Agora 9: Development and International Law

Chaired by Dr Chaloka Beyani

With the post-1989 shift of discourse from national security to human security, the right to development, declared an inalienable human right by the General Assembly in 1986, could have gained traction. Instead it has practically been forgotten. What, if anything, has replaced it? How has international law approached issues of development over the past two decades? What recourse, if any, does international law offer to the poorest of the poor?

Toward the new development consensus: how to restructure the current international order

DR MATJAZ NAHTIGAL, Associate Professor of International Law, University of Ljubljana

Abstract: The possibility of restructuring international institutions to serve the needs of the world in the twenty-first century should be extensively debated.


The original Bretton-Woods agreement was a response to the economic depression of the thirties and an expression of the new international relations, emerging from the second world war period. The nature and character of the modern knowledge-based economy is different from the post-war character of the mass fordist production. It requires different rules and approaches, both at the national and international level.


Thesis: The present legal and economic framework has led to a narrowing of the policy space for the countries and their governments. As witnessed during the current financial crisis, this restrictive legal and economic international framework in certain ways presented an impediment, both for the developed and for the developing countries.


Proposals for discussion:

In strict legal terms, the special and differential treatment (S&DT), should be redesigned in such a way as to assist economic development in substantially broader terms than interpreted after the Uruguay round.


If properly designed, the inclusion of the labor and environment standards can benefit the citizens of the trading partners, both in the developing countries and in the developed countries. The current international trade rules should be reformed so that they reward instead of punishing countries that improve labor standards

Biography: Matjaz Nahtigal was born in 1968 in Slovenia. He graduated in 1992 at the Faculty of Law, Ljubljana, Slovenia. In 2001 he completed a doctoral program at Harvard Law School, USA. Currently he teaches courses on European integration at the Faculty of Social Sciences in Ljubljana, Slovenia and courses on law and development at the University of Primorska, Koper. His area of expertise includes international law and development, EU integration and development, WTO and international trade arrangement. He was a representative at the Convention on the future of the EU and published a monograph From Transition to the European integration.

Nahtigal - Draft ESIL Paper

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The proper role of the international lawyer in the post-development era

DR SUNDHYA PAHUJA, Associate Professor; Director, Law & Development Research Programme, University of Melbourne

Abstract: Sixty or so years since its modern invention, development as an idea(l) is still reiterated as a space of hope. This is despite the mountain of evidence of the dislocation and emmiseration brought in its name. The resilience of development is testament to its ‘religious’ quality; it is posited as both process and horizon; it exits in the realm of faith, but its markers claim to be scientific. Such a position leaves it immune from attack. Developmental failures are thus attributed to the insufficiency of the transformation of the ‘developing’ society rather than casting any doubt on the prescription.

Because it is posited as both process and horizon, development seems to be the only way to address global material inequalities. Too often in international law, it stands in as a proxy for ‘justice’, precluding the more open approach to justice which international law permits.


This paper will challenge the assumption that development is the appropriate way to speak of global inequalities. It will take stock of the international law of development since 1989, and argue that we need to find new imaginative possibilities for sharing the earth. These possibilities could be based in a concept of ‘the commons’. Such an approach, drawn from juristic rather than economic traditions, could assist in the elaboration of a space that is neither utopian, nor utilitarian through a focus on the proper role of the international lawyer. This role, based in an ethics of the Global Commons, would be attentive to situations where what is in common is in some sense in need of the creation of "lawfulness" in common.

Biography: Sundhya Pahuja is Associate Professor, Law School and Director of the Law and Development Research Programme at the Institute for International Law and the Humanities at the University of Melbourne and Visiting Research Fellow, Birkbeck, University of London. She has published widely in international law, international legal theory and development and has two books forthcoming this year; Decolonising International Law (CUP) and International Development (part of the Routledge critical approaches to law series, with Ruth Buchanan). Sundhya is a member of the co-ordinating committee of the ESIL Interest Group on International Legal Theory.

Pahuja - Draft ESIL Paper

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Development in international law: conflict of rhetoric and norms

MR MATTHIAS SANT'ANA, Research Fellow, Université Catholique de Louvain

Abstract: The end of the cold war brought about a number of momentous discursive shifts. At the rhetorical level at least, four shifts came to characterize this ‘new world order’: (i) the promotion of a narrow conception of ‘efficient’ political, economic and social arrangements; (ii) the recognition of environmental limits to growth and the formalization of the notion of sustainable development; (iii) the emergence of the concept of human development; and, (iv) the affirmation of the indivisibility of human rights, with the rebirth of economic, social and cultural rights. However, attempts to coordinate or conciliate these different rhetorical shifts were scant. Meanwhile, the legal underpinnings of the ‘new world order’ were put in place by a mix of instruments and policies: the accelerated ‘transition’ of former socialist states; structural-adjustment lending to the periphery of the world economy; the conversion of the GATT into a full-blown multilateral organization; and, the proliferation of a thick network of bilateral investment treaties. Globalization came about through the interaction of these disparate threads, all of which claimed to promote development. The explosion of autonomous, development-relevant legal regimes has led to the operation of potentially contradictory enforcement mechanisms, resulting in legal uncertainty and unequal dispute settlement opportunities. It is argued that reconstructing the right to development would seem to require either the establishment of clear conflict rules to arbitrate between different international obligations (perhaps granting priority to some subset of obligations such as human rights) or substantive rules that afford enough space for policy conciliation between conflicting obligations.

Biography: Matthias Sant’Ana holds a law degree from the University of Brasília, Brazil, and masters degrees in International and European Law (DES, DEA), and in human rights law (DES) from Université Catholique de Louvain. He is currently preparing his doctoral dissertation entitled Human Rights and Economic Globalization: A Reinterpretation of International Responsibility at the Centre for the Philosophy of Law at Université Catholique de Louvain. He has also worked for the Inter-American Commission on Human Rights (Washington, DC) and the Marangopoulos Foundation for Human Rights (Athens, Greece).

Sant'Ana - Draft ESIL Paper

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