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Law and Regulation

Weekly wire: The global forum

Roxanne Bauer's picture

These are some of the views and reports relevant to our readers that caught our attention this week.

Refining advocacy assessment: reflections from practice
ODI
Efforts to assess advocacy – and thinking about how best to do so – are relatively recent compared to other fields. However, in the past decade a number of advocacy evaluation frameworks have emerged. This working paper looks at how these existing frameworks classify people and activities, and define and assess outcomes. It identifies problem areas, discusses implications for practice, and offers suggestions on how they can be addressed. The paper is derived from work over the past five years, revisiting recommendations from existing guidance, many of which the authors have followed and suggested to others. The working paper aims to contribute to further adaption and refinement of conceptual thinking and practical tools to assess advocacy.

Humanitarian Connectivity Charter Annual Report 2016
GSMA
The 2016 Annual Report tells the story of the growthof the Humanitarian Connectivity Charter from its launch in 2015, to the end of 2016, charting how its footprint has expanded to more than 75 countries, becoming a globally recognised industry-wide initiative. This report also details signatory and partner achievements in upholding the HCC principles.

Two cheers for the 2017 Governance and the Law World Development Report

Brian Levy's picture
The 2017 World Development Report is a landmark document for the development community. Historically, the point of departure for development practitioners (including those within the World Bank) has been to promulgate technocratic, ‘best practice’ solutions to development challenges. For more than two decades, this ‘best practice’ approach has been put into question by a growing avalanche of research on the political, institutional and governance underpinnings of development. The 2017 WDR does an heroic job of assembling and synthesizing this voluminous research into a compelling statement of why ‘best practices’ fail to address some core constraints, and thus do not achieve their intended results.
 

Some will doubtless critique the report for its  promiscuous use of jargon. But empathy is called for. The WDR team surely confronted some formidable internal political challenges. It needed to frame its argumentation in a way that spoke directly to economists, who remain intellectually hegemonic within the organization. As important, it needed a framing that was politically acceptable across the range of the extraordinarily diverse constituencies that make up the Executive Directors of the Bank – from the United States, to China, to Russia, to the Nordic countries as well as Latin American, African and other Asian and European constituencies. My sense  is that the document has met this challenge. So a first loud cheer to the WDR for successfully, and hopefully irreversibly, consolidating the centrality of politics and institutions in the development discourse.

Break it and see: norms of good governance and the wobbly protection of public opinion

Sina Odugbemi's picture

Events around the world (on this please see Freedom in the World 2017) are teaching us at least two astounding lessons. The first is that in liberal constitutional democracies good governance is far more dependent on norms, particularly constitutional conventions, than formal rules. This has serious implications. The second lesson is that when certain political actors choose to ignore the norms of good governance …and the details vary depending on the context…it is not at all clear that anything can stop them. Let’s take these two issues one by one.

Norms, conventions, formal rules

In his classic work, Introduction to the Study of the Law of the Constitution the great English jurist, A.V. Dicey, introduced a distinction between what he called constitutional laws and the conventions of the constitution. Constitutional law, he pointed out, consists of rules that the courts will enforce. But there are other constitutional rules:

The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of other officials, are not in reality laws at all since they are not enforced by the Courts. This proportion of constitutional law may, for the sake of distinction, be termed the ‘conventions of the constitution’, or constitutional morality.

Get off my lawn! Pokemon Go tests global property laws

Lin Taylor's picture
The augmented reality mobile game "Pokemon Go"
by Nintendo is shown on a smartphone screen in
this photo illustration taken in Palm Springs,
California U.S. July 11, 2016.

Within one week in July the Sydney suburb of Rhodes was transformed from a quiet neighbourhood to what resident Joyce Wong described as a "place of carnage" with hundreds of people wandering around like "zombies".   

"The car hooting noise was incessant, on weekends you felt like you were under siege and the rubbish and litter all over the public areas was terrible," she told the Thomson Reuters Foundation by email from her home in the Australian city.

The reason for the constant disturbance? Pokemon Go, the latest craze in augmented reality.

The game took the world by storm this summer as animated creatures began appearing in the most unexpected places - all through the lens of a smartphone.

The global popularity of the game and other video games that put digital "characters" into real places – from private homes to shops, parks and even monuments and museums – has fuelled debate on land rights, the legal boundaries of private property, and what constitutes trespass.

Experts say the inter-section between virtual reality and property law is not clear, and nobody really knows what the rights of property owners are when digital characters or structures appear on their land.

"A lot of people are convinced that because they own their property, they ought to be able to control the virtual space," said Brian Wassom, a lawyer at Michigan's Warner Norcross & Judd LLP with expertise in augmented reality.

"I think they're going to come to the answer which I have come to, which is: no, you can't," he said in a phone interview.

He said land rights only apply when there has been something or someone physically present on the property.

However, this distinction is becoming blurred as more and more examples of the power the digital world can hold over specific geographical spots emerge.

Can the middle class really guarantee good governance?

Sina Odugbemi's picture
When social scientists and historians look back on the transformation in the quality of governance that took place in, first, Great Britain and, later, much of Europe in the course of the long 19th century, one explanatory factor often stands out: the rise of a large enough middle class.  What is large enough is, of course, a question of fact, and varies depending on the particular country context. This explanation is often contested, but it has stuck. People refer, for instance, to the revolts against monarchies that occurred across Europe around 1848 as the middle class revolutions. The sense that this explanation makes sense is so strong that when you attend seminars on improving governance in developing countries at some point or the other someone is bound to say: “Let’s be patient folks. Once these countries have a large enough middle class the pressure for improved governance will be unstoppable.”

I write about this now because I have just read an essay by Nancy Birdsall of the Center for Global Development that restates the view with some sophistication. Please see: “Middle –Class Heroes: The Best Guarantee of Good Governance.” The essay is worth reading in full. I am going to focus only on her core case. Key quote:
Having a large middle class is also critical for fostering good governance. Middle-class citizens want the stability and predictability that come from a political system that promotes fair competition, in which the very rich cannot rely on insider privileges to accumulate unearned wealth. Middle-class people are less vulnerable than the poor to pressure to pay into patronage networks and are more likely to support governments that protect private property and encourage private investment. When the middle class reaches a certain size – perhaps 30 percent of the population is enough – its members can start to identify with one another and to use their collective power to demand that the state spend their taxes to finance public services, security, and other critical public goods. Finally, members of a prospering middle class are unlikely to be drawn into the kinds of ethnic and religious rivalries that spur political instability. (Italics mine.)
 

Complexities of reputation management and policy making in a globalized world: Bangladesh after Rana Plaza

Sonia Jawaid Shaikh's picture

On April 24, 2013, a building called Rana Plaza in Dhaka came crashing down on thousands of workers, killing more than 1,100 and injuring more than 2,500 individuals. Unlike any other building collapse, this received widespread international attention - and continues to do so - because the building housed factories that sewed garments for many European and American clothing brands. As a result, a chunk of blame for the collapse and deaths was placed on retailers and brands that outsourced their work to Bangladesh, and particularly Rana Plaza.

Since the tragedy, these retailers and companies, both big and small, utilized several brand reputation management strategies. This, in turn, impacted the policies of the garment industry in Bangladesh. Primarily, two retailer blocs, The Accord and The Alliance, emerged which have created their own local and international dynamics.

The Accord is a legally binding agreement that has been signed by many European and North American companies and allows for factories to be vetted and shut down in case of non-compliance with safety standards. The Alliance, signed by North American groups such as Walmart and JC Penny, however, does not guarantee any such protections and allows companies to use their own rules with any legal requirements.

Interestingly, many companies who are either part of The Alliance or The Accord, choose not to publicise their participation in such agreements on their own websites. This allows them minimize any attention that could turn into criticism while still taking part in initiatives in case there ever is an inquiry from media, regulators, or other interested parties.

Where are the gaps in the way we campaign?

Duncan Green's picture

The summer is a time for relaxed chats in my Brixton office. This week it was with a seasoned NGO campaigner who’s been on a break and wondering about re-entry into the UK/global development and environment campaign scene at the research-y end. Where are the gaps and potential niches that a bright, reflective, experienced campaigner-turned-researcher could help to fill? Here’s a few that came up, inevitably influenced by How Change Happens and attendant reading.

Implementation Gaps: A lot of successful campaigning targets the gap between policy and practice – what the government or the law has said vs. what is happening in reality. It may not have the intellectual appeal of starting with a clean sheet and saying ‘if I ruled the world, I would do X’, but the chances of getting somewhere are much higher. So how about a guide to IGap campaigning – how to identify them, work out which ones are the most promising, case studies of success, questions to ask etc?

Positive Deviance: I’m getting increasingly obsessed with this as a huge potential addition to the development repertoire. Instead of jumping in and opening a project or campaign, start by looking for the positive outliers that already exist on any given issue. Go and study them, and then use social learning to spread the message. The outsider acts as a facilitator, not a ‘doer/intervenor’. But all the positive deviance examples I’ve seen refer to programming – tackling on-the-ground problems like child malnutrition in Vietnam. What would a PD-based campaign look like? Go out and identify existing positive outliers on tax evasion, respect for human rights, or smallholders in value chains, then build a campaign to scale them up?

Four ways regional bodies can help deliver justice commitments made through the SDGs

Temitayo O. Peters's picture

The Sustainable Development Goals (SDGs) differ from the Millennium Development Goals (MDGs) in many ways. Unlike the MDGs, the SDGs universally apply to all countries and they are holistic and integrated. Moreover, their delivery is to be achieved by governments, civil society, and the private sector all working together to achieve their success.
 
The SDGs also recognize the central role of justice in achieving development, with Goal 16 specifically guaranteeing “equal access to justice for all.” Governments, in partnership with other stakeholders, must make necessary national reforms to provide access to justice to the billions who currently live outside of the protection of the law. They must commit to financing the implementation of these reforms and be held accountable for their success.
 
Regional and sub regional bodies are uniquely placed to assist governments with implementing and monitoring justice commitments made through the SDGs. Learnings from the MDGs show that countries that integrated the MDGs into existing regional strategies were far more successful in meeting the MDGs’ objectives than countries that did not have the support of an existing regional strategy.

Does transparency hobble effective governance?

Sina Odugbemi's picture

A remarkable debate on transparency and open government took place on March 15, 2016 at the Reynolds Journalism Institute and the Truman School of Public Affairs at the University of Missouri, Missouri, USA.  The issue was: Is American Government too open? Professor Bruce E. Cain of Stanford University argued that “Yes, American Government Is Too Open”, and Professor Charles Lewis of American University, Washington DC, argued that “No, American Government is Not Too Open”. You can watch the debate here.

It is a rich and illuminating exchange, and one that the two professors somehow manage to keep civil. I watched the debate online but in what follows I draw from the written commentary submitted by both professors, and I try to focus on the universally applicable points that each one made.

How to help communities protect their lands

Rachael Knight's picture
Kenya Land Alliance facilitates a meeting
with the community of Chara, in Tana
River county

The scale of the global land grab is staggering. While international actors have made excellent progress establishing complaint boards, issuing principles for responsible investment, and securing commitments from multi­national corporations, these protections do not chart a clear course of action that communities can follow to protect their lands and natural resources before an investor arrives seeking land. 

The problem is that once an investor arrives to “consult with” a community, it may be too late.  After a deal has been made in capital city conference rooms or in clandestine meetings between chiefs and company representatives, communities are forced on the defensive. At this point, all they can do is try to mitigate the negative impacts of investors' plans rather than assertively proclaiming their legal rights, demanding that the investor abide by FPIC principles, and then choosing whether to reject the investment or accept it on terms that ensure that the community benefits and prospers.

Meanwhile, many of the “investors” grabbing land are national or local elites unaccountable to international  institutions  –  the cousin of the President or the nephew  of the Minister – who operate with complete impunity, protected by powerful connections to government, the judiciary and the police. Such individuals do not answer to shareholders or complaint boards, and are not the least bit concerned with principles of corporate social responsibility. If a community’s land claims  are unrecognized or undocumented – and if the community’s leadership is weak or corrupt – the easier it is for these elites to manipulate their power to claim what land they want.

To have a fighting chance against elites’ bad­faith actions, communities must proactively take steps to know and enforce their rights, prevent their leaders from transacting land without community approval, and seek legal recognition of their land claims.  And they must do so before elites and investors arrive. 

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