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DECONSTRUCTING DEVELOPMENT

RUTH E. GORDON*
and JON H. SYLVESTER†

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 R
I. Constructing Development in Theory . . . . . . . . . . . . . . 9 R
A. The Birth of a Paradigm . . . . . . . . . . . . . . . . . . . . . . . 9 R
B. The Discovery and Quantification of Global
Poverty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 R
C. The Meta-narrative of Modernization . . . . . . . . . . 15 R
D. Law and Development . . . . . . . . . . . . . . . . . . . . . . . . . 18 R
II. Constructing Development in Practice . . . . . . . . . . . . . 22 R
A. The Institutional Edifice . . . . . . . . . . . . . . . . . . . . . . . . 22 R
1. The World Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 R
2. The Evolving Role of the IMF in the Third
World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 R
B. Cycles of Conventional Wisdom . . . . . . . . . . . . . . . . 29 R
1. The Golden Age of Development: 1950-
1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 R
2. The Second Phase: Integrating Social and
Economic Elements . . . . . . . . . . . . . . . . . . . . . . . . 33 R
3. The Third World Debt Crisis and the Lost
Decade for Development (1980-1990) . . . . . 37 R
4. The Washington “Consensus” and the
“New” Conditionality . . . . . . . . . . . . . . . . . . . . . . 44 R
III. Legal Constructions of Development . . . . . . . . . . . . . . 49 R
A. Permanent Sovereignty Over Natural
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 R
B. The New International Economic Order . . . . . . . 56 R
C. The Right to Development . . . . . . . . . . . . . . . . . . . . . 61 R
D. Reparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 R
IV. Deconstructing Development . . . . . . . . . . . . . . . . . . . . . . 71 R
A. Positioning Development in the Western
Imagination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 R
B. Constructing the Underdeveloped . . . . . . . . . . . . . . 79 R
V. Conclusion: Envisioning a Post Development
World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 R

*
Professor of Law, Villanova University School of Law, B.A., J.D., New York
University, LLM London School of Economics and Political Science
†
Professor of Law, Golden Gate University School of Law, B.A., Stanford
University, J.D, Harvard Law School, M.J., University of California at Berkeley
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2 Wisconsin International Law Journal

INTRODUCTION

To accept the necessity for development, one must first ac-

cept one’s relative inferiority and inadequacy and the need
to evolve and advance towards something else.1

Globalization is said to be the defining convention of the

new millennium.2 For the Third World, however,3 development is
the most important concept in the international system, for it is
development that defines and locates the Third World within the

1
Gustavo Esteva, Development, in THE DEVELOPMENT DICTIONARY: A GUIDE TO
KNOWLEDGE AS POWER 6 (Wolfgang Sachs ed., 1992).
2
See, e.g., GLOBALIZATION AND THE CHALLENGES OF THE NEW CENTURY: A
READER (Patrick O’Meara et al. eds., 2000); HERNANDO DE SOTO, THE MYS-
TERY OF CAPITAL: WHY CAPITALISM TRIUMPHS IN THE WEST AND FAILS EVERY-
WHERE ELSE (2000); ANTHONY GIDDENS, Runaway World: How Globalization Is
Reshaping Our Lives (1999); GLOBAL FORTUNE: THE STUMBLE AND RISE OF
WORLD CAPITALISM (Ian Vasquez ed., 2000); JOHN EATWELL & LANCE TAYLOR,
GLOBAL FINANCE AT RISK: THE CASE FOR INTERNATIONAL REGULATION
(2000); THOMAS L. FRIEDMAN, THE LEXUS AND THE OLIVE TREE (1999); KEVIN
BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY (1999);
ADAIR TURNER, JUST CAPITAL: THE LIBERAL ECONOMY (2001); NOREENA
HERTZ, THE SILENT TAKEOVER: GLOBAL CAPITALISM AND THE DEATH OF DE-
MOCRACY (2001).
3
This article will use the terms Third World or Southern nations to identify what is
commonly referred to as the developing world. The Third World was initially an
ideological category, and a political strategy connoting nonalignment with either
the “First” or “Second” World. It also has a “political geographic content” in
that it describes “certain spaces or regions of the world possessing distinctive
demographic, economic and political characteristics in comparison with the First
or Second Worlds.” The Third World also identifies those nations and regions
that were historically subjected to colonialism. Finally, the Third World has been
defined in terms of a certain set of images including: “poverty, squalor, corrup-
tion, violence, calamities and disasters, irrational local fundamentalism, bad
smell, garbage, filth, technological ‘backwardness,’ or simply lack of modernity.”
See Keith Aoki, Space Invaders: Critical Geography, the “Third World” in Inter-
national Law and Critical Race Theory, 45 VILL. L. REV. 913, 925 (2000) (quoting
Balakrishnan Rajagopal, Locating the Third World in Cultural Geography, in
THIRD WORLD LEGAL STUDIES – 1998–99, at 1 (2000)). Therefore, while the
term Third World may be somewhat problematic, it is a more constructive term
than developing, underdeveloped or undeveloped nations. For a more detailed
discussion and analysis of the term “Third World,” see Karin Mickelson, Rhetoric
and Rage: Third World Voices in International Legal Discourse, 16 WIS. INT’L L.J.
353, 355–62 (1998).
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Vol. 22, No. 1 Deconstructing Development 3

international community.4 Whether praised or excoriated, de-

fended or condemned, “development” shapes and dominates
most thinking about Third World nations.5 Indeed, the peoples
and nations of the world have come to be characterized in terms
of their development or lack thereof. Development has evolved
into an essentially incontestable paradigm with such a powerful
hold on our collective imaginations that it is almost impossible to
think around it.
Since the advent of “development” in the early 1950s, Third
World nations have demanded more meaningful assistance from
monetarily richer countries and more control over their political
and economic destinies.Their demands have been largely re-
jected and/or ignored, and the assistance that has been made
available has been accompanied by countless conditions. These
conditions have often yielded disastrous results, including ever-
mounting debt for numerous Third World governments and in-
creasing deprivation for the very people the development project
purports to assist.6 Even when measured in terms of its own
stated goals and objectives, development has, for the most part,
failed.7 As “experts” have promulgated widely varying and often

4
Some argue that globalization is “little more than a repackaging of develop-
ment.’” For example, O’Hearn maintains that after a decade of discipline
through debt and disinvestments, the neo-liberal regime is even more powerful as
it now forces developing states themselves to agree that the market is the most
rational way to do things correctly. Denis O’Hearn, Tigers and Transnational
Corporations: Pathways from the Periphery?, in CRITICAL DEVELOPMENT THE-
ORY: CONTRIBUTIONS TO A NEW PARADIGM 117 (Ronaldo Munck & Denis
O’Hearn eds., 1999).
5
Esteva, supra note 1, at 7 (noting that even when development is disparaged or
critically appraised, the focus is generally on its ever-changing content or its im-
plementation – never on the concept itself).
6
For a detailed discussion of the debt crisis in sub-Saharan Africa, see Jon H. Syl-
vester, Impracticability, Mutual Mistake and Related Contractual Bases for Equi-
tably Adjusting the External Debt of Sub-Saharan Africa, 13 NW. J. INT’L L. &
BUS. 258 (1992); see also infra Part II. B and accompanying text. For a discus-
sion of World Bank and IMF programs, see infra Part II. A.
7
Of course this is not to say that each and every development project has been a
failure. Nonetheless, “[b]y the beginning of the 1990s, most people in sub-
Saharan Africa were poorer than they had been thirty years before. With a popu-
lation of about 500 million, nearly 300 million are living in absolute poverty. In
developing countries as a whole, nearly 800 million people do not get enough
food, and about 500 million are chronically malnourished. Almost, one-third of
the population of developing countries – about 1.3 billion – lives below the pov-
erty line. The infant mortality rate, at about 350 per 100,000 live births, is about
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4 Wisconsin International Law Journal

contradictory theories and strategies, it has become increasingly

apparent that they do not in fact know how to achieve the objec-
tives that ostensibly define their expertise.8
This article does not contend, however, that the experts
need only devise the appropriate strategy, nor does it simply cri-
tique micro-development, civil participation, market-led develop-
ment, sustainable development, gender and development or
other current variations in an exceedingly long list of variations
on the development theme. We do not assert that money is all
that is needed,9 or that industrialized countries need only assume
their responsibility to bring civilization to the desperate masses
of the Third World.10 Rather, we challenge and interrogate the
very concept of development. Development is a set of practices
and beliefs that are part of the Western political and cultural im-
agination, despite being presented as universal, natural and inevi-
table. The development paradigm comprises a pervasive and
largely unquestioned set of interlocking ideological assumptions
that must be exposed and then questioned. It presumes a univer-
sal and superior way of ordering society, and that all societies are

nine times higher than that in ‘advanced countries.’” Ray Kiely, The Crisis of
Development, in GLOBALISATION AND THE THIRD WORLD 24 (Ray Kiely & Phil
Marflect eds., 1998). See also Uma Kothari & Martin Minogue, Critical Perspec-
tives on Development: An Introduction, in DEVELOPMENT THEORY AND PRAC-
TICE CRITICAL PERSPECTIVES: CRITICAL PERSPECTIVES 4–5 (Uma Kothari &
Martin Minogue eds., 2002).
8
See infra Part II. B and accompanying text.
9
Full funding would not necessarily mean that development would ever achieve its
intended results, although it could mean an improvement in what has been
termed “basic needs,” such as minimal health care, potable water and the like.
Achieving even these modest goals, however, would not be a certainty, given how
projects are chosen and funded. See, e.g., William Easterly, The Cartel of Good
Intentions, 7/1/02 FOREIGN POL’Y 4049 (contending that for a variety of reasons,
large, flashy projects are the projects most often funded, while those that assist
with simple tasks such as maintaining infrastructure are ignored).
10
This is not to absolve industrialized countries of their share of blame for the gross
inequalities in the international community; for the disarray of destroyed socie-
ties and cultures; or for the poverty, violence and degradation that has accompa-
nied the development project. One criticism of the postmodern view of
development is that it encourages affluent countries to disengage, and does noth-
ing to assist the billion or more people who are living in absolute poverty; that it
would leave those people to their own devices. David Simon, Development Re-
visited, in DEVELOPMENT AS THEORY AND PRACTICE: CURRENT PERSPECTIVES
ON DEVELOPMENT AND DEVELOPMENT CO-OPERATION 17 (David Simon & An-
ders Närman eds., 1999). This is a fair argument that deserves serious attention.
See infra notes 431—34 and accompanying text for a response to this contention.
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Vol. 22, No. 1 Deconstructing Development 5

to advance toward the same goal. Local and indigenous cultures,

economies, self-concepts, and ways of existing are largely without
value in this discourse (notwithstanding recent attempts at “local
participation”), for the entire development project is premised
on its subjects “developing” into something else – and that some-
thing else is the West.11 Thus, in the name of modernization, cul-
tures have been destroyed, communities uprooted or eradicated,
and whatever sovereignty emerging nations possessed has virtu-
ally disappeared.12
The concept of development privileges certain societies, cul-
tures and institutions, while disparaging others; it is grounded in
defining the “Other” as incompetent, inferior and in need of
transformation. That most “undeveloped” people are people of
color only reinforces the Western view of the developing world
as essentially dysfunctional, for it comports with American views
of brown and black people in the United States. For Europeans
the development project continues the colonial civilizing mis-
sion.13 Taking up where colonialism and the “White man’s bur-
den” left off, the development project provides the legal and
moral justification for substantial interventions in the affairs of
those who have been categorized as underdeveloped.14It justifies
and supports the economic and political status quo and the im-
balance of international power, and it renders the underdevel-
oped powerless, for it is the developers who name subjects,

11
Majid Rahnema, Towards Post-Development: Searching for Signposts, a New
Language and New Paradigms, in THE POST-DEVELOPMENT READER 384 (Majid
Rahnema & Victoria Bawtree eds., 1997) [hereinafter Rahnema, Towards Post-
Development].
12
For a discussion of the ways in which development has stripped many Third
World states of significant aspects of their sovereignty, see infra Part III; see also
Ruth Gordon, Saving Failed States: Sometimes a Neocolonialist Notion, 12 AM. U.
J. INT’L L. & POL’Y 903 (1997) [hereinafter Gordon, Saving Failed States].
13
Saving Failed States, supra note 12. Development confirms and validates racial
hierarchy, which explains in part why after the disintegration of the USSR, East-
ern Europe and the former Soviet Republics – whether industrialized or not –
were immediately understood to be in a different global category than the devel-
oping Third World. Ruth Gordon, Racing U.S. Foreign Policy, 17 NAT’L BLACK
L.J. 1 (2003) [hereinafter Gordon, Racing U.S. Foreign Policy]; cf. Kothari, supra
note 7, at 8 (maintaining that “the development project is expansionist and has
found new territory” for with the triumph of neoliberalism, development has
broadened its breadth to include the transitional economies of Europe and the
former Soviet Republics).
14
Saving Failed States, supra note 12, at 934.
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problems and solutions. The objective in the following pages is

to construct and then deconstruct the concept of development,
and to question whether development is so fundamentally flawed
that it should be abandoned in favor of a post-development
paradigm.
Part I constructs the theory of development, beginning with
the discovery of global poverty after the Second World War. It
establishes how poverty is in some respects socially contingent,
and how the notion of global poverty suddenly homogenized and
problematized the lives of the majority of the world’s peoples.
With the impending Cold War and the disintegration of colonial
empires as crucial backdrops, industrialized nations set out to
eradicate poverty and bring the benefits of modernization to the
impoverished masses of the newly de-colonizing world, and thus
development as we now know it was born. From its inception,
development was informed and shaped by the meta-narrative of
modernization, which is explored as the primary theoretical
foundation for the undertakings that were to follow.15 Law and
development is also analyzed as the legal manifestation of mod-
ernization theory and as an additional theoretical underpinning
of development.
Part II explores how development has been constructed in
practice. It begins with the international financial institutions
that form the institutional edifice of the development project
with particular emphasis on the World Bank and the Interna-
tional Monetary Fund. It then focuses on the succession of
often-contradictory economic experiments and development the-
ories that have emanated from these and other institutions. De-
velopment theories have run the gamut as sustainable
development, micro-development, women-centered develop-
ment, endogenous development, appropriate development, “Ba-
sic Needs,” and both state and market-led development have all
had their days in the sun.16 What began as economic growth to

15
See infra Part I. C and accompanying text; Kothari, supra note 7, at 7–12.
16
Some development strategies such as micro-development, participation, and sus-
tainable development began life as “alternative development” strategies. These
alternative theories have been institutionalized and absorbed into mainstream
development theory and in the process watered down and stripped of any sem-
blance of their sometimes-radical origins. As reconstituted, they reproduce the
same power relationships found in conventional development theory and prac-
tice. Moreover, even these “alternative theories” generally originate in the West
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Vol. 22, No. 1 Deconstructing Development 7

eradicate poverty evolved to include “enhancing participatory

democratic processes”, “enlarging choices”, “affording the op-
portunity to develop to one’s fullest potential”, “participation in
decisions affecting one’s life”, and affording the “means to carry
out national development goals and promote economic growth,
equity and national self-reliance”.17 One consistent theme, how-
ever, is that the development project has grown ever larger and
more comprehensive. More disturbingly, international financial
institutions now determine policy in many Third World countries
– much in the way colonial powers once did.18 Yet, despite myr-
iad inconsistencies and the well-documented pain and disasters
that have resulted from their strategies, these institutions and the
concept of development enjoy continuing and largely uncritical
support within the international community.
Part III turns to legal constructions of development and the
seriatim attempts by Third World nations, over the past fifty
years, to use international law in the pursuit of development.
These efforts began with the demand for Permanent Sovereignty
Over Natural Resources, and then turned to broader demands
for a New International Economic Order. When these failed,
Southern nations asserted a Right to Development, seeking to
incorporate development into the burgeoning rights discourse.
Reparations are the most recent evolution in the campaign for
economic justice, as some Third World nations now demand
compensation for the exploitation and crippling consequences of
slavery and colonialism. To the extent that these initiatives
sought to establish legal obligations for the West, they have been
unsuccessful. As this section demonstrates, international law has
only reinforced and reproduced the economic and political ineq-
uities present in the international economic system.
Part IV turns to deconstructing the discourse of develop-
ment, demonstrating that it is a method of conceptualizing the

and are then imposed on the Third World. Kothari, supra note 7, at 9–10. See
also infra notes 149—59 and accompanying text.
17
Michael Cowen & Robert Shenton, The Invention of Development, in POWER OF
DEVELOPMENT 7, 28 (Johanthan Crush ed., 1995).
18
Of course the level of control varies, given that some Third World countries are
larger, and more politically and economically powerful than others. Thus, this is
not to suggest that all Third World countries are homogenous or indistinguishable
from each other.
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8 Wisconsin International Law Journal

world that, in turn, shapes the world.19 Although portrayed as a

neutral and universal concept, development is planned, directed
and controlled by specific international and national institutions
that act in ideological concert and reflect the views and interests
of certain communities, societies and cultures. This ideology cre-
ates and defines the “Other” while providing the legal and moral
rationale for interventions that locate and cement the Third
World on the lower rungs of the international system. Develop-
ment is the product of a particular perspective and that perspec-
tive problematizes and homogenizes the majority of humanity.
Deconstructing this discourse suggests that it is at least possible
to imagine a post-development world and to perceive the people
of the Third World in a fresh light.
Given the failures of development, the power relations it en-
genders, and its generally negative and degrading view of non-
Western peoples and cultures, Part V attempts the very difficult
task of envisioning a different approach to thinking about the
world. No new meta-narrative or grandiose strategy to replace
the development paradigm is proposed, for the aim is to reject,
rather than substitute, meta-narratives.20 Nor is the objective to
glorify and resurrect Third World traditions, for tradition is sel-
dom faultless and idyllic.21 Third world peoples have had varied
and complex encounters with development, and these exper-
iences must not be over-simplified.22 Our objective is to begin to
envision approaches that accord agency to the people develop-
ment presumes to assist. We hope that these alternative visions
can somehow give voice to the local, including the voice to em-
brace, transform, reject or otherwise engage the West and the
entire modernization project. We believe the West must abdicate
some of the power it has presumed and to begin to re-imagine

19
ARTURO ESCOBAR, ENCOUNTERING DEVELOPMENT: THE MAKING AND UN-
THIRD WORLD 12–14 (1995).
MAKING OF THE
20
This article takes up the bold challenge posed by Professor Tayyab Mahmud in
his brilliant article: Postcolonial Imaginaries: Alternative Development or Alterna-
tives to Development?, 9 TRANSNAT’L L. & CONTEMP. PROBS. 25 (1999), and criti-
cally examines the post development literature.
21
Kiely, supra note 7, at 24 (criticizing the anti-development critique as romanti-
cizing pre-colonial cultures that may never have existed).
22
On problems with marginalizing and representing the other, see Uma Kothari,
Feminist and Postcolonial Challenges to Development, in DEVELOPMENT THEORY
AND PRACTICE CRITICAL PERSEPCTIVES, supra note 7, at 48–50.
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Vol. 22, No. 1 Deconstructing Development 9

the lives and agency of others, and in the process perhaps reject
often unarticulated but crippling assumptions about “the
Other.”23 The objective is to pose different questions, to let
others pose questions, to learn to listen and to actually hear the
responses of others rather than assuming that the answers are
already known.

I. CONSTRUCTING DEVELOPMENT IN THEORY

A. THE BIRTH OF A PARADIGM
It is difficult to imagine a world without development, for it
seems as if development has always been one of the fundamental
criteria by which nations and peoples are defined. In fact, how-
ever, the contemporary concept of development has a quite short
history.24 Notions of progress and growth have been part of
Western discourse for well over a hundred years and, more gen-
erally, since the enlightenment. “Development” as it is currently
construed (i.e., modernization and national economic growth),
however, is essentially a post-World War II phenomenon.25 In
1949, President Harry Truman proposed a “fair deal” aimed at
improving the lives of people inhabiting the underdeveloped ar-
eas of the globe. In his now famous Point IV Program, he
declared:
More than half the people of the world are living in condi-
tions approaching misery. Their food is inadequate, they
are victims of disease. Their economic life is primitive and

23
On constructing “the Other” in opposition to self, see EDWARD W. SAID, ORIEN-
TALISM 1–8 (1994).
24
The origins of development are quite complex, but a unitary meaning seemed to
congeal around the end of the Second World War. Development came to signify
indefinite growth, maturity and the capacity to grow without end. This expecta-
tion was based on a number of developmental hypotheses including “the omnipo-
tence of technique, the asymptotic assumption relating to science, the rationality
of economic mechanisms, and the presumption of social engineering as a prereq-
uisite for growth.” Michael Watts, “A New Deal in Emotions”: Theory and Prac-
tice and the Crisis of Development, in POWER OF DEVELOPMENT, supra note 17, at
44, 49–50.
25
For an extensive discussion of the concept of development before 1949, see
Cowen & Shenton, supra note 17, at 27; Watts, supra note 24, at 44. The mandate
system and later the trusteeship system were also precursors of development. Id.
See also Saving Failed States, supra note 12, at 940–53, on the mandate and trus-
teeship systems.
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stagnant. Their poverty is a handicap and a threat both to

them and to more prosperous areas.26
Truman’s declaration profoundly changed the manner in
which the people of what would eventually become the Third
World were viewed. In a sense, he created the “underdeveloped
world,”27 and in the West this new perception of self and “the
other” found immediate acceptance.28 “Billions of diverse and
complex peoples were suddenly identified, homogenized and de-
fined as backward, miserable victims” who would be rescued by
the West.29 This perspective continues to define the development
project.
Truman also proposed that the industrialized world should
undertake to alleviate the newfound poverty in the underdevel-
oped world, but this call to action was a self-interested one on
the part of the United States. Many American policy makers
thought that if poor countries were not liberated from their pov-
erty, they would be vulnerable to “communist subversion”.30

26
ESCOBAR, supra note 19, at 3.
27
Truman’s plan facilitated the establishment of numerous “international institu-
tions, professions, organizations whose existence was dedicated to development.
Development was industrialized.” Watts, supra note 24, at 44–45.
28
Esteva, supra note 1, at 10. Indeed, “as a neocolonial discipline, the authoritative
discourse of development reproduces unequal relations by assuming the power to
label groups of people . . . in development we have constructed an entity called
the Third World.” KOTHARI, supra note 22, at 38.
29
Esteva, supra note 1, at 9.
30
In 1956, John Foster Dulles stated that defeat in the contest for development of
the underdeveloped countries “could be as disastrous as defeat in the arms race.”
CHRONICLE OF THE 20TH CENTURY 776 (Clifton Daniel ed., 1992). Indeed, the
introduction to a development economics textbook used in the U.S. in the early
1960s made the point rather bluntly: “the Cold War is not going very well for the
Western World. Soviet or Chinese influence is infiltrating into many of the un-
derdeveloped countries, in Asia, Africa, and Latin America.” 11 STEPHEN ENKE,
ECONOMICS FOR DEVELOPMENT (1963), quoted in 1 DEVESH KAPUR, THE
WORLD BANK: ITS FIRST HALF CENTURY 144 n. 10 (Brookings Institute 1997).
The World Bank was pressed into service to address this problem. See also infra
notes 94-95 and accompanying text discussing how the Cold War helped shaped
World Bank policies. See also ESCOBAR, supra note 19, at 34; Pierre de Senar-
clens, How the United Nations Promotes Development Through Technical Assis-
tance, in THE POST-DEVELOPMENT READER, supra note 11, at 190 (Noting that
just as the Marshall Plan was to contain the communist threat in Europe, eco-
nomic aid became part of American political strategy. The Cold War thus
animated and colored the development project, as anti-communist credentials be-
came a condition for assistance.).
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Vol. 22, No. 1 Deconstructing Development 11

Consequently, bringing “progress” to the Third World was an in-

tegral part of the struggle against the Soviet Union and interna-
tional communism.31 The development paradigm also originated
within the context of collapsing colonial empires and a global
economy dominated by the United States.32 As a result, the U.S.
had a profound influence on the funding, objectives and ap-
proaches of the international financial institutions established at
the end of the Second World War. These institutions – mainly
the World Bank and the International Monetary Fund – are at
the center of development theory and practice.33 Completing this
scenario were Western beliefs in the ultimate superiority of West-
ern culture, values and people, and the explicit and implicit ra-
cism that often persuaded the United States and former colonial
powers that they had the right to intervene in politically weaker,
poorer and darker countries. Development provided the legal
and political means, as well the moral justification for interven-
tions that under other circumstances would probably have been
considered impermissible.34

B. THE DISCOVERY AND QUANTIFICATION OF

GLOBAL POVERTY

If President Truman discovered global poverty, then the

World Bank quantified it in 1948 by defining countries with an
annual per capita income below $100 as poor. Two-thirds of the
world’s peoples were instantly impoverished.35 Once annual per
capita income was the gauge, the discernment of global poverty

31
Senarclens, supra note 30.
32
“At the end of the Second World War, the United States controlled approxi-
mately 70% of the world’s gold and foreign exchange reserves and 40% of indus-
trial output.” Kiely, supra note 7, at 26.
33
ESCOBAR, supra note 19, at 32 (noting that “1945 marked a profound transforma-
tion in world affairs” as the United States assumed the “undisputable position of
economic and military preeminence, placing under its tutelage the entire Western
system”).
34
ESCOBAR, supra note 19, at 28; Gordon, Racing U.S. Foreign Policy, supra note
13, at 1.
35
ESCOBAR, supra note 19, at 23–24; Majid Rahnema, Poverty, in THE DEVELOP-
MENT DICTIONARY, supra note 1, at 161.
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12 Wisconsin International Law Journal

became “a comparative statistical operation,”36 and entire na-

tions were regarded as poor because of their overall income.37
“Poor countries” came to be defined as those lacking the “wealth
of more economically advantaged nations,”38 and because indus-
trialized countries were the points of reference, the gap was enor-
mous.39 Eradicating global poverty, as well as the expanding
disparity between industrialized and unindustrialized countries,
became an important challenge facing the international commu-
nity.40 Of course, it is entirely plausible to maintain that Presi-
dent Truman and the World Bank were only stating the obvious,
and articulating the willingness of the United States to lead West-
ern countries in tackling a very real problem. It can also be ar-
gued, however, that in certain significant respects poverty itself is
a social construct, and in some senses an invention.41 While most
definitions of poverty emphasize a lack of something or some de-
ficiency, such definitions only demonstrate the basic relativity of
the concept, for if poverty is defined as lacking the necessities of
life, it must be asked what is necessary, and who is to determine
necessities.42 In the end, this question was answered by defining

36
ESCOBAR, supra note 19, at 23 (quoting Wolfgang Sachs, The Archaeology of the
Development Idea, 23(4) INTERCULTURE 1–37 (1990)). The origins of standard of
living and the projection of global poverty are relatively new constructs that are
“encased in development plans, foreign aid reports and national accounts data
building in part on the Keynesian revolution.” Watts, supra note 24, at 51.
37
Rahnema, supra note 35, at 161.
38
ESCOBAR, supra note 19, at 23.
39
Senarclens, supra note 30.
40
Id. During the decades following the Second World War and throughout the
decolonization era, the idea of “convergence” – that the gap between the rich and
the poor would shrink – dominated thinking about development. There clearly
has been no such convergence and the entire idea appears to have been dis-
carded. See generally Lant G. Pritchett, Forget Convergence: Divergence, Past,
Present, and Future, 33 FIN. & DEV. 2 (1996); Jeffrey Williamson, Globalization,
Convergence, and History, 56 J. ECON. HIST. 277 (1996). For example, during the
last two decades, China and India have experienced faster income growth than
the world’s rich countries. Nonetheless, it would require another 100 years of
growth at rates higher than those of the U.S., for China and India to reach today’s
level of average income in the U.S. Nancy Birdsall, Life is Unfair: Inequality in
the World, 98 FOREIGN POL’Y 76 (1998).
41
Rahnema, supra note 35, at 158 (detailing the many ways in which a variety of
cultures define and perceive poverty).
42
Id. at 159. See also Ivan Illich, Needs, in THE DEVELOPMENT DICTIONARY, supra
note 1, at 88.
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Vol. 22, No. 1 Deconstructing Development 13

necessity in reference to the West; Third World nations and peo-

ples were found to be sorely lacking.
Once problematized, poverty became the defining character-
istic of the Third World, and the “agreed” solution was economic
growth and development.43 Indeed, the Third World increasingly
became part of a “system of thought and practice where particu-
lar interventions to eradicate poverty became central to the
world order.”44 While traditional responses to poverty were
based on “the pluralistic, culturally established and holistic per-
ceptions of each particular space, post-war programs of action
represented a universalistic, one-track, income-based and cultur-
ally lacking recipe for abstract solutions.”45 The perception of a
global economy that would save the world’s poor “reinforced
and legitimized pauperizing economic and political systems,” and
led the victims of these systems to view their particular situation
in the same terms.46 As more people came to trust that poverty
could be eradicated through adopting (and, more recently, in-
tegratng into) a “modern economy,” the search for modes of life
and social organization based on simplicity, or on voluntary or
moral forms of poverty were devalued and discredited.”47
People now identified as impoverished may have viewed
themselves and their place within their respective communities
quite differently before the advent of “development,”48 as most
societies had found ways of “defining and treating poverty that

43
ESCOBAR, supra note 19, at 24.
44
This assumption justified the basic tenets of intervention: poverty was too global
and delicate a matter to taken out of the hands of professionals and institutions
that were trained and empowered for this purpose; programs had to be charted in
terms of economic resources and needs; and the agents that would be primarily
responsible for designing and executing such strategies would be governments
and other institutions. Rahnema, supra note 35, at 164. Professor Rahnema ex-
plains that anti-poverty programs claim to be based on an assessment of needs,
but that within the global context, needs are identified in an abstract manner. Id.
45
Id.
46
Id. at 163. Thus impoverished wage earners focused their struggles on limited
objectives such as raising income. Labor unions were utilized while informal and
formal community organizations that had traditionally assisted the poor were dis-
regarded and ignored. Id.
47
Id.
48
ESCOBAR, supra note 19, at 24.
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14 Wisconsin International Law Journal

accommodated visions of community, frugality and sufficiency.”49

Professor Nanda Shrestha, writing of “becoming a development
category,” describes one such different vision.50 Without roman-
ticizing the pre-development period, Professor Shrestha paints a
complex picture of his village, his family and his life in 1940s Ne-
pal. He begins by describing life in Nepal before “development,”
where his family was extremely poor by World Bank standards.
Nonetheless, neither his family nor others in the village thought
that people were lesser beings because of their poverty. This is
not to say that life was idyllic and indeed he notes elements of a
type of caste system, which he does not defend. Yet, Professor
Shrestha also observes a sense of responsibility and a community
that protected even the very poor, such as his family, from utter
destitution.
While most traditional societies rejected the idea that pov-
erty necessarily reflected personal inadequacy, this belief was a
major component of the new international value system.51
Within this new paradigm, economic poverty was perceived and
acted upon as a disgrace and a scourge.52 Accordingly, with de-
velopment, the poverty experienced by Professor Shrestha and
his family became a problem to be solved, and development ex-
perts were thought to have the solution. All that the Nepalese
brought to the table was summarily discarded by those who as-
sumed that the culture, knowledge, wisdom, insight and judg-
ment that Nepalese villagers brought to their own lives and
existence was for the most part worthless. In some ways the vil-
lagers came to believe this of themselves, as the Nepalese began
to want to be like the developers. In the end, development plans
and strategies did not actually lessen poverty, but they did dimin-
ish self-sufficiency and a sense of community, as functions that

49
Rahnema, supra note 35, at 163; Illich, supra note 42, at 88.
50
Nanda Shrestha, Becoming a Development Category, in POWER OF DEVELOP-
MENT, supra note 17, at 266. Except where noted, this account of life in Nepal
before and after development is from this fascinating chapter by Professor
Shrestha.
51
Rahnema, supra note 35, at 163.
52
Id.
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Vol. 22, No. 1 Deconstructing Development 15

were formerly the collective responsibility of the community

were now left to the developers.53
The purpose of this account is not to romanticize poverty or
to champion non-Western societies per se, nor is it to suggest that
societies and cultures are fixed and impervious to change. It is
also understood that there are concrete aspects to poverty; that
poverty and want are not entirely socially constructed. It is only
to suggest that people existed and lived before the West came to
their rescue, and they may have devised a variety of internal
mechanisms to deal with those who had less, even if those mech-
anisms were imperfect.54 The possible value of such indigenous
knowledge was not even considered as the Western concept of
development was deployed. Poverty was the singular factor by
which the development project categorized peoples that were ac-
tually distinct, varied and in many instances quite self-sufficient.
As poverty became their defining characteristic, development be-
came the obvious solution, to be pursued by following the path of
the West toward the goal of modernization.

C. THE META-NARRATIVE OF MODERNIZATION

The road to development is littered with discarded models

and philosophies, but at the heart of all development theories is
the belief that the Third World should follow in the footsteps of
the West.55 Development began as a quest for “modernity,”56 and

53
Shrestha, supra note 50, at 266. Professor Shrestha notes how a road that had
fallen into disrepair would have been mended through the collective efforts of the
village in the pre-development world. This sense of collective action disappeared
with the advent of development, as everyone waited for the developers to fix it.
54
Ted Lewellen, Deconstructing Development: Toward an Anthropological Defini-
tion of a Value-Laden Concept, Address at the Annual Meeting of the American
Anthropological Association at Washington, DC (Nov. 1997) ( noting that “many
currently ‘underdeveloped’ regions of the world were developing quite well
before their cultures were crushed or shifted in entirely new directions by West-
ern expansion since the 16th Century”).
55
See, e.g., Ziauddin Sardar, Development and the Locations of Eurocentrism, in
CRITICAL DEVELOPMENT THEORY, supra note 4, at 53; see also Richard Cam-
eron Blake, The World Bank’s Draft Comprehensive Development Framework
and the Micro-Paradigm of Law and Development, 3 YALE HUM. RTS. & DEV.
L.J. 159, 166 (2000) (stating “as developing countries created ‘economic, political,
and social institutions similar to those in the West,’ economic development would
inevitably result”); Aoki, supra note 3, at 927–28.
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16 Wisconsin International Law Journal

while development’s history is complex, the modernization pro-

ject has consistently been at its core.57 Modernization has been
defined as “the process by which a society comes to be character-
ized by a belief in the rational and scientific control of man’s
physical and social environment and the application of technol-
ogy to that end.”58 All societies purportedly pass through distinct
phases at they modernize.59 The Rostow blueprint, for example,
mandated five stages, the first being traditional society, which
possessed limited science, technology and output per person; the
second, where modern science leads to increased production in
agriculture and industry; and the third “take-off” stage where ob-
stacles to growth are transcended, new technology becomes pre-
dominant and growth becomes self-generating. More refined
and complex processes mark the last two phases, as original in-
dustries are eclipsed and societies finally reach the level of high
mass consumption. All societies are believed to traverse this par-
ticular path – that is, the progression is fixed and uni-linear.60
Early theorists could not agree on how modernization would ac-
tually occur,61 although they did agree that it was essential to ap-
proximate the characteristics of the nations that comprised the

56
OZAY MEHMET, WESTERNIZING THE THIRD WORLD: THE EUROCENTRICITY OF
ECONOMIC DEVELOPMENT THEORIES 60 (2d ed. 1995) (noting traditional socie-
ties were viewed as exercising little control over their environment, as “lacking
the traits of modern persons, and as devoid of political consciousness or active
involvement in shaping their future.”)
57
Kothari & Minogue, supra note 7, at 7. Professors Kothari and Minougue con-
tend that successive development theories have simply been reformulations of
modernization theory, which they posit as the mega theory of development. Id.
at 7–8.
58
Sardar, supra note 55, at 52.
59
JAMES MITTELMAN & MUSTAPHA KAMAL PASHA, OUT FROM UNDERDEVELOP-
MENT REVISITED: CHANGING GLOBAL STRUCTURES AND THE REMAKING OF THE
THIRD WORLD 38 (1997).
60
Id. (paraphrasing W.W. ROSTOW, THE STAGES OF ECONOMIC GROWTH: A NON-
COMMUNIST MANIFESTO (1960)).
61
In the early years, all parties seemed to focus on increasing foreign aid from in-
dustrialized countries. See GABE S. VARGES, THE NEW INTERNATIONAL ECO-
NOMIC ORDER LEGAL DEBATE 3–4, 29 (1983). Adeoye Akinsanya & Arthur
Davies, Third World Quest for a New International Economic Order: an Over-
view, 33 INT’L L.Q. 208, 209 (1984) (Noting that “for the developing nations, the
realization of their economic backwardness and lack of progress in combating it
led them, at first, to press for more foreign aid from the industrial countries.”
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Vol. 22, No. 1 Deconstructing Development 17

industrialized Western world.62 It was therefore assumed that

tradition was an impediment to modernization, and Third World
countries were encouraged to abandon their traditional lifestyles,
beliefs and value systems in favor of “modern” Western norms
and values.63
The modernization discourse has had an enormous impact,
and has persisted for several reasons including its compatibility
with dominant neoclassical economic theories, as well as its sim-
plicity and purported universality. Perhaps another part of its
appeal is its apparent optimism, for it represents a belief in “pro-
gress.”64 During the United Nations proclaimed “Development

The United Nations proclaimed the 1960s the “Development Decade” and an-
nounced, “less developed countries were to be assisted in achieving five percent
annual growth in aggregate national income through expanded international
trade and an annual flow of international assistance and capital.”).
62
MITTELMAN & PASHA, supra note 59, at 39; Sardar, supra note 55, at 52 (Noting
one early indicator of modernization was urbanization, despite the fact that the
overwhelming majority of the populations of the newly independent countries
were based in rural areas. Other indicators included literacy and voting. Based
on these indicators, the only road to modernization was industrialization.).
63
Sardar, supra note 55, at 52. Professor Mittelman and Pasha illustrate the impact
modernization theories can have by recounting the experiences of farmers in a
district in Tanzania. In this district, land is in short supply and most farmers inter-
plant bananas (the staple food) and coffee, because they do not have enough
acreage to plant them separately. The government’s agricultural extension of-
ficers, however, advised them to plant coffee separately because bananas draw
nitrogen and water from the soil and shade the coffee crop. This advice is based
on experiments performed in laboratories and benefits only a minority of wealth-
ier landowners who have enough land to segregate the crops and cultivate land
under conditions similar to those in the lab. Larger landowners are also likely to
mingle with government experts, which facilitate the kind of communication that
leads to the adoption of such changes. Peasants resist the proposed innovations
because they are useless or harmful to them. Government officers then regard
the peasants as traditional, meaning irresponsible, stupid and lazy. The Moderni-
zation hypothesis is then invoked to justify supporting the agents of change and
to legitimize coercing those now termed traditional peasants. MITTELMAN & PA-
SHA, supra note 59, at 39.
64
For a critique of progress, see José Marı́a Sbert, Progress, in THE DEVELOPMENT
DICTIONARY, supra note 1, at 192; Vincent Tucker, The Myth of Development: A
Critique of a Eurocentric Discourse, in CRITICAL DEVELOPMENT THEORY, supra
note 4, at 4–5 (Noting that progress as a concept became pre-eminent during the
French and English revolutions, as both nations set out to change the world and
the manner in which it was perceived. This worldview eventually came to be
perceived as self-evident and universally valid. The rights of man (albeit not all
men or any women) were championed, science appeared to be capable of captur-
ing nature and it was a period of exploration and experimentation. The new mis-
sion was modernity for the entire world and progress came to be fashioned in
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18 Wisconsin International Law Journal

Decade” of the 1960s, however, modernization produced only

minimal improvements in the material conditions of life in the
Third World. Eventually, initial modernization strategies were
declared failures.65 Notwithstanding this inauspicious beginning,
however, modernization theory remains the meta-narrative that
informs all other development narratives. Modernization contin-
ues to enjoy the unflagging support of major international finan-
cial institutions and other key national and international
organizations that devise development strategies and allocate de-
velopment resources.66 It is also a key component of “law and
development” theory which, through multiple incarnations, has
been the consistent companion of modernization.67

D. LAW AND DEVELOPMENT

Western legal scholars entered the development discourse
through an offshoot of modernization theory known as law and
development.68 While modernization theorists equated Western-
ization and development, law and development theorists focused
on the Westernization of Third World legal systems as a key pre-
requisite to, and catalyst for, development. Both theories shared
the underlying premise that the Westernization of Third World
countries was essential for – indeed, was the essence of – devel-
opment.69 Law and development theorists supposed that adopt-
ing Western legal systems would facilitate development by

evolutionary terms. It is forgotten or omitted, however, that a belief in “pro-

gress” also justified colonialism and imperialism, and has “legitimized” genocide,
slavery, and a host of other atrocities.).
65
See VARGES, supra note 61, at 29.
66
DEVELOPMENT AS THEORY AND PRACTICE, supra note 10, at 271; Kothari & Mi-
nogue, supra note 7, at 8. See infra notes 112-228 and accompanying text for an
extended discussion of these institutions and their role in the development
project.
67
Undoubtedly, the relationship of law to development has been an ever-present
but contested theme. See discussion infra Part V for Third World efforts to use
law as a tool for achieving and consolidating international political and economic.
68
Modernization theory arose following WWII and was supported primarily by
American scholars. Brian Z. Tamanaha, The Lessons of Law-and-Development
Studies, 89 AM. J. INT’L L. 470, 471 (1995) (reviewing 2 LAW AND DEVELOPMENT
(Anthony Carty ed., 1992); LAW AND CRISIS IN THE THIRD WORLD (Sammy
Adelman & Abdul Paliwala eds., 1993)).
69
Id. at 471 (stating that “[t]he law and development movement adopted the basic
tenets of modernization theory, adhering to the notion that evolutionary progress
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Vol. 22, No. 1 Deconstructing Development 19

providing the necessary elements for a functioning market sys-

tem.70 Westernizing the legal infrastructure of Third World coun-
tries was expected to create neutral, more accessible and more
responsive government institutions.71 Benefits would include in-
creased equality, freedom and participation, and these would in
turn foster improved material standards of living.72 These bene-
fits would then “trickle down” to the poorest of the poor.73
Despite its strong and promising start, the law and develop-
ment movement that began in the early 1960s lasted little more
than a decade.74 Perhaps the most significant factor in its demise

would ultimately result in legal ideals and institutions similar to those in the
West”).
70
David Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections
on the Crisis in Law and Development Studies in the United States, 1974 WIS. L.
REV. 1062, 1071. Its earliest proponents placed “extreme reliance on law as an
agent of modernization and progress predicated on a study of the ideal types of
law and administration that could facilitate progress.” Lakshman Marasinghe,
Law and Development: A Jurisprudence for the Developing World, 8 DEV. EX-
PRESS 1, 2 (1998/1999).
71
Professor Tamanaha has summarized the law and development paradigm as
follows:

1) society is made up of individuals who consent to the state for their own
welfare; 2) the state exercises control over individuals through law, and it is
constrained by law; 3) laws are designed to achieve social purposes and do
not offer a special advantage to any individual or groups within the society;
4) laws are applied equally to all citizens; 5) courts are the primary legal
institution with the responsibility for defining and applying the law; 6) ad-
judication is based upon a comprehensive body of authoritative rules and
doctrines, and judicial decisions are not subject to outside influence; and 7)
legal actors follow the restraining rules and most of the population has in-
ternalized the law, and where there are violations of the rules enforcement
action will guarantee conformity

Tamanaha, supra note 68, at 473 (paraphrasing Trubek, supra note 70, at 1071).
72
Trubek, supra note 70, at 1073. Development was assumed to involve an increase
in man’s rational capacity to control the world, and thus in his ability to improve
his material well being. But “development” offered more than increased ration-
ality and material satisfaction; it also promised greater equality, enhanced free-
dom, and fuller participation in the community. As an ideal, therefore,
“development” held the promise of a life that would be richer in all ways for all
Third World people.
73
Blake, supra note 55, at 167.
74
Several factors contributed to the movement’s abrupt demise, including a sharp
drop in funding by both the public and private sectors in the United States. The
U.S. Agency for International Development and the Ford Foundation, for exam-
ple, were major funding sources for academic and fieldwork in law and develop-
ment; their financial support declined sharply in the early mid-1970s. Some
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20 Wisconsin International Law Journal

was the rupture of the coalition that had given the movement the
appearance of unanimity. Western academics and practitioners
who were the initial proponents of law and development had en-
joyed an initially positive reception from Third World leaders
and elites – many of whom were Western educated.75 By the
early 1970s, however, many political leaders and intellectuals in
the Third World had turned to dependency theory and other rad-
ical analyses of their circumstances, and were demanding a New
International Economic Order.76 In this context, law and devel-
opment was widely denounced as “reflect[ing] the ideological he-
gemony of Western capitalism and the dominant economic forces
of contemporary imperialism. . . .[and] as inadequate to explain
development or underdevelopment. . .”77 Moreover, although
the American experience was thought to exemplify the success of
law and development, many observers expressed “doubt that the
model accurately describe[d] legal life even in the United
States.”78
Long after widespread reports of the movement’s demise,
however, the core premises of law and development continue to
inform most Western thinking (both popular and official) about

observers believe this policy change reflected popular disillusionment and a gen-
eral loss of faith in government and the viability of overseas interventions – re-
sulting significantly from the Viet Nam war and Watergate. See Maxwell O.
Chibundu, Law in Development: On Tapping, Gourding and Serving Palm-Wine,
29 CASE W. RES. J. INT’L L. 167, 169 (1997).
75
Id.
76
Francis G. Snyder, Law and Development in the Light of Dependency Theory, 14
LAW & SOC’Y REV. 723, 727–28 (1980) (Discussing the two ways scholars reacted
to the lack of success of these philosophies. Some argued that their failure “was
the inevitable consequence of the transition to capitalist development. . . The
other elaborated a radical critique, suggesting that capitalist development in the
periphery would not reproduce the historical capitalist path. . . The first approach
is still followed by the majority of development practitioners.”).
77
Id. at 731; see also Aoki, supra note 3, at 928.
78
Trubek, supra note 70, at 1081. Critics of the movement also observed that “the
development equation contain[ed] a heavy social element, for which law is not
the complete answer.” Marasinghe, supra note 70, at 2. Of course, moderniza-
tion has continually reappeared in different guises. See supra notes 67–69 and
accompanying text.
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Vol. 22, No. 1 Deconstructing Development 21

development.79 Indeed, with economic globalization as its bat-

tering ram, the law and development movement recast and reas-
serted itself in the 1990s as “marketization” and
“democratization.”80 The current reincarnation of the law and
development movement is known as the “good governance”
agenda, which has been critiqued as “an uneasy combination of
two main objectives: on the one hand, a project limiting the
power of the state in the economy while simultaneously ex-
panding the role of the market, and on the other, establishing
liberal democracy as a counterpart to structural adjustment or
neoliberal economic reform.”81 Capital exporting countries and
the international financial institutions they control are actively

79
For example, the intersection of law and economic development in the Third
World continues to generate significant attention – as evidenced by a 1992 book
with precisely that title. The book was edited by P. Ebow Bondzi-Simpson who,
in the opening chapter, asserts that:

Law may be used to promote development as an institutional enterprise,

providing a framework for procedures to be adopted, mechanisms for the
settlement of disputes and/or agencies to monitor or review programs
taken in pursuit of development. As a normative device, law may provide
a catalog of substantive rights, obligations and entitlements. In either re-
spect, law may be used to promote desired action or to curb or regulate
undesired actions or consequences.

P. Ebow Bondzi-Simpson, Confronting the Dilemmas of Development Through

Law, in THE LAW AND ECONOMIC DEVELOPMENT IN THE THIRD WORLD 6 (P.
Ebow Bondzi-Simpson ed., 1992).
80
Amy L. Chua, Markets, Democracy and Ethnicity: Toward a NewParadigm for
Law and Development, 108 YALE L.J. 1, 14–15 (1998) (noting that the over-
whelming majority of development literature still “urge[s] the rapid and full-
blown liberalization and marketization of developing world economies”); id. at
17–18 (listing the many organizations that follow an agenda which promotes
marketization and democratization). Professor Maxwell Chuibundu notes:

Now that the globe seems to be marching to one drum beat, that of the free
enterprise capitalist system, it follows that the legal institutions and prac-
tices that have fostered and sustained the triumph of the capitalist mode of
production, accumulation, distribution, and consumption are best suited for
other societies, appropriately modified at the margins to account for the
peculiar foibles of those societies.

Chibundu, supra note 74, at 222.

81
James Thuo Gathii, Retelling Good Governance Narratives on Africa’s Economic
and Political Predicaments: Continuities and Discontinuities in Legal Outcomes
Between Markets and States, 45 VILL. L. REV. 971, 1000 (2000).
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22 Wisconsin International Law Journal

promoting the good governance agenda.82 Like the moderniza-

tion paradigm that is at its core, law and development continues
to thrive, albeit in a new form.
Thus, as the first half of the Twentieth Century came to a
close, a new entity was emerging in the international community,
the underdeveloped world. Once it was discovered and then de-
fined as poor and pre-modern, the foundation was in place for its
development. As the second half of the 20th century progressed,
“development” became the stated objective of virtually every
country in what became the Third World. New nations differed
on the question of how best to achieve development, but they
unanimously agreed that development was their goal.83 Interna-
tional institutions, in turn, propounded a variety of mechanisms
to assist newly sovereign entities as they moved in the expected
linear fashion towards the promised goal of being developed.
Part II turns to the development institutions and the practices
they propounded.

II. CONSTRUCTING DEVELOPMENT IN PRACTICE

A. THE INSTITUTIONAL EDIFICE
The International Monetary Fund (the IMF) and the Inter-
national Bank for Reconstruction and Development (the World
Bank) have come to exercise a profound influence on the econo-
mies of most Third World countries.84 Indeed, International Fi-
nancial Institutions (IFIs) virtually control the policy-making

82
In a 1989 report the World Bank identified bad government (including poor poli-
cies, incompetence and corruption) as the primary obstacle to economic develop-
ment in sub-Saharan Africa. See WORLD BANK, SUB-SAHARAN AFRICA: FROM
CRISIS TO SUSTAINABLE GROWTH: A LONG-TERM PERSPECTIVE STUDY (1989).
83
Chibundu, supra note 74, at 190–91.
84
Mary C. Tsai, Globalization and Conditionality: Two Sides of the Sovereignty
Coin, 31 LAW & POL’Y INT’L BUS. 1317 (2000); Anthony Galano III, International
Monetary Fund Response to the Brazilian Debt Crisis: Whether the Effects of Con-
ditionality Have Undermined Brazil’s National Sovereignty?, 6 PACE INT’L L.
REV. 323 (1994); JACQUES J. POLAK & CATHERINE GWIN, THE WORLD BANK
AND THE INTERNATIONAL MONETARY FUND: A CHANGING RELATIONSHIP
(1994). International Financial Institutions or IFIs increasingly embrace an ever-
widening array of governmental functions, such as judicial and public service re-
organization, government auditing functions, and labor and environmental con-
cerns. See Antony Anghie, Time Present and Time Past: Globalization,
International Financial Institutions, and the Third World, 32 N.Y.U. J. INT’L L. &
POL. 243, 266 (2000) [hereinafter Anghie, Time Present and Time Past] (noting
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Vol. 22, No. 1 Deconstructing Development 23

processes of some debtor countries.85 When they were estab-

lished at the end of World War II,86 however, the World Bank
was to assist in rebuilding post War Europe and the IMF was to
monitor and regulate the international monetary system. Their
evolution into institutions whose primary focus is the Third
World is a crucial aspect of the evolving paradigm of
development.87

1. The World Bank

When the World Bank was founded at the end of World War
II, its assigned priority was rebuilding Europe.88 In 1947, how-
ever, just three years after the Bank’s creation, the United States

World Bank interference in any activity that involves development); see also
James Thuo Gathii, Good Governance as a Counter-Insurgency Agenda to Oppo-
sitional and Transformative Social Projects in International Law, 5 BUFF. HUM.
RTS. L. REV. 107 (1999) [hereinafter Gathii, Good Governance].
85
One means is through “conditionality” – the IFI practice of making loans condi-
tional on policy and/or structural changes by the borrowing state. Conditionality
allows the World Bank and the IMF to restrict credit if a country’s fails to comply
with the terms of its lending agreement. Tsai, supra note 84; POLAK & GWIN,
supra note 84. See infra notes 169-203 (detailing Structural Adjustment programs
during the 1980s) and accompanying text.
86
The World Bank and the IMF are also known as the Bretton Woods institutions,
because they were formed at Bretton Woods, New Hampshire in July 1944. The
two organizations have similar governance structures, operating according to a
weighted voting system that is based on contributions made by members. The
broad legal framework for the two institutions is also similar, with emphasis on an
ostensibly non-political character. See Anghie, supra note 84, at 269; Gathii,
Good Governance, supra note 84, at 225.
87
Cf. Balakrishnan Rajagopal, From Resistance to Renewal: The Third World, So-
cial Movements, and the Expansion of International Institutions, 41 HARV. INT’L
L.J. 529, 530 (2000) [hereinafter Rajagopal, From Resistance to Renewal]. Profes-
sor Rajagopal rejects the prevailing “functionalist” conception of international
institutions. He notes that the functionalist “theory explains the emergence of
international institutions as a result of a pragmatic necessity to serve concrete
functions. . . The central proposition of this theory is that institutions are born
and expand due to top-down policy decisions that correlate with the functional
needs of international society.” Not coincidentally, this top-down conception is
consistent with the perceived “hegemonic nature of international law as an elitist
discipline.”
88
Section I of Article I of IBRD’s Articles of Agreement states that the Bank is:

To assist in the reconstruction and development of territories of members

by facilitating the investment of capital for productive purpose, including
the restoration of economies destroyed or disrupted by war, the reconver-
sion of productive facilities to peacetime needs and the encouragement of
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24 Wisconsin International Law Journal

embarked on the Marshall Plan and took over most of the fi-
nancing for the reconstruction of Europe. With its role in Eu-
rope eclipsed,89 the Bank was left to pursue its secondary charge:
“the development of productive facilities and resources in less
developed countries.”90 But even this function, as originally con-
templated, bears little resemblance to the Bank’s contemporary
role in the Third World. The World Bank was intended to act as
an intermediary between prospective borrowers and prospective
investors, meaning it was to play the traditional role of a private,
commercial bank – except that its depositors and borrowers
would be member states.91 Under the terms of its Articles of
Agreement, the Bank was to make loans based exclusively on
“considerations of economy and efficiency;”92 it was expressly
prohibited from entertaining “political or other non-economic in-
fluences or considerations.”93
The Bank’s evolution into an Institution that touches on al-
most all aspects of the economic, social and political lives of its
borrowers has much to do with how development itself has
evolved over the last fifty years and with other factors such as the
post World War II struggle between capitalism and communism,
a struggle within which the World Bank was a critical weapon.94

the development of productive facilities and resources in less developed

countries.
International Bank for Reconstruction and Development Articles of Agreement,
art. I, §1, 60 Stat. 1440, 16 U.S.T. 1942, as amended (1945), available at http://web.
worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/0,,contentMDK:200495
57~menuPK:63000601~pagePK:34542~piPK:36600~theSitePK:29708,00.html
(last visited on Feb. 22, 2004).
89
John D. Ciorciari, A Prospective Enlargement of the Roles of the Bretton Woods
Financial Institutions in International Peace Operations, 22 FORDHAM INT’L L.J.
292, 298–99 (1998).
90
International Bank for Reconstruction and Development Articles of Agreement,
supra note 88, at art. I, § 1.
91
See Ciorciari, supra note 89, at 298–99; Dominique Carreau, Why Not Merge the
International Monetary Fund (IMF) with the International Bank for Reconstruc-
tion and Development (World Bank)?, 62 FORDHAM L. REV. 1989, 1991 (1994).
92
International Bank for Reconstruction and Development Articles of Agreement,
supra note 88, at art. III, § 5(b).
93
Id.
94
Rajagopal, From Resistance to Renewal, supra note 87, at 438 (“Indeed, it was
commonplace in development thinking in the late 1950s and early 1960s that poor
countries would succumb to Communism if they were not rescued from poverty.”
Initially the Bank employed direct “project lending” to support anti-communist
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Vol. 22, No. 1 Deconstructing Development 25

With the establishment of the Inter-American Development

Bank in 1961, the shift began towards linking the extension of
credit to the implementation of reforms.95 This opened the door
to broader interventions in the political and social affairs of bor-
rowing nations.96 The Bank eventually began insisting on inter-
nal changes as a condition of receiving assistance. As the Bank’s
role in devising and carrying out both the practical and theoreti-
cal elements of development has persistently expanded and

regimes in Asia, Africa and Latin America. For example, Nicaragua, whose rul-
ing Samoza family was cooperating closely with the U.S. military, received 10
World Bank loans between 1951 and 1960. Guatemala, however, with three times
Nicaragua’s population, received no World Bank support until the overthrow of
its supposedly communist regime in 1955. Loans were used to build dams, high-
ways and other infra-structure projects that would facilitate economic growth. As
these projects failed to achieve their intended results, however, it became appar-
ent that securing the allegiance of Third World regimes – particularly oppressive
ones – would not necessarily pacify the populations who were subject to those
regimes, and thus there might be a need for direct programs to alleviate poverty.
In other words, preventing communist subversion in the Third World was going
to require programs to alleviate poverty within Third World countries, and this
was not being accomplished by the World Bank’s project-based lending in sup-
port of infrastructure; the required shift in policy began at the regional level.)
95
In 1959, U.S. President Eisenhower explained the establishment of the Inter-
American Development Bank as follows:

Traditional unilateral aid was sustaining a prevailing social order, which

was unjust to the masses of the people, but we could do nothing directly
about this without violating the policy of non-intervention in the internal
affairs of other nations. The creation of the new bank changed this, for
now the Americas had a multinational instrument, secure against control
by any one country, for bettering the life of people throughout the Ameri-
cas; if this instrument insisted upon social reform as a condition of ex-
tending development credit, it could scarcely be charged with
“intervention.”

DWIGHT D. EISENHOWER, WAGING PEACE, 1956-61: THE WHITE HOUSE YEARS

516 (1965), quoted in 1 DEVESH KAPUR, supra note 30, at at 155. Thus was estab-
lished the regional mechanism for development assistance conditioned on specific
internal reforms by the country receiving the assistance.
96
The establishment of the IDA was the most significant institutional factor in the
World Bank’s shift away from project-lending based on traditional financial crite-
ria and toward investing in “human capital” and poverty reduction programs in
the Third World. It was the model for multilateral institutions that would have
the credibility to insist on internal changes without charging individual nations
with violating the international principle of non-intervention in the internal af-
fairs of states. The same mechanism and rationale were implemented without the
regional limitation when the International Development Association (IDA) was
established as a part of the World Bank in 1961. Rajagopal, From Resistance to
Renewal, supra note 87, at 552.
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26 Wisconsin International Law Journal

grown, its position in the affairs of its Third World members ex-
panded in tandem, and steadily and consistently grew ever
broader and deeper.97

2. The Evolving IMF Role in the Third World

The International Monetary Fund was initially founded to
stabilize the international monetary system and promote interna-
tional trade,98 by supervising international currency exchange
rates and making short-term loans to member states when neces-
sary to meet balance of payments difficulties.99 Many factors
contributed to the subsequent transformation of the IMF’s role
into a lender to Third World countries, but perhaps the most im-
portant was the 1971 U.S. decision to “float” the dollar.100 This
determination caused such significant changes in the interna-
tional monetary system that the IMF was eventually reduced to
monitoring exchange rates rather than setting them.101 Still, most
IMF activity was directed toward industrialized nations until the
oil crisis in the early 1970s. Newly established Euro-Markets
were flooded with so-called “petro dollars,”102 and these markets

97
See infra notes 112-228 and accompanying text for discussion of the “cycles of
conventional wisdom.”
98
The principal task originally assigned to the IMF was “to promote international
monetary cooperation” and “to give confidence to members by making the
Fund’s resources temporarily available to them under adequate safeguards.” Ar-
ticles of Agreement of the International Monetary Fund, art. I(i), I(v), 60 Stat.
1401, 29 U.S.T. 2203, as amended (1945), available at http://www.imf.org/external/
pubs/ft/aa/aa.pdf (last visited Nov. 16, 2003) [hereinafter IMF Articles of Agree-
ment]; see also Enrique R. Carrasco, Income Distribution and the Bretton Woods
Institutions: Promoting an Enabling Environment for Social Development, 6
TRANSNAT’L L. & CONTEMP. PROBS. 1 (1996); Daniel D. Bradlow, The World
Bank, the IMF, and Human Rights, 6 TRANSNAT’L L. & CONTEMP. PROBS. 47
(1996); Stephen Anthony, IMF Structural Adjustment Programs: An Economic
Evaluation, 3 GEO. PUBLIC POL’Y REV. 133 (1998).
99
Carreau, supra note 91 (Noting that in essence, the IMF’s member states agreed
to relinquish some of their sovereignty over their national monetary systems in
exchange for short-term assistance when needed, and for the stability the IMF
would bring to the international monetary system. The IMF’s normative powers
thus depended on the cooperation of its member states.).
100
Id. (also noting that this decision may have been in violation of the par value
system established in the IMF Articles of Agreement).
101
Id.
102
Bradlow, supra note 98, at 47.
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Vol. 22, No. 1 Deconstructing Development 27

usurped most of the IMF’s role as a lender to credit-worthy in-

dustrialized states who could now avoid IMF conditions.103 As
credit-worthy borrowers sought loans elsewhere, the IMF found
itself lending almost exclusively to Third World countries.104 In-
deed, since the second amendment of its Articles of Agreement
in 1978, the IMF has become primarily a lender to the Third
World.105 This new role was cemented by the debt crises of the
1980s, as the IMF assumed increasing control over the economies
of states that had no alternative sources of outside financing.
The Third World debt crisis in the 1980s also led the IMF and
World Bank to effectively consolidate their policies toward the
Third World.106

103
Carreau, supra note 91 (noting that IMF lending has always been conditional;
borrowers are required to adopt stabilization plans and to correct the types of
imbalances that were thought to have figured significantly in precipitating World
War II).
104
Professor Carreau observes:

Gradually and involuntarily, the IMF has lost its influence over its most
developed member states, which remain bound by very limited monetary
obligations since the collapse of the par value system in 1971 and which
have abstained from turning to the IMF for assistance. . . because of the
conditions imposed.

Carreau, supra note 91, at 1997.

105
Rajagopal, From Resistance to Renewal, supra note 87, at 570.
106
For example, the IMF now recognizes economic growth as an objective – even
though economic growth was not one of its original purposes and is still not men-
tioned in the IMF’s Articles of Agreement. JACQUES J. POLAK, 184 THE CHANG-
ING NATURE OF IMF CONDITIONALITY, ESSAYS IN INTERNATIONAL FINANCE, at
1, 17 (1991). It defines desirable economic growth as “high quality growth rather
than flash in the pan growth fueled by inflation and excessive borrowing, or
growth at the expense of the poor, of the environment, or growth run by the
state.” IMF Managing Director Michael Camdessus, quoted in id., at 19. This
model of economic growth is quite compatible with the World Bank’s theory of
economic development. Rajagopal, From Resistance to Renewal, supra note 87,
at 573. Professor Carreau notes:

The IMF’s role seems limited to controlling the economies of member

states requesting financial assistance, namely developing countries and for-
mer command economy countries that have no alternative sources of
outside financing. . . Its assistance, originally limited to financing short-
term difficulties, has been completely modified to address long-term, struc-
tural imbalances. And this is precisely the World Bank’s mission.

Carreau, supra note 91, at 1997–98.

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28 Wisconsin International Law Journal

IFI performance as “the apparatus of management and con-

trol of social reality in the Third World”107 has provoked an in-
tense barrage of criticism,108 ranging from liberal critics who
generally accept the goals and objectives of IFIs but perceive
problems in implementation,109 to those embracing a more radical
perspective, who view IFIs as tools of the industrialized north in
their continuing exploitation of the South.110 Others reject both
critiques.111 What is certain, however, is the decisive and ever-

107
Rajagopal, From Resistance to Renewal, supra note 87, at 541.
108
Genoveva Hernandez Uriz, To Lend or Not To Lend: Oil, Human Rights, and the
World Bank’s Internal Contradictions, 14 HARV. HUM. RTS. J. 197 (2001).
109
Liberal critics generally accept the candor and validity of IFI goals of alleviating
poverty and improving standards of living in the Third World. See Operational
Directive 4.15: Poverty Reduction (1992), THE WORLD BANK OPERATIONAL
MANUAL 2 (1992) (stating that “sustainable poverty reduction is the Bank’s over-
arching objective”); Policy Development and Review Department, The Poverty
Reduction and Growth Facility (PRGF) – Operational Issues, International Mone-
tary Fund, at http://www.imf.org/external/np/pdr/prsp/poverty2.htm (last visited
Feb. 21, 2004) (proclaiming “poverty reduction efforts among low-income mem-
bers a key and more explicit element of a renewed growth-oriented economic
strategy” of the IMF). In their view, the problem is ineffective strategies and/or
improper implementation by IFIs themselves and/or by Third World govern-
ments. Some liberal critics also allege that IFIs are “out of touch” because they
are Western-dominated and unrepresentative. See, e.g., Oscar Shachter, The
Evolving Law of International Development, 15 COLUM. J. TRANSNAT’L L. 1
(1976).
110
Critics embracing a more radical perspective contend that IFIs are in place pri-
marily to maintain the international economic status quo, and to enable the coun-
tries of the industrialized North to continue exploiting the countries of the South.
See, e.g., Saving Failed States, supra note 12; David Greenberg, Law and Develop-
ment in Light of Dependency Theory, 3 RES. IN L. & SOC. 129, 152 (1980); James
Thuo Gathii, Africa’s Economic and Political Predicaments, 45 VILL. L. REV. 971,
1002 [hereinafter Gathii, Africa Predicaments]; Gathii, Good Governance, supra
note 84, at 224 (relating the hierarchical nature of the international order and
demonstrating that decisions to undertake national economic management have
been taken out of the hands of developing countries through structural adjust-
ment programs that are required for the continuance of foreign aid). Critics also
point out that eighty percent of U.S. aid to Africa, for example, is spent on Amer-
ican commodities, expertise, and subcontractors; only twenty percent of the
money ever leaves the U.S. It is also noteworthy that in 1989, the Bank em-
ployed 80,000 consultants on Africa with only one percent of them being African,
meaning the other ninety-nine percent come from outside the continent. Ernesto
Hernandez-Cata, Remark, Panel Three: The Role of Multi-Lateral Institutions in
African Development, 30 LAW & POL’Y INT’L BUS. 708, 711 (1999).
111
For example, Professor Balakrishnan Rajagopal contends that both the liberal
and radical critiques are useful but flawed. He believes that the liberal critique
(1) fails to acknowledge that IFI interventions in the Third World often worsen
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Vol. 22, No. 1 Deconstructing Development 29

expanding position of these institutions in the “cycles of conven-

tion wisdom” that make up the ensuing narrative of
development.

B. CYCLES OF CONVENTIONAL WISDOM112

The concept of development is “riddled with paradoxes, and
few theories are more bedeviled by contested hypotheses.”113
Development has taken many shapes and forms since the 1950s,
when economic growth was its sole objective. In the 1960s, pov-
erty alleviation and distributional equity were added as objec-
tives. “Basic Needs” emerged in the 1970s, and the cultural
dimension took its place beside economic development and more

circumstances by exacerbating class divisions that are already too broad, and (2)
is inadequate to explain not only the general failure of IFI poverty reduction
programs, but also the widespread popular resistance to those programs in the
Third World. He believes the radical critique, on the other hand, oversimplifies
complex and differing relationships, leads to “policy paralysis,” and fails to ex-
plain the continuing participation of legions of intelligent and genuinely well-in-
tentioned individuals in “development work.” Professor Rajagopal suggests an
alternative analysis that differs from the liberal and radical critiques. He main-
tains that just as the Third World is defined by the concept of development, IFIs
are defined by their mission, and the development project has become that mis-
sion. He continues:
IFIs have had a complex relationship with Third World resistance. . . .it is
the process by which [IFIs] have dealt with that resistance, and not so much
the resistance itself, that have revealed the centrality of the resistance to
the formation of the [IFIs’] changing institutional agendas. . .. This . . . is
hardly acknowledged by the [IFIs], who see their evolution as being gov-
erned purely by the laws of economics, finance, or their Articles of Agree-
ment. It matters less that poverty alleviation programs never alleviate
poverty or that conditionalities never achieve their stated goals. Rather,
these specific interventions . . . redound to the authority and expansion of
international institutions.
Rajagopal, From Resistance to Renewal, supra note 87, at 576.
112
The phrase “cycles of conventional wisdom” is borrowed from an article by
economist Paul Krugman that discusses the myriad models of development
promulgated by development specialists and how these models were developed.
He concludes that development specialists are a closed insular group that does
not rely upon proven methods or past experience, and appear unable to
accomplish modernization. Paul Krugman, Cycles of Conventional Wisdom in
Eocnomic Development, 72 INT’L AFFAIRS 717, 717 (1996).
113
Kothari & Minogue, supra note 7, at 1. Definitions of “development” abound.
Professor Simon asserts that these definitions are “contextual and contingent
upon the ideological, epistemological or methodological orientation of their pur-
veyors, and there has never been a consensus or unanimity about the meaning or
content of development.” Simon, supra note 10, at 17.
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30 Wisconsin International Law Journal

emphasis was placed on self-reliance.114 The 1980s brought gen-

der issues and environmentalism as prominent themes.115 By the
1990s, globalization had become the focal point.116 While the fol-
lowing account attempts to break these and many other permuta-
tions into discrete time frames, there is considerabe overlap.
Theories and practices sometimes evolved slowly; sometimes
seemed to disappear, only to reappear in a different form; and
sometimes gave way to polar opposite strategies. This brief ac-
count can only sketch how development has evolved and been
transformed and adjusted over the last fifty years, as developers
tried and failed to “better humankind through the alleviation of
poverty and the realization of human potential.”117

1. The “Golden Age” of Development: 1950-1970118

The 20-year period from 1950 to 1970 has been labeled the
“golden age” of development.119 The development project was in
its infancy, but the clear “expert” consensus was that insufficient
income was the key problem facing Third World countries, and

114
Autonomous decision-making and implementation by both nations and peoples
were emphasized. Sardar, supra note 55. See also Rosemary McGee, Participat-
ing in Development, in DEVELOPMENT THEORY AND PRACTICE CRITICAL PER-
SPECTIVES, supra note 7, at 92.
115
Finite resources and the fragility of the global environment were additional fac-
tors to be considered and taken into account. Sardar, supra note 55, at 53. This
followed on the heals of the Stockholm Conference on the Environment in 1972
and was popularized by such publications as WORLD COMMISSION ON EMPLOY-
MENT, OUR COMMON FUTURE (1987).
116
“Liberalization” and “open markets” have become the driving force of develop-
ment. Sardar, supra note 55.
117
Cowen & Shenton, supra note 17, at 27.
118
The so-called “golden age of development” overlapped with the beginning of
what would be a series of United Nations Development Decades. Pursuant to a
request by President John F. Kennedy, the General Assembly of the United
Nations unanimously approved Resolution 1710, which declared the first
Development Decade in 1961. The goal was to attain, “in each under-developed
country a substantial increase in the rate of growth, with each country setting its
own target, taking as the objective a minimum annual rate of growth of aggregate
national income of 5 percent at the end of the Decade.” G.A. Res. 1710, U.N.
GAOR, 16th Sess., 1084th plen. mtg., at 17, U.N. Doc. A/5100 (1961); DUSAN
DJONOVICH, 1 RESOLUTIONS ADOPTED BY THE GENERAL ASSEMBLY, UNITED
NATIONS RESOLUTIONS (1972). In some respects, these resolutions reflect the
failures of development, the hopes of Third World nations, and convey the
progression of development in theory and practice.
119
MEHMET, supra note 56, at 63.
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Vol. 22, No. 1 Deconstructing Development 31

economic growth was the solution.120 The prevailing orthodoxy

postulated that national economic management would maximize
growth and employment; accordingly, the state was to orches-
trate development through the use of macroeconomic policy
tools.121Early development theory relied heavily on “state-led
developmentalism.”122 National governments were to adopt poli-
cies that stimulated growth.123 The standard approach to eco-
nomic development involved highly abstract plans, economic
model building and parastatal agencies.124 Capital investment to
build infrastructure, industrialize and to generally modernize so-
cieties was thought to be the most important ingredient in eco-
nomic growth.125 Therefore, the World Bank extended project-
based loans to build dams, highways and other infrastructure
projects.126 Technology was also a critical component and given

120
ESCOBAR, supra note 19, at 24 (stating development theory was strongly influ-
enced by the neo-Keynesian consensus that dominated economic thinking and
practice in the post-War period); Paul Cammack, Neoliberalism, the World Bank
and the New Politics of Development, in DEVELOPMENT THEORY AND PRACTICE,
supra note 7, at 157, 161 (noting that it was assumed that states could and should
intervene directly in production and distribution, making development an active,
state-led process).
121
Cammack, supra note 120, at 157, 161; MEHMET, supra note 56, at 60.
122
MEHMET, supra note 56, at 96. This is quite ironic given the contemporary near-
religious devotion to the free market.
123
Cammack, supra note 120, at 157, 161; MEHMET, supra note 56, at 60.
124
MEHMET, supra note 56, at 96. Planners did not consider how countries would
administer these ambitious plans; indeed institution building was ignored and
Western planners utilized a “how to do” approach. Id.
125
Because underdeveloped countries were believed to be “trapped in a vicious cir-
cle of poverty and thus lacking capital, it would therefore have to come from
abroad.” ESCOBAR, supra note 19, at 40.
126
“Project lending” was aimed primarily at developing infrastructure; it was in-
tended to facilitate business by cultivating the factors necessary for economic
growth. Bank officials believed it was crucial to construct electric power plants
and roads because industry could not be developed without electricity and the
means to transport finished products. Thus in the absence of this kind of infra-
structure, most economic activities would be difficult if not impossible. For ex-
ample, good roads were necessary because no investor would want to invest in a
country if its products could not be transported. Sandra Blanco, Symposium: Part
One: Pursuing the Good Life: The Meaning of Development as It Relates to the
World Bank and the IMF, 9 TRANSNAT’L. & CONTEMP. PROBS. 109, 110 (1999).
Consequently, the Bank mainly financed dams, highways, and other large-scale
infrastructure projects. Tsai, supra note 84.
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32 Wisconsin International Law Journal

the lack of capital to purchase it, technical assistance became es-

sential.127 As technology was introduced, Third World social and
cultural factors were ignored because Western developers be-
lieved technology was culturally neutral and invariably benefi-
cial.128 Historical, institutional and economic realities were
generally disregarded in the early days of the development
project.129
Very few of the early plans for economic growth led to mea-
surable successes, and it became apparent that the gains that
were achieved would not automatically benefit the most needy
citizens within target countries.130 The “trickle down” theory,
which postulated that economic growth would necessarily shrink
the gap between the rich and the poor, proved to be untrue.131
As optimism regarding economic growth began to wane,132 Third
World leaders began demanding permanent sovereignty over
natural resources133 and a school of thought known as “depen-
dency theory” emerged offering a radical critique of mainstream
economics.134 Meanwhile, the Cold War between capitalism and
communism had become the dominant factor in global politics

127
ESCOBAR, supra note 19, at 36 (noting that technology not only “amplified mate-
rial progress, [but] would confer . . . a sense of direction and significance”; it was
the key to modernization and indeed the transfer of technology became an im-
portant component of the development project).
128
Id.
129
MEHMET, supra note 56, at 96. Institutional efficiency, indigenous history and
culture and critical issues such as land reform were not part of the planning pro-
cess; plans were generally derived in a vacuum. Id.
130
Blanco, supra note 126, at 111.
131
Id.
132
Esteva, supra note 1, at 13.
133
See discussion infra Part III. A.
134
The multiplying failures of the development project and other events supported
the dependency critique. For example, when internal forces extended state con-
trol over the economy through nationalizations, and sought to give workers and
farmers more of a share in national wealth, private investors would flee and for-
eign loans would be denied. This financial strangulation sometimes led to mili-
tary coups and military incursions into the political process. The repetition of this
course of events fueled radical intellectuals who emphasized the impact of impe-
rialism, which used political, military and economic dominance to control produc-
tion in foreign nations. They also emphasized the impact of external forces from
the economies of the “center” on the economies of the “periphery”, and focused
on domination and subordination in general, and specifically on the effects of
imperialism and colonialism. MITTELMAN & PASHA, supra note 59, at 44–45.
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Vol. 22, No. 1 Deconstructing Development 33

and the primary consideration in U.S. policy toward the Third

World.135
The perception grew that more coordination by interna-
tional institutions would be needed to execute what was becom-
ing the ever more complex undertaking of development.136 Thus,
as the 1960s progressed (perhaps foreshadowing the contempo-
rary idea of “comprehensive development”), developmentalism
became more wide-ranging.137 Third World governments began
to establish social programs that would more directly address
poverty, by improving housing, education, health, energy and
transportation.138 The World Bank began to support projects in
these areas, as well projects focusing on population control, nu-
trition and urban development.139 This represented a significant
change in Bank policy, as the Bank moved beyond lending funds
for profit-oriented projects towards funding social projects in-
volving non-economic policy choices.140 Development had begun
its expansion beyond economic growth.

2. The Second Phase: Integrating Social and

Economic Elements
By the early 1970’s, the World Bank focused its resources
and policies exclusively on the Third World.141 What has been
called the “second era of development”142 was characterized by

135
See discussion infra Part II.A.
136
ESCOBAR, supra note 19, at 40.
137
Senarclens, supra note 30.
138
Blanco, supra note 126, at 111.
139
Carreau, supra note 91, at 1999.
140
This was also arguably a violation of its Articles of Agreement. The World Bank
Articles of Agreement provide that the World Bank’s lending policy is to be dic-
tated by purely financial considerations, meaning its funds can be lent only on
projects that are reasonably expected to generate sufficient funds to repay the
loan. Although it was believed these projects would contribute to the overall
development of member States, these projects could not be viewed as profit-ori-
ented. Indeed, many of these projects did not generate any income whatsoever.
Thus, the Bank increased its financial exposure, and borrowing members had to
utilize already limited foreign exchange resources to repay the Bank. Not sur-
prisingly, the Bank began to face defaults. Carreau, supra note 91, at 1999.
141
Jennifer N. Weidner, World Bank Study, 7 BUFF. HUM. RTS. L. REV. 193 (2001).
142
In 1970, the UN General Assembly declared the beginning of a Second Develop-
ment Decade (1971-1981) that called for a more equitable distribution of income
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34 Wisconsin International Law Journal

escalating efforts to integrate social considerations into the pur-

suit of economic goals.143It was conceded that the development
strategies then in place would not eliminate hunger and poverty,
and “Basic Needs” became the new maxim within the develop-
ment community.144 Rather than focusing on the infrastructure
and mega-projects that had previously dominated development
strategies and funding, the “Basic Needs” approach proposed
that poverty be dealt with by focusing directly on food, clothing,
shelter, education and employment.145 Moreover, people whose
basic needs were met might be less susceptible to “Communist
subversion,”146 which was an important consideration during the
Cold War. “Basic Needs” was quite popular because it was
universalistic, yet easily tailored to be country-specific;147 it re-
mained in favor until policies centered on the poor were aban-
doned in favor of structural adjustment lending.148
Policy studies that examined processes, values and social
consequences were prominent during this phase.149 More-
over, the presumptions that policy-making was exclusively a

and wealth, growth in primary education, prevention and treatment of disease,

and improved nutrition and housing. It also called for adjustments in trade poli-
cies and for economically advantaged countries to support the development en-
deavors of developing countries. EDMUND OZMANCZYK, ENCYCLOPEDIA OF THE
UNITED NATIONS AND INTERNATIONAL AGREEMENTS 528 (Anthony Mango ed.,
2003). See also G.A. Res. 2626, U.N. GAOR, 25th Sess., 1912th plen. mtg., at 39,
U.N. Doc. A/8124 and /Add.1 (1970).
143
Esteva, supra note 1, at 13–14. As early as 1962 ECOSOC had recommended
that the economic and social aspects of development be integrated. Proposals for
Action of the First UN Development Decade (1960-70), declared that “develop-
ment is growth plus change. . .. Change is social and cultural as well as economic,
and qualitative as well as quantitative. . . The key concept must be improved
quality of peoples’ lives. Nonetheless, development continued to be perceived as
a “definable path of economic growth passing through various stages, and “inte-
gration” simply linked the social aspect to the economic aspect. Solon L. Bar-
raclough, In Quest of Sustainable Development (unpublished paper, UNRISD).
144
Development was in reality more likely to worsen levels of absolute poverty for a
large segment of the population.
145
MITTELMAN & PASHA, supra note 59, at 92.
146
See discussion supra notes 94-95 and accompanying text.
147
Esteva, supra note 1, at 15. It also dovetailed with the World Bank strategy of
targeting groups such as the rural poor and small farmers.
148
See supra notes 169-203 and accompanying text. This coincided with the end of
Robert McNamara’s tenure as President of the World Bank.
149
MITTELMAN & PASHA, supra note 59, at 42.
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Vol. 22, No. 1 Deconstructing Development 35

state activity and that Third World governments acted on

behalf of their respective populations, also began to be chal-
lenged.150 As developers explored ways to deliver aid that
would meet basic needs, Western non-governmental organi-
zations (NGOs) emerged to assist.151 “Grassroots develop-
ment” and “empowerment” became the mottos of the
day, as “bottom up” theories such as micro-development,152
endogenous development,153 sustainable development154

150
Id.
151
Id. at 92.
152
For example, “Micro-development” theorists advocated targeting the individual
rather than infrastructure and governments, on the premise that development
would occur when people were empowered to confront and address their pov-
erty. Once empowered, people would “organize themselves and overcome the
obstacles to their social, cultural and economic well-being” with foreign organiza-
tions relegated to a supportive role. Empirically, micro-development theory as-
sumes that poverty results from lack [of] access to resources that are essential to
the satisfaction of basic human needs,” and that this lack of access is a ‘product of
lack of power in social relations.’” See Blake, supra note 55, at 166. Micro-devel-
opment theorists also emphasize a more equitable distribution of international
economic power, which can occur only at the macro level. Russell Lawrence
Barsh, The Right to Development as a Human Right: Results of the Global Con-
sultation, 13 HUM. RTS. Q. 322, 327 (1991).
153
Endogenous development proposed that the distinctiveness of individual cultures
and societies should be at the center of determining the goals to be pursued. This
approach was generally accepted for a period of time, even though it was at odds
with core assumptions of the development project, which are universalistic. Es-
teva, supra note 1, at 15.
154
Sustainable development was defined as economic growth that takes account of
environmental concerns. See David P. Forsythe, The United Nations, Human
Rights, and Development, 19 HUM. RTS. Q. 334, 334 (1997). Like micro-develop-
ment, it had a social dimension, emphasizing that development is more than eco-
nomic growth. See also Blake, supra note 55, at 168; Forsythe, supra note 154, at
335. Both micro-development and sustainable development concentrate on edu-
cation and literacy, health services, poverty alleviation, environmental protection,
community cooperation and participation, and social and cultural cohesiveness;
success is not measured solely in terms of economic growth. Results can be in-
tangible, such as improved skills in communication, leadership or management; a
stronger sense of self; the establishment of civil liberties; or the increased ability
to leverage services from the state. Results can also be tangible, such as increases
in the production of agricultural or manufactured goods; a rise in family incomes;
a building used for organizational activities; or a road or water system. Id. at
166–68. The Stockholm conference on the environment was in 1972, and the no-
tion of sustainable development was further defined and cemented with the pub-
lication of the Brandt Report, entitled Our Common Future, supra note 115.
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36 Wisconsin International Law Journal

and other themes began to emerge to replace “top down”

theories.155
Indeed, as the 1970s progressed, “major problems, such as
the environment, over-population, food scarcity, the role of wo-
men, habitat destruction and unemployment were brought to the
fore, and each new conundrum had an independent career that
demanded both public and institutional consideration.”156 What
these numerous theories have in common, however, is that they
originated in the West, and more specifically the international in-
stitutions that by this time defined, designed and controlled
developmentalism. They often followed new domestic policy
prescriptions and emphases in the industrialized countries. For
example, “Basic Needs” followed on the heels of the War on
Poverty in the United States, which may have suggested the
model.157 Emphasis on the role of women in development cannot
be separated from the feminist movement in the United States.
Environmental concerns surfaced as the environment became an
issue in the United States and Europe.158 This pedigree highlights
the extent to which policies are designed and imposed separate
and apart from the communities they purport to serve.159
On the other hand, the complex responses, both real and
anticipated, of Third World peoples to development interven-
tions cannot be discounted. The idea of meeting “Basic Needs”
for example, was largely a response to Cold War concerns that
poor populations may be susceptible to communist subversion.160

155
MITTELMAN & PASHA, supra note 59, at 93. The problem was that neither theo-
rists nor NGOs bothered with the endogenous cultures from which successful
grassroots institutions might emerge. Id. See also McGee, supra note 114, at 92;
Majid Rahnema, Participation, in THE DEVELOPMENT DICTIONARY, supra note 1,
at 116 [hereinafter Rahnema, Participation].
156
“The complex relation between one particular problem and the other problems
would be established and then unified with the problem currently at the center of
the process.” Esteva, Development, in THE DEVELOPMENT DICTIONARY at 14.
157
Wolfgang Sachs, Environment, in THE POST-DEVELOPMENT READER, supra note
17, at 26 (noting that the ebb and flow of international development theories
generally follow political sensibilities in the West). For a discussion of the emer-
gence of “basic needs” as a development strategy, see Arturo Escobar, Planning,
in THE POST-DEVELOPMENT READER, supra note 17, at 137–39 [hereinafter Es-
cobar, Planning]; see also Illich, supra note 42, at 88–101.
158
Sachs, supra note 157, at 26.
159
McGee, supra note 114, at 92; Rahnema, supra note 155, at 116.
160
See Rajagopal, From Resistance to Renewal, supra note 87.
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Vol. 22, No. 1 Deconstructing Development 37

Micro-development and participation are partly in response to

policy failures, but may also have been responses to changing
perceptions of the objects of development.161 Certainly, the rela-
tionship between developers and the objects of development
were and remain complex. Nonetheless, it is quite apparent that
the majority of power has resided in the developers, as the lost
decade for development amply demonstrates.

3. The Third World Debt Crisis and the “Lost Decade”

for Development (1980-1990)
The 1980s are often termed development’s “lost decade”162
as a combination of factors led to the debacle of structural adjust-
ment.163 Chief among these factors was what has come to be
known as the Third World debt crisis, which even today remains
a critical issue.164 Most analysts trace the roots of the Third
World debt crisis to the oil crises of the early and mid 1970s,

161
For an analysis of participation, see Rahnema, supra note 155, at 116. The emer-
gence of these paradigms may also reflect the influence of NGOS. McGee, supra
note 114, at 92.
162
On December 5, 1980, the UN General Assembly approved Resolution 35/36
that established the need for a Third Development Decade for the 1980s. It
called for accelerating development, promoting economic and social develop-
ment, reducing disparities between Northern and Southern tier countries, and
early eradication of poverty and dependency. The definitive objective was the
“constant improvement of the well being of the entire population through full
participation in the process of development and the fair distribution of benefits to
women.” G.A. Res. 36, U.N. GAOR, 35th Sess., 83d plen. mtg., at 106, U.N.
Doc. A/RES/35/36 (1980). Part of the strategy included establishing a new inter-
national economic order, which would include industrialization and a more sta-
ble, equitable and effective international monetary system. OZMANCZYK, supra
note 142, at 528.
163
See infra notes 165–69 and accompanying text.
164
The crushing burden of this debt continues to cement the dependent status of the
poorest countries in the international financial system. The combined total exter-
nal debt of the Third World now exceeds two trillion dollars. See UNITED NA-
TIONS DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT 1999, at 196
(1999). The legion and, thus far, unsuccessful proposals for resolving the crisis
have included the “Baker plan”; the “Brady plan”; “debt-for-equity,” “debt-for-
nature,” and “debt-for-development” plans; “securitization”; and the
“Miyazawa,” “Mitterand,” and “Robinson” proposals. Sylvester, supra note 6, at
265–76. The program currently in effect is the Heavily Indebted Poor Countries
(“HIPC”) Debt Initiative. HIPC was launched by the World Bank and the IMF
in 1996, and then revised in 1999. Assistance provided by HIPC is in addition to
such relief as a debtor country may be able to arrange directly with creditors.
The World Bank’s web site outlines the initiative as follows:
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38 Wisconsin International Law Journal

when spiking oil prices simultaneously impoverished oil-import-

ing Third World countries and flooded international financial
markets with oil profits in need of investment.165 The Organiza-
tion of Petroleum Exporting Countries (“OPEC”) became “a
major creditor of the United States and Western Multinational
banks166 that in turn loaned the money to poor, often politically
unstable Third World countries.”167 Left with massive loans that
carried skyrocketing interest rates, and at the same time unable

Eligible countries will qualify for debt relief in two stages. In the first stage
the debtor country will need to demonstrate the capacity to use prudently
the assistance granted by establishing a satisfactory track record, normally
of three years. . . In the second stage . . . the country will implement a full-
fledged poverty reduction strategy, which has been prepared with broad
participation of civil society, and an agreed set of measures aimed at en-
hancing economic growth.

The World Bank Group, Ethiopia Receives Debt Relief Under HIPC Initiative:
Total Support Worth US$1.9 Billion, at http://www.worldbank.org/hipc/about
background.html (last visited July 13, 2003). The program now involves 42 coun-
tries: 34 in Africa, four in Latin America, three in Asia and one in the Middle
East. The World Bank Group, HIPC, HIPC Map, at http://www.worldbank.org/
hipc/about/map/map.html (last visited July 13, 2003). The results of the HIPC
Initiative remain to be seen. Its implementation to date, however, has been no
less top-down and inflexible than previous IFI programs, according to participat-
ing country government officials with whom one of the present authors has spo-
ken. Professor Thomas observes that, “[t]he debt burden is directly related to
world hunger and poverty because debtor governments must divert precious and
scarce resources to paying down external debt instead of meeting the pressing
needs of their populations.” Chantal Thomas, International Debt Forgiveness and
Global Poverty Reduction, 27 FORDHAM URB. L.J. 1711, 1712 (2000). Many
Third World governments spend more than twice as much servicing external debt
as they do on health and education. See Oxfam International Advocacy Offce &
UNICEF, Debt Relief and Poverty Reduction: Meeting the Challenge, § 2.1 (1999),
available at http://www.oxfam.org/eng/pdfs/pp9908_debt_relief_and_poverty_re-
duction.pdf (last visited Feb. 22, 2004). “In Zambia – where infant mortality
rates are increasing, over half a million children are out of school, and illiteracy is
rising – debt servicing claims more of the national budget that health and educa-
tion combined.” Id., at § 3.2 (emphasis omitted).
165
Jerome I. Levinson, A Perspective on the Debt Crisis, 4 AM. U. J. INT’L L. &
POL’Y 489 (1989).
166
Oil prices, which had increased five-fold between 1971 and 1974, doubled again in
1980. Id. at 491, 495–96.
167
By 1974, OPEC annual revenues exceeded $100 billion. Sylvester, supra note 6, at
264. The precariousness of the situation was compounded by political instability
in Middle East, the 1979 fall of the Shah of Iran, and double digit inflation in the
United States. Id.
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Vol. 22, No. 1 Deconstructing Development 39

to raise sufficient revenues through exports to pay these debts,

Third World nations acquired growing deficits.168
Structural adjustment became the method by which debtor
countries were to correct ballooning deficits.169 These programs
transformed the IMF from an institution that had been primarily
concerned with stabilizing global exchange rates, into one deeply
involved in the social and political policies of the poorest coun-
tries of the Third World.170 IMF lending has always been condi-
tional, but the short-term lending provisions originally utilized by
the IMF were thought inadequate to address the development
problems faced by Third World nations. So longer-term financ-
ing arrangements were implemented and the IMF broadened its
traditional scope of inquiry to include evaluations of domestic
issues such as labor, health care, and agriculture.171

168
Id. at 265 (Noting that these developments affected Third World debtors in two
critical ways. First, a significant portion of the loans carried floating interest
rates, and these rates skyrocketed. Second, because of tight money and weak-
ened demand, Third World debtors had trouble selling their exports to raise reve-
nue. In 1982, Mexico made its historic declaration of inability to meet even the
interest payments on its external debts, and the “Third World debt crisis” was
well on its way to becoming a household phrase.)
169
Rajesh Swaminathan, Regulating Development: Structural Adjustment and the
Case for National Enforcement of Economic and Social Rights, 37 COLUM. J.
TRANSNAT’L L. 161 (1998); Anthony, supra note 98. Adjustment lending con-
sisted of six core objectives. These were: “[1] raising saving rates, [2] securing
financial stability, [3] liberalizing and opening economies to foreign trade, [4] re-
ducing state intervention and making markets more efficient, [5] reorienting gov-
ernment spending and improving revenue collection, and [6] mobilizing external
sources.” IMF Development and Review Department, Experience Under the
IMF’s Enhanced Structural Adjustment Facility, FIN. & DEV., Sept. 1997, at 32,
available at http://www.imf.org/external/pubs/ft/fandd/1997/09/pdf/imf.pdf (last
visited Nov. 16, 2003).
170
Swaminathan, supra note 169; Bradlow, supra note 98; Anthony, supra note 98.
Organization of Economic Cooperation and Development (“OECD”) members
and countries such as Brazil, Mexico, South Korea, Taiwan and Thailand could
bypass the IMF and its constraints. Carreau, supra note 91, at 1996.
171
Swaminathan, supra note 169, at 178–79; Bradlow, supra note 98. The IMF’s Ar-
ticles of Agreement explicitly prohibits any consideration of a nation’s political
affairs in making loan determinations. Bradlow, supra note 98, Carreau, supra
note 91, at 1997. Indeed, the IMF was to only be concerned with attaining specif-
ically prescribed macroeconomic goals, rather than with how a Member State
actually reached those goals. Although conditions were always attached to IMF
lending, they were limited to macro-economic variables such as debt, money sup-
ply, and inflation. Id. But with its involvement in the Third World, these con-
straints began to dissolve, as the Fund’s primary role shifted to handling the
economies of developing countries and, more recently, countries in transition.
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40 Wisconsin International Law Journal

By the mid-1980s, the World Bank had also begun to grant

loans for adjustment purposes.172 Loans were now being made to
meet balance-of-payments difficulties rather than for specific
projects,173 and these loans were conditional on the debtor na-
tion’s promise to take certain steps to reform “inappropriate
public policies”.174 These loans were the Bank’s first foray into
the domestic policies of its debtors, and were the predecessor of
structural adjustment programs (“SAPs”).175 Although the Bank
had been steadily embracing a broader vision of its role in the
development process,176 it had yet to involve itself directly in the
social or political affairs of its borrowers.177 As the international
debt crisis widened and deepened,178 however, the World Bank

Moreover, stabilization programs sponsored and approved by the Fund are ‘a

seal of international approval of a State’s economic policies that acts as a de facto
guarantee for prospective private lenders. Id.
172
Id. at 1999. Loans were made for adjustment in given sectors (sector adjust-
ment), or for national economies as a whole (structural adjustment).
173
Tsai, supra note 84, at 1331–32; Swaminathan, supra note 169, at 169–70; Weid-
ner, supra note 141, at 200.
174
The Bank, of course, determined which policies were “appropriate” – and it did
so against the backdrop of the “cold war” between the West and the Soviet bloc.
Weidner, supra note 141.
175
Initially, the Bank developed two types of policy-based loans for the Third World.
The first of these was termed a “structural adjustment loan,” or SAL. SALs gen-
erally run eight to ten years and require the borrowing country to conform to
certain Bank guidelines regarding economic policies. The stated objectives of
SALs are: “(1) correcting balance of payments imbalances, (2) eliminating distor-
tions and promoting microeconomic efficiency, (3) reducing high inflation rates,
(4) protecting or resuming output growth, and (5) minimizing the cost of adjust-
ment to the poorest” segments of the population. The second type of policy-
based lending is “sector adjustment loans,” or SECALs. SECALs are similar to
SALs in that both are conditioned on implementing policy-based initiatives. SE-
CALs, however, are generally more narrowly defined, and specific sectors of the
economy are targeted for fiscal reform. Usually the focus is on exports, agricul-
ture, industry, energy, and public enterprises. SALs and SECALS are both re-
ferred to as structural adjustment programs (SAPs) because they promote
economic liberalization by forcing nations to address inequity in their fiscal poli-
cies. Carrasco, supra note 98, at 29; Tsai, supra note 84, at 1320–21; 3 THE
WORLD BANK: LENDING ON A GLOBAL SCALE, RETHINKING BRETTON WOODS
11 (Jo Marie Griesgraber & Bernhard G. Gunter eds., 1996).
176
Carreau, supra note 91, at 1999.
177
Bradlow, supra note 98, at 38–39; Uriz, supra note 108, at 203–04.
178
See supra, notes 164—65 and accompanying text for discussion of the magnitude
and significance of Third World debt.
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began to use structural adjustment programs in an ever more in-

trusive way.179
The Bank concluded that the primary impediment to eco-
nomic growth was Third World government policies.180 Rather
than relying entirely on macroeconomic indicators,181 The World
Bank began to condition its loans on Bank judgments regarding
an increasingly wide range of domestic policies.182 The World
Bank was prohibited from becoming involved in the politics of
borrowing nations by its Articles of Agreement,183 so its growing
role in the domestic policies of its borrowers was rationalized by
broadly interpreting the concept of “economic development.”184
Under this rubric, the World Bank’s scope increased to encom-
pass legal and judicial reform, family planning, education, devel-
oping the private sector and health care, among various other
initiatives.185Moreover, if structural adjustment conditions were
not met, future assistance could be denied186 and adherence to
these conditions was critical in securing access to private capi-
tal.187Consequently, the pressure on countries facing economic
crisis to conform to SAP conditions was extraordinarily high.188

179
Carrasco, supra note 98, at 38–39; Bradlow, supra note 98, at 57.
180
The bank turned to alleviating Third World poverty by promoting economic
growth.
181
IMF Articles of Agreement, supra note 98, art. 4(1); Bradlow, supra note 98, at
57.
182
Bradlow, supra note 98, at 57 (noting that in the 1980s, the Bank became heavily
involved in funding development projects in such spheres as health, education,
agriculture and housing).
183
Bradlow, supra note 98, at 47, 54.
184
Weidner, supra note 141, at 198–99; Bradlow, supra note 98, at 60.
185
See Bradlow, supra note 98, at 57; Uriz, supra note 108, at 205; Weidner, supra
note 141, at 198–99.
186
Carrasco, supra note 98, at 38–39; Tsai, supra note 84, at 1322.
187
The “seal of approval” earned by complying with World Bank and IMF credit
packages was critical to attaining private loans from the commercial banks of
developed countries. See Tsai, supra note 84, at 1322; Galano, supra note 84, at
339; Anne Orford, Locating the International: Military and Monetary Interven-
tions after the Cold War, 38 HARV. INT’L L.J. 443, 445 (1997).
188
Tsai, supra note 84, at 1322.
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42 Wisconsin International Law Journal

Some critics contend that SAPs amount to economic coer-

cion,189 and have caused legendary devastation.190 Structural ad-
justment led to a severe deterioration in living conditions,191 as
cutbacks in government spending led to drastic declines in medi-
cal services, public education and other services.192 This often led
to violent protests as basic necessities became unaffordable,193
and popular protests sometimes triggered government repres-
sion. Structural adjustment thus came to be associated with dete-
riorations in freedom and, at times, human rights abuses.194
Some observers maintain that Structural Adjustment Pro-
grams were never intended to achieve their stated purposes, but
were only implemented to further Western interests, such as the
repayment of Third World debt to Western banks.195 Structural
adjustment, in part, entailed turning Third World countries into
“favorable investment climates” for multinational corpora-
tions.196 But this goal often conflicted with meeting the basic

189
3 THE WORLD BANK, supra note 175, at 134; George B.N. Ayittey, Aid for Black
Elephants: How Foreign Assistance Has Failed Africa, in PERPETUATING POV-
ERTY: THE WORLD BANK, THE IMF, AND THE DEVELOPING WORLD 115–16,
140–42 (Doug Bandow & Ian Vásquez eds., 1994).
190
Swaminathan, supra note 169, at 177–89.
191
See Anghie, Time Present and Time Past, supra note 84, at 252–53 (commenting
on adverse effects of IFI structural adjustment programs in the Third World.).
Somalia and Rwanda are two examples of states that were subjects of extensive
structural adjustment programs that may have contributed to their collapse. See
id. at 263.
192
With reductions in the size of governments, unemployment rose in countries
where the state was the largest employer, and privatizing state activities often
contributed to more hardships for the working poor. Swaminathan, supra note
169, at 180–82; Ayittey, supra note 189, at 140–41; Orford, supra note 187, at
470–71.
193
Swaminathan, supra note 169, at 180–82; Ayittey, supra note 189, at 140–41.
194
Orford, supra note 187, at 456; Swaminathan, supra note 169, at 181; Rajagopal,
From Resistance to Renewal, supra note 87, at 575; 3 THE WORLD BANK, supra
note 175, at 14–15, 46–48; PERPETUATING POVERTY, supra note 189, at 59–60.
195
For example, James Gathii opines that structural adjustment in Sub-Saharan Af-
rica primarily focused on producing a conducive framework within which the re-
payment of the debts owed by African states to international banks and lending
agencies is facilitated, and the unhindered influx of new international capital into
these countries is secured. Gathii, Good Governance, supra note 84, at 207.
196
Structural adjustment programs typically involved currency devaluations, pro-
ducer price increases, trade liberalization, privatization, and a range of specific
institutional changes prescribed under the heading of “good governance.”
Anghie, Time Present and Time Past, supra note 84, at 252–53. See also, Antony
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Vol. 22, No. 1 Deconstructing Development 43

needs of the general public,197 as did trade liberalization.198 But

even when viewed more favorably, SAPs and the conditions that
they imposed curtailed the governing capacity of member states
by vastly limiting the range of available economic, political and
social policy options.199 Once a state accepted financial assistance
from World Bank or IMF entities, a great deal of state decision-
making authority was effectively delegated to these institu-
tions,200 and the debtor nation, in effect, became an instrument of
the IFI, as lending officials exerted control over a wide range of
domestic sectors, including those entrusted with providing educa-
tion, health care and social services, and with protecting the
rights of the nation’s workforce.201 By shaping and determining
the policy choices available to governments, conditionalities fore-
close political prerogatives that are generally thought to consti-
tute the core of state sovereignty.202
Structural adjustment was in most respects a failure, for as
the 1980s drew to a close, developing countries were poorer,
more debt-ridden, and even less able to provide services such as
education and health care. Governments were also facing angry

Anghie, Civilization and Commerce: The Concept of Governance in Historical

Perspective, 45 VILL. L. REV. 887, 908 (2000) (discussing good governance and
the IFI goal of furthering neo-liberal economic polices through structural adjust-
ment entailing privatization, trade liberalization and currency devaluation).
197
Swaminathan, supra note 169, at 181 (noting that regulations that protected la-
bor, for example, were usually early casualties of such policies); Orford, supra
note 187, at 453–55. Higher interest rates may attract foreign investors, but they
can also inflict unbearable economic pressures on small businesses, including
farmers who may be forced to sell their land because they can no longer obtain
operating capital. 3 THE WORLD BANK, supra note 175, at 10, 47.
198
Trade liberalization often had devastating effects on Third World countries.
Eliminating tariffs, for example, can promote access to domestic markets, but it
can also make it much more difficult for local producers to compete against for-
eign suppliers; as local businesses fail, additional jobs are lost. Encouraging ex-
port production also leads to the increased harvesting of cash crops, which can
cause domestic food shortages and accelerate soil erosion. SAPs thus tended to
make countries more dependent on imported goods and manufactured items, and
more predisposed to overexploit their natural resources. 3 THE WORLD BANK,
supra note 175, at 47.
199
Tsai, supra note 84, at 1321; Orford, supra note 187, at 470.
200
Of course the specific terms of the agreements governing this assistance varied as
did the actual conditions imposed.
201
Id. at 470–71.
202
Tsai, supra note 84, at 1319; Galano, supra note 84, at 323; Orford, supra note
187, at 470.
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44 Wisconsin International Law Journal

populations who were no longer able to obtain the most elemen-

tary goods and services. Sovereign policy choices and preroga-
tives were increasingly limited and shaped by international
predilections emanating from international financial institutions
and by the escalating rhetoric of globalization. The dramatic fail-
ure of SAPs in addressing the economic disasters experienced by
much of Sub-Saharan Africa and other countries during the
1980s prompted yet another retooling of the IFI approach to the
Third World.203 It is in this environment that the “Washington
Consensus” began to take shape.

4. The Washington “Consensus” and the

“New” Conditionality204
The 1990s brought the collapse of the Soviet Union and the
end of the Cold War, making the United States the world’s sole
superpower. With the demise of the Soviet Union and China’s
move towards a market economy, alternative economic models
disappeared and the political and economic views of the United
States began to completely dominate both theory and practice.
Modernization was now defined as integration into the global
economy, and development as economic liberalization, privatiza-
tion and embracing the “free market”.205
The World Bank articulated the new orthodoxy in a series of
reports that began in 1991 and culminated with its 1999 Report,
“Entering Into the 21st Century”, which consolidated a decade-
long process of devising and defining what the World Bank

203
Watts, supra note 24, at 58.
204
As had been the case since 1961, the UN General Assembly declared yet another
development decade, to begin on January 1, 1990. Resolution 45/199 again
declared the objective of accelerated development, calling for a surge in the pace
of economic growth in developing countries; a development process that is
responsive to social needs, seeks to reduce extreme poverty, promotes the
development and utilization of human resources and skills and is environmentally
sustainable; an improvement in international monetary, financial and trade
mechanisms in support of development; a strong and stable world economy with
sound national and international macroeconomic management; the strengthening
of international cooperation for development; and special efforts to assist the
least developed countries. G.A. Res. 199, U.N. GAOR, 45th Sess., 71st plen.
mtg., U.N. Doc. A/RES/45/199 (1990).
205
MITTELMAN & PASHA, supra note 59, at 42. It is sometimes termed the three Ds:
denationalization, deregulation, and devaluation. Id.
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Vol. 22, No. 1 Deconstructing Development 45

termed a Comprehensive Development Framework.206 With this

report, development indeed became all encompassing.207 Ac-
cording to the Bank, the underlying premise of the CDF is that
growth must include consideration of structural,208 human,209
physical,210 and sector-specific211 aspects of development. All of
these strategies were to be achieved through market-friendly pol-
icies and market incentives.212 The necessary actors would be
governments, local organizations,213 and non-governmental orga-
nizations (“NGOs”).214 The CDF also co-opted development

206
For a discussion of these reports, which were promulgated throughout the 1990s,
see Cammack, supra note 120, at 157, 164.
207
The World Bank Group, CDF Proposal, A Proposal for a Comprehensive Devel-
opment Framework (A Discussion Draft) (Jan. 21, 1999) (memorandum from
James D. Wolfensohn, President, to the Board, Management, and Staff of the
World Bank Group), available at http://siteresources.worldbank.org/CDF/Re-
sources/cdf.pdf (last visited Feb. 22, 2004) [hereinafter “CDF Proposal”]; Blake,
supra note 55, at 160. According to this report, the World Bank would hence-
forth be guided by four guiding principles: (1) development goals and strategies
should be determined by individual member states, and not by the World Bank;
(2) development should be holistic in nature, so that growth focuses not just on
economic variables, but also on social and political implications; (3) the develop-
ment process should involve all actors affected by World Bank lending practices;
and (4) development policies should have a long-term focus. CDF Proposal,
supra this note, at 22–24. The Bank believes the CDF is an improvement over its
previous adherence to macroeconomic indicators as the sole gauge of a nation’s
economic health, while acknowledging that the CDF has not met with universal
approval. See, e.g., Uriz, supra note 108, at 205; Blake, supra note 55, at 177.
208
Structural aspects included good and clean governance, a well-organized financial
system, and an adequate social safety net to accommodate the short-term nega-
tive impact of some World Bank programs. CDF Proposal, supra note 207, at
10–12; see Blake, supra note 55, at 162.
209
Human aspects encompassed education, health, and population issues. CDF Pro-
posal, supra note 207, at 13–14; see Blake, supra note 55, at 162.
210
Physical characteristics for growth included quantifiable achievements in building
infrastructure, including adequate water and sewer systems, access to energy, ac-
cess and transportation inlays. CDF Proposal, supra note 207, at 15–18; see
Blake, supra note 55, at 163.
211
Sector-specific aspects of development referred to strategies to promote the ad-
vancement of rural, urban, and private sectors. CDF Proposal, supra note 207, at
18–20; Cammack, supra note 120, at 157, 164.
212
Cammack, supra note 120, at 157, 164.
213
Weidner, supra note 141, at 223–24; Blake, supra note 55, at 163.
214
NGOs had long been critical of – and largely ignored by – the international finan-
cial institutions. The Bank now invites selected NGOs to take part in develop-
ment projects. By 1999, 52% of Bank projects involved some type of NGO
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46 Wisconsin International Law Journal

strategies previously termed “alternative”215 – such as environ-

mental management, human resource development, building
self-reliance,216 and concentrating on civil society,217 social institu-
tions, and human rights.218
The groundwork for the CDF was laid in the 1989 Report,
Sub-Saharan Africa: From Crisis to Sustainable Growth, which in-
troduced “good governance” as a programmatic priority.219 De-
fined as an initiative to build pluralistic institutions that would
perform functions in much the same manner as Western govern-
ments,220 good governance also emphasized privatization and
“marketization”, as opposed to government regulation of the

participation. Weidner, supra note 141, at 220. A rather striking and wide-rang-
ing example of NGO participation in World Bank programs began in 1995 when
the Bank entered into a joint initiative with the Structural Adjustment Par-
ticipatory Review Initiative Network (SAPRIN). Today, SAPRIN works in 17
countries where it consults with World Bank officials on the effects of specific
lending arrangements. The objective of SAPRIN is to legitimize local knowledge
in the analysis of economic-reform programs and to make space for, and institu-
tionalize, grassroots involvement in macroeconomic decision-making. See Struc-
tural Adjustment Participatory Review International Network, at http://
www.saprin.org (last visited Nov. 16, 2003).
215
Kothari & Minogue, supra note 7, at 9.
216
Watts, supra note 24, at 58. The rationale behind building self-reliance was “the
desire to release those energies that permit ordinary people to take charge of
their lives.” Id.
217
Civil society is also central in the alternatives to development paradigm, which
has focused on “new social movements.” Id. at 58. Both the new development
economics of the 1990s and the anti-development paradigm assert alternative
strategies; both speak of an expanded role for civil society and both question the
form, function and character of the developmental state. Id. at 59.
218
Id. at 58.
219
Uriz, supra note 108, at 204. The good governance initiative was defined as “a
systematic effort to build pluralistic institutional structures, a determination to
respect the rule of law, and a vigorous protection of freedom of the press and
human rights.” Id.
220
Id. at 204–05 (noting that good governance has been criticized as entailing a vari-
ety of interventions that are inconsistent with the Bank’s mandate and, as a
doubtful solution to the multifaceted crises of the Third World). Professor Gathii
contends that “good governance” policies are based on the questionable assump-
tion that reducing governmental intervention in the economy will automatically
increase economic growth and personal freedom. The Organization of African
Unity and the Economic Commission on Africa identified external economic de-
pendence as a major factor in Africa’s poor economic performance in the Lagos
Report of 1980, and recommended that external dependence on Western coun-
tries be reduced and replaced with a self-sustaining development strategy based
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Vol. 22, No. 1 Deconstructing Development 47

economy.221 The 1990 World Development Report proposed that

the poor be integrated into the labor force.222 Thus, at the center
of the CDF agenda is incorporating the poor into what is now the
global capitalist system, by putting them to work in the service of
international capital.223 Throughout the 1990s, the Bank promul-
gated a series of reports prescribing market friendly interven-
tions such as creating a competitive environment where private
enterprises can flourish, integrating into the global economy, and
investing in people so that the populace might participate in the
market.224 In addition, governments were urged to define and
protect property rights; provide effective legal, judicial, and regu-
latory systems; make available an efficient civil service and pro-
tect the environment.225 Previous orthodoxies have been
reversed, as the need for import substitution and a strong state
have been replaced by export-led growth and a state that exists

on the maximum internal use of the continent’s resources. Gathii, Good Govern-
ance, supra note 84, at 109. Professor Gathii also maintains that the good govern-
ance agenda focuses too much attention on internal policy failures within Third
World countries and not enough on the historical and international economic fac-
tors that Southern governments believe are the primary causes of their current
difficulties. See Gathii, Africa Predicaments, supra note 110, at 1008 (noting that
African governments take the opposite view of IFIs and other proponents of the
good governance agenda; and contrasting the Lagos Report with the Berg Re-
port’s emphasis on improper economic policies pursued by African governments
as the main cause of the crisis.
221
See Gathii, Good Governance, supra note 84, at 108.
222
Cammack, supra note 120, at 164. This policy promoted a pattern of growth that
would utilize the most abundant asset possessed by the poor – their labor. The
prevailing logic is that governments should pursue policies that provide busi-
nesses (capital) across the globe with an adequate number of healthy and edu-
cated workers, and to impose disciplines that ensure these workers remain
available. Basic social services, such as primary education, health care and family
planning, which make it possible for the poor to work, are to be made available
and this would more easily allow capital to exploit the global labor market. Ben-
efits are to be targeted to potential workers, which then makes it difficult to sur-
vive outside of the labor market, and creates safety nets that propel workers back
into the market if they temporarily drop out.
223
Id. As Professor Cammack puts it, the CDF entails putting the poor to work, in
the name of poverty alleviation. Of course, it also means low wage workers for
global capital.
224
For example, governments should provide health care, education, nutrition and
family planning services, which are spheres that often are not well-served by the
private market. Id. at 166.
225
Id.
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48 Wisconsin International Law Journal

primarily to support private markets.226 Thus, the Comprehensive

Development Framework concretizes the new neo-liberal ortho-
doxy of markets and democracy.
It is evident that the World Bank has sought to respond to
some of its critics and move beyond the macroeconomic failures
of structural adjustment. The problem is that the Bank and other
international financial institutions227 are only capable of modify-
ing their policies within the same discursive space. The Compre-
hensive Development Framework demonstrates just how all-

226
State managed stabilization policies to prevent recession or depression have
given way to internationally managed policies of restructuring, often deliberately
inducing domestic recession; re-distributive taxation to bring about greater equal-
ity of incomes has been abandoned in favor fiscal reform that rewards entrepre-
neurship and accentuates inequality; measures to regulate prices have been
dropped; public control over labor and money markets has been systematically
stripped away; the indefinite extension of the sphere of wants to be satisfied by
public enterprise has been thrown into reverse and social security legislation has
been restructured to promote rather than work against market forces.” Id. at
164.
227
The IMF approach to the Third World has continued to evolve, but it has been
“less comprehensive” in its interventions in the name of development. Although
it is outside the scope of its mandate, the IMF expressly supports Third World
economic growth. The IMF also now includes poverty alleviation among its ma-
jor goals, although its Articles of Agreement do not contemplate this objective.
Carrasco, supra note 98, at 39–41; Rajagopal, From Resistance to Renewal, supra
note 87, at 569–74. The IMF created the Poverty Reduction and Growth Facility
(PRGF) in 1999. As described by the IMF, this new endeavor “aims at making
poverty reduction efforts among low-income members a key and more explicit
element of a renewed growth-oriented strategy.” Creation of the PRGF was sig-
nificant because it was the first time the IMF had officially declared that “growth-
policies should be implemented in a framework in which the pressing need to
reduce poverty is also a central objective.” International Monetary Fund, Policy
Development and Review Department, The Poverty Reduction and Growth Facil-
ity (PRGF) – Operational Issues (Dec. 13, 1999), at http://www.imf.org/external/
np/pdr/prsp/poverty2.htm (last visited June 7, 2002) [hereinafter PRGF]. Instead
of pursuing strictly macroeconomic objectives, “high quality” economic develop-
ment has become the IMF’s new emphasis, and “high quality” development in-
cludes considering the social and political consequences of IMF lending.
Carrasco, supra note 98, at 569–74. “Good governance” in borrowing countries is
also currently a stated goal of the IMF, and thus the IMF’s stated objectives are
now more similar to those of the World Bank. Id.; PRGF, supra note 227. Un-
like the World Bank the IMF has not formalized relations with NGOs. Bradlow,
supra note 98, at 77. The IMF continues to utilize adjustment lending. PGRF,
supra note 227. Yet even the IMF and World Bank acknowledge it is problem-
atic. See generally International Monetary Fund, Annual Report of the Executive
Board for the Financial Year Ended April 30, 1997, available at http://www.imf.
org/external/pubs/ft/ar/97/97imf.htm (last visited Feb. 22, 2004); WORLD BANK,
GLOBAL DEVELOPMENT FINANCE (1998).
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Vol. 22, No. 1 Deconstructing Development 49

inclusive and wide-ranging interventions in the Third World have

become. Unfortunately, these economic programs have in reality
exacerbated inequality and poverty within the populations of
many Third World countries.228

III. LEGAL CONSTRUCTIONS OF DEVELOPMENT

As the cycles of conventional wisdom promulgated by inter-
national institutions waxed and waned, the nations of the Third
World began to take rather bold steps in the international legal
arena to obtain and solidify a legal right to development. While
firmly rooted in the belief that development was the ultimate ob-
jective, the movements that emerged in the 1960s and 1970s were
quite strident attempts to take control of this process and to
transform the economic and political relationship between the
North and the South.229 As the lost development decade of the
1980s unfolded and these movements collapsed, Third World
states attempted to incorporate development into the burgeoning
rights discourse, and thus to explicitly claim comprehensive de-
velopment as a legal right. More recently this quest has ripened
into the more radical demand for reparations.230 These efforts in
many ways mirror the larger evolution of the development dis-
course; with the movement to establish a law of international de-
velopment, countries of the Third World seized the legal
initiative to establish development as a legally mandated
imperative.

228
See Anghie, Time Present and Time Past, supra note 84, at 252–53 (noting that IFI
loans are part of an adjustment lending process and are supposed to ameliorate
some of the consequences of the fundamental changes the Bank requires coun-
tries to undertake); Chua, supra note 80.
229
The emergence of a “Third World,” that stood separate and apart from the first
and second world also emerged during this era, as did the nationalizations of oil
companies, events that empowered and emboldened nations in the Middle East.
Given the raging Cold War, the time may also have been ripe to make demands
for social justice. The 1960s was also a time of political protest in the United
States and across Europe, and thus “demands” for justice were part of a larger
trend, so to speak.
230
At this point, the demand for reparations has only been articulated in limited
forums and within few documents. See infra notes 299-310 and accompanying
text for a discussion of reparations. It cannot be equated with the sustained
movements for Permanent Sovereignty over Natural Resources, the New Inter-
national Economic Order, or the Right to Development.
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50 Wisconsin International Law Journal

The movement to establish a law of international develop-

ment231 became the focal point and the vehicle for a profound
and historic political confrontation between the West and the
Third World. Although couched in legal terms, this confronta-
tion was and remains fundamentally ideological.232 International
law was an instrument that promoted the interests of the North
at the expense of the South. The South now sought to turn the

231
Development law or the “law of development” was recognized as branch of inter-
national law in the 1960s. Héctor Gros Espiell, The Right of Development as a
Human Right, 16 TEX. INT’L. L.J. 189, 190 (1981). After 1960 the United Nations
began to give attention to the concept of development, and gradually shaped a
new juridical discipline, “the international law of development,” which attempted
to characterize, and make enforceable a system of rights and obligations. Id.
Not to be confused with the “law and development” discussed, see supra Part I.D,
the international law of development comprises principles promoting the eco-
nomic and social development of the Third World, while seeking to strengthen
and assert their position in international relations. Nina M. Eejima, Sustainable
Development and the Search for a Better Environment, a Better World: A Work in
Progress, 18 UCLA J. ENVT’L. L & POL’Y 99, 109 (1999/2000). Indeed, the law of
development rejects a key premise of law and development, holding instead that
“[t]he problem was not simply that economic and social institutions in the periph-
eral countries were not modern. . .but rather that these societies were character-
ized by. . . structures where the economic and social institutions were geared to
meet the demands of developed societies rather than the needs of the developing
societies.” Chibundu, supra note 74, at 191.
232
Although it gained widespread attention in the 1960s and 1970s, the roots of the
law of development go considerably deeper. Early antecedents include the
Drago Doctrne, by which Latin American states sought to prohibit armed foreign
(i.e., U.S.) intervention predicated on civil disputes. See Convention on Rights
and Duties of States, Dec. 26, 1933, art. 9, 49 Stat. 3097, 165 L.N.T.S. 19 (entered
into force Dec. 26, 1934). In 1902, Argentina’s Minister of Foreign Affairs in-
formed the United States that forcible U.S. intervention in Argentina to secure
payment of debts allegedly owed to private U.S. citizens and companies was un-
justified and dangerous. Argentine Republic: “Monroe Doctrine” and Diplomatic
Claims of European Powers, in UNITED STATES DEPARTMENT OF STATE, PAPERS
RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, ISSUE 1903,
Argentine Republic: “Monroe Doctrine” and Diplomatic Claims of European
Powers 1–5 (1903) (note from Luis M. Drago to the U.S. Department of State).
Professor Richard Falk has observed that the concept of a state protecting its
nationals abroad has also been used “as a means to impose the external will of
richer and more powerful nations [on others].” Richard Falk, Historical Tenden-
cies, Modernizing and Revolutionary Nations, and the International Legal Order. 8
HOW. L. J. 128, 133 (1962).
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Vol. 22, No. 1 Deconstructing Development 51

tables by using international law to re-order the international po-

litical and economic sphere and to achieve the goal of develop-
ment.233 Coinciding with the rise of dependency theory, which
posed a more radical critique of the economic relationships
among the countries of the world,234 and more specifically “the
persistent and indeed widening inequalities between the societies
of the South and the industrialized countries of the West,”235 the
law of development sought no less than a fundamental change in
the relationship between the West and the Third World. With
the United Nations Conference on Trade and Development
(“UNCTAD”) as their institutional forum,236 Third World leaders

233
The European origin of an international law that purports to be “universal” was
and remains a persistent underlying theme. See, e.g., T.O. Elias, Modern Sources
of International Law, in TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS
IN HONOR OF PHILIP C. JESSUP 49 (Wolfgang Friedmann et al. eds., 1972); R.P.
Anand, Attitude of the Asian-African States Toward Certain Problems of Interna-
tional Law, 15 INT’L & COMP. L.Q. 55, 56 (1966); Jorge Castaneda, The Underde-
veloped Nations and the Development of International Law, 15 INT’L ORG. 38, 39
(1961); B. ROLING, INTERNATIONAL LAW IN AN EXPANDED WORLD 10 (1960);
JAMES L. BRIERLY, THE LAW OF NATIONS 44 (Oxford University Press 1997).
But the problem was not merely with the origin of the law; the problem was with
the law’s application. Judge Philip C. Jessup, in describing the need for revising
traditional international law, acknowledged the Third World view that “the rules
of law were developed by the exploiting imperialistic powers to promote their
interests at the expense of the countries which in earlier centuries were either
colonies or politically and militarily weak and provided important sources of raw
materials and perhaps labor to the exploiting powers.” Philip C. Jessup, Non-
Universal International Law, 12 COLUM. J. TRANSNAT’L L. 415, 419 (1973).
234
See Snyder, supra note 76, at 737 (quoting COLIN LEYS, UNDERDEVELOPMENT IN
KENYA: THE POLITICAL ECONOMY OF NEO-COLONIALISM, 1964-1971 (1975))
(stating that underdevelopment theory is . . . partly a correction and partly an
expansion of Marx’s interpretation of history, an expansion of his method and
central ideas to a problem which, on a world scale, was still in embryo at his
death: the failure of the countries of Asia, Africa, and Latin America to follow a
path of autonomous, capitalist development, leading to their “regeneration” after
they had been brought within the world capitalist economy). Dependency the-
ory has been criticized as accepting the fundamental premises of the development
paradigm. Id.
235
See Chibundu, supra note 74, at 189.
236
Akinsanya & Davies, supra note 61, at 209–11 (noting that since it was estab-
lished in 1964 UNCTAD has been “one of the forums used by the developing
countries to press home their demand for a New International Economic Order”
and that it has become an “important intervener on behalf of less developed
countries in their relations with advanced industrial States” (quoting Robert S.
Walters, UNCTAD: Intervener Between Poor and Rich States, 7 J.W.T. L. 528
(1973))). UNCTAD’s recommendations are not legally binding, however. See
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52 Wisconsin International Law Journal

declared that “more than foreign aid, what was needed for the
Third World to break out of the vicious circle of poverty was a
change in the terms governing its relationship with the industrial
world”.237 Although largely rejected in the West,238 the interna-
tional law of development has been championed in the Third
World since the 1960s.239 It has been an avowedly activist move-
ment from its inception,240 and in due course, advocated a broad

also VARGES, supra note 61, at 3 (discussing how unification enabled developing
countries to be a force that could not be ignored).
237
See VARGES, supra note 61, at 3. Dependency theorists acknowledged that devel-
oped countries may at some time have been “undeveloped,” but argued that they
never played the role of the “underdeveloped” country within the world capitalist
system. See Snyder, supra note 76, at 748. The original centers of capitalism
established their wealth and their power through incorporating and exploiting
other parts of the world. The primary accumulation of capital in the metropoles
or center was fed through a drain of wealth from the satellite or peripheral coun-
tries, typically involving their colonization, a “surplus drain” which continues to
the present day even if its forms may have changed, and direct colonial rule is no
longer a necessary condition of this process.
Id. at 726 (quoting Harry Bernstein, Sociology of Underdevelopment vs. Sociol-
ogy of Development?, in DAVID LEHNMAN ED., DEVELOPMENT THEORY: FOUR
CRITICAL STUDIES (David Lehmann ed., 1979)); see also Makau Mutua, Critical
Race Theory and International Law: Convergence and Divergence, 45 VILL. L.
REV. 841, 850 (2000). Using critical race theory to evaluate international law,
Mutua states, “What the world has witnessed in the last five centuries is the
universalization of an international law that is particular to Europe and seeks not
universal justice, but an international legal order that erects, preserves and em-
braces European and American domination of the globe.” Id.
238
Third World leaders warned that the unequal distribution of power threatens
peace, and that permitting the existence of such a system could potentially give
rise to a “major worldwide revolution.” See VARGES, supra note 61, at 6. Given
the wholesale rejection of all aspects of the law of development, however, the
West apparently did not take this threat seriously, or perhaps believed it had
other mechanisms at its disposal to deal with outbreaks of violence.
239
See generally Schachter, supra note 109. Through the international law of devel-
opment, dependency theorists and their allies attempted to establish an enforcea-
ble system of rights and obligations based on international law.
240
According to Professor Espiell,

The affirmation that there is and there must be an international law of

development, implies an acceptance that law must be an instrument for the
transformation of society, a tool for effective action in the struggle of all
peoples and all men against poverty, dependence and ignorance. The in-
ternational law of development must not be understood as a mere compila-
tion of norms relating to a single subject – development. On the contrary,
it constitutes a juridical system bound to enable development and hasten it.
It is, therefore, essentially a teleological law, whose characteristics are de-
termined by the mission assigned to it.
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range of development-related programs.241 The opening gambit,

the movement and demand for permanent sovereignty over natu-
ral resources was less wide-ranging than what was to follow, but
was surely no less far-reaching.

A. PERMANENT SOVEREIGNTY OVER

NATURAL RESOURCES

The movement for permanent sovereignty over natural re-

sources (“PSNR”) embodied and symbolized the conflict of eco-
nomic interests between capital exporting and capital importing
nations.242 Control over the natural resources located in what we
now call the Third World was a principal impetus for European
colonial conquest. As colonialism ended, it was immediately
clear to the leaders of newly independent nations that control of
those same resources would be the key to future economic viabil-
ity.243 Natural resources were the “natural” starting point, and a
boundary that developing countries could point to as evidence of
the absence of genuine equality in the community of nations.244
Accordingly, newly independent states quickly sought to renego-
tiate or void the extraordinarily inequitable arrangements that
had been imposed upon them during the colonial period, and to

HÉCTOR GROS ESPIELL, DERECHO INTERNACIONAL DEL DESARROLLO (1975),

translated and quoted in Espiell, supra note 231, at 190.
241
Tamanaha, supra note 68, at 471 (noting such demands as such as “preferential
treatment, entitlement to developmental assistance, debt relief, low interest loans
or outright grants, and the low-cost transfer of technology”).
242
Franz Xavier Perrez, The Relationship Between “Permanent Sovereignty” and the
Obligation Not to Cause Transboundary Environmental Damage, 26 ENVT’L. L.
1187, 1190 (1996) (citing MILAN BULAJIC, PRINCIPLES OF INTERNATIONAL DE-
VELOPMENT LAW: PROGRESSIVE DEVELOPMENT OF THE PRINCIPLES OF INTERNA-
TIONAL LAW RELATING TO THE NEW INTERNATIONAL ECONOMIC ORDER 269
(2d ed. 1993)).
243
See WALTER RODNEY, HOW EUROPE UNDERDEVELOPED AFRICA 28, 162, 168
(1972). The natural resources at issue include a vast array of minerals as well as
oil and gas.
244
Third World leaders believed that “the right to freely dispose of natural resources
and wealth was the seminal source of a series of corollary state rights, including
the right to freely determine and control the prospecting, exploration, develop-
ment, exploitation, use and marketing of its natural resources and to subject such
activities to national laws within the limits of its exclusive economic jurisdiction
under prevailing international law.” See Eejima, supra 231, at 110.
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54 Wisconsin International Law Journal

establish that the ultimate authority over natural resources is

vested in the nation-state where those resources are located.245
Although the movement for PSNR is typically associated
with the debate surrounding the December 14, 1962 passage of
U.N. General Assembly Resolution 1803,246 in fact, it was under-
way a full decade earlier.247Still, the 1962 Resolution and sur-
rounding debate are said by many commentators to reflect the
most contentious question of the new international economic or-
der.248 A threshold legal question was whether the inalienability
of natural resources constituted a peremptory norm of interna-
tional law under the doctrine of jus cogens, or whether individual
cases should be resolved by balancing strict enforcement of con-
tractual obligations under the doctrine of pacta sunt servanda
against relief based on changed circumstances under the doctrine
of rebus sic stantibus.249 The concrete manifestation of this seem-
ingly theoretical issue was the enforceability or voidability of
long-term concessions providing for the extraction of natural re-
sources on terms extremely favorable to Western based transna-
tional corporations.250 Although these agreements should have
been highly suspect based on the circumstances under which they
typically were negotiated, Third World governments were having

245
Perrez, supra note 242, at 1190.
246
G.A. Res. 1803, U.N. GAOR, 17th Sess., 1194th plen. mtg., U.N. Doc. A/5217
(1962), reprinted in 2 I.L.M. 223 (1963). Resolution 1803 was adopted by a vote
of eighty-seven to two, with twelve states abstaining. See KAMAL HOSSAIN, SUB-
RATA ROY CHOWDHURY EDS., PERMANENT SOVEREIGNTY OVER NATURAL RE-
SOURCES IN INTERNATIONAL LAW: PRINCIPLE AND PRACTICE 91 (1984); Perrez,
supra note 242, at 1191–92.
247
In 1952, Chile asserted the concept of permanent sovereignty over natural re-
sources at the U.N. Commission on Human Rights. U.N. Doc. E/CN.4/L.24
(1952). Also in 1952, The General Assembly passed Resolutions 523 (VI) and
626 (VII), the latter entitled: “Right to Exploit Freely Natural Wealth and Re-
sources.” G.A. Res. 523, U.N. GAOR, 6th Sess., 360th plen. mtg., Supp. No. 20,
U.N. Doc. A/2119 (1952); G.A. Res. 626, U.N. GAOR, 7th Sess., 411th plen.
mtg., U.N. Doc. A/PV.411 (1952). See HOSSAIN, supra note 246, at 2.
248
See JERZY MAKARCZYK, PRINCIPLES OF A NEW INTERNATIONAL ECONOMIC OR-
DER: A STUDY OF INTERNATIONAL LAW IN THE MAKING 184, 198, 199 (1988).
249
See HOSSAIN, supra note 246.
250
See MAKARCZYK, supra note 248.
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Vol. 22, No. 1 Deconstructing Development 55

little success with individual challenges – a series of which were

made in arbitrations after World War II.251
Therefore, Third World countries sought, through the PSNR
declaration, to establish the right to expropriate foreign enter-
prises if they deemed it necessary to do so.252 It was clear that
resolutions according the right to nationalize were widely sup-
ported and would be easily passed by the UN General Assembly,
so Western interests turned their energy and attention to the is-
sue of compensation for expropriations. Western states and inter-
ests contended that the relevant law was “well settled” – state
expropriation of foreign-owned property required payment of
“prompt, adequate, and effective” compensation under the “Hull
formula”.253 Rejecting the unspoken premise that foreign owner-
ship was presumptively legitimate, and realizing that such a stan-
dard would preclude nationalizations in many poor nations,
Third World leaders contended that the national tribunals of the
host country, in accordance with national law, should determine
compensation.254 The standard, ultimately incorporated into
U.N. General Assembly Resolution 1803, requires “appropriate
compensation.”255 This would appear to reflect a compromise,

251
See, e.g., Saudi Arabia v. Arabian American Oil Co., 27 I.L.R. 117 (Arb. Trib.
1958); Sapphire Int’l Petroleums Ltd. v. Nat’l Iranian Oil Co., 35 I.L.R. 136 (Cavin
Arb. 1963); Petroleum Dev. Ltd. v. Sheikh of the Abu Dhabi, 18 I.L.R. 144 (Arb.
Trib. 1951) – all enforcing the validity of long-term pro-Western concessions over
the objections of Third World hosts. Consequently, nationalizing these conces-
sions bound host states to pay prompt, adequate and effective compensation to
the alien owners.
252
See Perrez, supra note 242, at 1191–92.
253
See Patrick Norton, A Law for the Future or a Law for the Past? Modern Tribu-
nals and the Law of International Expropriation, 85 AM. J. INT’L. L. 474, 475–76
(1991); Stephen M. Schwebel, The Story of the U.N.’s Declaration on Permanent
Sovereignty over Natural Resources, 49 A.B.A. J. 463, 465 (1963) [hereinafter
Schwebel, Permanent Sovereignty]. The “Hull formula” refers to a pronounce-
ment by U.S. Secretary of State Cordell Hull in connection with a 1938 dispute
over Mexico’s nationalization of foreign-owned oil fields. See G. HACKWORTH, 3
DIGEST OF INTERNATIONAL LAW 655–65 (1942).
254
See G. Roy, Is the Law of the Responsibility of States for Injuries to Aliens a Part
of Universal International Law?, 55 AM. J. INT’L L. 863 (1961); M. BEDJAOUI,
TOWARD A NEW INTERNATIONAL ECONOMIC ORDER (1979); F.V. GARCIA-
AMADOR, THE CHANGING LAW OF INTERNATIONAL CLAIMS 895–932 (1984).
255
G.A. Res. 1803, supra note 246, at 15. At the time of its adoption, the United
States delegation argued that the phrase “appropriate compensation” made “in
accordance with international law” meant “prompt, adequate and effective” com-
pensation as required under international law. Andrew T. Guzman, Why LDC’S
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56 Wisconsin International Law Journal

but it has proved to be a victory for capital exporting nations who

have had the political and economic power to insist on the tradi-
tional (Western) Hull formula.256 This constraint made nationali-
zation too costly for many non-oil exporting states.
Nonetheless, the principle of permanent sovereignty over
national resources has been reiterated in subsequent resolutions
and declarations, and clearly reflects at least a Third World con-
sensus not just on what the law should be – but on what the law
is.257 Although PSNR ultimately proved to be a hollow victory,
the PSNR movement and General Assembly Resolution 1803
were important in establishing momentum for an international
law of development. This movement next appeared in the form
of demands for a New International Economic Order.

B. THE NEW INTERNATIONAL ECONOMIC ORDER

In the early 1970s, the United Nations was again the forum
for an exceedingly contentious series of debates between Third
World leaders and representatives of the Western, capital export-
ing countries. Although the debates were again cast in legal
terms, the conflict remained fundamentally ideological, having to
do with the international distribution of power. The principles of
the movement for a new international economic order (“NIEO”)
were embodied in a set of instruments passed by the United Na-
tions General Assembly. These instruments include the Declara-
tion on the Establishment of the New International Economic
Order,258 the Programme of Action on the Establishment of a

Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment
Treaties, 38 VA. J. INT’L L. 639, 649 (1998) (citing Schwebel, Permanent Sover-
eignty, supra note 253).
256
Subsequent state practice of paying what amounts to prompt, adequate and effec-
tive compensation, albeit often under pain of international economic ostracism or
worse military intervention, has reinforced the Hull formula. Industrialized
states can now point to extensive state practice to support their position, as well
as a series of bilateral investment treaties that require payment of prompt, ade-
quate and effective compensation. Guzman, supra note 255, at 648. That Third
World nations have taken these actions under pain of economic banishment ap-
pears to be besides the point.
257
Nicolass Jan Schriver, Sovereignty over Natural Resources: Balancing Rights and
Duties in an Interdependent World 3, 4 (2002).
258
G.A. Res. 3201, U.N. GAOR, 6th Special Sess., at 3, U.N. Doc. A/RES/
3201(s_VI) (1974).
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Vol. 22, No. 1 Deconstructing Development 57

New International Economic Order259 and the Charter of Eco-

nomic Rights and Duties of States.260 The principles embodied in
these documents represent an expansion of the movement for
permanent sovereignty over natural resources, and continuation
of the legal effort by Southern countries to find voice and to ex-
ercise more power over their political and economic destinies.261
Relying on the discourse of sovereignty and believing in both the
power of international law and the importance of development,
the NIEO movement asserted that full and permanent sover-
eignty was not limited to natural resources, but applied to all eco-
nomic activities.262
Adopted by the U.N. General Assembly in 1976,263 the Char-
ter of Economic Rights and Duties of States (“the Charter”) was
the documentary centerpiece of this phase of the movement.264

259
G.A. Res. 3202, U.N. GAOR, 6th Special Sess., at 5, U.N. Doc. A/9559 (1974).
260
Report of the Second Committee, U.N. Doc. A/9946, 28 (Dec. 9, 1974) and U.N.
Doc. A/RES/3281 (XXIX) (Jan 15, 1975); G.A. Res. 3281, U.N. GAOR, 29th
Sess., 2315th plen. mtg., at 50, U.N. Doc. A/RES/3281 (1974).
261
VARGES, supra note 61, at 5, 37.
262
Id.
263
CERDS was adopted by a General Assembly vote of 120 to six, with 10 absten-
tions. Belgium, Denmark, the Federal Republic of Germany, Luxembourg, the
United Kingdom and the United States voted against the Charter. Austria, Ca-
nada, France, Ireland, Israel, Italy, Japan, the Netherlands, Norway and Spain
abstained. See RALPH STUART SMITH, THE UNITED STATES AND THE THIRD
WORLD: A DISCUSSION PAPER (1976).
264
In April 1972 President Echeverria of Mexico proposed that the United Nations
Conference on Trade and Development (UNCTAD) draft a charter delineating
the economic rights of nations. In May 1972 UNCTAD voted to establish a
working group to draft such a charter; UNCTAD Res. 45 (III), U.N. Doc. TD/
180. The United States abstained from the vote, but agreed to participate in the
Working Group. See JOHN H. JACKSON ET AL., LEGAL PROBLEMS OF INTERNA-
TIONAL ECONOMIC RELATIONS: CASES, MATERIALS AND TEXT ON NATIONAL
AND INTERNATIONAL REGULATION OF TRANSNATIONAL ECONOMIC RELATIONS
§ 26.2, at 1166 (3d ed. 1995). The need for such a charter was explained by Mex-
ico’s Secretary of Foreign Relations:

[T]he underdeveloped countries. . .have decided not to continue to play a

passive role, but to be active participants in the changing of those struc-
tures that hinder their well-being. . .[T]he interdependence of all the com-
ponents of the global economic system demands a modification of the
international structures that condition their behavior. . .The greatest men-
ace to peace that we face nowadays is the increasing tension and the very
noticeable separation between the industrialized countries and those which
are underdeveloped.
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58 Wisconsin International Law Journal

The NIEO agenda, as articulated in the Charter, included sub-

jecting private foreign capital to the domestic laws of Third
World host countries, full and effective participation in world
governance, special trade preferences, stabilizing export prices
for commodities exported by Southern countries, debt forgive-
ness or rescheduling, and technology transfer.265 The Charter
also explicitly recognized the sovereign right to nationalize for-
eign property and to determine what compensation should be
paid,266 and confirmed the right of host nation governments to
supervise transnational corporations operating within their juris-
dictions.267 The Charter further mandated that industrialized
countries cooperate to improve living standards and the general
welfare in developing countries.268

Emilio O. Rabasa, Address Before the 68th Annual Meeting of the American
Society of International Law, in 68 AM. SOC’Y INT’L PROC. 302, 303–05 (1974).
265
See JACKSON, supra note 264, at 1166–67.
266
Marjorie Cohn, The World Trade Organization: Elevating Property Interests
Above Human Rights, 29 GA. J. INT’L & COMP. L 427, 438 (2001). Capital ex-
porting states voted against this provision and have never accepted it. Article
2(2)(c) of the Charter provides that each state has the right to:

Nationalize, expropriate or transfer ownership of foreign property, in

which case appropriate compensation should be paid by the State adopting
such measures, taking into account its relevant laws and regulations and all
circumstances that the State considers pertinent. In any case where the
question of compensation gives rise to a controversy, it shall be settled
under the domestic law of the nationalizing State and by its tribunals, un-
less it is freely and mutually agreed by all States concerned that other
peaceful means be sought on the basis of sovereign equality of States and
in accordance with the principle of free choice of means.

Tali Levy, NAFTA’s Provision for Compensation in the Event of Expropriation: A

Reassessment of the “Prompt, Adequate and Effective Standard, 31 STAN. J. INT’L
L. 423, 436 (1995).
267
Under the Charter, the right to supervise foreign business operations included
the right to establish performance requirements that would ensure that foreign
investment served the economic and social priorities of national development in
the host nation. See G.A. Res. 3281, supra note 260, at 52. Cohn, supra note 266,
at 438.
268
Cohn, supra note 266, at 53–54. Every state is also charged with a duty to cooper-
ate in promoting the steady and increasing expansion and liberalization of world
trade. In a reference intended to accommodate socialist nations, CERDS stipu-
lated the right to engage in international trade and economic cooperation irre-
spective of political and economic differences. Id. at 53–54, 438.
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Vol. 22, No. 1 Deconstructing Development 59

Northern opposition to the NIEO generally and to the Char-

ter in particular was immediate, uniform and adamant.269 Techni-
cally, Northern countries objected to the Charter’s alleged
rejection of “established principles of international law” – princi-
ples they contended were “neutral” and “universal.”270 Third
World leaders and scholars, however, contended (and still do)
that international law was contrived in part to enable and justify
colonialism, and has been an instrument “for enhancing and ag-
gravating human suffering, not for alleviating it.”271 Yet even as
the NIEO movement sought to change legal principles, it also
relied on law,272 seeking only to change its content and to use it as
a force for change. Given the overwhelming majorities that ap-
proved these declarations, Southern countries took the position
that resolutions comprising the New International Economic Or-
der were legally binding on all nation states, but the West dis-
agreed and has never accepted them.273 Although Northern

269
See Akinsanya & Davies, supra note 61, at 211.
270
See supra note 233 and accompanying text for discussion in European origins of
international law. See also, e.g., Elias, supra note 233; Anand, supra note 233;
Castaneda, supra note 233, at 39; ROLING, supra note 233, at 5; BRIERLY, supra
note 233, at 44.
271
Makua wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16
MICH. J. INT’L L. 1113, 1140 (1995); see also Antony Anghie, Finding the Periph-
eries: Sovereignty and Colonialism in Nineteenth Century International Law, 40
HARV. INT’L L.J. 1 (1999).
272
Mexico’s Secretary of Foreign Relations appealed for support for the NIEO this
way:

Let us subject the fundamental economic elements for the future of world
development to the rule of law. . .. Let us codify norms and create an au-
thentic body of rules that will allow the international community to settle
disputes and control abuses. Law represents a force in itself that can be-
come a basic source of innovation for society.

Emilio O. Rabasa, The Charter of Economic Rights and Duties of States, 68 AM.
SOC’Y INT’L PROC. 302, 303–05 (1974) (address at joint luncheon with the Section
on International Law of the American Bar Association). Secretary Rabasa also
analogized specifically to various U.S. legislative measures such as the Social Se-
curity Act of 1935, the National Labor Relations Act of 1935, the Fair Labor
Standards Act of 1938, the Employment Act of 1946, and the Economic Opportu-
nity act of 1964 as establishing a principle of redistributing wealth for the protec-
tion and betterment of the disadvantaged within U.S. society. “Why not then
transfer the philosophy that has been the basis for this new process to the interna-
tional field?” he asked. Id.
273
See Charles N. Brower & John B. Tepe, Jr., The Charter of Economic Rights and
Duties of States: A Reflection or Rejection of International Law?, 9 INT’L LAW 295,
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60 Wisconsin International Law Journal

countries detailed their objections to specific provisions of the

Charter,274 it was unmistakable that the disagreement was not
merely technical. Rather, the NIEO movement brought into fo-
cus a fundamental political conflict between the West and the
Third World.275 The debt crisis in the early 1980s was perhaps the
final blow to the NIEO as many Third World governments were
now pleading for sufficient funds to stay afloat rather than de-
manding economic and political concessions.276 Although the
NIEO failed to produce the desired redistribution of interna-
tional economic power, the Third World has been persistent, and
many of the principles found in the New International Economic
Order were soon reformulated and reintroduced as the Right to
Development.277

300 (1975). There is continuing debate on whether these resolutions reflected

opino juris, that is evidence of what the overwhelming majority of states believed
the law to be, and whether simply voting for a resolution is the kind of state
practice necessary to form customary international law. Most western scholars
have strenuously argued against according the status of law to UN resolutions,
especially after large Third World majorities began to find voice in the General
Assembly. Third World nations have taken the opposing view, arguing that at the
least such resolutions reflect some version of state practice or opino juris. See
generally ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW
THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS (1963).
274
Brower & Tepe, supra note 273, at 295, 300–01.
275
See Stephen M. Schwebel, Counselor on International Law, U.S. Department of
State, Remarks at the 68th Annual Meeting of the American Society of Interna-
tional Law, in 68 AM. SOC’Y INT’L L. PROC. 209, 210–12 (1974). U.S. State De-
partment attorney Stephen Schwebel summed up the Northern view:

If the Charter turns out to be simply a statement of the alleged rights of the
developing countries and the alleged duties of the developed, it will be a
kind of bill of particulars, if not an indictment, which will have no more
impact on international economic affairs, not to speak of international law,
than a number of self-serving calls which developing countries have issued
in the past in UNCTAD and elsewhere.

Brower & Tepe, supra note 273.

276
See supra Part II. B. 3 for a discussion of the Third World debt crisis.
277
Isabella D. Bunn, The Right to Development: Implications for International Eco-
nomic Law, 15 AM. U. INT’L L. REV. 1425, 1431 (2000) (“The NIEO challenged
the status quo, and the far-reaching implications of its implementation, were met
with substantial resistance by industrialized countries. Notwithstanding these
controversies, it is clear that many NIEO provisions have helped shape the right
to development.”)
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Vol. 22, No. 1 Deconstructing Development 61

C. THE RIGHT TO DEVELOPMENT

In 1986, the United Nations adopted the Declaration on the
Right to Development (“UNDRD”),278 whose objective was to
convert development from being merely a goal or aspiration into
an entitlement, both for countries and for their individual citi-
zens.279 The movement for a right to development continued
Third World demands for a more equitable distribution of inter-
national power, but it did so in a less threatening and strident
manner than NIEO demands, perhaps reflecting the weakened
position of Third World countries in the wake of the debt crisis.280
The UNDRD also sought to expand the definition of develop-
ment to include technology, human rights, participation, equal
opportunity, accountability, and differential treatment for devel-
oping countries.281

278
G.A. Res. 128, U.N. GAOR, 41st Sess., Annex at 186, U.N. Doc. A/RES/41/128
(1983).
279
The right to development purports to operate both collectively at the interna-
tional level, and individually at the domestic level. This evolution – from collec-
tive to both collective and individual, and from international to both international
and domestic – was key to the transition from the law of development to the right
to development. Espiell, supra note 231, at 192. “After initiation of the process
designed to establish a law of development and the right to develop, conceived of
as a collective right, the idea of the right to development as a human right that is
a right belonging to individuals began to take shape.” Id. The results of this
transition can be seen in the International Covenant on Civil and Political Rights
(“ICCPR”) and the International Covenant on Economic, Social and Cultural
Rights (“ICESR”), G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16, at
99, U.N. Doc. A/6316 (1966), both of which incorporate many of the principles of
the human right to development.
280
It also sought to empower individuals and sub-national groups within individual
countries. See G.A. Res. 128, supra note 278, at arts. 1.1, 2.1, 2.3 (stating that
individuals are the primary beneficiaries of the right, and that both individuals
and the state must work for “the constant improvement of the well-being of the
entire population and of all individuals, on the basis of their active, free and
meaningful participation in development and in the fair distribution of the bene-
fits resulting there from”).
281
See Mickelson, supra note 3, at 12 (quoting Keba M’Baye, First President of the
Supreme Court of Senegal, who emphasized this point in his 1972 speech intro-
ducing the right to development: “Economic growth must be accompanied by
socio-cultural progress; that means, in the simplest possible terms, that we must
give it a human dimension . . . growth is a necessary but not a sufficient condition
for the achievement of development”); Barsh, supra note 152, at 328 (stating that
participants of the Global Consultations concerned with the implementation of
the right to development were “especially critical of international development
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62 Wisconsin International Law Journal

Development as a human right evolved in part from earlier

assertions regarding the law of development.282 It was first articu-
lated by Senegalese Justice Keba M’Baye,283 who proclaimed that
“development is the right of all men.”284 Justice M’Baye rea-
soned that a human right to development was needed to rectify
the injustices of an international economic system in which the
North benefits at the expense of the South.285 M’Baye also main-
tained that basic principles of humanity support a right to devel-
opment,286 and he observed an “inherent correlation between the

strategies which have been ‘oriented merely towards economic growth and finan-
cial considerations’”); Forysthe, supra note 154, at 334.
282
The law of development asserted the need for a right of development similar to a
human right, but this right was thought to be a collective one – whereas human
rights are typically thought of as individual. Espiell, supra note 231, at 190.
283
See Bunn, supra note 277, at 1433; Mickelson, supra note 3, at 10; Espiell, supra
note 231, at 192 (all identifying Justice Keba M’Baye as author of the Right to
Development). This pronouncement was made in his inaugural lecture at the
Third Session of Instruction of the International Institute for Human Rights. Id.
284
Espiell, supra note 231, at 192 (quoting Keba M’Baye, Le Droit au développement
comme un droit de l’Homme, in 5 REVUE DES DROITS DE L’HOMME 503, 505
(1972)). Following M’Baye’s lead, Professor Juan Antonio Carrillo Salcedo of
Spain also identified the Right to Development as a human right. Carrillo
Salcedo, El Derecho al desarollo como un derecho humamo, in 25 REVISTA ESPA-
ÑOLA DE DERECHO INTERNACIONAL 119–25 (1972) (“The right of development
as a right of states and peoples must unavoidably be founded on the recognition
of the right of every man to a free and worthy life in his community. Every
human being has the right to live, which implies the right to aspire to an increas-
ingly better existence.”)).
285
Even the “development assistance” contributed by the North, he observed,
served principally to enable underdeveloped countries to become markets for
Northern goods and services. See M’Baye, supra note 284, at 15 (noting that
development assistance is “in many cases little more than a disguised export sub-
sidy,” designed to improve the underdeveloped countries’ ability to act as a mar-
ket for the finished or semi-finished products of the developed world);
Mickelson, supra note 3, at 381–83 (Addressing M’Baye’s observation that, “the
deep division between the South and North posed an increasing threat to interna-
tional stability, and hence raising the standard of living in poor countries could be
“a form of life insurance” for rich countries. M’Baye also stated that since indus-
trialized countries designed and benefited from the current international eco-
nomic system, they were responsible for its injurious consequences.) “Given
their power in the system and their utilization of that power to their own advan-
tage, the rich countries of the North should assume responsibilities for their ac-
tions.” Id. at 13 (quoting M’Baye, supra note 284, at 505, 521–22).
286
Mickelson, supra note 3, at 13 (quoting M’Baye, supra note 284, at 524).
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enjoyment of human rights and economic development,” believ-

ing that human rights could not be enjoyed without economic
development.287
However, those who expected the UNDRD to mark a turn-
ing point in international economic relations have been sorely
disappointed.288 While development as a human right has been
advocated by developing countries289 it has been just as vigor-
ously opposed by those nations that would be obliged to render
the substantial material assistance necessary to effectuate the
right, and by the international financial institutions whose sup-
port and commitment would be needed to implement it.290 To ac-
knowledge a right to development would mean conceding that
there is an obligation to provide foreign assistance and to take
part in the development project. The West has vehemently and

287
Id. at 14 (quoting M’Baye, supra note 284, at 529). See also Espiell, supra note
231, at 192 (quoting M’Baye, supra note 284, at 515) (acknowledging M’Baye’s
belief that “[e]ach man has the right to live and the right to live better”).
288
It should be noted that in his 1972 speech, M’Baye expressed reservations con-
cerning efforts to legalize a human right to development. He maintained that
these efforts were unnecessary because the human right to development already
existed. He also feared proponents of the right might lose sight of the desired
end and find “victory” in a mere legal declaration. See Mickelson, supra note 3,
at 14. Accordingly, M’Baye opposed those who called for completing the Univer-
sal Declaration of Human Rights by proclaiming a Right to Development, be-
cause he regarded this as unnecessary, and perhaps even counterproductive: “[I]t
is hardly useful to encumber ourselves with a new proclamation, as if it were a
matter of creating a new right. The right to development is already inscribed in
international law.” Id. (quoting M’Baye, supra note 284, at 526).
289
Bunn, supra note 277, at 1436.
[I]n terms of international human rights law, the existence of the right to
development is a fait accompli. Whatever reservations different groups
may have as to its legitimacy, viability or usefulness, such doubts are now
better left behind and replaced by efforts to ensure that the formal process
of elaborating the content of the right is a productive and constructive
exercise.

Id. (quoting Philip Alston, Development and the Rule of Law: Prevention Versus
Cure as a Human Rights Strategy, in DEVELOPMENT, HUMAN RIGHTS AND THE
RULE OF LAW 31, 106 (International Commission of Jurists eds. 1981)). Propo-
nents of the right to development maintain that it has a rich legal foundation that
includes the Charter of the United Nations, the Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights, the
UNESCO Declaration on Race and Racial Prejudice and other international con-
ventions. Id.
290
See, e.g., Jack Donnelly, In Search of the Unicorn: The Jurisprudence and Politics
of the Right to Development, 15 CAL. W. INT’L L.J. 473, 478 (1985). Scholars
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consistently rejected legal obligations of this variety. The

UNDRD has not been an exception and, of course, there is no
effective sanction for non-recognition of the UNDRD.291
The UNDRD also clearly defines development as compre-
hensive. While earlier international law of development efforts
were framed as demands to modify the international distribution
of economic and political power, the right to development at-
tempts to utilize the human rights framework. Perhaps this re-
flects the weaker position of Third World countries by the 1980s,
or it may signify an altered post Cold War political landscape that
has changed the nature of what can be claimed and the mode in
which those claims can be made. While Third World scholars and
nations have continued to assert the right to development, some
have also harkened back to more radical demands292 and have
sought to hold industrialized countries to account by demanding
reparations.293

D. REPARATIONS
If one accepts the proposition that the Third World has been
severely and systematically exploited through arrangements that
include slavery and colonialism,294 then the idea of compensation

contesting its existence assert that these conventions merely make explicit refer-
ences to “development” which does not mean they support a right to
development.
291
Advocates reason that the lack of universal recognition or sanctions for non-ad-
herence does not render the UNDRD meaningless, given the initial rejection of
many new international human rights. Espiell, supra note 231, at 198 (“Conse-
quently it is evident that the inadequacies that still plague the juridical character-
istics of the right of development in general, and particularly as an individual
right, do not allow the possibility of denying its legal existence, though it is still
embryonic and imperfect.”)
292
One of the provisions of the Charter of Economic Rights and Duties of States
foreshadowed contemporary demands for reparations. Article 16 calls for resti-
tution based on the injuries caused by “colonialism, apartheid, racial discrimina-
tion, neocolonialism and all forms of foreign aggression, occupation and
domination.” G.A. Res. 3281, supra note 260.
293
M’Baye observed that since industrialized countries designed and benefited from
the current international economic system, they were responsible for its injurious
consequences See Mickelson, supra note 3, at 383 (“Given their power in the
system and their utilization of that power to their own advantage, the rich coun-
tries of the North should assume responsibilities of their actions.” (quoting
M’Baye, supra note 284)).
294
See, e.g., RODNEY, supra note 243.
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Vol. 22, No. 1 Deconstructing Development 65

for that harm should hardly be remarkable.295 But calls for repa-
rations to the victims of slavery and colonialism have been ex-
tremely controversial.296 Drawing on the vigorously debated
movement in the U.S. for reparations to the descendants of Afri-
can slaves,297 the international struggle for reparations has been

295
Conceptually, reparations may be the simplest approach to international eco-
nomic justice. Black’s Law Dictionary defines reparation as both “[t]he act of
making amends for a wrong” and “[c]ompensation for an injury or wrong, esp.
for wartime damages or breach of an international obligation.” BLACK’S LAW
DICTIONARY 1301 (7th ed. 1999). Perhaps it is the natural successor to the NIEO
and the right to development, insofar as the simplicity of the demand for repara-
tions represents an evolutionary focusing and sharpening of the Third World
position.
296
This may be because the simplicity and directness of the idea leaves virtually no
room for obfuscation or for “spinning” compensation as charitable assistance.
Although reparations focus on repairing the injury suffered by victims, assigning
responsibility for payment seems to require the assignment of blame, and this
inevitably triggers belligerent resistance to reparations proposals. It explains, for
example, the European Union’s refusal, as recently as 2001, to apologize for
Western Europe’s substantial role in the Atlantic slave trade. At the 2001 World
Conference Against Racism, the lead E.U. negotiator, Belgian Foreign Minister
Louis Michel, equivocated thusly, “[s]lavery today is, of course, a crime against
humanity, slavery yesterday, in the past was of course. . . a very grave thing, a
very horrible thing. . .It is very difficult to consider that you can compare slavery
today to slavery in the past.” Europeans at U.N. Meeting Agree to Apology for
Slavery – But Not to Reparations, ST. LOUIS POST-DISPATCH (MISSOURI), Sept. 8,
2001, at 20.
297
The movement for reparations is really a collection of movements. See, e.g.,
RANDAL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS (2000);
RICHARD F. AMERICA, PAYING THE SOCIAL DEBT: WHAT WHITE AMERICA
OWES BLACK AMERICA (1993) (in support of reparations); DAVID HOROWITZ,
UNCIVIL WARS: THE CONTROVERSY OVER REPARATIONS FOR SLAVERY (2003);
David Horowitz, Ten Reasons Why Reparations for Blacks is a Bad Idea for
Blacks – and Racist Too, 31 BLACK SCHOLAR 48 (2002) (opposing reparations).
The reparations movement within the United States has had the benefit of sub-
stantial scholarly analysis. For an excellent summary of legal issues and citations
to a wealth of writings on the topic, see Alfred L. Brophy, Some Conceptual and
Legal Problems in Reparations for Slavery, 58 N.Y.U. ANN. SURV. AM. L. 497
(2003). Much of the analysis focuses on substantive and procedural legal issues
that are specific to the U.S. legal system and on the anticipated legal battles over
reparations within the domestic U.S. context. See, e.g., Rhonda V. Magee, The
Master’s Tools, from the Bottom Up: Responses to African-American Reparations
Theory in Mainstream and Outsider Remedies Discourse, 79 VA. L. REV. 863
(1993); Adrienne D. Davis, The Case for United States Reparations to African-
Americans, 7 HUM. RTS. BR. 3 (2000); BORIS I. BITTKER, THE CASE FOR BLACK
REPARATIONS (2d ed. 2003); Graham Hughes, Reparations for Blacks?, 43
N.Y.U. L. REV. 1063 (1968). However, scholars in the U.S. – particularly within
the legal academy – have also done a great deal of theoretical work that is likely
to be useful in support of Third World demands for international reparations.
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66 Wisconsin International Law Journal

contested in the United Nations and its associated institutions.

The latest skirmish was the 2001 World Conference Against Ra-
cism, Racial Discrimination, Xenophobia and Related Intoler-
ance (the “Conference” or “WCAR”).298 Preparations for the

Some of this work is litigation oriented, but based on principles that might also
conceivably resonate with the general public. Unjust enrichment is one such legal
principle – and a politically interesting option because it does not require blame
or fault; only (basically) that a benefit has been received and retained, and that
injustice will result if the benefit is not disgorged. See generally E. ALLAN FARNS-
WORTH, CONTRACTS (3d ed. 1999); DOUG RENDLEMAN, REMEDIES CASES AND
MATERIALS (6th ed. 1999). Difficulties with the technical application of the doc-
trine of unjust enrichment include calculating the benefit conferred and offsetting
any gain received by the plaintiffs, and tracing the benefit to its present holders.
Brophy, supra note 297, at 522. In light of the anticipated difficulty of achieving
reparations through litigation, some supporters of reparations for African Ameri-
cans are advocating a more overtly political approach that relies on the legislative
process. Id. at 523.
298
Held in September in Durban, South Africa, the 2001 WCAR was actually the
third in a series (and is thus sometimes referred to as the “Third World Confer-
ence Against Racism”). The first World Conference Against Racism was con-
vened in Geneva, Switzerland in August 1978, and attended by representatives of
125 countries, as well as observers from U.N. agencies, intergovernmental organi-
zations, and non-governmental organizations. REPORT OF THE WORLD CONFER-
ENCE TO COMBAT RACISM AND RACIAL DISCRIMINATION, U.N. Doc. A/CONF.
92/40, U.N. Sales No. E79.XIV.2 (1978) [hereinafter RACISM REPORT]. Because
of a 1975 General Assembly Resolution equating Zionism with racism and racial
discrimination, the United States and Israel boycotted the 1978 Conference.
G.A. Res. 3379, U.N. GAOR, 30th Sess., Supp. No. 34, at 83, U.N. Doc. A/10034
(1975); RACISM REPORT, supra note 298. See also U.S. Participation in the United
Nations, REPORT BY THE PRESIDENT TO CONGRESS FOR THE YEAR 1977, at 172
(1977). The first Conference focused mainly on South Africa, with a majority of
participating nations favoring strong international measures to oppose and dis-
mantle the apartheid regime. There was some disagreement regarding the nature
of the measures that should be taken against South Africa, and some (mainly
Western European) disagreement with the conference majority’s condemnation
of Israel’s treatment of the Palestinians. RACISM REPORT, supra note 298, at 15,
113, 129–30. A second World Conference to Combat Racism and Racial Dis-
crimination was held in August 1983. Geneva was again the venue, South Africa
and the Middle East were again the principal topics, and the United States again
chose not to attend because of the majority’s position on the latter. See id. As
with the first conference, Western commentators proclaimed the second confer-
ence a failure. See, e.g., Christopher N. Camponovo, Disaster in Durban: The
United Nations World Conference Against Racism, Racial Discrimination, Xeno-
phobia, and Related Intolerance, 34 GEO. WASH. INT’L L. REV. 659, 667 (2003)).
Despite majority agreement on its principal themes and conclusions, in 1997, the
General Assembly resolved to convene a third World Conference Against Ra-
cism, to be held in Durban, in the newly democratized South Africa. G.A. Res.
52/111, supra note 298.
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Vol. 22, No. 1 Deconstructing Development 67

Conference included four regional conferences and each Re-

gional Conference adopted reports addressing the most impor-
tant issues to their region.299 These Regional Conferences
revealed that the most important issues to many Third World
countries included the legacy of colonialism, slavery and the
slave trade,300 matters that were not priorities for Western
nations.301 Indeed, the African regional Declaration focused

299
Regional conferences were held in Strasbourg, France; Santiago, Chile; Dakar,
Senegal; and Teheran, Iran. In addition, five regional expert seminars were held
in Geneva, Warsaw, Bangkok, Addis Ababa and Santiago during 1999 and 2000.
United Nations, World Conference Against Racism, Basic Information, The
World Conference Against Racism, Racial Discrimination, Xenophobia and Re-
lated Intolerance, at http://www.un.org/WCAR/e-kit/backgrounder1.htm (last vis-
ited May 22, 2002).
300
For example, the Asian Preparatory Conference in Teheran concluded that
“States which pursued policies or practices based on racial or national superior-
ity, such as colonialism or other forms of alien domination or foreign occupation,
slavery, the slave trade and ethnic cleansing, should assume responsibility . . . and
compensate the victims of such policies and practices.” Reports of Preparatory
Meetings and Activities at the International, Regional and National Levels, Report
of the Asian Preparatory Meeting (Tehran, Feb. 19-21, 2001), U.N. GAOR, Pre-
paratory Comm., 2d Sess., U.N. Doc. A/CONF.189/PC.2/9 (2001). At the Santi-
ago Regional Conference, representatives of countries in North, Central and
South America, and the Caribbean agreed to “take measures to alleviate inequi-
ties that still persist because of the shameful legacy of slavery.” The delegates
also condemned “the brutal crimes and injustices that were committed against
indigenous peoples and Africans and their descendants who were subjected to
slavery, the trans-Atlantic slave trade and other forms of servitude that today
could constitute crimes against humanity.” Reports of Preparatory Meetings and
Activities at the International, Regional and National Levels, Report of the Re-
gional Conference of the Americas (Santiago, Chile, Dec. 5-7, 2000), U.N. GAOR,
Preparatory Comm., 2d Sess., Annex IV-V, at 19, U.N. Doc. A/CONF. 189/PC.2/
7 (2001) [hereinafter Santiago Report].
301
These matters that were not addressed in the documents adopted by the Euro-
pean regional conference in Strasbourg. See Reports of Preparatory Meetings and
Activities at the International, Regional and National Levels, Final Documents of
the European Conference Against Racism (Strasbourg, France, Oct. 11-13, 2000),
U.N. GAOR, Preparatory Comm., 2d Sess., Annex IV-V, U.N. Doc. A/CONF.
189/PC.2/6 (2001). Only over the strenuous objections of the United States and
Canada, did the Santiago conference acknowledge that slavery was an interna-
tional crime, resulting in:

[S]ubstantial and lasting economic, political and cultural damage to these

peoples and. . . justice now requires substantial national and international
efforts to repair such damage. Such reparation should be in the form of
policies, programmes and measures adopted by the States, which benefited
materially from these practices, and designed to rectify the economic, cul-
tural and political damage, which inflict the affected communities and
peoples.
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68 Wisconsin International Law Journal

primarily on injuries stemming from slavery and colonialism,302

and recommended international compensation for its victims.303
Although later events diverted attention from the WCAR
debate over reparations,304 it was apparent that reparations were

Santiago Report, supra note 300, at 14, 70.

302
The African regional Conference in Dakar, Senegal focused primarily on slavery
and colonialism. The Declaration adopted by the Dakar conference stated:
[T]he slave trade, . . .colonialism and apartheid. . .have had profound crip-
pling effects on the economic development of Africa and. . .justice now
requires that substantial national and international efforts be made to re-
pair the damage; . . .States which pursued racist policies or acts of racial
discrimination such as slavery and colonialism should assume their moral,
economic, political and legal responsibilities. . .and provide adequate repa-
ration to those communities or individuals who, individually or collectively,
are victims of such racist policies or acts, regardless of when or by whom
they were committed.
Reports of Preparatory Meetings and Activities at the International, Regional and
National Levels, Report of the Regional Conference of Africa (Dakar, Jan. 22-24,
2001), U.N. GAOR, Preparatory Comm., 2d Sess., U.N. Doc. A/CONF. 189/
PC.2/8 (2001) [hereinafter Dakar Report]. The Dakar delegates recommended
that a follow-up mechanism be established and entrusted with supervising imple-
mentation of the Declaration and Programme of Action to be adopted by the
World Conference, and that such mechanism be required to report annually to
the United Nations General Assembly. Id.
303
The Programme of Action adopted by the Dakar conference included the follow-
ing language:
An International Compensation Scheme should be set up for victims of the
slave trade, as well as victims of any other transnational racist policies and
acts. . . A Development Reparation Fund should be set up to provide re-
sources for the development process in countries affected by colonial-
ism. . .[S]uch reparation should be in the form of enhanced policies,
programmes and measures to be adopted by States which benefit materi-
ally from these practices in order to rectify, through affirmative action, the
economic, cultural and political damage which has been inflicted on the
affected communities and peoples in the full implementation of their right
to development.
Id.
304
On the fourth day of the Durban conference, the United States and Israel with-
drew their delegations in protest over the decided likelihood that the Conference
would condemn Israel for its treatment of the Palestinians. Rachel L. Swans, U.S.
and Israelis Quit Racism Talks over Denunciation, N.Y. TIMES, Sept. 4, 2001, at
A1; Douglas Blackmon, U.S., Israel Pull Delegates Out of U.N. Conference on
Racism, WALL ST. J., Sept. 4, 2001, at A12. A few days after the Conference
ended, the World Trade Center in New York and the Pentagon in Washington,
D.C. were attacked on September 11, 2001. N.R. Kleinfeld, U.S. Attacked: Hi-
jacked Jets Destroy Twin Towers and Hit Pentagon in Day of Terror, N.Y. TIMES,
Sept. 12, 2001, at A1. These events diverted Western media attention first from
the issue of reparations and then from the Conference in its entirety.
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a clear priority for many nations of the world.305 The Declaration

ultimately adopted by the Conference concluded that colonialism
led to racism, racial discrimination and related intolerance, and
that “the effects and persistence of these structures and practices
have been among the factors contributing to lasting social and
economic inequalities in many parts of the world today.”306
Nonetheless, the Programme of Action did not endorse repara-
tions for those countries that had been the victims of colonialism.
Instead it acknowledged a “need to develop programmes for the

305
Report of the World Conference Against Racism, Racial Discrimination, Xenopho-
bia and Related Intolerance (Durban, Aug. 31-Sept. 8, 2001), U.N. ESCOR, at
5–27, U.N. Doc. A/CONF.189/12 (2002) [hereinafter Durban Report]. See also
Celina Romany & Katherine Culliton, The UN World Conference Against Ra-
cism: A Race-Ethnic and Gender Perspective, 9 HUM. BRTB No.2, at 14, 15
(2002); Nicole Itano, Former Colonies Calling for Reparations, CHRISTIAN SCI.
MONITOR, Sept. 5, 2001, at A-1, available at http://www.csmonitor.com/2001/0905/
p1s4-wogi.html. Proponents of reparations – notably the African delegates who
had met at the Dakar regional conference – also sought apologies for slavery and
colonialism, noting “other groups that were subjected to other scourges and injus-
tices have received repeated apologies from different countries, as well as ample
reparations, on a bilateral basis, from both public and private sources and lately
through certain international organizations.” Dakar Report, supra note 302, at ¶
29. Certain Native Americans, Holocaust victims, Japanese Americans interned
during World War II, and South Africans have obtained some form of reparations
in recent years. Brophy, supra note 297, at 499. Australia, Austria, France, Ger-
many, New Zealand, South Africa, and the United Kingdom – as well as religious
denominations and multinational corporations – have in recent years offered
apologies for past wrongs. William Bradford, With a Very Great Blame on Our
Hearts: Reparations, Reconciliation, and an American Indian Plea for Peace with
Justice, 27 AM. INDIAN L. REV. 1, 5–6 (2002/2003). Professor Brophy adds that
U.S. President Clinton “apologized for, was part of apologies for, or discussed
apologizing for slavery, the genocide in Rwanda, executions of civilians during
the Korean war, the United States’ support of Guatemala’s military while it com-
mitted genocide, medical experiments on African Americans at Tuskegee, radia-
tion experiments, and the deprivation of native Hawaiians’ land.” Brophy, supra
note 297, at 501. Professor Bradford has termed this an age of apology. Brad-
ford, supra note 305, at 5–6; Brophy, supra note 297, at 501. Apologies would not
be extended at this Conference, however. The U.S. delegation withdrew from the
Conference and did not endorse the final Declaration. Tom Lantos, The Durban
Debacle: An Insider’s View of the UN World Conference Against Racism, 26
FLETCHER F. WORLD AFF. 31, 48 (2002). European Union delegates avoided
apologizing, declined to offer reparations, and refused to acknowledge that the
trans-Atlantic slave trade was a crime against humanity at the time it occurred.
Michael Slackman, Divisive U.N. Race Talks End in Accord, L.A. TIMES, Sept. 9,
2001, at A1.
306
Durban Report, supra note 305, at 14. The Declaration also proclaimed that
“slavery and the slave trade are a crime against humanity.” Id.
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social and economic development of these societies and the dias-

pora, within the framework of a new partnership based on the
spirit of solidarity and mutual respect.”307
Many who supported reparations were very disappointed.308
Yet, the inability to garner sufficient support for reparations is
not surprising, nor is endorsement and adoption of the alterna-
tive programs for economic and social development. To demand
reparations is to demand compensation that can be utilized as the
payee sees fit. Harking back to the more militant demands of the
New International Order, reparations are a more radical demand
to return plundered assets, jurisdiction and authority to their
rightful possessors, the governments and peoples of the Third
World. It would indeed be surprising that an international com-
munity that views certain peoples as underdeveloped and in need
of developing into something else would adopt such a concept.309
Additional programs, designed and implemented by interna-
tional institutions, however, do fit within the current paradigm
that defines the Third World. Thus putting the case for repara-
tions on the international public record is an act of historic signif-
icance – despite its rejection by those countries and interests
currently in power.310 Moreover, its overwhelming rejection by
the West and the endorsement in its stead of development says
much about development as discourse.

307
Id. at 158.
308
For example, Fode Dabor, an ambassador from Sierra Leone and a member of
the African negotiating committee at the Durban Conference, said, “[t]his is very
bad, very disappointing, but we all had to go along because no one wanted to
take the blame for the conference collapsing. We lost on everything, the question
of the apology, the question of the slave trade and the question of reparations.”
Slackman, supra note 305. Moreover, Western press accounts of the conference
were overwhelmingly negative – many amounting, in fact, to ridicule of the Con-
ference and the positions asserted by its majority. See, e.g., Lantos, supra note
305, at 48; Anne Bayesfsky, The U.N. World Conference Against Racism: A racist
anti-racism conference, American Society of International Law, PROCEEDINGS OF
THE ANNUAL MEETING 65–74 (2002); Camponovo, supra note 298, at 667.
309
Given the role of the U.S. and other European powers in the slave trade and the
lack of any real regret for their activities, perhaps this lack of support is not
surprising.
310
The Durban conference contributes importantly to strengthening the case that is
already supported by the great majority of the membership of the United Na-
tions. Samir Amin, World Conference Against Racism: A People’s Victory, 53
MONTHLY REV. 7, 20 (2001).
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Vol. 22, No. 1 Deconstructing Development 71

International law proved incapable of being a starting place

for reordering the international economic system and sharing ec-
onomic power with the Third World. International law is based
in part on shared interests,311 but it is also based on power and
that power resides with the industrialized world, and more partic-
ularly these days, with the United States. Law has been used in
the service of development and as a mechanism to control the
Third World, through such principles as prompt, adequate and
effective compensation. When Third World nations sought to
use law as a source of strength and power they were rebuffed and
then simply ignored, as their proposals died a slow but inevitable
death. International law proved incapable of assisting the non-
West, for its purpose is to serve the West. In the era of globaliza-
tion, international law will be an even stronger part of the edifice
that locks the Third World into chasing a future that is made in
the West through the discourse of Development

IV. DECONSTRUCTING DEVELOPMENT

‘Development is the process by which other peoples are
“dominated, and their destinies are shaped, according to an
essentially Western way of conceiving and perceiving the
world; it is part of an imperial process whereby other peo-
ples are appropriated and turned into objects”. Develop-
ment is a fundamental part of the process ‘whereby the
developed countries manage, control and even create the
Third World economically, politically, sociologically and
culturally’.312

Development can be viewed as an idea, an objective or as an

activity.313 Previous parts of this article have discussed develop-
ment within each of these contexts. This part turns to decon-
structing the development paradigm by interrogating

311
See, e.g., LOUIS HENKIN, HOW NATIONS BEHAVE, LAW AND FOREIGN POLICY (2d
ed. 1979).
312
Tucker, supra note 64, at 1.
313
As Professors Kothari and Minogue note, when development is explored as an
idea, one is in the realm of theory. When objectives are established, one is de-
lineating the process by which ideas are turned into practice. Examining actual
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development as discourse314 and as ideology.315 Postmodernism’s

considerations of difference and discourse, and its challenge to
the universalizing “truths” of enlightenment thinking, greatly as-
sist in appraising development in both theory and practice.316
Scholars have drawn on this perspective to question whether de-
velopment is synonymous with westernization and moderniza-
tion, and whether Western political, social and economic

practice entails analysis of these activities. Of course, even the idea of develop-
ment is contested territory. Kothari & Minogue, supra note 7, at 12. The mean-
ing of development in practice is also contested. See supra Part II B for
discussion of the cycles of conventional development policy wisdom.
314
This term is used is used in the broader Foucauldian sense of discourse:

The key feature is that the world is not simply “there” to be talked about,
rather it is through discourse itself that the world is brought into being. It
is also in such a discourse that speakers and hearers, writers and readers,
come to an understanding about themselves, their relationship to each
other and their place in the world (the construction of subjectivity). It is
the “complex of signs and practices which organizes social existence and
social reproduction”. . . There are certain unspoken rules controlling which
statements can be made and which cannot within the discourse, and these
rules determine the nature of the discourse. . .. These rules concern such
things as classification, the ordering and distribution of that knowledge of
the world that the discourse both enables and delimits.

BILL ASHCROFT ET AL., KEY CONCEPTS IN POST-COLONIAL STUDIES 71 (1998).

For a definition that uses law as an example of discourse, see HERBERT KOHL,
POWERFUL IDEAS FOR POWERFUL THINKING 59 (1993).
315
Ideology has been defined as:

Ideas, attitudes, and values that represent the interests of a group or class
of people. These ideas are expressed through the arts, and in all of the
ways in which a group within a society displays its perception of the
world. . .. Ideas do not express realities so much as the values of the people
who control society. They are false in that they claim truth and universality
even though they are rooted in historically based economic relationships.
Analyzing an ideology consists . . . of discovering how dominant systems of
ideas relate to the actual needs, demands, and self-descriptions of the rul-
ing class.

HERBERT KOHL, FROM ARCHETYPE TO ZEITGEIST POWERFUL IDEAS FOR POW-

ERFUL THINKING 59 (1992).
316
Postmodernism is a rejection of modernity and is characterized by the acceptance
of ephemerality, fragmentation, discontinuity and attacks on the notion that there
might be a metalanguage or metatheory through which all things can be con-
nected or represented. There is “an intense distrust of all global or totalizing
discourses, a rejection of metanarratives, of large-scale theoretical interpreta-
tions, of universal application. Postmodernism also rejects the Hegelian view of
history and the idea of progress.” MADAN SARUP ET. AL., IDENTITY, CULTURE
AND THE POSTMODERN WORLD 95 (1996).
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Vol. 22, No. 1 Deconstructing Development 73

institutions and practices (whether liberal or socialist) are the

keys to solving the problems of the Third World.317

A. POSITIONING DEVELOPMENT IN THE

WESTERN IMAGINATION
If development is a natural and universal process, and an
inherent part of the human condition, we can only critique its
successes or failures – not the concept itself. It often seems that
development is indeed innate, for it is seldom contested in a fun-
damental fashion and the reaction to those who raise such que-
ries is often incredulity or outright dismissal. Although it is
shrouded by a discourse that portrays it as a universal and invari-
ably desirable process, development is actually a set of “prac-
tices and beliefs that are woven into the fabric of Western culture
and is specific to it.”318 Development is neither an innate process,
nor a trans-cultural concept that can claim universal validity.319
Rather, many of the ideas embedded within the development
paradigm, such as progress, planning, poverty and modernization
are firmly rooted within Western economic, political and cultural
thought.320

317
The entire idea of development epitomizes modernity, which has been described
as follows:

Modernity is usually perceived as positivistic, technocratic and rationalistic.

It has been identified with the belief in linear progress, absolute truths, the
rational planning of ideal social orders, and the standardization of knowl-
edge and its production. The modernity project came into focus during the
eighteenth century, and was an extraordinary intellectual effort on the part
of Enlightenment thinkers to develop objective science, universal morality
and autonomous art. Enlightenment thinkers embraced the idea of pro-
gress; they believed in justice and in the possibility of the human happiness.

SARUP, supra note 316, at 94; Jane L. Parpart, Post-Modernism, Gender and De-
velopment, in POWER OF DEVELOPMENT 253 (Jonathan Crush, ed. 1995).
318
Tucker, supra note 64, at 2 (Postulating that it may be because the “myth of de-
velopment” is part of the social imaginary of Western societies, that despite the
transfer of goods, gadgets, capital, technology, hospitals and roads, the economic
and socioeconomic accomplishments of the West have not necessarily been repli-
cated in Third World countries. He also notes that the economic, social and polit-
ical transformations of the Third World are inseparable from the production and
reproduction of meanings, symbols and knowledge that is cultural reproduction.).
319
Id.
320
For critical analysis of these and other widely accepted development concepts,
see THE DEVELOPMENT DICTIONARY, supra note 1.
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74 Wisconsin International Law Journal

The widespread acceptance of development as instinctive or

natural has much to do with the power of the West to construct
the prism through which the world is perceived. At the heart of
this overwhelmingly dominant western world view321 is Euro-cen-
trism – “the conscious or unconscious process by which Europe
and Euro-American assumptions are constructed as, or assumed
to be, the normal, the natural or the universal.”322 This perspec-
tive has become the near-exclusive organizing principle and eval-
uative standard for humankind.323 The West not only influences
and alters but, in some ways, essentially produces other cul-
tures.324 Indeed, much of the non-West now uses the West, al-
most instinctively, as the standard for judging the worth of its
societies.325 Euro-centrism also organizes the system of thought

321
See Sardar, supra note 55, at 44 (“Western civilization is not located in a geo-
graphical space, for in these days of globalization it envelopes the globe with its
desires, images, politics, and consumer and cultural products.”).
322
ASHCROFT ET AL., supra note 314, at 91. By the eighteenth century, the concept
of Europe was solidly constructed as a sign of superiority and as being in opposi-
tion to the rest of the world’s cultures. Eurocentrism is also present in the very
existence of such fields as anthropology, in the assumptions and practices of
Christianity through mission education and mission activity, and in the assumed
superiority of Western mathematics, cartography, art and numerous other cul-
tural and social practices which have been claimed, or assumed to be based on a
universal, objective set of values. Id. at 91–92.
323
For instance, the West defines “civilization” by reference to technology, thereby
measuring other civilizations by technological capabilities. The Eurocentric idea
of nation-state has been deemed to be the only desirable and legitimate form of
political organization, forcing non-Western societies to organize in this manner.
Groups without a state are viewed as people without a home, such as the Kurds,
gypsies and Jews before the state of Israel was established. Freedom is defined in
a way that does not incorporate basic needs such as hunger and housing or the
subordination of freedom for more eminent goals such as community and tradi-
tion. Instead the focus is the individual – which is the epitome of the Western
view of freedom. All of these Eurocentric categories play an intrinsic role in
development. Sardar, supra note 55, at 49.
324
ASHCROFT ET AL., supra note 314, at 91–92.
325
The non-West includes intellectuals, academics, writers, thinkers, novelists, politi-
cians and decision-makers in Asia, Africa and Latin America who use the West as
the yardstick for measuring the social and political progress within their own soci-
eties. Accordingly, the non-West promotes Eurocentrism, both wittingly and un-
wittingly, and colludes in its own victimization while simultaneously maintaining
the global system of inequality. Sardar, supra note 55, at 44.
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Vol. 22, No. 1 Deconstructing Development 75

known as development.326 This is not to suggest that develop-

ment is inherently flawed or invalid because it emanates from the
West.327 Rather, it is to submit that because development is
merely a particular system of thought, it is not impervious to fun-
damental challenge or critique. The power of Euro-centrism
makes this critique difficult,328 however, and reduces even devel-
opment’s most serious critics to attacking it from within the
boundaries of the paradigm.329
Locating development within the Western imagination may
seem to suggest that the Third World is “a passive vessel for ideas
that emanate from the West”.330 But neither the West nor its

326
Whether employing such terms as First World and Third World, or describing
developed nations as post-industrial societies or as nations in the throes of ad-
vanced capitalism and the non-West as merely industrializing, Eurocentrism can-
not be expunged from the concept of development. “Development continues to
mean what it has always meant: a standard by which the West measures the non-
West.” Id. at 49.
327
Notwithstanding the at times dubious motivations of its proponents, moderniza-
tion or progress as defined by the West is not by definition objectionable – al-
though its desirability can certainly be debated. Indeed, it has been the subject of
much debate. For a variety of perspectives, see THE POST-DEVELOPMENT
READER, supra note 11. Rather, it is to suggest that although the dominant West-
ern view is only one perspective, it has been held to be the universal point of
reference and the only perspective deemed worthy of shaping countless lives for
the last fifty-five years; other views have been dismissed as invalid or irrelevant.
Esteva, supra note 1, at 6.
328
For a discussion of natural law in both its traditional and modern permutations,
see Brian Bix, Natural Law, in A COMPANION TO PHILOSOPHY OF LAW AND LE-
GAL THEORY 223 (Dennis Patterson ed., 1999).
329
For example, despite the challenges dependency theory presented to the prevail-
ing economic order, it shared many of the underlying premises of the moderniza-
tion discourse, never questioning the desirability of development and conceiving
of it in terms of economic growth, industrialization and liberal democracy.
Tucker, supra note 64, at 14. The postmodern critique itself can be criticized as
being part of the Western imagination and Western discourse and its demolition
of such grand narratives as religion, tradition and history may be inimical to the
interests of the non-West for it is these things that make the non-West, the non-
West. Sardar, supra note 55, at 45.
330
Professor Kiely warns that dismissing development as Eurocentrism is “too sim-
plistic, for it homogenizes both the West and the Third World and reduces the
latter to passive recipients of the ideas of the former. It then becomes difficult to
imagine how the people of the Third World could behave in any way other than
being simple puppets of the West.” He contends that a satisfactory analysis of
development would regard it not only as a European creation, but also as a re-
flection of the responses, reactions and resistance of the people who are its ob-
jects. He cautions that critics be careful to not reduce development to an idea
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76 Wisconsin International Law Journal

ideas are a homogenous totality, and certainly the millions of

people who have been on the receiving end of development poli-
cies possess complex histories, societies, politics, cultures and in-
dividual lives. They have responded to development in countless
ways, and development itself has changed and evolved, at times
in reaction to these multiple responses. Nonetheless, for the
most part the development project continues to be shaped by
Western elites and experts, who define its objects, theories and
practices.331 Its theoretical underpinnings can be found in en-
lightenment philosophy,332 and its veneer of universality and inev-
itability is part of the Eurocentrism that shapes most
contemporary worldviews, and simultaneously devalues and
marginalizes the knowledge of others.333 Development thus ele-
vates and reinforces the power of the West, as it controls and in
essence creates the Third World.334
Development is rooted in an evolutionary myth that reduces
history to a series of formal stages.335 Although this myth is
founded on the particular experiences of European societies, the

without a history and that is impervious to change, when in fact development

discourse – its language, strategy and practice – has changed over time, both in
response to previous strategies and to shifts in power relations in the world.
Kiely, supra note 7, at 36.
331
At the level of policy makers, who are comprised of national and international
elites, the West has largely won the political, social and ideological battle. Most
Third World elites attend university in the West, have professors and teachers
from the West, and have in many respects accepted the Western view of the
world. Tucker, supra note 64, at 13 (discussing the preponderance of universities,
institutes, research grants and foundations in the West, all of which support and
solidify certain world views). Those who reject a Eurocentric worldview are
marginalized as radicals, fundamentalists, cultural nationalists, or as being irra-
tional, crazy or otherwise to be dismissed. See Sardar, supra note 55, at 44–62.
At the grassroots level, the acceptance or rejection of Eurocentricity may be
more complex. Here resistance to development can be found in myriad acts that
are often classified as ignorance or lack of common sense. These voices are re-
duced to what post-colonialist term “clamor.” Ruth Gordon, Critical Race The-
ory and International Law, 45 VILL. L. REV. 827, 835 (2000) [hereinafter Gordon,
Critical Race Theory].
332
SARUP ET. AL., supra note 316, at 94. (discussing the enlightenment foundations
of modernity).
333
Sardar, supra note 55, at 44, 47–49.
334
Tucker, supra note 64, at 1.
335
Indeed these underlying assumptions are so taken for granted that they often
escape critical scrutiny. Id. at 7.
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Vol. 22, No. 1 Deconstructing Development 77

development paradigm regards these stages as universal and ap-

plicable to all societies.336 It is the norm by which other social
orders are judged,337 and all societies are presumed to transverse
the same fixed and linear path.338 This linear view of the past,
present and future is necessarily imbued with hierarchy for the
concept of development suggests that:
There are nations that have embraced Western technology
enough to be developed; there are other nations on a lower scale
of civilization that are developing; and there are still other na-
tions that, steeped in religion and tradition, reject all forms of
liberalism and secularism and thus remain underdeveloped . . .339
Western industrialized nations are at the pinnacle of this edi-
fice and the nations of the Third World are necessarily
subordinate to those at the apex. But development holds out the
prospect that, with the assistance of the “more advanced,”
the underdeveloped could catch up and also become modern
and developed.340 These assumptions were a natural exten-
sion of a colonial discourse that emphasized Third World cul-
tural, political, social and racial inferiority341 and justified itself,

336
See, e.g., Teodor Shanin, The Idea of Progress, in THE POST-DEVELOPMENT
READER, supra note 11, at 65.
337
Tucker, supra note 64, at 7.
338
MITTELMAN & PASHA, supra note 59, at 38. See supra notes 55–69 and accompa-
nying text on Modernization theory.
339
Sardar, supra note 55, at 49.
340
Tucker, supra note 64, at 7. Under the rubric of modernization, Westernization
gained the status of a universal goal and destiny. Progress became not only inevi-
table, but also obligatory and orthodox development hinged on the absolute cer-
tainty of universal modernity. To the “West development” and “modernization”
characterized efforts by those in the Third World whom they implicitly assumed
to be destined to achieve their levels of consumption. Id. See also Jose Maria
Sbert, Progress, in THE DEVELOPMENT DICTIONARY, supra note 1, at 192.
341
Colonialism was legitimized and grounded in part on a racial discourse that de-
fined white Europeans as a superior race with a superior culture, and other races
as inferior and in need of being civilized by whites. See Gordon, Saving Failed
States, supra note 12, at 908–09; Gordon, Racing U.S. Foreign Policy, supra note
13, at 14–15. This raises questions regarding the role of race and culture in con-
structing development as discourse, as the largely colored colonized world be-
came the colonized and then the underdeveloped “Other.” While race is only
one of many factors, it is an additional means to separate developers from the
Other. It may make it is easier to view such peoples as incapable and, implicitly,
as inferior. See, e.g., Leonard Frank, The Development Game, in THE POST-DE-
VELOPMENT READER, supra note 11, at 262 (A Canadian described the make-up
of his development project assessment “team,” which included an American, a
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78 Wisconsin International Law Journal

in part, by a paternalistic mission to uplift and civilize the

natives.342 While development is a postcolonial (if not a neo-co-
lonial) discourse,343 it has strong colonial roots.344 Indeed, the
transition from colonialism to the development process may have
been merely a shift in emphasis rather than the end of one pro-
ject and the beginning of another.345 The rhetoric of colonialism

Korean, a Japanese, a Dane, and a Bangladeshi, thrown in only for color. He also
admits his surprise and discomfort when the Other looked too white). Certainly
there are also issues of class, and Third World elites also generally promote the
development project. It has also been demonstrated that development theory
and practice is gendered. See, e.g., Kothari, supra note 22, at 39. Yet the Third
World is largely the colored world and thus it is at least worth questioning the
degree to which race figures into the international hierarchy that development
epitomizes. Power within development discourse resides in the West, and more
specifically in international institutions that are dominated by western, and pri-
marily white, nations. This is not to say that these Institutions do not employ
people from many nations, including people of color from all parts of the world.
Nonetheless, the policies that emanate from these institutions are formed in
Western capitals and institutions. Markets now dominate, because the U.S. has
decided that markets dominate. To work in these Institutions one must believe in
the models they propound. Alternative views are simply absorbed, watered-
down co-opted, or dismissed.
342
Gordon, Saving Failed States, supra note 12 (discussing trusteeship and colonial-
ism as part of the civilizing mission and the white man’s burden of uplifting the
natives); Parpart, supra note 317, at 261.
343
In its simplest formulation, “post-colonial” or “postcolonial” refers, chronologi-
cally, to the post independence period. However, since the late 1970s, the term
has had a more complex meaning and is utilized to discuss the various cultural
effects of colonization. See ASHCROFT ET AL., supra note 314, at 186.
Postcolonial theory has been described as an “umbrella term for diverse critical
approaches that deconstruct Western thought, and refers not to a simple periodis-
ation but rather to a methodological revisionism that enables a wholesale critique
of Western structures of knowledge and power.” Kothari, supra note 22, at 39.
For a discussion of the shifting and sometimes vague distinctions between
postcolonial and post-colonial, see ASHCROFT ET AL., supra note 314, at 186–92.
344
Kothari, supra note 22, at 36–37 (noting that there may not be a clear distinction
between the before of colonialism and the after of independence, that can be
viewed as two sharply contrasting periods separated by the moment of
decolonization).
345
Indeed, as early as 1937, one colonial governor said, “the exploitation theory. . . is
dead, and the development theory has taken its place.” Bernard Bordillon, The
African Producer in Nigeria, West Africa, Jan 30, 1937, at 75, cited in 1 DEVESH
KAPUR ET AL, supra note 30, at 96 n. 35. It took a while after the governor’s
insight for the rhetoric to change, but change it did. See Kothari, supra note 22, at
37 (discussing the extent to which the end of colonialism may or may not have
signaled an end to empire, although it did effectively suggest the end of a specific
form of imperialism even as imperial interest and global reach continued to be
present).
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re-emerged in the language of international development agen-

cies through a discourse that emphasized the vulnerability and
helplessness of Third World peoples.346 The World Bank sent
“missions” to underdeveloped countries to formulate wide-rang-
ing development programs that would, in effect, bring salva-
tion.347 There was now a moral imperative to intervene,348 even as
the power relationship that formerly existed between the colo-
nizer and the colonized continued.349 By the middle of the 20th
century, those whom Europeans had previously designated as
“uncivilized” and “backward” now had a new appellation:
underdeveloped.350

B. CONSTRUCTING THE UNDERDEVELOPED

A critical aspect of the dominance of the West resides in its

power to produce and propagate knowledge and to thereby cre-
ate categories such as the underdeveloped.351 The West has been
able to define and indeed to create the “Other” – objects to be

346
Parpart, supra note 317, at 261. This language then provides the rationale for the
neo-classic market-oriented reforms being forced on Third World governments
with the promise that they will reconstruct their economies. Id.
347
Escobar, Planning, supra note 157, at 135.
348
While colonial discourse constructed an obligation to undertake the white man’s
burden and civilize the natives, such considerations were clearly secondary to the
economic and political aspects of colonialism. With development, the West now
had an obligation, and indeed was morally obligated to intervene in the Third
World and modernize the underdeveloped.
349
Kothari, supra note 22, at 39. Professor Kathari continues that “the boundaries
and distinctions that formerly marked the power relations between colonizers
and the colonized continue to be played out, and are reinscribed on the relation-
ship between development and administrators and recipients of aid.” Id.
350
Sbert, supra note 340, at 192.
351
Tucker, supra note 64, at 13 (noting that the media is based in Western nations
and is accompanied by the overwhelming dominance of European and North
American Universities, foundations, institutes and research resources. Western
scholars can obtain grants to study in the Third World, while it is more difficult
for Third World scholars to study in the West, and when they do; they are social-
ized into the dominant paradigms of Western thinking. The unequal relationship
that persists between the West and the Third World is an integral part of this
process).
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80 Wisconsin International Law Journal

studied, described and developed,352 and that “Other” is invaria-

bly lacking, deficient, inferior,353 and in need of Western assis-
tance.354 This power to define and represent others is assumed
“in the portrayal of ways in which people live their lives, in artic-
ulating their experiences – and on this basis, in shaping the
processes of change.”355 Peoples with complex and varied histo-
ries, cultures and communities became homogenized masses
mired in intolerable poverty and in need of Western assistance.356
The objects of development proliferated and included, inter alia,
poverty, insufficient technology and capital, rapid population
growth, inadequate public services, and archaic agricultural prac-
tices; new problems were continually incorporated, categorized
and further defined.357 Indeed, the “vast surface over which the
discourse effortlessly moved eventually covered practically the

352
Id.
353
That the Other is lacking, deficient and inferior follows from a colonial discourse
that viewed certain races and peoples as inferior and in need the benefits of civili-
zation dispensed by their colonizer. See generally Gordon, Saving Failed States,
supra note 12; BASIL DAVILSON, THE BLACK MAN’S BURDEN AFRICA AND THE
CURSE OF THE NATION-STATE (1993).
354
On “helping,” see Marianne Gronemeyer, Helping, in THE DEVELOPMENT DIC-
TIONARY, supra note 1, at 53.
355
ESCOBAR, supra note 19, at 40–41.
356
Id. at 41 (noting that “abnormalities were identified, such as the illiterate, the
underdeveloped, the malnourished, small farmers, or landless peasants, which de-
velopment would later treat and reform”).
357
Additional subjects included cities, rural areas, housing, schools, factories, hospi-
tals, towns, regions and habitat. These ever-proliferating categories came from a
range of sources, including governments, universities, research centers and the
expanding international institutional edifice. Other categories and objects, such
as cultural attitudes and values and the existence of racial, religious, geographic,
or ethnic factors that were believed to be associated with backwardness, were
later introduced, but with more caution or surreptitiously. Id. at at 41–42. Pro-
fessor Escobar notes that the never-ending specification of problems required
detailed observation at all levels of a particular society, and accordingly complete
profiles of countries were developed and elaborated. Id. at 42. The techniques
for gathering this data have been refined and expanded. Indeed a cursory exami-
nation of the World Bank’s Website confirms this, for complete country profiles
of most countries can be found covering a wealth of information. See infra notes
378–79 and accompanying text for discussion in the reliability of this data and its
place in World Bank analysis.
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Vol. 22, No. 1 Deconstructing Development 81

entire cultural, economic and political geography of the Third

World.”358
Development problems were invariably framed in a manner
that required Western intervention and the input of “experts”,359
and it was the discourse of development that determined who
qualified as “expert.”360 Economists, demographers, educators,
anthropologists, sociologists, psychologists and specialists in agri-
culture, public health and nutrition were enlisted to carry out the
modernization project.361 Development professionals were gen-
erally dispassionate academics and practitioners, who were usu-
ally far removed from the experiences and lives in which they
intervened.362 Locating knowledge in specialists, however, privi-
leges some voices and silences others.363 It also means solutions

358
“Client categories” were created and proliferated as populations were consist-
ently and continually found to be lacking and in need of treatment and reform.
ESCOBAR, supra note 19, at at 41.
359
Tucker, supra note 64, at 7. Development planners and practitioners often dis-
miss as inconsequential the voices of the individuals whose impoverishment they
seek to address. Kothari, supra note 22, at 39.
360
There is a close connection between control over knowledge and assertions of
power. For example, Western scientific knowledge is represented as universally
valid and thus applicable to all, but not everyone qualified as an expert.
361
ESCOBAR, supra note 19, at 41; Tucker, supra note 64, at 7. Adaptation became a
key concept, for peoples and groups had to adapt. Id.
362
See Anders Narman & David Simon, Introduction, in DEVELOPMENT AS THEORY
AND PRACTICE CURRENT PROSEPCTIVES ON DEVELOPMENT AND DEVELOPMENT
CO-OPERATION 8 (David Simon et al. eds., 1999). For a revealing account from
inside the development community, see Frank, supra note 341, at 262. This ac-
count of how a multinational team of experts approved a project to develop a
rural area on the North-West frontier of Afghanistan demonstrates that when the
“facts” do not fit reality, reality is ignored; that local knowledge is purposely ig-
nored when it would mean that expert knowledge is unnecessary; that areas can
be “hot” for all sorts of reasons, having very little to do with the needs of local
people; and that the objects of development are presumed to be people of color
(Mr. Frank notes his surprise that these people were not the colored people he
usually encountered on such missions). See also ESCOBAR, supra note 19, at 41.
Moreover, the expert focus on promoting change at any cost raises issues of cul-
tural imperialism.
363
ESCOBAR, supra note 19, at 45. Escobar queries: why cash crops (to generate
foreign exchange, and thus to obtain capital and technology) and centralized
planning, instead of participatory and decentralized approaches; why agricultural
development based on large mechanized farms, instead of alternative agricultural
systems based on smaller farms, ecological considerations, integrated cropping
and pest management; why rapid economic growth, but not internal markets to
satisfy the needs of the masses of people; why capital intensive, but not labor
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82 Wisconsin International Law Journal

emanate from foreign sources,364 while local knowledge and ways

of knowing and being are ignored, discarded or co-opted.365
Overpowered by the hegemonic discourse of the West, Third
World societies often were effectively prevented from articulat-
ing their own identities and worldviews. Many seem to have in-
ternalized the perspectives of the modernizers and developers, a
process facilitated by comprador Third World intellectuals.366
The post war development discourse established a discursive
practice that in turn established the rules of the game.367 This
discourse permits “the systematic creation of objects, concepts
and strategies,”368 as it determines who can speak, from what
points of view, and with what authority. It establishes the criteria
that define expertise and that expertise was deemed to reside in
Western systems of thought, values and ways of life. Dominant

intensive solutions. Some of these choices are now being considered, given the
profound disasters facing many developing countries and their developers. But
this reconsideration still takes place within the developmental framework. Id. at
43.
364
The historical and cultural location of the “expert” may make it impossible to
shake off this status, by simply adopting participatory techniques, for it is a ques-
tion of political power. Kothari, supra note 22, at 39. For a detailed critique of
participation, see Rahnema, supra note 11, at 116.
365
ESCOBAR, supra note 19, at 41 (noting that communities responded to the devel-
opment agenda in myriad ways that sometimes incorporated resistance, and there
were manifold failures as developers tried and failed to bring about moderniza-
tion); Kothari, supra note 22, at 39 (noting development planners and practition-
ers often dismissed as inconsequential, the voices of the individuals whose
impoverishment and marginality they were seeking to address); Tucker, supra
note 64, at 7–8 (Observing that development was not conceived of as a cultural
process. Rather culture was a “residual variable that would disappear with the
advent of modernization. Thus it is unsurprising that development has wrecked
havoc on Third World cultures, ironically in their name and in their interest.
These multiple and varied encounters “were subsumed under the category of tra-
dition, an essentially pejorative term that denoted divergence from the generally
accepted norms of reason and progress.”).
366
Tucker, supra note 64, at 13.
367
ESCOBAR, supra note 19, at 41.
368
Esteva, supra note 1, at 13. See generally THE DEVELOPMENT DICTIONARY,
supra note 1 (deconstructing such familiar “devspeak” terms as, inter alia, plan-
ning, participation, poverty, progress, population, needs, helping, and
development).
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strands of development theory and practice (including most “al-

ternative” theories) are constructed in the West and imple-
mented in the Third World.369 Western policy-makers decide
which projects will be funded and where aid money will be spent
or withdrawn.370 Third World governments are granted ostensi-
ble authority over their citizens, but rich countries and interna-
tional lending institutions very often decide what will actually be
done in Third World countries.371 Thus, the hierarchical relation-
ship that once existed between the colonizer and the colonized
continues.372
An example of how the problem and then the solution are
constructed within the development paradigm can be discerned
in an oft-told depiction of Egypt. Popular representations of
Egypt invariably describe it as an overpopulated country, whose
population is crowded within a narrow strip of land in the Nile
Valley, and is growing at a rate that outpaces its ability to grow
sufficient food.373 The obvious response to the “natural limits of

369
Kothari, supra note 22, at 38; ESCOBAR, supra note 19, at 41 (remarking that it is
“Western dominated institutions that determine the practices and procedures for
all problems, theories, or objects that surface and are then named, analyzed and
eventually transformed into a policy or a plan”).
370
ESCOBAR, supra note 19, at 41.
371
Within the broad parameters of the policies set by the West, Third World coun-
tries may have some agency over the specifics and emphasis of projects. See
Frank, supra note 341, at 262.
372
Kothari, supra note 22, at 39.
373
The following discussion of Egypt can be found in Timothy Mitchell, The Object
of Development America’s Egypt, in POWER OF DEVELOPMENT 129–57 (Jonathan
Crush ed., 1995). Professor Mitchell contends that the following description of
Egypt can be found in almost any study of Egypt produced by an American or an
international development agency:
The geographical and demographic characteristics of Egypt delineate its
basic problem. Although the country contains about 386,000 square miles,
. . . only a narrow strip in the Nile Valley and its Delta is usable. This area
of 15,000 square miles – less than 4 percept of the land – is but an elon-
gated oasis in the midst of desert. Without the Nile, which flows through
Egypt for about a thousand miles without being joined by a single tribu-
tary, the country would be part of the Sahara. Crammed into the habitable
area is 98 per cent of the population . . . the population has been growing
rapidly and is estimated to have doubled since 1947.
The popularity of this image of space and numbers is summed up in a World
Bank report: “These two themes – the relatively fixed amount of usable land and
the rapid growth of the population – will be seen as leitmotifs in the discussion of
Egypt’s Economic problems.” The additional image of a traditional rural world
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geography and demography” is technological and managerial as-

sistance, entailing the massive input of Western expertise and
capital resources.374 Yet substantial questions can be raised re-
garding the claim that Egypt has too many people,375 that it lacks
the ability to grow sufficient food376 or that it possesses too little

implies a system of agriculture that is static and therefore incapable of changing

itself; thus any impetus for change must come from the outside. Yet political and
economic changes in rural Egypt have taken place since the Middle Ages. Ignor-
ing these transformations creates the impression that the poverty of the Nile Val-
ley is a traditional poverty of a peasantry that only recently joined the twentieth
century and only external forces can provide the impetus to transform Egyptian
agriculture. New capital investment, new irrigation methods, improved seed vari-
eties and cut flowers, all of which will bring foreign capital required to finance
such technologies, becomes the principal means to achieve this transformation.
374
The World Bank posits that “the development problem is essentially a question
of the quantity, quality and proportion of resources to be devoted to develop-
ment on the one hand and to economic management on the other.” Thus the
productive limits imposed by nature will be overcome by the forces of technol-
ogy, while existing natural resources will be made more productive by more effi-
cient management, which turns out to mean dismantling the bureaucracy of the
Egyptian state and permitting market forces to work their magic. Mitchell, supra
note 373, at 139.
375
Professor Mitchell questions why population densities in Egypt are compared to
those in Bangladesh and Indonesia, rather than say Belgium or South Korea
where population densities “are respectively three and four times higher than
Indonesia.” Id. In other words, high population density is not necessarily an
indication of overpopulation. While Egypt’s population level per hectare of ara-
ble land is similar to that of Bangladesh, and about double that of Indonesia, this
comparison is misleading for Egyptian output per hectare is more than three
times that of both countries. A more realistic comparison might be with the Phil-
ippines and Thailand, countries that are similar in total population and per capita
gross national product, combined with far greater areas of cultivated land. But
even with less land, Egypt’s agricultural population produces more crops per per-
son than either of these countries. Professor Mitchell also asserts that there is no
prima facie evidence for the assumption that Egypt’s population of 50 million is
too large for its cultivable area. On a global level, given the demand on resources
that the average Egyptian makes on world resources, versus the average citizen
of industrialized countries, it is arguable whether Egyptian population growth
threatens the world’s limited resources. But the corollary to the population argu-
ment is the rate at which the population is growing and that this rapid growth is
surpassing the country’s ability to feed itself. Id. at 131–32.
376
Mitchell notes that according to World Bank tables, between 1965 and 1980,
Egypt’s population grew at an annual rate of 2.1 percent a year, but agricultural
production grew at an even faster rate of 2.7 percent a year. Thus it is not true
that the population has been growing faster that the county’s ability to feed itself.
He maintains that the reason Egypt has had to import increasing amounts of food
can be found by examining the kinds of food being consumed and who gets to
consume it. Egypt actually has a high rate of calorie consumption, with average
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Vol. 22, No. 1 Deconstructing Development 85

land.377 If the problem is redefined as changing consumption pat-

terns and access to land, then the solutions also change and may
encompass political and social constructs that are beyond the
reach of Western development experts.
This misrepresentation of Egypt does not merely give rise to
ineffective policies, however. Its simplistic and unchallenged
premises378 demonstrate how Western-based development institu-
tions continue to present the countries and peoples of the Third
World (such as Egypt and its peoples) as objects of development,

protein consumption exceeding that found in most middle and high-income coun-
tries. The problem is that the shift has come in higher levels of food consumption
among the better off, and most especially a higher consumption of meat, which
means that food production has in part shifted to food for animals that are then
slaughtered and sold as meat. It is the switch to meat consumption, rather than
an increase in population that has required the dramatic increase in food imports.
Id. at 132–36.
377
The image of a narrow strip of fertile land crammed with millions of inhabitants
enables the analysis of Egyptian economic development to quickly eclipse the
issue of access to land, because with so many people occupying so little space the
problem appears to be explained. Images are painted of millions of tiny parcels
and not enough land to go around. (The average size of a holding is two feddans,
94% of all owners have less than five feddans each, and only 0.2 percent have at
least 50 feddans each.) But given the extremely fertile soils, year-round sunshine
and permanently available irrigation water, very high yields can be obtained from
two or even three crops a year and thus holdings of less than five feddans are not
as small as they may seem and are well above the minimum farm size required for
a family farm to feed itself (estimated at 0.8 feddans). These figures also fail to
mention that the remaining six percent of landowners, with holdings from five
feddans up to the legal limit of 50 feddans per individual or 100 feddans per
family with dependent children, controlled 33 percent of the country’s agricul-
tural area and this concentration is increasing. It may also be that these official
figures, which rely on village land registers, under-represent the concentration of
landholding. Id. at 136–39.
378
For a discussion of how World Bank data and studies are created and utilized, see
Gavin Williams, Modernizing Malthus: the World Bank, Population Control and
the African Environment, in POWER OF DEVELOPMENT, supra note 17 (analyzing
a World Bank report on sub-Saharan Africa and noting how data and impressive
looking tables are often included, but bare little relation to the report, that much
of the research that is commissioned is of poor quality and when it is good, it is
not used or is shaped to fit pre-determined outcomes). See also Frank, supra note
341, at 262.
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as something external to the expertise that is development, de-

spite the tremendous involvement379 of these institutions in the
affairs of Third World nations and communities.380

V. CONCLUSION: ENVISIONING A POST

DEVELOPMENT WORLD
All developing countries are caught in a time warp of
sorts, where they can never really catch up with the West,
. . .for the West has become the past, present and future of
the non-West.381

379
The development project never sees itself as part of the problem and therefore
developers rarely acknowledge responsibility for development’s many failures.
The World Bank acknowledges failures, but seldom acknowledges its involve-
ment in such failures. Typically the blame is placed on its partner governments,
and sometimes on the people themselves. An example can be found in the World
Bank’s analysis of sub-Saharan Africa, which in itself is questionable given the
great variety of cultures, conditions, environmental settings and other factors that
can be found in Africa. The Bank does not ask whether whole approaches, such
importing chemical and mechanical technologies, might be inappropriate. In-
stead it recommends more of the same. The environmental consequences of
World Bank strategies are rarely considered. Instead, African women are identi-
fied as a cause of environmental damage. The Bank overlooks the consequences
of mechanized farming and chemical fertilizers, and of damns and irrigation
projects. The Report on Sub-Saharan Africa also draws no distinction between
pastoralists and cultivators, or between capitalist farms and peasant smallhold-
ings. Moreover, World Bank projects consistently privilege large-scale farmers
who are politically influential, easier to reach and responsive to advice from pro-
ject officials. Williams, supra note 378, at 158, 165. Much credit is claimed for
perceived successes, however, such as the so-called Asian miracles of South Ko-
rea, Taiwan, Singapore, and Hong Kong. This too is a constructed space for it is
doubtful that these “successes” had anything to do with the prescriptions ad-
vanced by development agencies. See O’Hearn, supra note 4, at 113–34.
380
Professor Mitchell notes:

The discourse of international development constitutes itself in this way as

an expertise and intelligence that stands completely apart from the country
and the people it describes. Much of this intelligence is generated inside
organizations such as the World Bank and USAID, which play a powerful
economic and political role within countries like Egypt. International de-
velopment has a special need to overlook this internal involvement in the
places and problems it analyzes.

Mitchell, supra note 373, at 130.

381
Sardar, supra note 55, at 46. For example, the newly industrialized countries or
larger Third World countries such as China, India and Brazil are now engaged in
manufacturing and industries that are no longer found in the post-industrialized
West. As the West abandons a particular activity, it is relegated to the Third
World. Sardar writes:
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Vol. 22, No. 1 Deconstructing Development 87

Can development be transformed? What shape would a

transformed development paradigm take? If development turns
out to be incapable of fundamental change, what would the
world look like without it? This part begins the process of think-
ing about these questions and contemplating a world without de-
velopment. If development depends on shared beliefs rather
than destiny, it is possible to at least ask whether Third World
societies must necessarily reproduce themselves according to
Western notions of development, or remain forever at the mar-
gins of the international community.382 Must one develop or per-
ish?383 We do not propose a substitute grand vision; our aim is to
challenge the narrative of development, not to replace it with
another.
Development theory and practice are in a quandary. There
is a gap between academics and practitioners.384 Development

The present of the non-West is the past of the West, and the future of
developing countries is the present of the West. When the non-West
reaches the point of development, it has already become the past of the
West, meaning the non-West has no real future since its future is already
known in Europe and America. Parts of the non-West are the distant, pre-
industrial revolution past of the North. The West was not just history; it is
remade in the present and reconstructed in the future. . . . At each stage, it
is internalized more and more and becomes an integral part of the global
consciousness. As such, the future has been colonized by the West. . . . The
future is defined in the image of the West. . . taking us towards a single,
determined future. . . . An illusion of accelerated movement is produced to
create an illusion of inevitability and to shroud the Eurocentric dimension
of the exercise. Conventionally, the colonization of the future was known
as Westernization. Now it goes under the rubric of globalization. The pro-
cess that is transforming the world into the proverbial global village, rap-
idly shrinking distances, compressing space and time, is also shaping the
world in the image of a single culture and civilization. In this Eurocentric
vision of the future, technology is projected as an autonomous and desira-
ble force. Its desirable products generate more desire; its second-order
side effects require more technology to solve them. Thus there is a perpet-
ual feedback loop and this self-perpetuating momentum has locked us in a
linear, one dimensional trajectory that has foreclosed the future of the non-
West.

Id.
382
Tucker, supra note 64, at 3.
383
Id.
384
For a discussion of the gap between theoreticians and practitioners, see Narman
& Simon, supra note at 362, at 1–2 (Noting practitioners are preoccupied with
action, which is often not placed in a larger context, while academics are con-
cerned with understanding. Politician, planners and administrators would prefer
to not question development because it would threaten international consensus,
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thought and policy have been subjected to the postmodern cri-

tique385 discussed in this article, and have broadened into diverse
and sometimes inconsistent theories and modes of analysis.386
These diverse perspectives are partly in response to a pervasive
disillusionment with the failures of development,387 and partly in
support of the rising voices of indigenous resistance to develop-
ment.388 At its most radical, anti-developmentalism urges aban-
doning “Western universalism or Euro-Americanism and calls
for identifying other visions, other ways of knowing and being,
and for recognizing that development has been an illusion.”389 It
suggests that by challenging the central concepts that set bounda-
ries on our thinking, development can be exposed and “rejected
as degenerate, ecologically maladaptive, and an empty dream.”390
Somewhat less radically, there is the hope that exposing the ide-
ology underlying development might lead to transformative re-
sponses from development’s proponents and practitioners.391

instead devoting time to international conferences where declarations are formu-

lated that are to be translated into development policy.).
385
These critiques and post-modernism in general have also been subjected to cri-
tique See Sardar, supra note 55, at 45–46.
386
Simon, supra note 10, at 17.
387
Id. Professor Simon also cites “the collapse of socialism” which was viewed as an
alternative model of development, the growing economic diversity of countries in
the Third World, increasing concern for environmental sustainability; increasing
assertiveness of voices from below and the rise of the postmodern challenge to
universalizing theories and conventional practices of development. Id.
388
See Arturo Escobar, Imagining a Post Development Era, in POWER OF DEVELOP-
MENT, supra note 17, at 211, 216–20 [hereinafter Escobar, Imagining a Post Devel-
opment Era]; Watts, supra note 24, at 44, 57–60; D.L. Sheth, Alternatives from an
Indian Grassroots Perspective, in THE POST-DEVELOPMENT READER, supra note
11, at 329.
389
Watts, supra note 24, at 44–46.
390
Id. at 45. Others state “development appears as a blunder of planetary propor-
tions, an edifice which shows cracks and is starting to crumble. At its most under-
stated, there is a sense of malaise, a crisis of developmentalism (practice) and an
impasse in development thinking (theory).”
391
Martin Minogue and Uma Kothari, Conclusion: Orthodoxy and its Alternatives in
Contemporary Development, in DEVELOPMENT THEORY AND PRACTICE, supra
note 7, at 179–80 [hereinafter Minogue & Kothari, Conclusion].
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The institutions, experts and politicians involved in technical

assistance, however, view the concept of development as incon-
testable, even while conceding some of its failures.392 Some pro-
ponents fear that if development is criticized, already inadequate
assistance could be terminated or diverted to other ends.393
Moreover, some development projects have been beneficial394
and imposed relatively little negative impact.395 The postmodern
analysis has also been criticized as challenging the notion of col-
lective action and interests, and as making “even the possibility
of international intervention in pursuit of development illusory
and reactionary.”396 Post developmentalism seems to encourage

392
Practitioners do usually agree, however, that development should have a human
face, and that target populations should be permitted to participate in planning
programs and implementing them. Rahnema, supra note 11, at 381.
393
Id. (Noting that there is a real danger that the many plausible arguments against
development will be used to take funds that would be used for development and
direct them to other uses. Perhaps it is better to spend the funds on agricultural
projects, food, shelter and health care, however questionable such spending may
be from philosophical point of view, than on say security and weapons. But are
they not connected. Can repressive states obtain funds more easily when security
requests are coupled with requests for development assistance.). The recent
spectacle at the UN, with the U.S. bribing or threatening states with development
aid to persuade them to vote for a resolution to use force against Iraq, really
crystallizes this point. See, e.g., Henry J. Richardson, III, U.S. Hegemony, Race,
and Oil in Deciding United Nations Security Council Resolution 1441 on Iraq, 17
TEMP. INT’L L.J. 27 (2003).
394
The so-called “Asian tigers” are often presented as proof that development can,
and eventually will, work. The economies of South Korea, Thailand, Singapore,
Hong Kong, and Taiwan are frequently offered as proof of the viability of the
Washington consensus and the triumph of export led growth based on markets.
Yet the rapid modernization of these nations had little to do with the interna-
tional development paradigm. For a devastating critique of the viability, sus-
tainability and perhaps the myth of the Asian Tigers, see O’Hearn, supra note 4,
at 117.
395
Rahnema, Towards Post-Development, supra note 11, at 381. Professor Rahnema
was the UN Representative in Mali and coordinator of other development
projects. She also notes that the bulk of the world’s resources are being utilized
for arms and repressive governments and she questions whether or not these
funds might be better spent on development projects, even if they are flawed.
396
Kiely, supra note 7, at 36. Professor Kiely maintains that the idea that needs and
poverty are solely social and cultural constructions, mistake the word for the
world and can create conditions wherein a positive local politics of empowerment
slides fitfully into an amoral politics of indifference. Id. In other words, it may
cause the rich to simply disengage. See also Jan Nederveen Pieterse, My Para-
digm or Yours? Alternative Development, Post-Development, Reflexive Develop-
ment, 29 DEV. & CHANGE 343 (1998).
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disengagement, and the abrogation of any Western accountabil-

ity for the current state of affairs in Third World nations.397 It is
believed to offer little to those who aspire to safe drinking water,
a roof that does not leak and other material goods most citizens
of industrialized countries take for granted.398 Post-development
theorists are charged with attempting “to reinvent a pre-colonial
Eden that never existed and is no less violent in scripting iden-
tity, than are identities constructed in the name of develop-
ment.”399 Adding to the complexity is the daunting task of
considering a post development world in the wake of fifty years
of development that has left many individuals worse off,400 and
countries mired in debt and enmeshed in a system that has in
effect led to re-colonization.401 What is more, in an era of global-
ization, is it even possible to escape the development para-
digm?402 These critiques raise serious questions to which—absent

397
Simon, supra note 10, at 17.
398
Both authors have visited Southern countries and witnessed the need for these
“comforts,” and thus take these criticisms very seriously. See Sylvester, supra
note 6.
399
It is maintained that the anti-development thesis does not take us “beyond the
dualisms of modernity and tradition, and dominant and dominated” and is rather
vague about alternatives as it romanticizes local cultures. Kiely, supra note 7, at
36–37. Professor Kiely notes that the idea that development always undermines
authentic cultures “can itself be considered a form of cultural imperialism, based
on a long tradition of romanticizing the ‘Other.’“ Id.
400
See, e.g., Narman & Simon, supra note 362, at 8. Professors Narman and Simon
point out that silence is often taken for lack of knowledge, while it could really
arise out of courtesy, a desire to not disagree or offend or to disclose information
considered too private. Indeed the targets of development have been quite inge-
nious in filtering the advice and instructions received from development profes-
sionals. They have not been as passive as might be thought and have been able to
be selective in accordance with their own needs and perceptions through their
cultural filters.
401
Given the amount of control exercised by international financial institutions over
the economies, politics and societal choices in the nations of the Third World, it
does not seem to be too far from colonialism. Indeed the discourse of racial,
social, political and cultural superiority that justified colonialism, underlies the
development discourse. Gordon, Saving Failed States, supra note 12, at 926.
402
It has been argued that nations do not necessarily participate in the globalization
project “as nations inevitably on their way to modernity, but as pragmatic and
strategic actors in a much more restricted game that is governed by free trade,
specializing in what can be done without the aid of protection, privatization, and
living within ones means.” O’Hearn, supra note 4, at 117.
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a new meta-narrative—there is no comprehensive “answer.” In-

stead, there may be a range of inquiries that might help shift the
entire approach to development and to the Third World.403 Our
intent is to begin a paradigm shift that relocates the locus of con-
trol and authority.
With this possibility in mind, consider a question. Is it possi-
ble the Third World would have been better off without the offi-
cial development assistance it has been accorded since the 1950s,
keeping in mind the successes and failures of development and
its impact on war, peace, government structures, sovereignty,
debt and a host of other issues? Professors Simon and Narman
pose a simpler form of this question404 and of course find it im-
possible to answer.405 Yet perhaps it is a question that nonethe-
less should be asked, as the liberal consensus constructs
globalization in a manner that threatens to consign permanently
the people of the Third World to do the work that people in the
West no longer want to do.406 The Western assumption is that
material wealth means personal contentment, and the middle
classes and elites of the South seem to have adopted this view.407
But perhaps this is not entirely the case for everyone. The desir-
ability of material wealth may vary for different peoples depend-
ing on their particular values and mores, just as such needs and
desires vary within the Western world. Development is assumed
to improve the lives of its targets, but who defines “improve-
ment,” and who determines priorities and the desirability of in-
terventions in pursuit of change. The answers to these
multifaceted questions are even more complex after fifty years of

403
Escobar posits that there is little point in speculating in the abstract about the
character of a post-development era, for if we accept that critical thought must be
situated, then a discussion of these issues should be practice-oriented, engaging
with the political claims and actions of oppositional movements. See Escobar,
Imagining a Post Development Era, supra note 388, at 211, 216.
404
Simply put, “would the Third World have been better off without development
assistance?” See, e.g., Narman & Simon, supra note 362, at 7.
405
Id.
406
Of course, it is international capital that has decided that Western workers no
longer will do certain types of work. Chantel Thomas, Globalization and the Pro-
duction of Hierarchy, 33 U.C. DAVIS L. REV. 1451 (2000) (discussing when corpo-
rations relocate to the Third World in search of cheap labor, less governmental
regulation and the like).
407
See, e.g., Narman & Simon, supra note 362, at 1–2.
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development, during which a plethora of policies have rained

down upon a broad range of societies, cultures and peoples.
Consider a second question. Was everything in the previous
“non-developed world” really so terrible? Surely the pre-colo-
nial world was not an idyllic paradise. And is true that people
did not have many of the goods that are now deemed necessities
in the West.408 But perhaps people were productive enough to
produce what they needed, a capacity that is sorely lacking today
as many countries are barely able to feed their people.409 Cer-
tainly, the pre-development world was affected to varying de-
grees by colonialism, which had uneven and often destabilizing
consequences for the colonized.410 Nonetheless it is important to
ask how people viewed themselves and their communities before
the advent of development.411 Is it possible that a sense of inclu-
siveness, cohesiveness, belief in local capabilities, and a percep-
tion of self-worth could characterize communities—even when
those communities were what many today would characterize as
poor?412 This is not to champion or romanticize mythical “time-
less traditions.”413 Rather, it is to acknowledge that before devel-
opment people were not helpless, incompetent, inferior creatures
in need of salvation from the West, but instead were quite capa-
ble and diverse human beings organized into myriad, complex
communities. A post development paradigm must consider how

408
See Illich, supra note 42, at 88 (discussing the evolution of needs in development
discourse, as it evolved from food, clothing, materials for housing and mechanical
power into a measurable standard such as Gross National Product and then into
notions of absolute poverty and minimum levels of human decency).
409
Rahnema, Towards Post-Development, supra note 11, at 377, 379. The pre-devel-
opment world was also the colonized world and colonialism was a destructive
force that disrupted communities, changed cultures and had complex effects
across very complex cultures. Thus developers did not confront pristine societies
untouched by the West. See Ruth Gordon, Growing Constitutions, 1 U. PA. J.
CONST. L. 528 (1999).
410
Gordon, Saving Failed States, supra note 12, at 930–35.
411
See supra notes 35–54 and accompanying text on poverty.
412
Illich, supra note 42, at 88, 96 (Noting in “traditional poverty, people could rely
on finding a cultural hemlock,” but development is a process which “lifts people
out of their traditional cultural commons,” dissolving such cultural bonds. Many
are sinking deeper and deeper into an abyss of worsening poverty from which
they will never be able to rise and meet their new needs.).
413
For a discussion of the modern-traditional dichotomy, see ESCOBAR, supra note
19, at 75–80; Escobar, Planning, supra note 157, at 135–36.
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local communities might begin to regain the agency to identify

and name ones own dreams, viewpoints and ways of being.
This transformation must also interrogate how and why non-
Western cultures and systems of thought are treated as somehow
inferior, if not unacceptable.414 This query is really directed more
to Western communities and their views of the non-Western
“Other.” To return agency to the peoples of the Third World
would mean abdicating the power to name and define the prob-
lem, as well as the scope and content of the dialogue, and the
substance and scale of any solutions.415 It is undeniable that
many in the development industry are very intelligent people
with good hearts and only the best of intentions. They truly care
about the work they are doing and the people they are trying to
assist. But it can be difficult to revise long held perspectives and
perceptions, especially when those perspectives are an integral
part of the cultural milieu in which one exists.416 Images of the
Third World as deficient and inferior are inherent in the words
“underdeveloped,” “undeveloped,” and “developing.” This, of
course, empowers the developer. Moreover, even as one tries to
escape the development prism, there is often a nagging suspicion
that without the West the peoples of the Third World really are
somewhat helpless and not quite up to the task regardless of how

414
Cultures change, but development viewed tradition and Third World cultures as
impediments to modernization and thus to be eradicated in favor of develop-
ment. Indeed development can be visualized as a process by which people are
lifted out of their cultural commons. In this transition, cultural bonds are dis-
solved, even though culture can continue to tinge development in superficial ways
– one need only observe rural people recently transplanted to the megacities of
the Third World. ESCOBAR, supra note 19, at 75–80; Escobar, Planning, supra
note 157, at 135–36.
415
McGee, Participating in Development, in DEVELOPMENT THEORY at 93, 95–96.
(Noting early orthodoxy when the “development agency conceived, designed,
funded, managed, implemented and evaluated the project from somewhere
outside its boundaries”; and there were the project beneficiaries –undifferenti-
ated, passive recipients of goods and services provided through project channels.
People – whether in the agency or in the beneficiary population – were scarcely
acknowledged to be there.” Beginning the 1980s higher levels of “participation”
came into vogue, but even these interventions were problematic.).
416
See Doug J. Porter, Scenes from Childhood the Homesickness of Development
Discourses, in POWER OF DEVELOPMENT, supra note 17, at 63 (noting that dis-
course analysis at minimum might make development workers aware of their
practices).
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it is defined.417 When coupled with the racism that generally

presumes the Other as not quite competent, it becomes even
more difficult to move beyond these beliefs.418 Yet the crucial
question is control over destinies, the importing and imposition
of values, and who is given the power to define?419 Besides its
economic and technological might, the West has the power to de-
fine.420 This power must be returned to the peoples of the Third
World, who must determine the narratives that are to govern
their lives.
This necessarily raises questions as to who exactly are “the
people,” and how to go about determining what “they” want. It
may be that “the people” are incapable of being concretely de-
fined, and that any attempt to do so risks essentializing broad
and diverse communities. No attempt is made here to do so.
Moreover, no assumptions are made about the extent or the
manner in which peoples may want to engage or disengage from
the West or the development project, nor as to how people de-
fine their basic needs or how those needs should be met. Indeed,
it is fully expected that many will completely embrace the West
and what it has to offer; that others may be more selective, find-
ing value in some facets and unsuitability in others; while still
others will reject the West across-the-board. Rather than making
such determinations, the work to be done in the West is to try to
figure out ways to somehow create a space to let people deter-
mine these things for themselves.

417
This analysis does not take account of situations involving war or similar conflicts.
The responsibilities of the international community in any such situation necessa-
rily differ from that in times of peace, regardless of where a particular nation
stands on the modernization scale.
418
Racial difference on the international stage cannot be equated with notions of
race in the United States. But it is equally clear that a racial discourse partly
inspired colonial discourse and is not irrelevant in foreign policy. It certainly
colors perceptions of the developing world, which is inevitably seen as the
colored world. Gordon, Critical Race Theory, supra note 331. It is also acknowl-
edged that development practitioners come from all over the world and thus may
be people of color. This does not mean race is irrelevant, but that it may be that
its effect is more complex and difficult to sort out.
419
Tucker, supra note 64, at 3.
420
Sardar, supra note 55, at 44. The West defines freedom, progress, law, tradition,
community science, what is real and what it means to be human. Non-Western
societies must accept these definitions or cease to exist. Id.
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What separates this undertaking from alternative develop-

ment approaches such as participation,421 is a different attitude
and perspective in the West. The struggle to make this change
begins with Western interrogation of the assumption of power
over others, and the usurpation of agency and voice. Those in
the West who are concerned about poor peoples in the Third
World must begin to question the power presumed to reside in
self and in the West. At all points along the political spectrum,
whatever the critique, the power to change or improve the lives
of Third World peoples is assumed to reside in the West. This
may not be true in the final analysis. But whether it is or not,
giving up this power may bring about a humility that permits a
true exchange and a dialogue that does not frame the questions,
control the dialogue and assume the answers, for it entertains the
possibility that those answers may lie elsewhere.
Consider a third and final question? What if development
had succeeded? What if the governments, institutions and peo-
ple charged with realizing the development project had suc-
ceeded in fulfilling its many promises, and there had actually
been sufficient funds and resources to make development a real-
ity and all so-called underdeveloped countries were now on eco-
nomic par with the industrialized countries? It is doubtful the
planet could support a world in which everyone consumed as
many resources and generated as much waste as the industrial-
ized world.422 Perhaps this indicates that development as cur-
rently defined is not universally attainable,423 and replicating
western consumption patterns may not be a desirable goal due to
its global impact. This is not to say that the people of the Third
World should not have access to the material goods widely en-
joyed in the West. The people who will be affected must deter-
mine the desirability of those goods, and of adopting the lifestyle

421
Participation attempts to incorporate the voice of development’s target in the
process of development. For a discussion of the evolution of “participation,” see
McGee, supra note 114, at 93. See also Rahnema, Participation, supra note 155,
at 116; Minogue & Kothari, Conclusion, supra note 391, at 185–86.
422
Rahnema, Towards Post-Development, supra note 11, at 377, 379. See also Rich-
ard Douthwaite, Is it Possible to Build a Sustainable World, in CRITICAL DEVEL-
OPMENT THEORY, supra note 4, at 158–60 (detailing why the current global
economic system is unsustainable).
423
See, e.g., Eduardo Galeano, To Be Like Them, in THE POST-DEVELOPMENT
READER, supra note 11, at 214.
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96 Wisconsin International Law Journal

associated with a consumer culture.424 It is only to say that per-

haps modernization as it is currently configured is ultimately un-
sustainable and the entire international community should begin
to re-think development in all of its manifestations.425
There is evidence to suggest that this transformation may al-
ready be taking place on both the local and global levels. The
rising voices confronting globalization raise one set of chal-
lenges.426 At the local level, the development paradigm is being
contested and transformed by “social movements that are char-
acterized by social actors, as opposed to structures; the promo-
tion of democratic, egalitarian and participatory styles of politics;
and a search, not for grand structural transformations but rather,
for the construction of identities and greater autonomy through
modifications in everyday practices and beliefs.”427 While cer-
tainly not a grand break with the past,428 these developments

424
Often when these questions are raised, the immediate response is that everyone
wants what the West offers and the person raising the question is queried about
whether he or she would give up their Western life-style. Third World scholars
are similarly interrogated, and if they reside in the West, are presented as proof
that all peoples desire life in the West. For those born and raised in Western
countries, this is truly an unfair question, for few are willing to change their entire
way of life, especially when that life has always been posited as superior and the
alternative posited as inferior. The Western brain drain is certainly a reality, as
Western educated elites seek jobs in the North. And while it is true that many
elites have embraced development wholeheartedly, not all Third World elites
have migrated to the West. Moreover, it may be difficult to straddle the morass
left in the wake of development, which has left many with few viable economic
options besides re-settling in the West. Leaving may be the only reasonable
course, and thus many leave even as they make their life work helping those left
behind. Finally it is not argued that the West is inferior and undesirable and no
one would choose it. Indeed many have and many undoubtedly will. What is
posed is how to give people the choice to direct the change, or lack thereof, that
will govern their lives.
425
This would include, if not prioritize, the waste and environmental degradation
wrought by the industrialized world.
426
While the demonstrations and other actions against globalizations are more or
less ridiculed in the United States by the American media, this resistance has
continued and is perhaps expanding.
427
Escobar, Imagining a Post Development Era, supra note 388, at 211, 217.
428
Escobar notes that these new social movements are often compared with the old,
meaning “modernization or dependency; politics centered around traditional ac-
tors like parties, vanguards, and the working class who struggle for the control of
the state, and towards a view of society as composed of more or less immutable
structures class relations that only great changes (i.e. massive development
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clearly signal a new direction.429 It may be these local and partic-

ular movements that point us towards a post-development world
that is not tied to grand schemes and designs, but is rooted in the
diverse and the specific. In the face of globalization, which is
presented as inevitable, focusing on the local may seem paro-
chial. But almost all global actors, including multinational corpo-
rations, whose reach and power seems to be almost infinite, in
fact operate locally. Products and services must be made and
sold within localities and it may be on the local level that such
entities, and the notion of the global and universal, can be most
effectively questioned and, if necessary, challenged.430
Does this mean that there is no role for those in the West
who wish to assist and act in solidarity with those in the Third
World who seem to be on the economic and political periphery?
On the contrary, there may be a number of ways to engage, al-
though the nature of that engagement may have to evolve. Doc-
umenting and sharing the local encounters noted above can be of
immense assistance for such information can not only be encour-
aging and inspiring, but may help other communities in devising
strategies and tactics.431 Scholars, attorneys, economists and

schemes or revolutionary upheavals) can alter in a significant way.” Id. He sug-

gests that there may be significant continuities between the two regimes, includ-
ing ways in which “for instance, old styles of politics are pervasive among the new
movements – are overlooked.” Equally important the past is endowed with fea-
tures that are not completely accurate (for instance the claim that all styles of
politics in the past were clientilistic and non-participatory). Id.
429
Most of these social movements have been in Latin America. Id.
430
This insight is found in Gustavo Esteva and Madhu Suri Prakash, From Global
Thinking to Local Thinking, in (THE POST-DEVELOPMENT READER (Majid
Rahnema and Victoria Bawtree eds., 1997) at 277. This quite brilliant essay be-
gins with the bumper sticker that urges its reader to “think globally, act locally,”
noting that it reflects the desire to act in solidarity with those on the periphery of
globalization. But they propose that perhaps the best course is to think locally
and act locally, given that even MNCs must sell and make their products locally.
Indeed, to this extent, all global projects, including the development project, is
local. It may be impossible to challenge such entities globally because most local-
ities are unable to act effectively at the global level, which can be seen in some of
the difficulties faced by the anti-globalization movements. But there may be
more possibilities to mount such challenges on the local level.
431
See Esteva, From Global Thinking to Local Thinking, in THE POST-DEVELOP-
MENT READER, supra note 11, at 286–88 (suggesting this role). By supporting
local communities as they attempt to take on global capital and international in-
stitutions, there is a space for intervention by Western communities that want to
assist.
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others might also engage Western institutions on expunging the

obscene debt that is draining many of the very poorest coun-
tries.432 The debt did not exist in 1950 and has many roots, but
surely it is tied to the modernization project. This article does
not address wars and other instances of extreme dislocation that
may require certain types of interventions be it from the West or
other Third World nations. Although the legality of such inter-
ventions is the subject of endless debate,433 this may be another
area in which concerned communities in the West can assert posi-
tive influence.
There is certainly work to be done in shaping assistance
when assistance is desired, although it may be difficult to let go
of deep-rooted assumptions and long-held power. Without
doubt, critically questioning the very concept of development is
the first step in fundamentally changing the manner in which one
thinks about development and its objects, and is the place to be-
gin probing accepted wisdom about “the Other.” There is little
to suggest that the people whose lives have been dramatically
changed by development necessarily refuse to accept change.
What may be desired is change that helps people enhance inborn
and cultural capacities, and change that allows individuals to
blossom and leaves them free to change the rules and content of
change, according to their own ethics and aspirations.434 The ob-
jective it is to pose different questions, to hear the responses of
others, and to not assume that the answers reside in the West. It
is to slowly, but steadily and surely, accomplish a paradigm shift.

432
See supra notes 6, 164–68 and accompanying text. For an excellent anysis of the
debt problem in Africa, see Chris N. Okeke, The Debt Burden:An African Per-
spective, 35 INT’L LAW 1489 (2001); Susan George, How the Poor Develop the
Rich, in THE POST-DEVELOPMENT READER, supra note 11, at 207 (detailing how
the debt drains funds from the Third World and enriches the industrialized
world).
433
See, e.g., Ruth Gordon, Humanitarian Intervention by the United Nations: Iraq,
Somalia, and Haiti, 31 TEX. INT’L L.J. 43 (1996).
434
Rahnema, Towards Post-Development, supra note 11, at 384. Industrialization
might be rejected by some, welcomed by others or it might be restructured to
meet local needs; other alternatives would be on the table. Health care and other
basic social services might be embraced, or perhaps reshaped and then supported.