McCaffrey, Stephen C.

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Masthead Logo Global Business & Development Law JournalVolume 18Issue 1 Symposium: Markets in Transition:Reconstruction and DevelopmentArticle 201-1-2004Conclusion: The Rule of Law Among CountriesStephen C. McCaffreyUniversity of th e Pacific, McGeorge School of LawFollow this and additional works at: https://scholarlycommons.pacific.edu/globePart of the International Law CommonsThis Symposium is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusionin Global Business & Development Law Journal by an authorized editor of Scholarly Commons. For more information, please contactmgibney@pacific.edu.Recommended CitationStephen C. McCaffrey, Conclusion: The Rule of Law Among Countries, 18 Transnat'l Law. 175 (2004).Available at: https://scholarlycommons.pacific.edu/globe/vol18/iss1/20Conclusion: The Rule of Law Among CountriesStephen C. McCaffrey*I, too, have been seeking to draw some lessons from these very interestingand illuminating discussions over the past couple of days. I will start with humanrights, which Lucien Dhooge addressed. We have talked a little about water,which is a subject near and dear to my heart, not only because I drink it, but alsobecause much of my work focuses on the law of international watercourses.There is a United Nations body called the Committee on Economic, Social andCultural Rights which made a big splash in November of 2002 when it issuedGeneral Comment 15 on the Human Right to Water.' This document actuallysays that countries have an immediate obligation to do certain things, such asensure that every person in their territory has not only access, but safe access topotable water in sufficient quantities to assure an adequate standard of living.Many governments will find it difficult to comply with this obligation withoutsignificant help from the international donor community and the private sector.But some see the privatization of water supply systems as an abdication ofgovernmental responsibility to guarantee the human right to water. Not onlygovernments, but also international financial institutions may become involved.For example, we have heard a lot about the Asian Development Bank's work inthe context of the privatization of the water supply in Manila. It is going to bevery interesting to watch over the next decade or so to see how many states say tothis U.N. committee when reporting on compliance with their obligations-asthey are required to do under the Covenant on Economic Social and CulturalRights-yes, of course we are providing water to every member of ourpopulation and it is accessible, safe, and healthful. Stay tuned.This is McGeorge's 23rd annual International Law Symposium. Its title is"Markets in Transition: Reconstruction and Development." On Friday wediscussed some of these "markets"-Russia, China, Kosovo, Cape Verde, andIraq, with sidelights on Chile and Palestine. One clear lesson that emerged is thatthere is no one-size-fits-all approach to reconstruction and development inemerging or transitional markets; each "market," or country, presents its ownconditions, needs and challenges.We had an "apple debate" on Friday, triggered by Hernando De Soto'svideotaped remarks. This debate ranged from the question whether the "apple"-the market-can work without the rule of law (Hernando De Soto said "no," ofcourse) to how the "rule of law" is in fact defined. Is it the situation produced by* Distinguished Professor and Scholar, University of the Pacific, McGeorge School of Law,Sacramento, California; J.D., University of California, Berkeley (Boalt Hall), 1971; Dr. lur., University ofCologne, 1974. Member, California Bar.1. U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 15 (2002). Theright to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), U.N.Doc. E/C.12/2002/11, 26 November 2002.2004 / Conclusion: The Rule of Law Among Countriessuch things as the judicial transformation in Chile? Or is it exemplified byanother illustration that was given, the dog barking when you walk by "its" yard.That was thought to be an apt metaphor for the rule of law in some settings.Ed Villmoare told us about "Laws-R-Us" outfits that provide cookie-cutterlaws for enactment in any country. But, as he explained, that does not workeither. We also discussed the role of culture. Is there a culture clash? Is SamuelHuffington right? We debated that question, looking at different areas of theworld. This morning, Don Wallace named the elephant in the room when heasked whether a foreigner can impose his or her vision on a country. The answerseems to be resoundingly in the negative even if the foreigner, as it were, is theUnited Nations. That is the lesson of Kosovo.Then Marjorie Florestal told us a wonderful story-which to me symbolizesmany of the difficulties that were discussed-of the Americans coming to installtheir security equipment in the Cape Verde airport but there being no localpeople that knew how to monitor and use it. One could simply walk through, setoff all the bells and nobody does anything. That tells you a lot about imposingyour vision on a country that is not ready to receive it. The soil has not alwaysbeen cultivated to receive the lovely seeds that we drop into these nations. Allthis may mean that it will take more than twenty years for many of thesecountries to make their transitions, as Ed Villmoare said of Kosovo.This brings me to a case study that I am particularly familiar with, whichdemonstrates that there is sometimes yet another level of complexity. This is theNile River Basin. The Nile is the longest river in the world, flowing some 4,000miles from the Lake Victoria region to its outlet into the Mediterranean throughthe Nile Delta in Egypt. There are ten states in the Nile River Basin: Burundi, theDemocratic Republic of Congo ("DRC"), Egypt, Eritrea, Ethiopia, Kenya,Rwanda, Sudan, Tanzania, and Uganda. The conflicts between and within thesecountries are well known. The states of the Nile Basin also include some of thepoorest countries in Africa and in fact, some of the poorest in the world.There is a saying that nothing flows among the states of the Nile River Basinexcept water: no power, no transportation, no communication, and no trade. Thisled the ten countries in the 1990s to launch the Nile Basin Initiative, a programsupported by the World Bank and whose "shared vision" is "to achievesustainable socio-economic development through the equitable utilization of, andbenefit from, the common Nile Basin water resources." Maybe you see where Iam going with this. We have talked a great deal about development, alleviationof poverty, and raising standards of living; the question is whether this can bedone in isolation, country-by-country, in the Nile River Basin-a geographicalcontext in which cooperation can significantly enhance benefits to each country.These states prepared a number of draft proposals for projects that are basin-wide, sub-regional, and trans-border in nature, and placed them before a donors'conference in June of 2000. The conference attracted a number of industrializedstates and multilateral development banks; pledges of some $140 million weremade for project preparations. This will involve thorough preparation of projectThe Transnational Lawyer/ Vol. 18proposals so they can be floated for possible financing. A hundred forty milliondollars is a lot of money in Africa. Again, however, this represents only theamount necessary for project preparations. When it comes to actually buildingout these projects or executing them, it has been estimated that they will costsomewhere in the neighborhood of twenty billion dollars over a period of perhapstwenty years.Where is that money going to come from? I am looking at Don Wallace,because he rang that bell this morning. It is going to come from the privatesector. It is not going to come from donor countries or multilateral developmentbanks. That raises the question, how can we make the environment attractive tothe private sector? How can this be done in a way that is reasonably expeditiousand effective? Of course, each individual country has to make some advances onits own, but there is also the problem of inter-country conflict, such as the SudanPeople's Liberation Army ("SPLA") launching attacks against Sudan fromUganda; the Lord's Resistance Army attacking Uganda from Sudan; troops fromRwanda and Uganda in the DRC; and even wars between countries, such as therecently concluded one between Eritrea and Ethiopia. What can be done toalleviate this, and to improve the climate for economic development in generaland private sectors for investment in particular?Among the many elements of a solution, one which is a necessary predicateto basin-wide development aid and investment is a treaty between the ten statesin the basin. In fact, since the mid-1990s these countries have been working onan agreed cooperative framework that will contain principles and rules governingtheir relations with regard to the basin, and will establish an institutionalmechanism to help implement the treaty and facilitate cooperation between theparties. Such an agreement would thus establish what might be thought of as therule of law on a macro basis. While far more general than the legal systems andinstitutions being established in the emerging markets we have discussed, it isneeded. Not only the sharing of water, but also the sharing of benefits ofdevelopment and indeed greater economic integration of the states in the basin allrequire a legal framework. Optimization of benefits to all cannot happen if eachof the states goes its own way, any more than social, economic and politicaldevelopment can occur within a single country if each of its citizens marches to adifferent drummer. Such coordination of the development efforts of differentcountries through treaties and institutions amounts to an added layer of the ruleof law. There is certainly more than enough complexity on the national level,which is what we have been talking about these last two days. However, there isanother layer that needs to be considered.I would like to conclude by returning to Iraq, although not literally, please.The French philosopher Ernest Renan defined a "nation" as "a group of peopleunited by a mistaken view about the past and a hatred of their neighbors." I thinkthis pretty well describes Iraq with one possible exception, and that is the firstelement - a group of people. Obviously, more than one group exists, and this isgoing to present the ultimate challenge as power (not "sovereignty" as Antonio2004 / Conclusion: The Rule of Law Among CountriesPerez reminded us yesterday, since sovereignty has always remained in Iraq) orcontrol is transferred from the Coalition Provisional Authority back to the Iraqis.Is there going to be a group of people, and is there going to be an environmentthat is stable enough to attract and retain the investment that I think we allrecognize is necessary for the future development of Iraq? Perhaps that is a topicfor a future symposium.

Conclusion: The Rule of Law Among Countries

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Conclusion: The Rule of Law Among Countries

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