Legal Aspects of the Security-Development Nexus: International Administrative Law as a Check on the Use of Development Assistance in the "War on Terror"

Article excerpt

Abstract

When delivering international development assistance, states should not be able to place the goal of protecting their citizens from transnational terrorism above that of alleviating poverty in developing countries. And yet this is precisely what they do on a regular basis when they use their policy on international development assistance to achieve security goals, as Canada, the US, and the UK have done in Iraq and Afghanistan. This is bad development policy, it does not increase the safety of those in developed states, and it is objectionable on political and moral grounds.

This Article argues that international administrative law can be used to challenge the legitimacy of using development policy to achieve security aims. While many modern advocates of the international administrative law paradigm restrict its application to the promotion of procedural norms, thus making it difficult to review the discretionary derisions of government policymakers, nineteenth-century advocates of international administrative law-for example, Lorenz von Stein and Karl Neumeyer-were bolder. I develop their arguments in this Article, demonstrating that in a globalized world, the impact of governments' derisions on the welfare of those in other states requires us to recognize a cosmopolitan legal order. This legal order recognizes that each individual on the globe has a right to self-actualization, which is a right to have a say in decisions that affect her. The norm of equality inherent in a cosmopolitan conception of international law can have a direct effect on domestic law, limiting the ability of policymakers to make government policies that disregard the negative effects on the poor in developing countries. The domestic courts in donor and recipient countries can be used to ensure that harmful government policies are more consistent with the equality of all and the protection of basic human rights.

Table of Contents

I. Introduction ........................................................73

A. Development Assistance - Waging War by Other Means? .................73

B. International Administrative Law as a Check on the Legitimacy of Domestic Policies with Transnational Effects ...........................74

C. The Scope of the Problem - Conflating Development and Security Policy .................................................................................78

D. Why Is the Conflation of Security and Development Policy a Bad Idea? 85

1. Pragmatic concerns: An ineffective policy .....................................85

a) Alignment of development and security undermines the achievement of development goals................................................. 85

b) The alignment of security and development policies does not increase the security of donor countries .........................................88

c) The alignment of security and development policy indirectly affects remittances, migration, and charitable donations to alleviate poverty in countries with large Muslim populations ......................91

2. Political concerns ............................................................94

3. Philosophical concerns .........................................................97

4. Summarizing the negative effects of integrating development and security ............................................................................99

E. Alternatives to Aligning Security and Development Policy: Citizen- and Human-Centered Approaches to Development and Security ......................100

II. Global Administrative Law: The Solution? ......................................102

A. The Search for a Normative Basis for International Administrative Law Review ................................................................................102

B. The Phenomenon of International Law as a Source of Cosmopolitan Norms . …