LOTF2011 | Hassane Cisse

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Law of the Future 2011
23 & 24 June 2011, Peace Palace, The Hague, The Netherlands

Title: Conflict, Fragility and Development in a Globalized World:
Challenges and Implications for the Law of The Future
By: Hassane Cisse

Keynote Presentation

www.lawofthefuture.org

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  • 1. 23 June 2011 | 09:45 - 10:15 | Keynote PresentationConflict, Fragility and Development in a Globalized World:Challenges and Implications for the Law of The FutureBy: Hassane CisseIntroductory remarksAllow me to start by saying what a singular honor it is for me to address such a distinguished audience. Iknow that this is the fourth Law of the Future Conference organized by the Hague Institute for theInternationalisation of Law. I think that this relatively new Conference series has very quickly become alandmark in the international legal community, and for this reason I would like to commend Sam Muller forhis vision in spearheading this series. The Hague Institute as a research institution that studies thechallenges that globalization poses to legal systems and more specifically themes like rule of law and justiceconstitutes a source of knowledge that can be of practical use for a development institution like the WorldBank, which is committed to the promotion of the rule of law and the strengthening of justice institutions.The theme of this year’s Conference, law’s evolution in the next 20 years, is particularly innovative andground-breaking. By juxtaposing law and time, we have to confront a third concept, one which is at theheart of the work that institutions like mine attempt to grapple with on a daily basis: change. Time passesand brings new challenges, and law needs to adapt and respond to each one. At the same time law has beencharacterized by stability and formality, which makes it difficult to keep pace with our constantly and rapidlychanging 21st century world.The organizers in their concept note for this event have identified a number of challenges, including: thedecline of the Westphalian system and the emergence of transnational actors and regulations, climatechange and demographics, and new technological breakthroughs. One could add to these the increasedscarcity of resources and environmental degradation faced by vulnerable societies, and from the perspectiveof a World Bank official, the increased complexity of the international aid architecture at the global level.The 2011 World Development Report, the World Bank’s flagship report, highlights a theme that cuts acrossall of the above challenges: fragility and conflict. All these challenges can generate and be heightened byconflict, risking vicious circles that we have seen play out in places as diverse as DRC, Afghanistan and EastTimor. For example, climate change is causing scarcity of natural resources such as water, which in turngenerates conflict over dwindling supply. Viewed in this way, there is a strange tension in the conferencetheme: we are discussing the ―law of the future‖ in 20 years. Yet the 2011 World Development Report hasshown that building the rule of law in fragile states is a long process: the average time taken by formerlyfragile states to reach ―non-fragile‖ levels on the rule of law in World Bank governance indicators is 42years. On the other hand, no low-income, fragile or conflict-affected country (what the WDR calls ―FCS‖) hasyet to achieve a single Millennium Development Goal, which states have committed to achieve by 2015. 23 June 2011 | Keynote Presentation | Hassane Cisse | 1
  • 2. In that respect, even in 2030, we are only half way to building rule of law in FCS, but we want FCS toachieve MDGs 4 years from now.Fragility and the rule of law go to the core of the mandate of the International Bank for Reconstruction andDevelopment, which is the oldest of the five legally separate, but affiliated institutions of the World BankGroup. Although the World Bank is usually associated with ―development‖, one should not lose sight of thefact that it was originally established to support the reconstruction of Europe in the post World War IIperiod. The first President of the World Bank, Eugene Meyer, highlighted the close links betweenreconstruction and development as early as 1946, placing post-war reconstruction efforts in the context of―the economic development of the world as a whole… [For] economic distress is a prime breeder of war‖.1Although it quickly moved from reconstruction to development,2 conflicts continue to occur and haveactually acquired new forms. Thus the operations of the Bank had proliferated in countries affected byconflict. The ―R‖ in IBRD thus started to obtain a new meaning.3In today’s address, I propose to use the findings and framing of the WDR to explore this core challenge ofconflict and fragility, its implications for the future of development practice, and what this means for the―law of the future‖. In other words, I will briefly present: 1) The problem, which is the detrimental impact of conflict and fragility on the rule of law and the development process; 2) The challenges posed by conflict and fragility to the ―law of the future‖, or more specifically how the law of the future would need to adapt to combat conflict and fragility; and 3) A sketch of some ways in which the ―law of the future‖ might respond to these challenges.The Problem: The detrimental impact of conflict and fragility on the rule of law and thedevelopment processOur world is experiencing a diminishing number of inter-state and civil wars. This is very encouraging in thepresent and for the future. Yet violence is not always associated with war. Local violence involving militiasor between ethnic groups, gang violence, local resource-related violence and violence linked to trafficking(particularly drug trafficking), and violence associated with global ideological struggles can have a seriousimpact on governance and the development of states.In other words, these diverse, but often interlinked, forms of violence result in fragility, or the weakening,diminishing and destruction of institutions that would otherwise contain conflicts and resolve injusticepeacefully. This definition of fragility constitutes the flip side of what has been defined as ―rule of law‖ by theUN Secretary General, namely ―a principle of governance in which all persons, institutions and entities,public and private, including the State itself, are accountable to laws that are publicly promulgated, equallyenforced and independently adjudicated, and which are consistent with international human rights normsand standards.‖41 International Bank for Reconstruction and Development, ―First Annual Meeting of the Board of Governors: Proceedings andRelated Documents‖, 15-16 (Washington, D.C.: World Bank, 1946).2 Edward S. Mason and Robert E. Asher, The World Bank since Bretton Woods 52-53 (Brookings Institution Press 1973). This wasmainly due to the development of the Marshal plan by the US, which aimed to support the reconstruction of Europe.3 Robert B. Zoellick, Fragile States: Securing Development, Speech at The International Institute for Strategic Studies, Geneva,Switzerland (September 12, 2008), available at http://go.worldbank.org/QS00KKG8A0.4 Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, at para. 6, UN Doc.S/2004/616 (23 August 2004) 23 June 2011 | Keynote Presentation | Hassane Cisse | 2
  • 3. But the detrimental impact of conflict and fragility is not confined to the rule of law. The entire developmentprocess is affected. It is not only that no fragile or conflict affected state has yet to achieve a singleMillenium Development Goal. According to the 2011 WDR, on average, a country that experienced majorviolence over the period from 1981 to 2005 has a poverty rate 21 percentage points higher than a countrythat saw no violence and the average cost of civil war is equivalent to more than 30 years of GDP growth fora medium-size developing country. This means that conflict and fragility can lead to the loss of an entiregeneration of economic progress. And this detrimental impact extends to human development: fragile andconflict-affected states account for 70 percent of infant deaths, 65 percent of people without access to safewater, and 77 percent of children absent from primary school.Fragility does not result in the breakdown of governance, state institutions and rule of law only at thedomestic level. A fragile state can have detrimental impacts internationally—whether at the regional level orbeyond. The most important implication is that a fragile state is usually not in a position to exercise itsrights and duties as a subject of international law, including those related to restricting the use of force,limiting state violence, ensuring environmental protection and public health.The challenge: Transitioning out of fragility and conflict through the use of lawThese figures highlight the magnitude of the problem of fragility and conflict. Clearly, the time horizonsneeded for transitions out of fragility add layers of complexity to the problem. We are confronted with asituation in which we need the stamina and political will to hold the course, while simultaneously beingflexible enough to adapt to change in face of rapid shifts and transitions in the political economy. In sum,time presses and a new approach becomes necessary.However, before sketching a new approach, it is prudent to understand first the importance of the rule oflaw in rebuilding fragile and conflict affected states and then the challenges associated with our currentapproach towards fragility and conflict.Briefly put there are two understandings of the rule of law– the ―economic development‖ approach and the―state-building‖ approach. Although they have been distinct from each other, as the 2011 WDR shows, theyare beginning to converge.The economic development approach to the rule of law has at its heart a belief that the role of the rule oflaw is to support economic growth, predominantly through the framing and enforcement of functioningmarkets. These functioning markets provide the basis for growing one’s way out of fragility and conflict--asthe first World Bank president, Eugene Meyer, said in the quote I raised earlier, ―economic distress is aprime breeder of war‖.An alternative approach is what I will call the ―state-building‖ approach. This approach sees the rule of lawas a series of principles espoused by the state, re-committing itself to procedural, substantive and humanrights standards (for example, the state being accountable to human rights-compliant laws). The ―rule oflaw‖ is tied to the construction of a functioning state and – through its ability to contain conflict - is part ofthe establishment of a monopoly over violence. Consequently, justice interventions focus primarily onstrengthening the capacity of state law and institutions, while bringing substantive laws into compliance withinternational human rights standards. This has been driven by the legacies of terrible conflicts and theirimmediate aftermaths – particularly those faced by UN missions responding to unprecedented demand forpeace interventions – from Haiti to the Balkans, El Salvador to East Timor. As a result of these contexts,justice and the rule of law have been seen as part of immediate peace-building activities and the 23 June 2011 | Keynote Presentation | Hassane Cisse | 3
  • 4. establishment of stability and control. Building justice institutions in the broader sense – for example, aninstitution to handle grievances around core areas of stress, such as service delivery or land and naturalresource management – drops down the priority list and gets deferred. The legacy of many of theseinterventions include state of the art court houses and prison facilities, but little attention to the gapingwounds of grievance at the local level that may have led to violence in the first place.Given the long time it takes to establish or re-establish a rule of law system, in order to think about the lawof the future, we need to think about the sufficiency of the approaches to conflict and fragility of today. Iwould suggest that both of these approaches have a great deal to learn from each other. I would alsosuggest that the two approaches suffer from three common flaws: (i) state-centrism, (ii) seekingorganizational best-practice, and (iii) short time horizons. Firstly, with regard to state-centrism, we in thebroad rule of law community are often focused on formal state institutions for a variety of reasons, from ourinstitutional mandates, to the nature of our government partners, to our expertise. Yet in fragile and conflictaffected states these state institutions are often but one part of the landscape of justice institutions in whichordinary users or citizens operate. They may turn for justice to religious courts, customary authorities,traditional leaders, or even personal relationships with a local public official. We must engage effectivelywith the user’s perspective, rather than focus entirely on particular institutional forms. Second, such statesare by definition extremely complex, as fragility and violent conflict inherently go ―beyond the norm‖. If weseek best practice and solutions that can be transplanted from one country to another, we are ignoring thiscomplexity and reducing our chances of success. Third, we know that the donor community generally hastime horizons that are somewhat short; we often expect significant institutional and cultural change over aperiod of months or a few years. However, the WDR has helped us establish that we need to engage in thelong run in order to be successful.A Sketch of a New Design: How could the law of the future respond to the challenge of conflictand fragility?The 2011 WDR provides a moment for change, particularly from the World Bank perspective. How might werespond to the challenges laid out above, while benefitting from the insights afforded by those actors –especially from the UN – who have engaged with justice institutions in conflict affected states using a modeldifferent from our own? We can and will strengthen existing partnerships and build new ones to take onboard some of the aims of the ―state-building‖ actors within the context of our mandate and comparativeadvantage. We can build on the first steps that we have already taken over the past few years. For example,we are working with Afghan justice authorities in the implementation of the Justice Sector Reform Project inAfghanistan. We can also leverage our capacity as a ―knowledge Bank‖ to challenge some of the sharedlimitations in models and use our partnerships to push for sustainable change in how development actors dobusiness on the rule of law in FCS. This is also the goal of a major initiative spearheaded by the WorldBank’s Legal Vice-Presidency, namely, the Global Forum on Law, Justice and Development, which isdesigned to capture, co-generate, exchange and disseminate innovative legal solutions for development.Legal innovation with respect to the use of the rule of law in FCS will be critical to effective responses to thefallout from the recent events in the Middle East. Initial reporting has indicated that issues pertaining toperceptions of inequity and injustice were key drivers of many of the popular movements that arose in thatarea. We need to be innovative and flexible in our responses, and draw lessons from successful attempts tomitigate injustice. These lessons can help us provide better policy advice and services to member countriesso that they might reform in time to avoid violence, which will be central to ―the law of the future‖.I would like to take this opportunity to outline three ―C’s‖ as possible keystones of these sorts of effectiveresponses – ―context‖, ―cross-cutting‖ and ―cross-community‖: 23 June 2011 | Keynote Presentation | Hassane Cisse | 4
  • 5. (1) Context: as highlighted above, FCS are often sites of social fracture and heavy legal pluralism. This means that an effective understanding of local context is essential before developing policy or operations. This will require improved capacity to conduct analytics and integrate them into operational frameworks. For example, the World Bank’s Justice for the Poor program has generated research around local-level gender and justice dynamics to inform Indonesian access to justice legislation. Engaging with context will also require long time horizons for reform. Understanding the length and complexity of transitions out of fragility and conflict will require donors and states to build foundations for sustainable state-society compacts and to be modest about expected results. (2) Cross-cutting: justice and the rule of law cannot be sectoralized. Events in the Middle East have shown how feelings of pervasive injustice by the population and violent uprisings can be indelibly linked. Mahatma Gandhi has taught that ―an unjust law is itself a species of violence.‖ Thus one form of ―violence‖ (a legal system perceived as unjust) breeds another one (violent revolt). These events have also shown how injustice can arise anywhere, and can often be remedied outside a courtroom just as effectively as inside one. As a result, we must be better at mainstreaming justice into development operations in FCS. FCS often have fragile or non-existent social pacts; as a result, new and innovative ways have to be found to manage conflicts and provide for accountability if the rule of law is to be established, often with a great deal of local specificity. The World Bank’s Justice for the Poor and justice and conflict team is developing justice aspects of basic service delivery projects, especially health services, in Nigeria and Sierra Leone. (3) Cross-community: While some actors and the state will strengthen formal institutions, and others will deal with heavily localized issues (for example, around mines), building sustainable rule of law will require action at a level between the national and the community – the ―cross-community‖ or ―meso‖ level. This might entail strengthening local public administrative bodies, or supporting links between traditional dispute resolvers and local government authorities around health or other sectoral disputes. This involves building links between national and local, formal and informal, and so on. These links re-establish the connections between state and society. As a result, this approach re-forges the state-society compacts that the WDR stresses are at the core of transitions out of fragility.What do these mean in practical, concrete terms? On this, I am only able to speak of my own institution. Inthat context, I would suggest that we need to be more open to experimentation in the types of knowledgewe engage with and the sorts of policy and operational work we do in support of FCS. Specifically, I wouldsuggest that we need to: 1) Broaden our base of expertise on these issues to give us a much more refined understanding of context and the cross-cutting nature of justice. This might include historians, psychologists, sociologists, anthropologists, communications specialists etc. 2) Put in place the capacity to generate targeted operational and policy frameworks that are sensitive to the specific needs of the country. The newly-established World Bank’s Center for Conflict, Security and Development is a good first step towards this, but we will need to be very effective in strengthening partnerships with donors and other actors to ensure that country needs are being met. 3) Be prepared to go beyond the state in our operational and policy work to build cross-community links and engage with local realities, decentralized authority and legally-plural contexts. 23 June 2011 | Keynote Presentation | Hassane Cisse | 5
  • 6. These approaches are not without practical challenges. I highlight two of them here: (1) The lack of state capacity to engage in policy discussions. Activities may focus on the meso-level and be context-specific. This would in the ordinary course of business require a state with a deep capacity to engage with donors – right down to local public administrators. As this is unlikely to be the case in FCS, we need to deal with this constraint. This might be through building this capacity – for example, through public sector management/civil service reform. This might be through improving our analytics and understanding of our counterparts’ limitations. And this might be through partnerships, relying on our partners who can engage with local levels on a more effective and less technical basis than ourselves. (2) The need to build donor capacity to understand the justice facets of each and every sector. This will require improved human capital among donors – developing guidance and training will be essential, as will building the operational capacity to act on it.ConclusionAs I mentioned earlier, we have been guided to look to 2030 by the organizers. However, in order torespond to the challenges posed over the coming years, I would suggest that we ought to consider a moredifferentiated timeline. For when the law of the future comes into contact with conflict and fragility, a 20-year time horizon may not be realistic. However, I would like to end on a more optimistic note. If we seetransitions out of conflict and fragility as just that – transitions, or iterative processes of institutionalstrengthening – we can be more humble in our goals and look to achieve checkpoints along the way. Forexample, we might be in a position to do the business of law and development in FCS better. By 2030, wecan commit to more effective partnerships, better thinking around justice and the mainstreaming of justiceinto all aspects of the development portfolio for FCS. We at the World Bank are committed to broadening ourengagement with partners on justice to take into account a range of different disciplines. And I would urgethe Hague Institute to commit, with us, to promoting space for knowledge development, debate andpartnership to generate new operational and policy frameworks that might guide our hand when seeking tosupport the rule of law in FCS. We may not be able to build rule of law quickly, but we can take quick actionto ensure that we do our work better and more effectively.The task ahead is very difficult and may seem insurmountable, but as Nelson Mandela has said: ―it alwaysseems impossible until it’s done.‖ 23 June 2011 | Keynote Presentation | Hassane Cisse | 6