Abstract
The introduction presents the book’s central puzzle and main argument. Fragile states are a phenomenon beyond law, but how international development organizations respond to the challenges of engaging with states deemed ‘fragile’ may well be of legal significance. Development organizations have adapted rules that govern the provision of development aid, in order to reflect the lack or severe limitation of government effectiveness in fragile states. These rule-making activities have significant effects on the rights and obligations accorded to fragile states in the development process. The introduction outlines the book’s objectives, approach, and methodology.
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Notes
- 1.
There is no agreed definition of fragile states. A typical example and frequent reference is the definition of the OECD: “A fragile region or state has weak capacity to carry out basic governance functions, and lacks the ability to develop mutually constructive relations with society.” OECD, “Fragile States 2013. Resource Flows and Trends in a Shifting World” (2013), 15. In its “Harmonized List of Fragile Situations” for 2015–2016, the World Bank counts 34 countries and one territory (the West Bank & Gaza) as fragile. On the definition of fragile states, see also infra Sect. 1 in Chap. 2.
- 2.
The World Bank, South Sudan—Interim Strategy Note for FY2013-2014 (2013), paras. 17–22.
- 3.
I refer to international development organizations as international organizations that provide Official Development Assistance (ODA), which includes organizations that do not have an exclusive development mandate, such as the EU. On the definition of ODA, see infra note 28.
- 4.
Greg Larson, et al., Harvard Center for International Development (CID) Working Paper No. 268, South Sudan’s Capability Trap: Building a State with Disruptive Innovation (October 2013), 29.
- 5.
Cotonou Agreement, signed in Cotonou on 23 June 2000, last revision in Ouagadougou on 22 June 2010, OJ L 287, 04 November 2010 or OJ L 317, 15 December 2000.
- 6.
In contrast, Somaliland, an autonomous region within Somalia claiming independence, has established a government determined to lead its own development. Not being recognized as an independent state, however, Somaliland could receive no direct support from international development organizations.
- 7.
The existence of an effective government is the central, defining criterion of statehood under international law. For more detail, see infra Sect. 3.1 in Chap. 2.
- 8.
On the law of development cooperation as defined by Dann, see infra note 28.
- 9.
A limited number of articles and books deal with the phenomenon of state failure from a legal perspective, mostly with a focus on the complete breakdown of government. See, for instance, Daniel Thürer, ‘Der Wegfall effektiver Staatsgewalt: “The failed state”, 34 Berichte der Deutschen Gesellschaft für Völkerrecht, 9 (1996); Robin Geiß, Failed States. Die normative Erfassung gescheiterter Staaten (Duncker & Humblot, 2005); or Chiara Giorgetti, A Principled Approach to State Failure. International Community Actions in Emergency Situations (Brill, 2010).
- 10.
Martti Koskenniemi, “The Wonderful Artificiality of States”, 88 Proceedings of the Annual Meeting (American Society of International Law), 22 (1994).
- 11.
On the origins and persistence of formalized hierarchies in international law, see Gerry J. Simpson, Great Powers and Outlaw States. Unequal Sovereigns in the International Legal Order (Cambridge University Press, 2004)
- 12.
Supra note 9.
- 13.
The number of countries designated as ‘fragile’ depends on what criteria and methodology are used. A common reference point is the World Bank’s “Harmonized List of Fragile Situations” (supra note 1).
- 14.
Joseph H. H. Weiler, “Editorial. Differentiated Statehood? ‘Pre-States’? Palestine@the UN”, 24 European Journal of International Law, 1 (2013), 5.
- 15.
There is a vast non-legal literature on the characteristics of fragile states and the challenges of development cooperation with fragile states. For an overview, see Lars Engberg-Pedersen, et al., Danish Institute for International Studies, DIIS Report 9, Fragile Situations. Current Debates and Central Dilemmas (2008); or Claire Mcloughlin, Governance and Social Development (GSD) Resource Center, Topic Guide on Fragile States (2010). In detail, see infra Sect. 2.2 in Chap. 2 and Sect. 2 in Chap. 3.
- 16.
I consider only the provision of ODA by governments or international organizations, and not assistance provided by non-public entities such as Non-Governmental Organizations (NGOs), or private businesses. See infra note 28.
- 17.
The principle of ownership is most prominently captured in the Paris Declaration on Aid Effectiveness of March 2005 (hereinafter Paris Declaration), in which donors commit to basic principles to improve the quality and effectiveness of aid.
- 18.
As international legal subjects, international organizations are bound to respect customary principles of international law, including the fundamental principle of sovereign equality enshrined in the UN Charter, Article 2 (1).
- 19.
Philipp Dann, The Law of Development Cooperation. A Comparative Analysis of the World Bank, the EU and Germany (Cambridge University Press, 2013), 241–244 and 284–295.
- 20.
The amount of country-programmable, Official Development Assistance (ODA) going to fragile and conflict-affected states has more than doubled between 2000 and 2010, from approximately US$20 billion to over US$40 billion per year. OECD, Fragile States 2014. Domestic Revenue Mobilization in Fragile States (2014), Figure 2.2 (p. 24).
- 21.
Homi Kharas & Andrew Rogerson, Overseas Development Institute, Horizon 2025. Creative Destruction in the Aid Industry (2012), Chapter 2.
- 22.
The underlying assumption is that systematically inadequate rules forfeit the ability to guide and constrain, and the potential to serve as a basis for transparent and consistent decision-making.
- 23.
Dann, The Law of Development Cooperation. A Comparative Analysis of the World Bank, the EU and Germany, 238, 257.
- 24.
In 2011, aid accounted for 29% of all inflows to fragile states, as compared to other developing countries, where aid accounted for only 5%. OECD, Fragile States 2014. Domestic Revenue Mobilization in Fragile States, p. 36.
- 25.
Importantly, fragile states can have a rather strong bargaining position vis-à-vis international donor institutions if donors have a specific strategic or political interest in engaging with these countries.
- 26.
This is not entirely true, if we consider that the role of (domestic) law as an instrument in development cooperation has concerned international lawyers at the latest since the 1970s. What role law plays in the regulation of development cooperation itself, however, is an entirely different question, which only few legal scholars have begun to address rather recently. See, for instance, Dann, The Law of Development Cooperation. A Comparative Analysis of the World Bank, the EU and Germany; Kevin Davis & Mariana Mota Prado, ‘Law, Regulation, and Development’, in Bruce Currie-Alder, et al. (eds), International Development. Ideas, Experience, and Prospects (Oxford University Press, 2014); or Daniel D. Bradlow & David B. Hunter (eds), International Financial Institutions and International Law (Kluwer, 2010). Beyond, international law scholars have considered development at most for its notable absence of law, e.g. Christine M. Chinkin, ‘The United Nations Decade for the Elimination of Poverty: What Role for International Law?’, 54 Current Legal Problems, 553 (2001).
- 27.
Dann, The Law of Development Cooperation. A Comparative Analysis of the World Bank, the EU and Germany, pp. 200, 217.
- 28.
This definition is based on Dann’s foundational work, see ibid., 13–14. What constitutes ODA is defined by the OECD DAC based on three elements: that resources are provided by official agencies, serve the main objective of promoting economic development and welfare of developing countries, and have a concessional character. The definition was last updated in December 2014.
- 29.
On the legal nature and effects of the sources of the law of development cooperation, see infra Sect. 1 in Chap. 4.
- 30.
In the case of development organizations, the founding treaty usually defines for what purposes the organization may provide ODA, and further circumscribes how.
- 31.
Markus Benzing, ‘Secondary Law’, in Rüdiger Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford University Press, March 2007). In detail, see infra Sect. 1 in Chap. 4.
- 32.
On the considerable effects of non-binding rules, see, for instance, Kenneth W. Abbott & Duncan Snidal, ‘Hard and Soft Law in International Governance’, 54 International Organization, 421 (2000); Dinah Shelton, Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford University Press, 2003); or Jan Wouters, et al. (eds), Informal International Lawmaking (Oxford University Press, 2012).
- 33.
Section 3.2 in Chap. 2.
- 34.
All four organizations belong to the largest contributors of ODA to fragile states. OECD, Fragile States 2014. Domestic Revenue Mobilization in Fragile States, p. 93.
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von Engelhardt, M. (2018). Introduction. In: International Development Organizations and Fragile States. Governance and Limited Statehood. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-62695-6_1
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