Bridging the Gap: How Linking Poor Countries with Rich Academic Institutions May Benefit Development

by Marjorie Florestal

Introduction

“Technical Assistance is the name of the game.” That was the advice a friend and colleague offered to me in 1999, as I struggled with the decision to leave an exciting international trade practice with the U.S. government to manage a technical assistance project for North and West Africa. He was clearly right.

Funding for technical assistance, particularly in the ever-controversial area of international trade, continues to grow. As the trading regime moves to a “single undertaking” that holds poor member countries to the same legal obligations as the rich, technical assistance programs have proliferated. The World Trade Organization estimates that assistance programs on trade policy and capacity building alone numbered over 1,000 with a budget exceeding $1 billion U.S. dollars in 2003.

The goal of these programs is to assist developing countries in building the legal infrastructure and institutional capacity to support their development objectives. But experience has shown just how difficult and elusive that goal is to achieve. The technical assistance “game” has not always brought significant, relevant or lasting benefits to recipients. Stories of waste, graft and ineptitude abound in the technical assistance world. In his book Globalization and its Discontents, one of the most distinguished critics of technical assistance programs, Nobel Prize laureate Joseph Stiglitz, decries the heavy-handed, one-size-fits-all approach of the International Monetary Fund. Similarly, Amy Chua’s World on Fire highlights the dangers of technical assistance projects that export U.S.-style free markets and democracy to developing countries without the legal and regulatory mechanism to protect against a “market-dominant minority” hijacking the bulk of economic activity.

The technical assistance programs described by Stiglitz, Chua and others clearly fall within the bounds of “what not to do”. But technical assistance itself is not a dirty word. There are other models of assistance that work in partnership with developing countries to achieve goals and objectives identified by the recipients rather than imposed by the donors. Recent assistance projects often incorporate a significant educational component requiring assistance providers to train local professionals. These professionals subsequently become the brain-trust for developing countries that are then empowered to adapt the knowledge gained from the technical assistance program to their own local context.

The legal academic community is well placed to participate in these technical assistance activities. This short paper explores the possibilities for U.S. law schools to collaborate with donors and law schools in developing countries to promote capacity building and educational partnerships.

From Law and Development to Rule of Law: Technical Assistance Projects Come of Age

Technical assistance projects have existed even before the widespread decolonization efforts of the 1950s and 60s. But the first generation of assistance projects focused exclusively on economics. While development experts recognized the importance of establishing sound legal institutions, they believed these “supporting structures” would arise once the conditions for economic prosperity had been set. The 1960s saw a shift in perception, and proponents of the Law and Development (L&D) movement were the first to recognize the importance of an effective legal infrastructure in promoting development. Rather than relying on economic growth to lead the way, L&D recognized that law was a necessary precursor to development.

The need to build a legal infrastructure for development was the high-water mark of achievement for the L&D movement. Unfortunately, that knowledge was then translated into some of the most ethnocentric and maladapted programs imaginable. Proponents of L&D assumed that developing countries either did not have their own laws or those laws were not sufficiently advanced to suit a modern context. “Law” could only be found in Europe or the United States. If developing countries were to succeed, they would simply need to transplant and graft those laws onto their own systems. The graft did not take. The result of most L&D projects was a set of beautifully written laws that had no connection to the local context and were ill-suited to address local problems.

The L&D movement fell out of favor only to be replaced with “Rule of Law” programs. While some argue the high-handed and disconnected tendencies of L&D programs continue to plague rule of law projects, that approach was rejected in at least one recent project I worked on. In 2003, I was the senior legal advisor on a technical assistance project helping Cape Verde join the World Trade Organization. With a population of nearly 450,000, a per capita income of less than $1,500 USD, and only 29 years of independence under its belt, Cape Verde faces a host of development challenges. Nevertheless, the country made the decision to join the World Trade Organization, and the U.S. Agency for International Development funded a program of assistance.

Despite the challenges, Cape Verdean officials were determined to play an active role in the WTO accession process. One of the most important aspects of the project was the requirement that we hire at least one local lawyer to be trained in WTO law. Ultimately, that lawyer would serve as the government’s legal advisor and Cape Verde’s brain-trust in WTO matters. After a difficult search, the project hired a suitable candidate. An unfortunate, if unintended, consequence was that we “poached” a prime candidate away from a government ministry. The brain drain facing many developing countries means there are only a handful of candidates to fulfill critical roles. Few resist the lure of working for higher-paying, higher-status foreign employers.

The new generation of technical assistance programs have the right idea: Train local personnel to ensure that projects become self-sustaining once the experts have left. But in achieving that goal, technical assistance projects must avoid further exacerbating the brain drain. These projects must find a way to increase the pool of qualified candidates. U.S. law schools are ideally suited to participate in that aspect of assistance projects.

Using Technical Assistant to Promote Educational Partnerships

Law schools have long discovered the benefits of international exchange programs. Whether it is faculty or student exchanges, summer abroad programs or U.S.-based LLMs that attract large numbers of foreign students, international exchanges add a breadth of experience that cannot be replicated. While few question the benefits, the attendant costs often raise significant barriers, particularly for participants from the developing world. One way of addressing the funding issue is for law schools to participate in some of the technical assistance projects organized by the funding agencies such as the World Bank, U.S. Agency for International Development, and the World Trade Organization.

Not every technical assistance project will be suitable for fostering a true partnership between legal academic institutions in the U.S. and abroad. Having individual faculty members serve as advisors on projects, for example, would reap useful benefits for everyone involved, but the academic institutions they represent would play only an ancillary role. What is needed are projects designed to foster sustained exchanges between institutions and participants. There are a number of models offering differing levels of integration that should be explored.

One approach would be for legal academic institutions to participate in technical assistance projects on an ad hoc basis as they arise and fit the particular expertise of the institution. The University of the Pacific, McGeorge Law School has had some success with this model. The U.S. State Department recently funded Pacific/McGeorge to train Chilean prosecutors and public defenders as that country moves toward an American-style trial court system. Specialized training delivered by McGeorge faculty took place on McGeorge’s campus in Sacramento. The success of that program has led to discussions on expanding these activities. The McGeorge model is a good first step, and as the program is institutionalized there will be greater opportunities for participants to interact more fully in the academic life of the law school. Harvard’s Kennedy School also provides training services in a program older than McGeorge’s. The Kennedy School routinely hosts weeks-long training programs in international trade, among other things, for government and private sector officials, many of them foreign participants. A number of foreign students have been funded through technical assistance agencies or bilateral donors.

The World Trade Organization has adopted a more institution-focused approach. In Africa, the WTO works in partnership with local universities to deliver training programs throughout the Continent. Faculty members from the region co-teach some of the courses with WTO personnel. And the WTO is committed to working with local universities to build their capacity in trade law; the universities are expected to play a lead role in course delivery in the future. In many ways the WTO model offers the perfect opportunity for U.S. law schools. U.S. academic institutions can provide for faculty and student exchanges as well as long-term advanced legal training, thus increasing the pool of local experts and broadening the depth of institutional expertise. The WTO may be the preeminent trade organization, but U.S. law schools and universities have the comparative advantage at institution-building.

There are a number of challenges legal academic institutions likely will face in attempting to foster technical-assistance funded educational partnerships. For one, competing for technical assistance projects is a specialized, resource-intensive endeavor. But just as law schools have become proficient grant writers, they can easily hire or acquire the skills necessary. Perhaps a bigger concern is in ensuring that technical assistance projects form a part of the law schools core mission, rather than a side-project. Addressing that challenge will depend on how effectively the programs are conceived and implemented. It can be done. If successfully implemented, technical-assistance funded academic partnerships could prove beneficial for all.