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Law

Continuity through a new legislative basis

by Markus Kaltenborn, Reinhard Hermle

In depth

Brazilian-German cooperation: a Brazilian wind power plant funded by the KfW Development Bank.

Brazilian-German cooperation: a Brazilian wind power plant funded by the KfW Development Bank.

Gerd Müller, Germany’s federal minister for economic cooperation and development, has announced that he will introduce an investment law to promote economic development in Africa. It would also make sense to follow the example of many other countries and pass a law that applies to development policy in general. Such a law could ensure continuity in politically uncertain times.

An investment law is, without a doubt, a good idea. Providing a legal basis to German companies that operate in Africa could significantly contribute to strengthening business ties between German and African partners. However, legal regulations applying to other development-policy issues would be useful too.

Most donor countries have such legal regulations in place. Parliaments have created a legal foundation for their governments’ cooperation with the global south. Legislation thus regulates essential matters. For instance, the Belgian law on development cooperation gears Belgian policymaking towards UN development goals, including the target of spending 0.7 % of gross national income on official development assistance (ODA). Britain’s International Development (Official Development Assistance Target) Act similarly makes reference to the 0.7 % target, and French legislation includes a corresponding provision in the annex to the Guidance and Programming Law on Development and International Solidarity. Austria and Switzerland, moreover, have laws that endorse central components of the international aid-effectiveness agenda, including the principles of developing countries’ policy ownership and donor alignment to their institutions and procedures.


Ensuring policy coherence

In view of the need to take a cross-sectoral approach for achieving the Sustainable Development Goals (SDGs), several countries have adopted regulations to ensure coherence between policymaking in regard to development and other relevant fields. Furthermore, guidelines have been issued for humanitarian aid, multilateral cooperation and cooperation with non-governmental organisations. From an institutional perspective, it is interesting that several donor countries (like Denmark, Italy, Switzerland and France) have provided the ministry in charge of development matters with an advisory body that includes a variety of stakeholders. Last but not least, almost all of the respective laws of our European neighbours specifically mention focus areas for government’s international development efforts. Typically, these areas include poverty reduction, economic development, sustainability, peacekeeping as well as the promotion of democracy and the rule of law.

Germany has, of course, addressed many of these issues in regulations that guide its development policy. For instance, the Federal Ministry for Economic Cooperation and Development (BMZ) has published “Guidelines for bilateral financial and technical cooperation with developing countries”. These administrative rules provide orientation to agencies, and so do various strategy papers on diverse topics. However, these regulations are of intra-administrative relevance. These guidelines and declarations are not binding in the strict legal sense. The basic principles of German development policy would carry much more weight if they were enshrined in a “development policy act”. Such a law would boost their legitimacy. By the way, this proposal is nothing new. Unfortunately, a related legislative initiative did not bear fruit in the 1990s.


Why do we need a “development policy act”?

It makes sense to ponder whether such an act is really needed. So far, German development efforts have gotten along quite well without it. To judge by the trends of recent decades, Germany is not one of the donor countries that need legal constraints to enforce their global commitments. Germany’s ODA has substantially grown in recent years, and its quality has improved – though there certainly is still scope for improvement (major challenges are regularly spelled out in the reports from terre des hommes and Welthungerhilfe, two civil-society organisations, on the “reality of German development policy”).

Moreover, it certainly is not the case that German development administration would operate in a legal vacuum. Indeed, agencies must adhere to specific guidelines and priorities as laid out in the annual national budget, which is passed into law by the Bundestag, the federal parliament. Moreover, the above-mentioned intra-administration rules apply. Legally binding international agreements, including those on human rights, also set important standards for development. Their extraterritorial dimension is relevant, and so are all the soft-law commitments Germany made in international settings, ranging from the final declarations of global high-level forums on aid effectiveness in Paris (2005), Accra (2008), Busan (2011) and Nairobi (2016) to the obligations arising from the UN Financing for Development conferences or the SDGs.

Nevertheless, there are good reasons to follow the example of other donor countries. Various programmes funded by the BMZ relate to basic constitutional rights. For instance, measures that are designed to benefit specific population groups must not counteract the constitutional principle of equality. It thus makes sense to ask why the programmes themselves should not be based on a specific law.

Even if one sets aside such legal considerations, there are two more arguments in favour of a development policy law. One is that Germany expects its partner countries to involve their parliaments in development cooperation. According to BMZ rules, projects must meet the standards of Germany’s human rights-based approach. The implication is that these programmes themselves should generally be founded in law.

The second argument is primarily of a domestic nature, but it is no less important. Given the increasing clout of parties on the far right, it is conceivable that, one day, a new government may want to pursue a radically different foreign policy and drastically cut spending on international development. As a development-policy law might be changed accordingly, it would obviously not present a permanent obstacle. Nonetheless, it would make it harder to change course since the new government would have to overcome a legislative hurdle. The parties at the “centre” of the democratic spectrum should take note: in politically volatile times, a law can contribute to ensuring the continuity of development policy.


Markus Kaltenborn is a professor of public law and director of the Institute of Development Research and Development Politics (IEE) at Ruhr University Bochum.
[email protected]

Reinhard Hermle is the deputy chairman of Oxfam Germany’s board and a former head of the Association of German Development and Humanitarian Aid NGOs (VENRO).
[email protected]


Link
Guidelines for bilateral financial and technical cooperation with developing countries:
http://www.bmz.de/de/mediathek/publikationen/archiv/reihen/strategiepapiere/konzept165.pdf
 

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