Julio Faundez

Legal technical assistance

The widespread process of economic and political liberalization currently taking place in developing countries and in countries in Eastern and Central Europe has brought about a renewed interest in the role of law and legal institutions. The introduction of policies of economic liberalization, deregulation and privatization is generally accompanied by major changes to the legal framework. Likewise, the process of political liberalization is often combined with constitutional reform. While the primary responsibility for developing a new legal framework rests with national governments, multilateral banks and bilateral donor agencies have become increasingly concerned with it. Thus, over the past eight years, legal technical assistance has become a major component of both multilateral and bilateral aid programmes.

Democratization through law : perspectives from Latin America

Most developing countries today have launched comprehensive programmes to reform their legal system. The expectation is that improvements in the quality of the law will contribute towards the consolidation of democracy. This expectation presupposes that there is a positive correlation between effective legal systems and the quality of democracy. Law, however, is a multifaceted institution that serves many, though contradictory, functions and objectives. Thus, current efforts to build democracy through law are fraught with unexpected obstacles. Focusing on Latin America, this study aims to contribute towards understanding the obstacles, as well as the opportunities, in the path towards enhancing democracy through legal reform. The first section explains, from a historical perspective, the reason for the weaknesses of legal institutions in Latin America, taking Chile as a case study. The second examines the remarkable experience of constitutional justice in Colombia. While the lessons from history do not bode well for current attempts to use law as a device to further democracy, the experience of constitutional justice in Colombia suggests that, while legal reform is an uncertain path towards democratization, it is not altogether futile.

The Rule of Law Enterprise - Towards a Dialogue between Practitioners and Academics

For nearly two decades, international organizations and bilateral donor agencies have been involved in the promotion and implementation of legal- and judicial-reform projects in developing and transition countries. This article refers to this process as the ‘rule of law enterprise’ (RLE). It identifies the ambiguities and misconceptions of the RLE and asks why there has been so little interaction between those involved in the implementation of legal and judicial reform and academics with knowledge and experience on this topic. After identifying the theoretical and practical obstacles to a fruitful dialogue the article concludes that such a dialogue could take place, provided that academics – political scientists and lawyers – and practitioners adjust their respective approaches.

Empowering Workers in the Informal Economy

The Commission on Legal Empowerment of the Poor (CLEP) states that workers in the informal economy can be legally empowered by bringing them within the framework of effective legal regulation, in particular, international labour standards. This paper acknowledges the value of extending rights to workers in the informal economy, but argues that CLEPs recommendations are impractical and unrealistic. It shows that neither international standards nor recent national legislation designed to promote the legalization of informal enterprises offers unqualified positive answers to resolve the plight of workers in the informal economy. Given the poverty of prevailing regulatory structures and the pervasive impact of inadequate structures of governance, workers in the informal economy justifiably distrust legal institutions and, as a consequence, do not, in the first instance, resort to legal institutions in their quest for empowerment. This paper offers examples of strategies that have successfully enhanced the social, political and economic power of workers in the informal economy. It concludes, however, that although the legal system has a role to play in consolidating the gains achieved by these strategies, law and legal institutions do not necessarily offer the best point of departure towards effectively empowering workers in the informal economy.

Legal Pluralism and International Development Agencies: State Building or Legal Reform

AbstractIn the early years of this century most of the legal and judicial reform work of International Development Agencies (hereafter IDAs) focused mainly on state institutions. Today, things have changed. After the disappointing outcomes of many years of legal and judicial reform and in view of the enormous challenges posed by state building in numerous fragile and failed states, IDAs are beginning to accept that governance and justice mechanisms that operate either outside the framework of the state or in the fringes between state and society — non-state justice systems (hereafter NSJS) — are indispensable components of reform processes aimed at improving the overall performance of legal and judicial institutions. The materials discussed in this paper, drawn from Latin America and Africa, suggest that any successful engagement with NSJS requires a deep understanding of both local state structures and political processes. It also requires an in-depth understanding of the state and community within which NSJS operate. Indeed, as this paper shows, successful engagement should be seen as part of a continuing process of state building. Unless IDAs are willing to take a wider and more political approach to their involvement with NSJS, they will not achieve meaningful progress in rule of law and governance projects.

Community justice institutions and judicialization : lessons from rural Peru

As used in this chapter, the term “community justice institutions” refers to institutions that have three main features: first, they administer justice, but are not part of the official judicial system; second, they resolve disputes that, under the prevailing legal system, are within the exclusive jurisdiction of state courts; and third, they do not apply state law, although they often rely on general principles of law that are consistent with those found in the official legal system. In Latin America, this type of community justice is found both in rural and in urban areas. In urban areas they are often found in the shantytowns that encircle most Latin American cities and that stand as symbols of the shortcomings of the process of economic modernization. In rural areas they are often, though not always, associated with indigenous communities.

International economic law, globalization and developing countries

Contents: 1. Introduction The Editors 2. International Economic Law and Development: Before and After Neo-Liberalism Julio Faundez 3. Multilateral Disciplines and the Question of Policy Space Yilmaz Akyuz 4. Assessing International Financial Reform Daniel Bradlow 5. Crisis and Opportunity: How the Global Financial Crisis May Give Emerging Economies Greater Voice in International Finance Via the Financial Stability Board Enrique Carrasco 6. The New Disciplinary Framework: Conditionality, New Aid Architecture and Global Economic Governance Celine Tan 7. Taxing Constraints on Developing Countries and the Global Economic Recession David Salter 8. The World Trade Organisation and the Turbulent Legacy of International Economic Law-making in the Long Twentieth Century Fiona Macmillan 9. Holistic Approaches to Development and International Investment Law: The Role of International Investment Agreements Peter Muchlinski 10. Human Rights and Transnational Corporations: Establishing Meaningful International Obligations James Harrison 11. Core Labour Standards Conditionalities: A Means by Which to Achieve Sustainable Development? Tonia Novitz 12. Developing Countries and International Competition Law and Policy Kathryn McMahon 13. Does the Globalization of Anti-Corruption Law Help Developing Countries? Kevin Davis 14. Intellectual Property, Development Concerns and Developing Countries Pedro Roffe 15. Biotechnology and the International Regulation of Food and Fuel Security in Developing Countries Mary Footer 16. Environment and Development - The Missing Link Philippe Cullet 17. The UN Climate Change Convention and Developing Countries: Towards Effective Implementation Vicente Yu Bibliography Index

Introduction — A New Journal!

The rule of law has become a global ideal. It is supported by people, governments and organizations around the world. It is widely believed to be the cornerstone of national political and legal systems. It is also increasingly thought of as a fundamental principle of international relations and international law. In the 2005 World Summit Outcome document, the heads of states and government of the world agreed to recognize ‘the need for universal adherence to and implementation of the rule of law at both the national and international levels.’ A year later, the United Nations General Assembly adopted a resolution on ‘the rule of law at the national and international levels.’ Few, if any, ideals have achieved such widespread acceptance and broad application.

On the state of democracy: Introduction

Amajority of states in the world today, some 60 per cent, are governed by democratic regimes; that is, by regimes where political authorities are selected through competitive elections in which opposition parties have a realistic chance of attaining power. This is vastly different from the situation that prevailed five decades ago, when the number of democratic regimes in the world was just over ten per cent. Indeed, today, after the collapse of the Soviet Union and the end of the Cold War, democracy has emerged as the only internationally accepted political regime. As such, it is actively promoted and encouraged by development agencies of industrialised countries and by international organizations, including the European Union and various United Nations agencies. The spread of democracy has had many positive consequences. It has strengthened the view that citizens should have equal voice in political affairs. It has reaffirmed the principle that civil and political rights should be universally guaranteed and respected. It has invigorated civil society organizations. It has made politicians more aware that domestic and international public opinion are effective devices to monitor, evaluate and influence government policy. It has focused countries’ attention on the importance of constitutional design as one of the means of securing more effective systems of accountability and achieving judicial independence. It has brought about the establishment of constitutional courts designed to ensure government compliance with constitutional standards. Perhaps the single, most important consequence of the current resurgence of democracy is that new democracies have become increasingly capable of managing serious crises through political means, rather than by resorting to the military. Thus, in recent years, vigorous popular protests in Ukraine, Ecuador, Georgia and Bolivia brought about major political changes, but did not destroy either the democratic process or the constitution. These positive developments are offset, however, by awareness that the quality of governance in many regimes currently classified as electoral democracies is poor. Indeed, many countries that have recently embraced democracy continue to restrict important civil and political freedoms. As a consequence, citizens are either retreating from politics or, worse still, becoming sceptical about the value of democracy. One of the factors triggering political disaffection is, arguably, the failure of new democratic regimes to resolve pressing social and economic problems of vast sections of their population. Although democracy aims mainly at guaranteeing political and civil equality, pervasive economic inequalities have a negative impact on the capacity of citizens to exercise their democratic rights. The danger posed by this situation is that populist leaders or sectarian groups could take advantage of democracy’s freedom to undermine, discredit or overthrow its institutions. It is not easy, however, for

Law and Development Lives On

This is the Introduction to a four-volume collection of articles on Law and Development, due to be published by Routledge in 2012 (Critical Concepts in Law Series). It is divided into two sections. The first section describes and compares the two main approaches to the study of Law and Development: the first approach developed by US legal academics in the late 1960s and early 1970s; the second approach, initially promoted by the World Bank in the late 1980s and early 1990s, and later adopted by most multilateral and bilateral donors agencies. The second section offers an overview of the main themes covered in the collection, which includes articles on a range of topics, such as economic growth, governance, institutions, political development, gender, human rights, judicial reform, customary law, rule of law, democracy and access to justice.