53, 302, 484, 486,
Africa), 92, 101–103 501, 617, 623
in India, 587–588
Pakistan, 237 PPPs. See Public-private partnerships
women’s rights, 515, 520 Pratham (NGO), 594–595
panchayati raj institutions, 239–240 Prevention of Corruption Act (India), 388
Panchayats (Extension of Scheduled Areas) Prevention of Money Laundering Act (India),
Act, 239 388
Pantelleria, 217 prioritized growth strategies, 617
Paraguay, 212 private civil actions, 634
women’s health, 195 private education
partial credit guarantee, 402 United States, 589
partial risk guarantee, 402 Western Europe, 589
partnering commi ees, 26, 627. See also private property, and trademarks, 46
Dispute boards; Dispute Boards: private sector development projects, 22–23,
partnering commi ees 27, 29
patrilineality, 496 privatization of water services, 234
People Living with HIV Stigma Index, 527 Procedural Guidelines on Trade and Development,
people of diverse sexual orientation and 67
gender identity, health rights, 540 procedural justice, 331
Personal Status Code, 256 Procuraduria General de la Nación, 178, 185
personal status disputes, 250, 253–262 Prohibition of Smoking in Enclosed Places and
Peru Protection of Non-smokers Ordinance
free trade agreements, 158 (Pakistan), 532
pharmaceutical industry, and intellectual property markets, exclusionary, 290
property rights, 537 property ownership, 280, 285
Philip Morris Asia, 532 property rights, individual, 280
Philip Morris Pakistan, 532 property speculation, 281, 284–285
Index 653

Protecting Canada’s Immigration System Act, a clean environment, 200
226 consultation, 299
Protocol on Strategic Environmental development, 4, 189, 545
Assessment (Kiev Protocol), 87–88 health, 523, 545, 549–556, 632
Protocol to the Antarctic Treaty on and development interventions,
Environmental Protection, 65 562–563
Provisional Constitution (Somalia), 263, 267 and relevance to development, 556–559
public education, 585, 589 information, 620, 633
public information, 257–258 property, 286
public participation, 281, 288–289, 359–360, receive media output, 196
364, 616, 630 sustainable cities, 284
Public Prosecutor’s Oﬃce, 167, 173 water, 233–235
public safety codes, 356 Right to Public Services Acts, 389
public services, 21–24, 27, 362–363, 621 Rio Declaration, 299–300
public trust doctrine, 237 Principle 10, 69, 308–310, 313–314, 324, 327
public-private partnerships (PPPs), 21, 24, Rio+20. See United Nations: Conference on
25n14, 26, 28, 283, 303, 627 Sustainable Development
dispute resolution and, 29, 34–35 River Basin Organizations, 241–242
local community representation in, 30 River Boards Act (1956), 236, 241–242
Puntland, 488 river management, 241
pyramid model of dispute resolution, 179, Rodney, Walter, 3
180–182, 185–188 Romanians, 220
Royal Commi ee for Judicial Upgrading, 246
Racketeer Inﬂuenced and Corrupt rule of law, 5, 7–8, 616–617, 619, 622–626
Organizations Act (U.S.), 438 three principles to uphold, 495
rainwater harvesting, 238 rule of law (concept), 494
rationalization (concept), 166 Rule of Law Index 2012-2013, 8
rationalization of justice services, 166, 176, Russia
178–188 educational corruption, 372
reconstruction (concept), 483 Rwanda
recovery of assets in corruption cases (India), dissemination of information in, 195
394 rights of migrant workers in, 195
Red Unidos, 168
refugees, 226, 495, 501 Sachs, Jeﬀrey, 636
regional opportunity, 345 Sanctioning Guidelines (World Bank), 431, 433
regulatory innovation, 623, 627, 635 Sanctions Manual (World Bank Sanctions
regulatory instruments, 329, 335, 339, 340, 343 Board), 433
Reid, Richard, 217 sanitation laws, 283
renewable energy technologies, 296 São Paulo, 287
Report of High-Level Panel of Eminent Sardar Sarovar Dam project, 233
Persons on the Post-2015 Saudi Arabia
Development Agenda, 622–623 women’s rights, 519
Report of the AfDB’s Panel on Governance, 467 Scholastic Achievement Test, 371
Report of the Commission on Centre-State school meals, 304
Relations, 240 secession movements, 492
Report of the Special Rapporteur on Torture Securities Investor Protection Corporation
and Other Cruel Treatments, 535 (U.S.), 145–146
Report on the Treatment of the Insolvency of Security Investor Protection Act (U.S.),
Natural Persons, 111–126 145–146
Reports on the Observation of Standards and segregation, sociospatial, 279, 284–285, 290
Codes program, 112 self-regulation
Representation of Peoples Act (India), 205, 395 in Islamic banking, 129, 133
Representation of the People Act (India), 205 Sen, Amartya, 4, 581–587, 603, 619, 622
Research and Conservation of Cultural separation of land uses, 337
Heritage Proclamation, 50 Sepulveda Carmona, Magdelena, 450
rese lement, 359, 362 SERAC and Others v. Nigeria (Nigeria), 202
Resource Guide for SMEs, 413 Serbia
right to educational resources, 372
654 Index

se lement negotiations, 406, 409–411 South African Law Reform Commission,
se lements. See also Housing 107–109
sexual assault, 221–224 South African Promotion of Access to
sexual exploitation, 221–224 Information Act, 204
sexual violence, 183 South America, 215. See also speciﬁc countries
sexually transmi ed diseases, 221 migration, 220
sharia, 132–133, 139, 268 South Asia, 232. See also speciﬁc countries
sharia courts, 248, 255–256, 258, 260 South Sudan, 475, 483–503, 618, 624
Shell Oil Company (Nigeria), 202 Equatoria, 501
Sherpa (organization), 449 North-South relations, 497–499
Shihata, Ibrahim F., 464, 467, 471 self-determination movement, 486, 503
Siad Barre, Mohamed, 267, 269–270, 486–487, South-South conﬂict scenario, 497, 502–503
490–491 Southeast Asia, 367
Sierra Leone, 621 Soviet Union, 333, 348
simpliﬁed judicial mechanisms (accións), 167 planning law, 333, 348
Sistema de Alertas Tempranas, 185 Spain
Six Sigma Quality initiative, 31 migration, 215, 217–218
Skype, 220 terrorist a acks on, 211, 217
small and medium-size enterprises, 417, Special Jurisdictions for Indigenous
424–425 Communities, 167
Bank sanctions system, 412–414 specialization of judicial chambers, 247
small claims courts, 169 speculation
smallholders, 42–43, 57, 59 in Islamic banking, 132
Smoking and Tobacco Product Usage sprawl, 345
(Control) Act (Bangladesh), 532 Sri Lanka, as a weak state, 489
social equity, 329–350 stabilization of crisis-ridden countries
social exclusion, 330 in nation building, 483
social function of property, 286–287, 289, 358 Standard Bank of South Africa Ltd. v. PanayioĴs,
social housing, 289 103
social inclusion, 624–626 standard of living, 617, 621
social justice, 619–620 standardized tests, educational, 371
Social Solidarity Network, 185 Starbucks, 52–55
sociopolitical mobilization, 280, 284, 290–291 state building (concept), 483
Somali National Movement, 491 state failure, 489–491
Somalia, 263–275, 624 State of the Environment Report—India, 232–233
authoritarianism, 263, 267, 270, 274–275 state-sponsored legal services, 254, 257–261
culture of justice, 269–271 Statement of Accusations and Evidence, 423,
governance, 468 427
legal empowerment paradigm, 265–266 Statement of Accusations and Evidence (SAE),
legal pluralism, 268–270 407
paralegals, 271–272 Statistical Survey on the Volume of Demand
statutory justice system, 268–270, 272, 274 for Legal Aid. See Justice Sector
traditional justice system, 270 Household Survey
Somaliland, 273, 488, 491 stereotyping, 226–227
Sotomayor, Sonia, 520 sterilization of Roma (Slovakia), 201
South Africa, 6, 34, 362–363, 599, 600, 627 Stigli , Joseph, 616
Companies Act (2008), 107 Stockholm Declaration, 309
Draft Insolvency and Business Recovery Sub-Saharan Africa, 8
Bill, 107 customary and religious law, 521
educational corruption, 372 women’s rights, 514–515
inclusive public policy, 581 subdivision, 336
Insolvency Act (1936), 93–98 Sudan, 489, 492–493
Magistrates’ Courts Act (1944), 93–94, 96, civil war, 487–488
99–101, 108 Sudan People’s Liberation Army (SPLA), 487,
National Credit Act (2005), 93–94, 99–105, 493, 499, 501
109 Sudan People’s Liberation Movement (SPLM),
Open Democracy Access Center (NGO), 487, 499, 501–502
606–608 Sudan, The, 492
Index 655

Sunil Babu Pant v. Government of Nepal, 542 Transparency International, 367, 371, 439, 449
Supreme Judicial Council (Jordan), 256 Treaty of the European Union. See Lisbon
Surabaya, Indonesia, 357 Treaty
suspension and debarment oﬃcer, 404, 408– Treaty on the Functioning of the European
409, 423–424, 433, 435 Union, 63
sustainability impact assessments, 629 TRIPS Agreement
EU-Andean, 78 and geographical indications, 48
trade agreements, 70–84 Truman, Harry, 616
sustainable agricultural interventions, 304 Tunisia, food labeling laws in, 533
sustainable development, 7–9, 21, 293–296,
616–617, 623, 629, 637 Uganda, 302, 633
economic incentives, 303 African Covenant on Human and People’s
standards, 301 Rights, 565
sustainable development goals, 636 Covenant on Civil and Political Rights, 566
systemically important ﬁnancial institutions, Anti-Homosexuality Bill, 573
127–128, 137 Center for Health and Human Rights
Development & 3 Ors v. AG, 572
Tanzania, 3, 500 Center for Health Human Rights and
women’s rights, 517 Development, 574–579
Tatra scam (India), 383 Community Land Titling Initiative, 271
taxation, land, 358 Convention on Rights of the Child, 565
tea industry, 51 Covenant on Economic, Social, and
technology and migration, 214–216 Cultural Rights, 565, 572
Telgi stamp (India), 383 Covenant on Elimination of All Forms of
Tellis v. Bombay case, 362–363 Discrimination against Women,
terrorism, 500 565
and border security, 216–217 Equal Opportunities Commission Act, 575
eﬀect of on migration control, 211 Health Sector Strategic Plan, 567–569
Tobacco Plain Packaging Act (Australia), 532 HIV/AIDS and health care in, 558, 566, 568,
Tobin, John, 551 573, 577
Toolkit for Data Collection and Monitoring Hospital Policy, 571
the Enjoyment of the Right to Health, Human Rights Commission, 555, 575
555 Industrial Property Bill, 573
trade agreements Joyce Nakacwa v. AG and 2 Ors, 574, 578
“trade and sustainable development” maternal health care in, 576
chapters, 155, 158 Mental Treatment Act, 573
across jurisdictions, 68–72 Millennium Development Goals, 546,
trade liberalization 558–559, 563, 566, 576
and sustainable development, 147–161 National Adolescent Health Policy, 571
in environmental goods and services, National Development Plan, 567
147–161 National Health Care Strategic Plan, 569–
trade negotiations 570
Canada-Andean countries, 83–84 National Health Policy, 570–571
Canada-Central America, 83 National Minimum Health Care Package,
EU-Andean, 76–79 568–570
EU-Mediterranean, 75 National Objectives and Principles of State
EU-MERCOSUR, 75 Policy, 572, 574
trade treaties, 617, 629 National Reproductive Health Policy, 571
Trademark Registration and Protection Pharmacy and Drugs Act, 573
Proclamation, 50 Poverty Eradication Plan, 568
trademarks, 41, 45–46, 48, 51–53, 55–56, 60 poverty reduction in, 567–568
traditional knowledge and practices, 45, 49, 59 Public Expenditure Tracking Survey, 373,
Transitional Federal Government, 488 378
transparency in Public Health Act, 567–568, 573
development policy, 616 right to health, 565
Fair Trade markets, 43, 51, 58 right to information, 610
governance, 334 UNAIDS, 566
irrigation management, 238 Venereal Diseases Act, 573
656 Index

Uganda Vision 2040, 568 Discrimination against Women,
UN-Habitat, 349, 356 547
UNAIDS, 524–526, 533 Decade of Education for Sustainable
unemployment, 216. See also Employment Development, 313
UNESCO Declaration of Commitment on HIV/AIDS,
International Standard Classiﬁcation of 525
Education, 378 Declaration of Principles of Justice for
Union for Civil Liberties (PUCL) and Another v. Victims of Crime and Abuse of
Union of India and Another, 205 Power, 439
Union for International Cancer Control, Declaration on the Right to Development,
539–540 4
unions, 56–57 Declaration on the Rights of Indigenous
United Arab Emirates Peoples, 299
equal treatment laws, 512 Development Programme, 555
United Nations Economic Commission of Africa
Centre for Human Rights, 525 Commi ee of Nine, 470
Commission for International Trade Law Environment Programme, 85, 88, 147–148,
(UNCITRAL), 112 298
Commission on Crime Prevention and Framework Convention on Climate
Criminal Justice, 538 Change, 293–294, 296, 299, 310
Commi ee on Economic, Social, and Global Compact Leaders Summit, 417
Cultural Rights, 531 High Commission for Refugees, 214–215
Commi ee on the Protection of Rights of High Level Meeting on the Rule of Law,
All Migrant Workers and Their 622
Families, 195 Human Rights Commi ee, 196–197, 540
Commi ee on the Rights of the Child, 195 General Comment No. 34, 193, 204
Conference on Environment and Human Rights Council, 192, 197–198
Development, 312 International Convention on the
Conference on Sustainable Development Elimination of Racial
(UNCSD; Rio+20), 149, 151 Discrimination, 546
Convention against Corruption, 369, 376– International Covenant on Civil and
377, 417 Political Rights, 149, 192–194,
Convention against Corruption (UNCAC), 192–196, 294, 604
437, 443–444, 451 Kyoto Protocol, 293
Article 35, 445–447, 450 Millennium Development Goals (MDGs),
Convention against Transnational 5, 9
Organized Crime (TOC), 538 Oﬃce of the High Commissioner for
Convention on Access to Information, 604 Human Rights (OHCHR), 192,
Convention on Biological Diversity 199–200, 525, 533
(UNCBD), 300 Political Declaration of Commitment on
Convention on Economic, Social, and HIV/AIDS, 525, 526
Cultural Rights, 233 REDD+, 299, 302–303
Convention on the Elimination of All Rio+20, 294–295, 298–299, 301–302
Forms of Discrimination against Universal Declaration of Human Rights,
Women, 509–510 192, 445–446, 546, 601, 604
Convention on the Law of the Sea, 65, 158 United Somali Congress, 491
Convention on the Rights of all Migrant United States, 69, 336
Workers, 547 and intellectual property rights, 46–47,
Convention on the Rights of People with 52–53, 58
Disabilities banks and banking, 127, 143–146
Convention on the Rights of Persons with border patrol policy, 225–228
Disabilities, 547 building and housing codes, 344–345
Convention on the Rights of the Child, 547 Centers for Disease Control, 525
Convention on Women’s Rights, 233 classiﬁcation of municipalities, 345–346
Convention Relating to the Status of Customs and Border Protection, 225
Refugees, 226 educational corruption, 372
Convention to Combat Desertiﬁcation, 310 envioronmental impact assessments, 86
Convention to Eliminate All Forms of immigration laws, 216, 224–228
Index 657

inclusive public policy, 581 voluntary compliance, to law, 358
land use pa erns, 337 voluntary corporate governance, 403
migration, 217, 219 Voluntary Disclosure Program, 400, 403–404,
National Environmental Policy Act, 64, 406–407, 411, 414, 434, 626
79–80 voluntary partnership agreements (VPAs), 158
planning law and social justice, 338, 343– vulnerable groups, 5, 359, 625
348
sex discrimination, 520 wages, 304
terrorist a acks on, 211 Wangari Maathai v. Times Media (Kenya), 307
Texas planning law, 344 water
women’s rights, 519 as a human right, 235
zoning bylaws in, 332 contamination, 232
United States Patent and Trademark Oﬃce, equitable distribution of, 240
46, 52–53, 58 use and regulation, 238
University of Pretoria, Centre for Advanced Water Framework Directive, 241
Corporate and Insolvency Law water resource management, 630
(CACIL), 108 Water Resources Ministry (India), 234
urban density, aﬀordability, 363–364 Water Supply Rules (Karnataka Municipal
urban design, 336, 340 Corporation), 240
urban development without planning laws, water user associations, 239–240
332–334, 344 watershed development and management,
urban integration, 357 236–237, 240–242
urban justice, 329, 331 We Are All Jordan strategy, 247
urban law, 279–291 welfare beneﬁts (Jordan), 254
enforcement, 288 welfare state, 337
exclusionary nature, 279 West Europe, 337, 339
Urban Legislation Unit, 349 Western domination, 615
urban management, 280, 285 Westphalian tradition, 490
urban planning, 351–352, 357–361 white widows, 220
master plans, 360–361 WHO, 523, 525, 533, 537, 559
regulatory framework, 351–352, 357 Action Programme on Essential Drugs,
standards, 352–354, 356 550, 554
urban space consumption, 364 Constitution, 546
USAID, 175 Framework Convention on Tobacco
Governance and Democracy program, 272 Control, 531
use of courts and lawyers, based on Global Programme on AIDS, 528
expenditures, 5 wine and spirits, 48
use of courts and lawyers, in Justice Sector WIPO, 49–50, 57
Household Survey, 249 women
uti possidetis doctrine, 490, 503 displaced, 186
economic opportunities, 507, 508
value chain analysis, 51 empowerment, 495
Van Rooyen v. Van Rooyen Automated entrepreneurs, 506
Investments, 95, 95–96 forced sterilization, 527
victim assistance, 170, 185, 228 heads of household, 185
victimization of migrants, 624 inheritance rights, 256
Vienna Convention on the Law of Treaties, labor force participation, 505–508
459–460, 463–464 legal status (Morocco), 505
Vietnam, 302, 357 migrants, 220–224
Village of Euclid v. Ambler Realty Co., 336 pregnant, 221, 224
violence against women as a strategy of war, sexual exploitation of, 221–224
185 social pressure to avoid pursuing legal
violence, engendered by development, 211 actions, 252, 254, 257, 260
violence, local, 618 social status, 495
Vision Colombia Segundo Centenario: 2019, 165, women heads of households, 621
171, 178 women’s organizations, 183–186
voice, as an instrument for securing inclusion women’s rights and Fair Trade, 44
and accountability, 616, 630, 636–637 woredas, 51
658 Index

workplace discrimination, 509 Sanctions Manual, 483
World Bank, 399–415, 464–465, 468, 470. Sanctions System, 418, 430
See also International Bank for World Bank Group, 23, 26–27, 30. See also
Reconstruction and Development; International Bank for Reconstruction
World Bank Group and Development; World Bank
anticorruption programs, 378 World Bank Sanctions System, 401, 407–411,
Articles of Agreement, 400, 464 633
Fair Trade development projects, 53–54, World Development Report 2004, 605
56–58, 60–61 World Development Report 2006, 556–557
ﬁnancing of public sector projects, 25–26, World Development Report 2008, 53, 58
34–35 World Development Report 2011, 618
governance and anticorruption agenda, World Development Report 2012, 505–506, 519,
421 618, 621
Indigenous Peoples Policy, 53–54, 61 World Development Report 2013, 505–506
insolvency and creditor rights initiative, World Health Organization. See WHO
112, 116 World Intellectual Property Organization.
Insolvency Task Force, 111, 114–116, 628 See WIPO
Inspection Panel, 30 World Justice Project, four universal
Institutional Development Fund, 54, 60 principles of, 8–9
Integrity Vice Presidency (INT), 400–401, World Trade Organization. See WTO
403–404, 406–411, 414, 423–424, WTO, 48, 90–29, 153–155, 160
432, 626 Agreement on Trade Related Aspects
intellectual property rights, 53–54 of Intellectual Property Rights
Legal Vice Presidency (LEG), 419, 424, 430, (TRIPS), 537
433 Commi ee on Trade and Environment, 74
Managing and Enforcing Intellectual Doha Declaration, 152
Property Rights: Creating a Driver Doha Ministerial Declaration, 86
of Growth, 54 Doha Round, 74, 296, 629
Principles for Eﬀective Insolvency and Millennium Round, 70–71, 70–72
Creditor Rights Systems, 112 Ministerial Conference, 72, 75, 79
Procurement Guidelines, 32n28 Trade Policy Review Mechanism, 89
procurement policy, 401 WWR Bio Fertilizer Bangladesh Ltd., 303
public procurement contracts, 32n28,
33–34, 34–35n35 xeer law, 267–268, 270
Report on the Treatment of the Insolvency of
Natural Persons, 111–20 Zimbabwe, 356
sanctioning guidelines, 404, 407 zoning laws, 332, 336–337, 339, 344, 346
Sanctions Board, 404, 408–409, 424, 426,
428, 431, 433, 435

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