What Is International Law and Development?

Overall, this handbook offers multiple contributions to the literature, as highlighted by the Sections below. Before articulating some of these contributions, however, I would like to add a critical note about the editors’ framing of the volume and the title. In the introductory chapter, they claim that “[i]nternational law and development” is “an emerging field of research and practice” (Ch. 1, p. 1). The editors define it “as an area of scholarship concerned with drawing out the wider connections between the projects and concepts of international law, and the projects and concepts of development” (Ch. 1, p. 2). While drawing from these two areas of research, they claim that “international law and development” should be distinguished from “development studies” and “international law” (Ch. 1, p. 31) and, most importantly, it should not be conceived as a “subfield of public international law” (Ch. 1, p. 1).

As someone who holds a chair in “international law and development,” I would be the first to welcome an attempt to define this as a distinct field of research. However, it is unclear if the editors have succeeded in doing so. First, there is very little reference to this proposed new field or its contours throughout the handbook, raising questions about whether/how it has shaped or informed the contributions. Second, despite their concern to carefully situate this “emerging field” vis-à-vis neighboring disciplines, the editors do not provide a clear explanation as to how this supposed new field relates to what has been traditionally referred to as “law and development”Footnote ¹ in the academic literature. As amorphous as “law and development” may be,Footnote ² trying to divorce from it may be a counterproductive exercise, as it exacerbates the threat of fragmentation that has characterized the field in the last decades.Footnote ³ Third, it is unclear why the editors felt compelled to inaugurate a new field, when the handbook sits very comfortably (and seems to explicitly embrace) the critical tradition within the law and development field. This is a well-established body of scholarship, maintained by an active network of committed scholars, which includes, among others, those who embrace Third World Approaches to International Law (TWAIL), as well as scholars affiliated with the Institute for Global Law and Policy at Harvard Law School. Rather than the launch of a new “field of research and practice,” this handbook may be better conceived as an important and much welcomed effort to reorganize and perhaps rejuvenate the critical law and development scholarship, as the next three Sections show.

Revisiting the National and International Dimensions of Development

While sitting very comfortably within the critical tradition in law and development, the handbook's contributions fall into two distinct categories. One category, as articulated by Obiora Okafor and Maxwell Miyawa “focuses on the structural arrangements and imbalances of the international political economy that underpin, frame, and condition Africa's [and other countries’] experience(s) of relative disadvantage in global affairs (be it in the law and development sphere or not)” (Ch. 11, p. 230). The other category assumes that the national and international interact in complex and non-linear ways, and while there are global structures that perpetuate power imbalances and inequality, there are also instances in which developing regions have “consistently acted as a forge where ideas and practices of development have been formulated, implemented, and reformed” (Ch. 13, p. 273). For scholars in this second category, instruments of domination and oppression can also be tools for contestation and liberation (Ch. 2, pp. 53–54).

Chapters in the first category present the relationship between the national and international as one of domination and subordination. These chapters offer a valuable introduction to an established literature within the critical tradition and document the multiple ways in which the intensity of domination/subordination has increased in the last decades. For instance, Robi Rado (Ch. 8) provides a comprehensive overview of the historical transformations of Bretton Woods Institutions (e.g., World Bank and IMF) and their increasing scope of interventions in domestic laws and policies. Rado also outlines the different critiques to which these institutions have been subjected, ranging from those who think that these institutions could be reformed to reduce the influence of the G7, to harsher critics who think that states in the South should be freed completely from the influence of these institutions, who represent a development project that is unnecessary and undesirable (Ch. 8, p. 184).

Other chapters analyze how relationships of domination and subordination have taken new forms and are now advanced by different legal mechanisms. For instance, Donatella Alessandrini and Jeremmy Okonjo (Ch. 3) map the evolution of international economic law, which imposes conditions for developing countries to engage in the global economy. Such evolution started with treaties (e.g., General Agreement on Tariffs and Trade and WTO) and conditionalities by development organizations (e.g., IMF and International Bank for Reconstruction and Development), moved on to adoption of harmonized codes and domestic legislation (e.g., Agreement on Trade-Related Aspects of Intellectual Property Rights and bilateral investment treaties), and now involves multi-layered governance arrangements, in which transnational regulators (e.g., Basel Committee on Banking Supervision and Financial Stability Forum) displace states from their traditional regulatory roles. Other contributors likewise argue that even where new global dynamics have emerged, many of the new interconnections between the national and international mimic pre-existing (colonial) structures of subordination and domination (see, e.g., Chs. 20, 22, 32, 38).

While the chapters referred to in the previous two paragraphs provide the reader with an updated version of the first category of critical literature on law and development, chapters that fall into the second category offer intriguing and innovative contributions. Assuming that complex interaction between different actors will vary both in time and space, these contributions outline a multitude of ways of conceiving the interconnections between the national and international.

The most provocative chapter in this category is on Sweden, a country that is seldom present in the development literature. Leila Brännström and Markus Gunneflo (Ch. 17) show that in the 1960s and 1970s, Sweden embraced projects to promote welfare capitalism in post-colonial nations. However, this unique development agenda contradicted the liberal assumptions of and Sweden's own engagement with the international economic order. These contradictions became increasingly clear over time, eventually leading to a change in position that brought so close to the liberal development discourse that is became “practically indistinguishable from other promoters of Western liberal values” (Ch. 17, p. 350). What drove Sweden's initial attempt to push for democratic socialism in the Global South and its decision to eventually abandon it? Brännström and Gunneflo point to an entangled mix of altruism and self-interest, while also hinting at the fact that there may have been the intention to build a cooperative and mutually beneficial global project. The authors simply indicate that this failed attempt to create what they call a “North-South Social Democratic axis” could be further explored in the literature, leaving the reader wanting more (Ch. 17, pp. 349, 363).

Similar complexities are identified in the chapter on China (Ch. 15), which has experienced extraordinary rates of economic growth until recently, followed by one of the most significant reductions in poverty levels ever witnessed by mankind. Kangle Zang explores what made the Chinese development model possible, and points to the international trade system and the push for protection of contracts and property rights in the liberal development agenda as its enablers. While acknowledging that this model was only partially embraced, as China “reject[ed] international legal arrangements that could potentially place [it] at a structurally vulnerable position,” Zhang argues that both the Chinese strategy to attract foreign direct investment and its global infrastructure project, the Belt and Road Initiative, illustrate instrumental uses of the liberal development model (Ch. 15, p. 320). The prominent role of the state in China's development model is perhaps its distinguishing feature, and it showcases an alternative way of conceiving the relationship between state and markets that is not recognized by liberal development models (Ch. 15, p. 318).

Some South Asian states, in contrast, have tried to resolve the tensions embedded in the liberal paradigm of development by embracing and expanding it. Raza Saeed (Ch. 13) resists the idea that South Asian nations have been mere spectators of the development project, providing an overview of orthodox and heterodox development policies and innovations in India and Pakistan. Saeed underscores the fact that South Asian thinkers were active contributors to the development discourse, with two South Asian economists creating the Human Development Index (HDI) in 1990 and the concept of Development as Freedom in 1999.Footnote ⁴ While embracing the basic tenets of the liberal development discourse, the HDI and Amartya Sen's work are informed by concerns with agency, justice, and well-being, not being completely distinct to rights-based efforts in other regions of the world, such as Africa (Ch. 11) and Latin America (Ch. 12).

Taking Stock of the Expansion of the Development Agenda, Especially the Rights Discourse

The handbook is also an effort to account for the role that law may play in the context of a significant expansion of the development agenda, which now includes multiple topics beyond economic growth and infrastructure, such as gender, education, and security (Ch.1, p. 2). The UN 2030 Agenda, which was announced in 2015, and consists of seventeen SDGs, with 169 targets to be accomplished by 2030, has been a central driver of this expansion. These goals can be seen either as a menu of options, an empty slogan (Ch. 19, p. 401), or an imprecise concept that can be exploited by powerful actors (Ch. 28, p. 573). Another driver of this expansion is the ambiguous yet increasing role that the rights discourse has played in the development agenda. Several contributions engage with these two drivers.

For example, one of the new trends in the development discourse is the importance of cities. According to SDG 11, cities and human settlements should be inclusive, safe, and sustainable. As Helmut Philipp Aust and Alejandro Rodiles (Ch. 10) note, this brings cities into the center of the development project not only as its passive object, but also as a relevant actor. As with other SDGs, the provider and the addressee of development projects become one and the same under the UN 2030 agenda, a paradigm of development that complexifies the traditional claim that there is subordination and oppression in the development agenda. Aust and Rodiles further complicate the “domination and subordination” picture by pointing to the fact that cities are also central to China's win-win development agenda, and its mammoth global infrastructure network project, the Belt and Road Initiative (BRI). Cities are not only the hubs that connect the modern version of the Silk Road network, but the vast infrastructure improvements in each city that is part of the BRI has the potential to transform China's project into “a promising catalyst in the realization of SDGs” (Ch. 10, p. 222). Therefore, the UN and China's paradigm of development may look distinct at first but may not be that far apart.

The SDGs also bring attention to taxation, a topic that has not received substantial attention in the law and development literature. As Miranda Stewart and Prasanna Nidumolu (Ch. 20) show, the UN places the responsibility of raising tax revenues to achieve the sustainable development goals on nation states (Ch. 20, p. 429). Yet, global economic integration and digitalization can undermine the ability to tax. Multinational enterprises and tax havens represent the main challenges faced by the current system and have sparked increasing demands for coordination among countries, as illustrated by the Base Erosion and Profit Shifting (BEPS) project formulated by the G20 and the Organisation for Economic Co-operation and Development. Yet, these attempts to prevent tax evasion and treaty shopping have either excluded or did not fully capture the interests of developing nations, as they were not “at the table” in many of these negotiations, and they lacked domestic capacity to reap the benefits of this system of international tax cooperation. Therefore, taxation becomes a constitutive part of the development agenda, but the international governance structures that address it seem to replicate old forms of domination and subordination.

SDGs also embrace rights-based discourses of development. As Hoffmann and Rached (Ch. 31) argue, human rights have had a long relationship with the development project, starting at “the margins” with the “right to development” in 1972 (see also Ch. 11) and becoming recently a “mantra” in what is known today as the human rights-based approach to development (HRBA). This historical evolution displays three ways of conceiving of this relationship, which can be captured by three labels (which are mine, based on Hoffman and Rached's detailed description): (1) incompatible, as rights impose an obligation and create an adversarial relationship with the state, while development requires the state as a necessary partner (Ch. 31, p. 621); (2) complementary, as human rights became a tool to keep states accountable, and also allowed Western nations to “supervise” the conduct of post-colonial Southern states (Ch. 31, p. 623); and (3) embedded, as the concept of human development and the focus on the individual turned human rights into a “natural benchmark for this well-being approach” (Ch. 31, p. 624). These three categories are nicely illustrated in other contributions to the volume.

In analyzing education, Sanya Samtani (Ch. 35) discusses incompatibility of two distinct right and development discourses. While SDG 4 sets up a goal (“ensure inclusive and equitable quality education and ensure lifelong learning opportunities for all”), it does not explain how to pursue it.Footnote ⁵ Access to educational materials is governed by the right to education, which is guaranteed by 186 constitutions, but limited by the protection of intellectual property rights for the provision of these materials in a market system, under a model of development based on economic growth. Without resource constraints, states can pay for copyrighted materials, but under resource constraints the conflict between these two views become more likely. The tension between these two is palpable and manifests itself in conflicts that face resource-constrained states in the Global South. Samtani's chapter illustrates resistance to the market-based discourse by South Africa's legislature and by Indian courts, showing how distinct rights-based discourses contribute to the complex relationship between national and international dimensions of development.

Samtani's contribution points to the fact that the UN's SDGs seem to embrace a rights discourse but does not clearly articulate where its allegiance lies. On the one hand, Samtani emphasizes that the UN Education, Scientific and Cultural Organization has affirmed that the principles of solidarity and collaboration should inform the implementation of the SDGs (Ch. 35, p. 699). This indicates a pull away from liberalism, a move that has an old pedigree in critical circles that favor a concept of development based on justice and common purpose. Okafor and Miyawa (Ch. 11) provide an example of this by showing how the African nations’ campaign for a “right to development” was a demand to include redistributive issues in the human rights agenda, being intrinsically connected with economics frameworks such as “African socialism” at the domestic level and the New International Economic Order (NIEO) at the international level. On the other hand, the UN is not a monolithic body (Ch. 7), and its pursuit of the SDGs have relied on partnerships for development and fostered increased participation of private financing, and reliance on markets to meet SDG targets, as I will discuss in the next Section.

Other contributors offer critical views of the claim that rights and development are complementary. While there was little room for a rights discourse in the most radical versions of the neoliberal agenda, there was a recognition of their importance in the institutional development agenda, which adopts many assumptions of liberal economics but claim that institutional arrangements are necessary for markets to work. Some contributors analyze the instrumental role of rights in this institutional development agenda, where protection of contracts, property rights, and promotion of the rule of law are deemed necessary to promote economic growth. Their primary critique is that the liberal conception of rights informing the institutional development agenda is ahistorical and apolitical (Ch. 32, p. 642). Focused on one of the primary implications of the institutional development agenda, the search for “good governance,” Priya Gupta (Ch. 32) shows how the liberal discourse on property rights (which turned the formalization of land title as a central component of the development agenda) has undermined diverse and alternative relationships with land, while increasing the capacity of international institutions and investors (foreign and local elites) to determine directly or indirectly how resources are used and allocated. Similarly, Diamond Ashiagbor and Kerry Rittich (Ch. 22) point to the call for formalization of labor and its legal protection as driven by industrial standards that characterize the economies in developed countries; they claim that this agenda increasingly fails to capture the complexities of labor relations and practices prevalent in developing states.

The embedded version of the relationship between rights and development is epitomized by the 1997 HBRA initiative at the United Nations. However, as Hoffman and Rached acknowledge, “despite its ritually acclaimed status as the mantra of contemporary (sustainable) development policy, it remains somewhat hazy and its ubiquity seems inversely related to any consensus on the precise content and legal force” (Ch. 31, pp. 625–26) While they acknowledge the multiple layers (domestic and international) in which human rights and development discourses and agendas may relate to each other, other contributors point to the concrete limitations of the way in which the human rights discourse is used in some development circles. For example, Vasuki Nesiah (Ch. 33) argues that transitional justice only embraces civil and political rights (ignoring how socioeconomic issues may be at the root of some human rights violations that have occurred in autocratic regimes). Nesiah along with other authors also points to the fact that the rights-based, individualistic discourse construe transnational problems as local. For example, in the context of labor laws, Ashiagbor and Rittich challenge the liberal claim that informality can be reduced by domestic reforms; instead, they conceive of it as being “an entrenched feature—and sometimes a direct product—of the organization of work within globalised markets” (Ch. 22, p. 468).

Mapping New Actors, Techniques, and Technologies

Several contributors emphasize how private actors have now, in different ways, gained more power and influence in the development project. One dimension of this is the increased use of technologies in development projects, which intensified since the MDGs embraced ICTs as a tool to improve individual agency and well-being (Ch. 37, p. 737). Serena Natile claims that ICTs promote a market-based vision of freedom as exemplified by the idea of entrepreneurship at the “bottom of the pyramid” and “microfinance,” not the vision of freedom articulated by Amartya Sen, which focuses on enhancing individual capabilities, and empowering individuals to live the life they have a reason to value (Ch. 37, p. 738). The trend continued with the SDGs and their reliance on digitally enabled development projects. The digitalization of the global economy and of the development agenda has significantly empowered private actors, such as “technology companies domiciled in the Global North” (Ch. 3, p. 78) and created “new mechanisms for value extraction in the Global South” (Ch. 37, p. 743). As development projects resort to digital technologies (e.g., financial digital inclusion), they expose individuals in the Global South to transnational data flows and powerful corporate actors, intensifying their vulnerabilities (Ch. 36, p. 728; Ch. 37, p. 749). The data collected by these companies is also being used to fill the gaps in indicators, due to the lack of capacity of states in the Global South to collect the information. There are therefore important questions about the use of indicators in development projects, and the challenges become compounded when they are based in information that is mostly produced by private companies (Ch. 38, p. 758). Finally, the turn to behavioral science in development projects (Ch. 36) has created a demand for experiments and randomized controlled trials that rely largely on private actors as producers of knowledge (Ch. 2, p. 57).

A second dimension of this increased importance of private actors is related to official development assistance. There is an ongoing process of privatization of development, associated with the strategy of “maximizing finance for development,” i.e., bring private investment to support SDGs. This process “reimagines international development interventions as investment opportunities for global finance” (Ch. 3, p. 73). Similarly, there is an increasing role of private financial resources for development in the EU's official development assistance program, as illustrated by the External Investment Plan for Africa and the European Neighborhood, which aimed at attracting €44bi in private investment by offering €4.5bi in official assistance (Ch. 16, p. 344).

While some chapters just mention this second dimension, one of the contributions maps the political maneuvers that brought this about. In analyzing the evolution of climate finance, Nina Araneta-Alana (Ch. 29) shows how the concept of climate finance has moved away from its original meaning, which referred to “developed countries’ obligations to assist developing countries to enable them to implement the provisions of the [UN Framework Convention on Climate Change (UNFCCC)]” (Ch. 29, p. 588). The concept was progressively modified to refer to mobilization of private resources, showcasing how developed nations (especially the United States) have influenced multilateral-development banks, the UNFCCC Standing Committee of Finance, and the composition of national delegations attending the conference of the parties to incrementally change the meaning of the expression. Therefore, there is a dimension of this private actor presence in development circles that exemplifies that well-established claim within the critical law and development tradition of domination and subordination of developing nations by those who have authority and power in the international system.

While the empowerment of private (economic) actors by development discourse figures prominently throughout the volume, there is only one contribution that puts these economic actors in tension with the state and the development agenda. George B. Radics and Pablo Ciocchini (Ch. 34) provide a historical overview of law-and-order policies from colonial times to this day, providing case studies of the use (and abuse) of criminal law by illiberal leaders in Brazil (Bolsonaro) and the Philippines (Duterte). Criminal law and penal populism are used to oppress minority groups, especially those who operate in the informal economy and/or are involved in drug trafficking. While this is a relevant contribution, its presence in the volume calls attention to the fact that white-color crime, especially the anti-corruption agenda, has not received the attention it deserves. Anti-corruption (and possibly penal populism) now figures prominently in the development agenda. The enactment and enforcement of extraterritorial legislation, especially in the Global North (e.g., Foreign Corrupt Practices Act in the United States), to combat crimes in the Global South seems like a relevant topic for critical law and development scholars. This topic illustrates tensions between the rights and the development discourse, and the difficulties of distinguishing what is international and national in today's liberal development agenda. Its omission from the handbook seemed like a missed opportunity.

Conclusion: What's Next?

As stated at the outset, this handbook can be considered an effort to rejuvenate the critical law and development scholarship. It is therefore appropriate to conclude by offering a list of topics for future research, which were sparked by some of the contributions of this volume. This list, however, needs to be accompanied by a disclaimer. There is an intrinsic limitation in book reviews of edited volumes: reviewers have limited space and are thus unable to discuss all chapters; and the choice of chapters tend to be informed by the reviewer's area of expertise (in my case, institutionalism).Footnote ⁶ This not only explains why certain topics that are present in multiple handbook chapters (e.g., gender, race, colonialism, and Indigenous populations) have not been analyzed in this review, but also alerts the reader that this last Section will be specially influenced by my own academic work.

First, under what conditions do mechanisms or systems of domination and subordination fail; what kind of strategies and opportunities may allow for individuals, communities, or nations to liberate themselves from oppressive systems?

This question is sparked by the increasingly complex and non-linear interconnections between national and international dimensions of development (see the first Section of this review). To identify and analyze complexity, it is necessary to abandon simplistic and unidimensional conceptions or development institutions and their instruments. For instance, Eslava, Murphy, and Pahuja (Ch. 6) show how the state is not a monolithic entity and can be conceived as either a mechanism to replicate, reinforce, or resist the liberal development project. As China illustrates (Ch. 15), these roles may be played out strategically by a single nation state vis-a-vis the global economy and the international economic rules. Therefore, while the critical tradition has emphasized mechanisms of subordination and oppression, there is also an interesting research agenda about actors breaking away from such mechanisms, or selectively engaging with them for their own benefit.Footnote ⁷ It would be interesting to better understand when does this happen and how (e.g., foresight, luck, strategic thinking, or something else).

Second, what are the institutional arrangements, power structures, or political dynamics that generate non-coherent (or perhaps conflicting) discourses within a single actor/institution; what allows these incoherences to persist or not?

The UN figures prominently in this category. Sinclair (Ch. 7) challenges the predominantly positive discourse about the United Nations, which is often favorably compared to the Bretton Woods Institutions, to pinpoint that it is a multifaceted institution, and its many arms (e.g., UN Trade and Development, UN Development Programme, UN Children's Fund, etc.) neither act in a concerted fashion nor necessarily advance the same agenda. These tensions embedded in the UN system are concretely illustrated in a number of contributions but become particularly visible in the analysis of Shane Chalmers (Ch. 5), who describes how promoting rule of law reforms has generated competing demands for universalism and responsiveness to the local. These competing demands resulted in the UN nominally embracing pluralism and localization but failing to validate non-Western legal arrangements. There seems to be a growing interest in mapping these and other contradictions at multiple levels of the development practice, especially regarding the “rule of law” discourse.Footnote ⁸ From an institutional standpoint, there are interesting and largely unexplored questions about the type of organizational arrangements and institutional incentives that may allow for such contradictions to come to the fore and the benefits and costs of preserving them.

Third, what are the political mechanisms, social dynamics, belief systems, and knowledge production techniques that allow liberal economic discourse to prevail notwithstanding concerted attempts and organized mobilization to abandon or modify it?

As Usha Natarajan (Ch. 28) shows, the concept of sustainable development was originally based on a concern with the ecological limits to growth (Ch. 28, p. 568). Proximity of communities engaged in production with those consuming these goods would be the most effective way to reconcile markets with environmental preservation, but the SDGs have instead recommended expanding international trade. They therefore assume the possibility of infinite growth in a finite planet, abandoning the most fundamental challenge of the sustainability agenda. Along similar lines, Amy Cohen and Andrew Lang (Ch. 21), show how the fair-trade initiative was initially built on solidarity networks, where negotiations are guided by ethical principles, rather than profit-maximizing self-interest. Yet, these networks have progressively embraced neoliberal principles of governance, such as proceduralization and competition, which have eroded attempts to generate the social consensus necessary to build an alternative way of engaging in market transactions. The literature would be vastly enriched by other detailed case studies similar to Cohen and Lang's. They illustrate that the clash of liberal and non-liberal development models is also a story of mental frameworks, and mapping the mechanisms that influence and change these frameworks would vastly enrich our understanding of success and failure of development projects.

Fourth, is law simply epiphenomenal (i.e., an indicator of underlying political or economic power), or can it be constitutive of economic, social, and political dynamics?

This question is sparked by the contribution of Philipp Dann (Ch. 2), focusing on what he calls “the law of development” (which refers to formal rules as well as soft norms that govern the transfer of funds and knowledge from one country to another for development purposes). He argues that law is not simply a manifestation of power relations in the global international order, but it is also constitutive of these relations. Therefore, “law” and “the development project” are shaped and reshaped by each other over time. The different mechanisms that govern this mutually constitutive relationship both in the “law of development,” but also in rights-based development discourses, remains underexplored in the existing literature on law and development. By providing some illustrative examples of this relationship, the handbook reinforces the palpable need for further research on this issue. The role of law in the context of the SDGs (see Chs. 20, 35), is a topic that deserves special attention.

Due to limited space, this book review does not do justice to the richness and complexity of the forty contributions in this handbook. There are many relevant and interesting topics, approaches, and questions that were not even mentioned here. Yet, I hope to have conveyed how much this handbook offers both in chapters that are useful to less experienced researchers, as accessible introductions to some of the themes that have historically characterized the critical tradition in law and development; as well as more cutting edge and innovative contributions that will be of interest to seasoned scholars. Thus, I would recommend the handbook to anyone interested in law and development.