Introduction: the rule of law in transnational development projects – private actors and public chokeholds

We are sympathetic to the research aims of the two books examined by this symposium and their desire to understand law's role in generating and contesting social injustice. We are also intrigued by the proposal in the Introduction to this symposium, notably to expand the normative reach of the rule-of-law ideal to private actors, in order to transform it into an ally of counter-hegemonic action. In our research, we share a similar research focus (development projects), methodology (case-studies) and concerns (harmful effects of development interventions) with the authors of the two books. Accordingly, in this contribution, we want to think together with the editors of the symposium – by examining the case-study of the Hidroituango project in Colombia (hereinafter, ‘Hidroituango’) – whether the rule of law can indeed be reimagined to limit the arbitrary exercise of power by private actors, and what benefits this might create for dealing with social injustice. However, since neither Bhatt nor Lander advances an explicit account of rule of law in their books, our critique in this piece is addressed not at them, but rather at the theorists and advocates of rule of law as a political ideal.

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Emergency! But What about Legal Protection in the EU?

European Journal of Risk Regulation ◽

10.1017/err.2018.8 ◽

2018 ◽

Vol 9 (1) ◽

pp. 99-119 ◽

Cited By ~ 1

Author(s):

Tom BINDER ◽

Argyro KARAGIANNI ◽

Miroslava SCHOLTEN

Keyword(s):

Rule Of Law ◽

Legal Protection ◽

Case Law ◽

Public Authorities ◽

The Rule Of Law ◽

Emergency Powers ◽

Executive Discretion ◽

Legal Position ◽

Private Actors ◽

The Eu

AbstractThe EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.

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Private actors in development projects: reflections on human rights between power and resistance

International Journal of Law in Context ◽

10.1017/s1744552321000057 ◽

2021 ◽

Vol 17 (1) ◽

pp. 114-121

Author(s):

Gamze Erdem Türkelli

Keyword(s):

Human Rights ◽

Rule Of Law ◽

Civil Disobedience ◽

Development Projects ◽

State Transformation ◽

Legal Norms ◽

Power And Resistance ◽

Book Symposium ◽

Human Rights Norms ◽

Private Actors

The theme of the book symposium ‘The Rule of Law in Transnational Development Projects’ is, as Bhatt's Concessionaires, Financiers and Communities (2020) and Lander's Transnational Law and State Transformation (2020) highlight, ripe for critical reflection. The two books reveal the power wielded by private for-profit actors in the co-constitution of legal norms, often at the expense of local communities in development-investment settings. The co-constitution of legal norms by private actors via ‘contracts’, ‘policies’ and ‘intermediaries’ (Bhatt, Lander and Taekema, Book Symposium Introduction in this issue) development permeates rule of law in the public sphere, including in ways that affect the application of domestic and international legal norms relating to human rights. Of course, rule of law may be defined by ‘thick’ conceptions … as a just system of laws ‘consistent with international human rights norms and standards’ (UN Secretary General, 2004, para. 6) or ‘thin’ conceptions with more formalistic requirements that do not prescribe political or social values. Deontological questions aside, even in its ‘thinnest’ conception, rule of law means that legal norms ‘should be publicly promulgated; be predictable in their application; apply to all citizens, including government officials; and be subject to some form of neutral adjudication in the event of disputes as to their interpretation or application’ (Trebilcock, 2011, p. 209). Yet, rule of law has often been applied ‘to favour entrenched elites over resistance groups, vested interests … over civil disobedience, official actors over unofficial actors and property owners over protestors’ (Simpson, 2012, p. 9).

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Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and Wars

German Law Journal ◽

10.1017/s2071832200020940 ◽

2015 ◽

Vol 16 (3) ◽

pp. 452-478 ◽

Cited By ~ 3

Author(s):

Outi Korhonen

Keyword(s):

International Law ◽

Rule Of Law ◽

State Level ◽

Current Situation ◽

The State ◽

Public And Private ◽

The Rule Of Law ◽

Economic Control ◽

Before And After ◽

Private Actors

In Ukraine, spheres of political, military, and economic control are contested, non-transparent, and shifting. As the Ukrainian government lost control over the rebellious Eastern oblasts (regions) of the country, Russia denies its authority over various pro-Russian separatists and vigorously rejects any responsibility for the abuses by the unidentified “green men,” both before and after the annexation of Crimea. Even during the decades before this conflict, the rule of law in Ukraine was “thin” at best. Meaningful political control was sporadic and dispersed, often wielded by the mix of public, private, and other shady actors occupying the grey area between a functional and a dysfunctional state. If state actors never effectively took control over the events at the state-level during peaceful times, it is not surprising that it is more difficult once a “hot” conflict breaks out. It is not unreasonable to assume that Minsk agreements—signed in an effort to stop the hemorrhaging of the conflict—will not hold if the signatories do not effectively control the diverse public and private actors who possess the actual capacity to influence the dynamic on the ground. Before rendering any kind of juridical judgment, the complicated political and socioeconomic configuration of the conflict in Ukraine forces us to first confront a factual puzzle: Who and what influence the current situation? Which concrete actors really drive the conflict and what interests animate them?

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Access to remedy in transnational development projects: the need for effective and comprehensive remedy ecosystems

International Journal of Law in Context ◽

10.1017/s1744552321000082 ◽

2021 ◽

Vol 17 (1) ◽

pp. 136-144

Author(s):

Martijn Scheltema

Keyword(s):

Rule Of Law ◽

Good Governance ◽

Indigenous Rights ◽

Access To Justice ◽

Development Projects ◽

Special Issue ◽

The Rule Of Law ◽

General Stability ◽

Democratic Systems

It is observed in the Introduction of this special issue that the rule of law has been an integral part of the development of democratic systems of government in national states and features powerfully within contemporary ‘good-governance’ promotion in the Global South by development financial institutions (DFIs). However, the rule of law is predominantly used to emphasise the importance of stability of contract and protection of property in connection with transnational development projects (TDPs) and does not so much focus on the general stability of (e.g. indigenous) rights, access to justice and fairness. Thus, it is important to deviate from a narrow interpretation of the rule of law and include the role of all types of actors in safeguarding this rule of law.

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Privatizing War

Privatization ◽

10.18574/nyu/9781479842933.003.0013 ◽

2018 ◽

pp. 299-322

Author(s):

Cécile Fabre

Keyword(s):

Rule Of Law ◽

Essential Role ◽

International Norms ◽

The Rule Of Law ◽

Norm Enforcement ◽

Private Actors ◽

Alon Harel

Friends and foes of the privatization of norm enforcement share a commitment to the rule of law. Its moderate friends believe that norm enforcement can comply with the rule of law even if it is carried out by private actors. Its radical friends hold that the rule of law obtains only if private actors are given an essential role in the enforcement of norms. Contrastingly, enemies of privatization object to it on the grounds that private actors are simply unable properly to enforce norms in compliance with the rule of law. This chapter argues that Hadfield and Weingast’s radical defense of the privatization of norm enforcement does not translate well to the use of war as a means to enforce international norms, whatever its merits in municipal contexts. It then rejects one of the most plausible arguments against all forms of privatized norm enforcement in general, and of war enforcement in particular, recently developed by Alon Harel. Drawing on the criticisms of those two views, the author provides an argument for the moderate privatization of war.

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Non-statutory Rulemaking and the Rule of Law: towards a ‘Law of Rules’?

sui generis ◽

10.21257/sg.41 ◽

2017 ◽

Author(s):

Cedric Jenart ◽

Stéphanie De Somer

Keyword(s):

Rule Of Law ◽

Legal Certainty ◽

Legal Scholarship ◽

The Rule Of Law ◽

Electoral Connection ◽

The People ◽

The Government ◽

Private Actors ◽

Looking Glass ◽

Public Bodies

In various European legal systems, autonomous public bodies and private actors are increasingly invested with rulemaking powers. The phenomenon is usually assessed through the looking glass of the democracy principle, because these actors have a weaker electoral connection to the People than other (non-statutory) rule makers such as e.g. the Government and its ministers. What is still largely missing from legal scholarship is an analysis of how the rule of law, and more specifically legal certainty, is safeguarded when private actors and autonomous public bodies receive rulemaking powers. This contribution reveals that the rules and practices applied by these actors sometimes lead to higher degrees of legal certainty than those in place for central administrations. Hence, these ‘non-politically-accountable actors’ offer inspiration for the development of an overarching Law of Rules that can further the Rule of Law for all non-statutory rulemaking.

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The Legislators’ Engagement in Policy-making and Post-legislative Scrutiny in Nepal Since 1991

Journal of Southeast Asian Human Rights ◽

10.19184/jseahr.v4i1.17231 ◽

2020 ◽

Vol 4 (1) ◽

pp. 69 ◽

Cited By ~ 1

Author(s):

Sanjaya Mahato ◽

Rupesh Kumar Sah ◽

Pooja Chaudhary

Keyword(s):

Rule Of Law ◽

Policy Making ◽

Time Constraints ◽

The Political ◽

Development Projects ◽

Structural Factors ◽

Development Fund ◽

The Rule Of Law ◽

Policy Making Process ◽

Legislative Review

Parliament enacts legislation and has a role to evaluate the implementation of legislation in meeting the intended outcomes. Post-legislative scrutiny (PLS) identifies defective legislation and rectifies it. As such, it contributes to better legislation and implementation of legislation objectives. However, this requires a strong commitment by the parliamentarians in the legislation process and policymaking. Along with a range of structural factors, including lack of expertise and experience and time constraints, the main reasons for the ineffective post-legislative review in Nepal stem from the Member of Parliaments’ (MPs) shallow engagement in policy-making and legislative review processes and stronger focus on expanding expenditure related to building roads, schools, and other vital infrastructure. For example, the Constituency Development Fund (CDF) provided to MPs has been continuously increased in consecutive elections since 1991. MPs appear to prioritize the political benefits of engaging with their electorate on funding and development projects, over their role in reviewing or scrutinizing legislation. This paper argues that the shallow engagement of MPs in the policy-making process and ineffective post-legislative review has resulted in not only defective and unsustainable policies but also defective legislation. This has created problems in the rule of law and accountability. This paper largely draws from reviewing contributions of delegated legislation committee for rule of law, evaluates the implementation of the committee recommendations in improving legislation and analyse the effects of noncompliance of committees’ recommendations in people’s justice.

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