GW Law Faculty Publications & Other Works Faculty Scholarship

2016

Theories of Civil Society and Global Administrative Law: The Case

of the World Bank and International Development
Francesca Bignami
George Washington University Law School, [email protected]

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Recommended Citation
Bignami, Francesca, Theories of Civil Society and Global Administrative Law: The Case of the World Bank
and International Development (2016). Elgar Research Handbook on Global Administrative Law, Sabino
Cassese ed., forthcoming 2016, Cheltenham, UK: Edward Elgar.; GWU Law School Public Law Research
Paper No. 2015-51; GWU Legal Studies Research Paper No. 2015-51. Available at SSRN: http://ssrn.com/
abstract=2705582

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15. Theories of civil society and Global Administrative

Law: the case of the World Bank and international
development
Francesca Bignami*

1 INTRODUCTION
For over two decades, the concept of civil society has informed institutional design in
the international realm. Empowering civil society has served as a key rhetorical and
policy response to the criticism that the social and economic processes of globalization
and the international organizations that have emerged to govern the global realm are
illegitimate, elite driven, and anti-democratic.1 It is only a slight exaggeration to say
that the majority of the Global Administrative Law (GAL) that exists today can be
understood as the historical product of institutional reform designed to empower civil
society. Civil society, however, is a notoriously ambiguous concept. In most contempor-
ary legal and political theory it is believed to be an important component of a fair and
stable political community and therefore essential to the good life. It is also generally,
although certainly not universally, used to refer to a sphere that is relatively free of the
state and the market, populated by voluntary associations through which individuals
join together to pursue their common interests and express their common identities.
Beyond that, however, there is little consensus. How civil society contributes to
democracy and what particular forms of civil society – sometimes in league with other
societal actors – are important for democracy and good governance vary considerably
among the different theories of how to organize the collective life of a political
community.
This chapter canvasses the most prominent contemporary theories of civil society,
with the ambition of clarifying and assessing the legal and political reforms that have
been undertaken in favour of civil society in the international sphere in recent decades.
Although the scholarship on the subject is profuse, it is possible to discern five separate
lines of argument and justification: liberal, social capital, multicultural, cosmopolitan,
and effective governance. For each normative account of civil society, the chapter
identifies how civil society is believed to contribute to democracy and what types of
voluntary associations and, in some cases, other non-state actors, are cast as important
to achieving democracy and the right and good organization of politics.

* I thank James Beatty and Jeffrey Klossner for their excellent research assistance.
1
See Laura Pedraza-Fariña, ‘Conceptions of Civil Society in International Lawmaking and
Implementation: A Theoretical Framework’ (2013) 34 Michigan Journal of International Law
605.

325

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The chapter then proceeds to consider the experience with civil society reforms in
the domain of international development law. It carefully examines the reforms that
have been enacted by the World Bank (WB), which has been recognized as a leader
among international development organizations, and considers to what extent the WB
experience is representative of the field in more general terms. The civil society
theories presented in the first part of the chapter are used to analyse the WB’s emerging
body of law and to clarify how the WB’s legal reforms are – and are not – intended to
improve the legitimacy of this global administrative body and this field of global
governance. The theoretical-empirical exercise serves as an important tool for evaluat-
ing the development of the WB’s law, as well as that of other international organ-
izations involved in the international development sector.
Broadly speaking, the law governing how the WB interacts with civil society has
become more inclusive over time, motivated by an expanding set of legitimacy claims
and incorporating a growing number of civil society (and other non-state) actors.
Initially, in line with the WB’s policy focus on international development, the actors
and rationales for WB administrative law were limited largely to the social capital and
multicultural theories of civil society. Thus, the administrative law of WB loans and
WB societal funding are focused largely on local and indigenous groups in borrower
countries. Other multilateral development banks, such as the Inter-American Develop-
ment Bank and the Asian Development Bank, have adopted very similar policies
related to project financing, which are also inspired by the social capital and
multicultural theories of civil society. More recently, the WB has adopted a number of
legal procedures related to transparency and consultation. These procedures are
informed by liberal and expertise theories which require the inclusion of all ‘stake-
holders’ in the policymaking process and therefore invite oversight by and participation
from all types of civil society organizations, as well as the private sector and various
public actors. While other multilateral development banks have also adopted policies on
transparency and consultation, they tend to be less comprehensive than those of the
WB. What is generally missing from the law, although certainly not the politics, of the
WB are versions of cosmopolitan theory that privilege transnational associations
because of their ability to represent and mobilize, and hence constitute, a nascent
global society.

2 THEORIES OF CIVIL SOCIETY

Before turning to the particularities of the different contemporary political theories of
civil society, it is important to highlight the important premise shared by all of them:
liberal democracy. Civil society, in all the theories, is assumed to operate in the larger
context of liberal democracy, and the importance attributed to civil society relies to a
large extent on how civil society contributes to the institutions and practices of liberal
democracy. Although there are obviously many different definitions of liberal democ-
racy, in both political theory and the politics of states, the term is generally used to
signify, at a minimum, both a private sphere outside of the state and collective decision
making to guide the state. The activities of the state, depending on the political theory,
can be extensive or minimalist, but when the state does intervene in the life of the

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Theories of civil society and GAL 327

political community it must be guided by procedures that generally entail public

deliberation, voting, and majority or super-majority decision rules. In collectivities of
any size, this generally involves elections for political representatives and a legislative
body.
The liberal democracy premise calls attention to one of the fundamental anomalies of
international politics and law from the perspective of the theory of democracy, of which
civil society theory is a subset, and that is the absence in the international realm of
majority decision making involving the individual members of global society. Indeed,
GAL is partly directed at chronicling and, to the extent possible, taming the lack of
direct democracy. For the purposes of this discussion, the point to keep in mind is that
legal and political reforms in the international realm designed to empower civil society
carry the benefits promised by the normative theories only if they are also accompanied
by the institutions and practices of democracy. These institutions and practices can exist
at different levels of governance – local, national, regional or international – and they
can be established or incipient – as is certainly the case in certain countries and
international legal regimes – but they are the indispensable companion to civil society.

2.1 Liberalism

Attention to civil society in liberal theories of politics has been spurred by the
experience of the ‘Third Wave’2 of democratization, especially in the countries of
Eastern Europe and the former Soviet Union, and the important contribution to
defeating authoritarianism made by churches, trade unions, social movements and other
forms of civil society.3 Liberal theories focus on the liberty-enhancing properties of
civil society.4 The basic premise that citizens should be able to freely choose and
pursue their individual life projects is connected to the existence of a vibrant set of
groups and organizations independent of the state. These associations constitute arenas
in which individuals can express and pursue different interests, identities and aspira-
tions. They also serve to preserve a robust sphere of liberty free of the state:
associations operate as centres of power that compete with the state and that enable
their members to critically debate and engage with the initiatives of the state.
The importance that liberal thinkers attach to pluralism in the private sphere leads
them to adopt a highly inclusive definition of civil society. As long as an association is
not part of the coercive apparatus of the state, and does not act exclusively to
accomplish market ends, it counts as civil society. All ends and modes of organizing are
included: small associations such as neighbourhood watches, large ones such as

2
Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century
(University of Oklahoma Press 1991).
3
See, e.g., Gregor Ekiert and Jan Kubic, Rebellious Civil Society: Popular Protest and
Democratic Consolidation in Poland, 1989–93 (University of Michigan Press 1999), 44.
4
Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals (Penguin 1996); Terry
Nardin, ‘Private and Public Roles in Civil Society’ in Michael Walzer (ed.), Toward a Global
Civil Society (Berghahn 1995), 30–33; Michael Walzer, ‘The Idea of Civil Society: A Path to
Social Reconstruction’ in Eugene Joseph Dionne (ed.), Community Works (Brookings Institution
Press 1998), 132; Michael Walzer, ‘The Concept of Civil Society’ in Michael Walzer (ed.),
Toward a Global Civil Society (Berghahn 1995), 18–25.

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environmental federations and veterans’ rights groups, and market-based organizations

such as corporations, labour unions, employer associations and industry lobbies.5 The
related public policy prescriptions are fairly minimalist. The state must guarantee the
fundamental rights of free speech and free association, which are a prerequisite for
social mobilization.6 Some degree of transparency in the policymaking activities of the
state is also necessary to enable civil society to use the democratic process to check the
state.

2.2 Social Capital

In the view of Robert Putnam and others, joining and participating in voluntary
organizations is essential for constructing social capital and training individuals in the
skills and values of citizenship. Social capital theory has been driven largely by the
historical and political circumstances of decline in associational life in old, Western
democracies, in particular in the US, and the possible adverse consequences for
democracy.7 Displaying certain affinities with the republican tradition of political
theory, this analysis of civil society posits a conflict between the pursuit of self-chosen
aims and the peaceful and prosperous ordering of public affairs. Self-interest and
particularistic identities can precipitate the breakdown of community – through civil
war or, less dramatically, through ineffective government, unable to provide basic
public goods such as clean water and healthcare. This in turn compromises liberty.
Thus, for society to be possible and for government to work, individuals must learn
certain skills and virtues of citizenship. And, according to Putnam and others, the
voluntary associations of civil society are where this learning occurs.8 Putnam
articulates his understanding of the relationship between private associations and good
government as social capital: in the small-scale setting of the bowling league or the
local union organization, individuals learn the habits of cooperation, reciprocity and
trust that are necessary for all collective endeavours, including the public deliberation
and responsible management at the root of good government and democracy.9
Social capital theory is more selective than liberal theory in defining the ambit of
civil society. The theory turns on popular associations with an active membership base
that engage in social and civic activities, and generally excludes two categories of
associations whose aims and internal structure are such that they cannot serve as
incubators of citizenship. The first are actors viewed as being strictly market based:
corporations, partnerships, other profit-seeking entities, and the lobbying groups that

5
Walzer, ‘The Concept of Civil Society’ (n 4), 19.
6
See, e.g., Mark Tushnet, ‘The Constitution of Civil Society’ (2000) 75 Chicago Kent Law
Review 379, 398–99 (analysing the importance of First Amendment rights of speech and
association for civil society).
7
Robert D Putnam, Bowling Alone: The Collapse and Revival of American Community
(Simon & Schuster 2000).
8
See, e.g., Nan Lin and Bonnie Erickson (eds), Social Capital: An International Research
Program (Oxford University Press 2009).
9
See ibid 18–24; Robert D Putnam, Making Democracy Work: Civic Traditions in Modern
Italy (Princeton University Press 1993).

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Theories of civil society and GAL 329

represent their interests in politics.10 Maximizing profits in capitalist markets and

influencing politics to the material advantage of particular economic actors do not
require reciprocity and cooperation and hence do not lead to the creation of social
capital. The second type of association that is excluded is the specialized organization
that focuses on political advocacy and which has neither a rank-and-file membership
nor the capacity to mobilize large numbers of individuals when necessary.11 Like
profit-seeking entities, the internal dynamics of small pressure groups – whether they
pursue private or public interests – are not conducive to building social capital. That is
because the professionals who staff the national offices of organizations such as the
Center for Science in the Public Interest (a foundation-funded, pro-consumer group) or
Citizens for a Sound Economy (a corporate-funded, anti-big government group) have
very little daily connection to the individuals and the interests they represent. Although
citizens may donate money to their causes, such associations are unlikely to motivate
citizens to actively pursue different forms of civic engagement.
The social capital justification for civil society gives rise to a number of policy
recommendations. Many of them are directed at encouraging and enabling individual
citizens to join voluntary associations.12 Others are designed to transfer governance
powers to civil society actors and therefore to incentivize the formation of associations
and to create opportunities for organizing. This, according to Putnam, can be
accomplished by giving citizen associations legal powers and tax dollars that ordinarily
would be used and spent by public officials. Among the examples cited are a decision
of the City of Boston to delegate the power of eminent domain to allow a local
neighbourhood association to purchase and develop land in central Boston, and state
and federal funding for a tutoring programme in Philadelphia sponsored and run by a
local volunteer group. As these illustrations suggest, the focus is often on local
associations that concentrate their efforts on problems such as the delivery of social
services, education and land use planning, which are considered of direct concern to
individual citizens and are most properly addressed at the local level.

2.3 Multiculturalism

The central problem in multiculturalism theories is cultural, ethnic and religious

diversity in contemporary societies; the response is to recognize and accommodate such
groups and their associations within a broader framework of pluralism and democ-
racy.13 The justification for treating ascriptive categories differently is generally

10
See Putnam, Bowling Alone (n 7), 91–92.
11
Ibid 52.
12
See Robert D Putnam and Lewis M Feldstein, Better Together: Restoring the American
Community (Simon & Schuster 2003), 271–79.
13
See, e.g., Ayelet Shachar, ‘On Citizenship and Multicultural Vulnerability’ (2000) 28
Political Theory 64; Charles Taylor, ‘The Politics of Recognition’ in Amy Gutmann (ed.),
Multiculturalism: Examining the Politics of Recognition (Princeton University Press 1992);
James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge
University Press 1995); and Will Kymlicka, Politics in the Vernacular: Nationalism, Multicul-
turalism and Citizenship (Oxford University Press 2001).

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330 Research handbook on Global Administrative Law

premised on the communitarian insight that individual ends and identity are inextric-
ably tied to community, and that cultural and religious communities can serve as an
important forum within the broader political system for shaping and expressing
personhood. Multiculturalism theories are aimed at a wide range of ascriptive groups
and political contexts: ethnic and religious minorities such as Islam in Western
societies, territorially based groups such as the Québécois in Canada, and indigenous
peoples such as the Maori in New Zealand. In their treatment of civil society, they
privilege organizations through which groups engage in self-governance and social
activities – churches for instance – as well as organizations that are designed to
mobilize and represent cultural and religious groups in the broader political community.
Thinkers in the multiculturalism tradition typically advocate allocating legal respons-
ibilities and public funds to civil society organizations (CSOs) to engage in governance
activities, such as the distribution of social services and the regulation of family life.
Sometimes, they also argue for special representation for ascriptive categories, through
their associations, in administrative and democratic bodies. Moreover, legal regimes in
multicultural societies often contain exceptions or affirmative accommodations for
members of cultural and religious groups based on their particular characteristics.

2.4 Cosmopolitanism

Among the theories canvassed in this chapter, the cosmopolitan line of argument is the
only one that is directed specifically at the international realm. The historical and
political context that informs the literature is the rise of associations and social
movements that span the globe.14 These are associations and informal networks that
mobilize individuals across national borders, focus on global issues, and target multiple
countries and multilateral regimes in order to achieve their goals. Both long-standing
organizations such as Amnesty International and the World Wildlife Fund as well as
more spontaneous social movements such as the anti-globalization networks respons-
ible for the protests at meetings of international economic organizations are representa-
tive of this phenomenon.
In cosmopolitan scholarship, transnational social mobilization is generally cast as the
kernel of an emerging global civil society that is a necessary counterweight to both the
forces of global capitalism and the unaccountable inter-state bargaining and inter-
national bureaucracies of the international realm.15 In these accounts, the accelerating
globalization of markets has led to profound social injustice, which the political elites

14
See Richard Falk, On Humane Governance: Towards a New Global Politics: The World
Order Models Project Report of the Global Civilization Initiative (Pennsylvania State University
Press 1995), 106, 199, 253; John Keane, Global Civil Society (Cambridge University Press
2003), 8–20; Margaret E Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy
Networks in International Politics (Cornell University Press 1998), 10–11.
15
See Daniele Archibugi, ‘Principles of Cosmopolitan Democracy’ in Daniele Archibugi,
David Held and Martin Köhler (eds), Re-Imagining Political Community: Studies in Cosmopol-
itan Democracy (Stanford University Press 1998), 222; Commission on Global Governance, Our
Global Neighbourhood: The Report of the Commission on Global Governance (Oxford
University Press 1995), 56; Richard Falk, ‘Global Civil Society: Perspectives, Initiatives,
Movements’ (1998) 26 Oxford Development Studies 99, 100; Falk, On Humane Governance

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Theories of civil society and GAL 331

and international technocrats that dominate international politics and organizations have
been either unwilling or unable to address. A global society, in which citizens come to
identify with one another based on their shared circumstances of poverty, environ-
mental depredations, and other forms of injustice, is necessary to tame globalization
and ensure that the forces of globalization are harnessed to the advantage of ordinary
people.
In contrast with the theories already discussed, the term ‘civil society’ is used here to
refer broadly to social relations separate from the state. Associations are important but
generally because of whom they represent in international politics and their ability to
mobilize people transnationally, and not because of any intrinsic benefits derived from
the act of organizing. Global civil society is synonymous with a global people, and
associations are the vehicle for organizing that people, in many ways a temporary
surrogate for political parties in traditional democracies. To some extent, cosmopolitan
thinkers will into being what does not yet exist: an integrated, cosmopolitan public
sphere in which people are no longer artificially divided by the particular histories,
languages and cultures of the nation state. By shining light on the importance of a
(future) global civil society, they call for social movement entrepreneurs and non-
governmental organizations (NGOs) to mobilize transnationally on issues common to
human society, and in so doing, build a global civil society. Cosmopolitan theories also
generally contain a very strong substantive vision of politics and the types of interests
that have been neglected in the global realm. They therefore focus on interests and
constituencies such as the environment and the poor, and exclude market-based actors
such as multinational corporations, financial institutions and industry lobbying groups.
Cosmopolitan thinkers have generally sought to encourage mobilization from below,
similar to some of the social capital literature discussed earlier. There is also an
ambitious proposal to establish a directly elected world parliament (‘Global Peoples
Assembly’). The Global Peoples Assembly would represent global civil society in
international lawmaking, thereby transposing the key political institutions of democracy
– elections, representatives and a collective body with a majority or super-majority
decision-making rule – to the global realm.16 Another possible policy implication, given
the role of associations in mobilizing and representing global civil society, is the
inclusion of transnational associations with significant memberships and geographic
presence in policy deliberations.

(n 14), 106; Keane, Global Civil Society (n 14), 173; David Held, ‘Democracy and Global-
ization’ in Archibugi et al (n 15), 22–23; Mary Kaldor, ‘Global Civil Society’ in David Held and
Anthony McGrew (eds), The Global Transformations Reader (Polity 2000), 560; Paul Wapner,
‘The Normative Promise of Nonstate Actors: A Theoretical Account of Global Civil Society’ in
Paul Wapner and Lester Edwin J Ruiz (eds), Principled World Politics: The Challenge of
Normative International Relations (Rowman and Littlefield 2000), 267.
16
See Richard Falk and Andrew Strauss, ‘On the Creation of a Global Peoples Assembly:
Legitimacy and the Power of Popular Sovereignty’ (2000) 36 Stanford Journal of International
Law 191, 193.

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2.5 Effective Governance

The theories of civil society discussed so far have largely concerned the role of civil
society in advancing citizenship in different theories of democracy. Civil society, in
these theories, is linked to a broader set of principles, both procedural and substantive,
for how to navigate the relationship between the individual and society, cope with the
conflicts that permeate societies, and achieve a stable and fair political community. In
the public policy and governance literature, however, the emphasis is not on citizenship
but on the effectiveness of the organizations and policies of the state, and the
contribution that can be made by civil society. To simplify somewhat, the focus is not
on the conflicts of politics but on the problem solving of administration.
In the public policy literature, the dominant problem is the deficiencies of traditional
‘command-and-control’ administration. Civil society is believed to offer the prospect of
more effective governance for three main reasons.17 First, the problems addressed by
government are often highly technical and require specialized forms of knowledge,
which are often possessed by civil society actors. Second, government policies require
implementation, and to the extent that civil society and other non-state actors support
the policy in question, cooperation and compliance is more likely. Third, in some cases,
the expertise and resources commanded by the private sphere can be so significant that
government is advised to transfer policymaking functions wholesale to non-state actors,
with only minimum supervision from the state.
In public policy literature, civil society organizations are defined as voluntary
associations involved in a variety of advocacy and social activities and are considered
but one set of non-state actors that can contribute to effective governance. The principal
other category, which is emphatically excluded from the other theories of civil society,
consists of business actors engaged in their profit-making, market-based functions. In
many cases, especially with regard to the market-regulating functions of the state, the
individual firms that operate in an economic sector are the non-state actors with the
greatest knowledge and resources and therefore their participation is essential for
effective problem solving. Indeed, in governance scholarship, the more capacious terms
of ‘parties’, ‘non-governmental actors’, and ‘stakeholders’ are generally preferred to
‘civil society’. The prescriptive component largely focuses on the institutional design of
the public actors responsible for policymaking, and calls on them to be transparent in
their activities and open to input from civil society and other stakeholders. It also seeks
to delineate areas such as service provision, technical standard setting, and the
distribution of development aid in which policy tasks are more effectively handled by
non-state actors.
Table 15.1 summarizes the principal elements of each of the theories of civil society.

17
See, e.g., Richard B Stewart, ‘Administrative Law in the Twenty-First Century’ (2003) 78
New York University Law Review 437; Gráinne de Búrca, Robert O Keohane, and Charles
Sabel, ‘New Modes of Pluralist Global Governance’ (2013) 45 New York University Journal of
International Law & Politics 723, 739–785; Jody Freeman, ‘Collaborative Governance in the
Administrative State’ (1997) 45 UCLA Law Review 1.

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Theories of civil society and GAL 333

Table 15.1 Theories of civil society

Liberalism Social capital Multicultural- Cosmopolitan- Effective

ism ism governance

Who All non-state Popular Ascriptive Global people Stakeholders,

and associations groups and including
non-market with active transnational business
associations membership associations

Why Liberty Develop Identity Social justice Effective

citizenship politics administration
skills

Policy Basic rights Transfer local Transfer Global Peoples Administra-

prescrip- and government government Assembly tion open to
tions government powers powers and input and
transparency special public delegation of
representation powers

3 CIVIL SOCIETY, THE WORLD BANK, AND INTERNATIONAL

DEVELOPMENT LAW
Among global administrative bodies, the WB is widely credited with having made
some of the most far-reaching reforms in favour of civil society. The following section
reviews, in a roughly chronological order, the many institutional changes that have been
made. At the same time, it illustrates how the WB reforms both are and are not
representative of other international organizations in the field of international develop-
ment. Legal reform has followed a local to global trajectory, with the earlier period
characterized by an emphasis on project planning and local participation in borrower
countries and the more recent developments focused on the WB’s broadly applicable
policymaking activities. Over time, the WB’s administrative law has also come to
reflect an increasingly diverse set of theories of civil society, accompanied by an
expanding set of non-state actors entitled to participate in WB policymaking.
The first major set of reforms has revolved around the procedures and criteria that
must be followed when countries propose and the WB approves financing for
development projects, known as the Safeguard Policies.18 In the mid-1980s, the WB
came under pressure to more aggressively incorporate environmental considerations in
the lending process. By the early 1990s, this had culminated in a set of procedural
requirements familiar to many domestic administrative law systems: preparation of a
formal environmental assessment, disclosure of the preparatory project document to the
affected groups and local NGOs, consultation of those groups before and after the
preparation of a draft environmental assessment, and independent compliance oversight

18
See generally David Gartner, ‘Beyond the Monopoly of States’ (2010) 2 University of
Pennsylvania Journal of International Law 595, 612.

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334 Research handbook on Global Administrative Law

by the World Bank Inspection Panel.19 Under the current policy, the environmental
assessment must ‘take into account the natural environment (air, water, and land);
human health and safety; social aspects (involuntary resettlement, indigenous peoples,
and physical cultural resources); and transboundary and global environmental
aspects.’20 Increasingly, borrower countries, as opposed to WB administration, have
been given primary responsibility for ensuring compliance with the analytical and
procedural requirements.21
The history of these reforms closely follows the political dynamics of the cosmopol-
itan theories of civil society canvassed above. Most of the WB’s Safeguard Policies
were adopted in reaction to the highly visible injustices of earlier WB projects, and
came on the heels of extensive NGO mobilization. The initial requirements were
developed in the early 1980s in response to a number of projects involving dams and
other types of infrastructure in the Amazon region that had led to the displacement of
indigenous populations and the destruction of the rainforest and natural habitats.22 The
establishment of the Inspection Panel roughly a decade later was driven by the intense
controversy surrounding the Sardar Sarovar dam and canal complex in the Narmada
Valley of central India.23 The dam, which had received WB support, would have
flooded and rendered uninhabitable a fertile agricultural region and would have led to
the eviction of hundreds of thousands of people. In going forward with the project,
government officials had blatantly violated a number of national legal requirements,
including environmental impact studies and the approval of the Ministry of Environ-
ment and Forests, and had failed to comply with the WB’s Safeguard Policies on
environment assessments, indigenous peoples’ rights, and planning for involuntary
resettlement. The planned construction sparked intense local protests, led to the
mobilization of NGOs in Europe, Japan and North America, and provoked scrutiny
from a number of Western governments, including the US Congress. In response, the
WB created an independent commission to review the project, which concluded that the
WB had violated its own Safeguard Policies. Although the WB initially attempted to
minimize the implications of the findings, it was soon compelled to establish an
independent review process and the Inspection Panel.

19
World Bank, Operational Directive 4.00, Annex A: Environmental Assessment (1989);
World Bank, Operational Directive 4.01 on Environmental Assessment (1991).
20
World Bank, Operational Directive 4.01 on Environmental Assessment para 3.
21
See Daniel Bradlow, ‘The Reform of the Governance of IFIs: A Critical Assessment’ in
Hassane Cissé, Daniel D Bradlow, and Benedict Kingsbury (eds), World Bank Legal Review:
International Financial Institutions And Global Legal Governance, vol 3 (World Bank 2011), 95.
22
Benedict Kingsbury, ‘Operational Policies of International Institutions as Part of the
Law-Making Process: The World Bank and Indigenous Peoples’ in Guy S Goodwin-Gill and
Stefan Talmon (eds), The Reality of International Law: Essays in Honour of Ian Brownlie
(Oxford University Press 1999), 324; David Gartner, ‘Uncovering Bretton Woods: Conditional
Transparency, The World Bank, And The International Monetary Fund’ (2013) 45 George
Washington International Law Review 121, 128–29.
23
Dana Clark, ‘Understanding the World Bank Inspection Panel’ in Dana Clark, Jonathan A
Fox and Kay Treakle (eds), Demanding Accountability: Civil-society Claims and the World Bank
Inspection Panel (Rowman & Littlefield 2003).

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The actual law of the Safeguard Policies, however, is less clearly motivated by
cosmopolitan theories of civil society. The most noticeable connection is with the
substantive vision of justice that underpins many cosmopolitan arguments for civil
society. The analytical and procedural requirements entailed by the Safeguard Policies
and their enforcement by the Inspection Panel are designed to remedy what Richard
Stewart has called the ‘problem of disregard’ in global governance.24 This is reflected
not only in the history, but in the official language and purposes of the policies:

As social groups with identities that are often distinct from dominant groups in their national
societies, indigenous peoples are frequently among the most marginalized and vulnerable
segments of the population. As a result, their economic, social, and legal status often limits
their capacity to defend their interests in and rights to lands, territories, and other productive
resources, and/or restricts their ability to participate in and benefit from development.25

The Safeguard Policies are an example of procedures that lock in certain results,
namely environmental conservation and the fair treatment of residents and indigenous
populations. This obviously advances the cosmopolitan agenda of social justice and
environmental conservation and highlights the extent to which CSOs and transnational
mobilization in many cosmopolitan theories are instrumental to achieving good results
and are not merely ends in themselves, as in other types of civil society scholarship.
For the civil society theories that inform the legal criteria applicable to WB project
planning, it is necessary to look elsewhere – to social capital and multiculturalism. As
in the social capital literature, there is a strong emphasis on individual citizens and their
local associations and a bias against international NGOs, which are often highly
professionalized and elite driven. This is apparent from the types of consultations
required by the WB’s Safeguard Policies and from the conditions for submitting a
request to the Inspection Panel. Under the environmental assessment consultation
requirements, ‘the borrower consults project-affected groups and local nongovernmen-
tal organizations (NGOs) about the project’s environmental aspects and takes their
views in account’.26 All of the related information disclosure requirements refer to the
same two categories of ‘project-affected groups and local NGOs’. Under the Inspection
Panel rules, there are two principal types of requesters: individuals who are affected by
the project who band together for the purpose of seeking oversight; and local NGOs
acting on the behalf of the affected individuals. Only if neither of these two comes
forward do the rules allow for international NGOs to apply to the Inspection Panel:
‘[non-local representatives may come forward] in the exceptional cases … where the
party submitting the request contends that appropriate representation is not locally
available and the Executive Directors [of the World Bank] so agree at the time they
considers the request’.27

24
Richard B Stewart, ‘Remedying Disregard in Global Regulatory Governance: Account-
ability, Participation, and Responsiveness’ (2014) 108 American Journal of International Law
211.
25
World Bank, Operational Policy 4.10 on Indigenous Peoples (2005) (OP 4.10) para 2.
26
World Bank, Operational Policy 4.01 on Environmental Assessment (1999) para 15.
27
IBRD Res 93-10/IDA Res 93-6 (22 September 1993) ‘The World Bank Inspection Panel’,
para 12.

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336 Research handbook on Global Administrative Law

This focus on local civil society draws on the insights of social capital theory on the
importance of local associations for democracy. It is no secret that many of the WB’s
borrower countries are not considered fully fledged democracies and have weak
bureaucracies and unstable or ineffective democratic institutions. Corruption and
clientelism are a major problem in many recipient nations. These systemic governance
problems at the national level have contributed to poor international development
outcomes, since the selection and management of projects is largely within the control
of national governments. By seeking to create opportunities for citizens and their
associations to engage with policies at the local level, therefore, the analytical and
procedural requirements of project preparation appear to be targeted not only at
improvements in specific project outcomes, but at fostering the social capital that can
lead to more robust and effective democracy and state institutions.
The multiculturalism element of the WB’s Safeguard Policies is evident from the
special criteria and procedural rights related to indigenous peoples. In addition to the
general transparency and consultation requirements, there are a number of other
procedures that apply only when a project will affect indigenous peoples. They were
first identified as a special category in the early 1980s and the current set of guarantees
were established in July 2005 (Operational Policy 4.10).28 Once an initial screening
determines that an indigenous group is implicated by a project, the borrower is required
to prepare a social assessment ‘to evaluate the project’s potential positive and adverse
effects on the indigenous peoples and to examine project alternatives where adverse
effects may be significant’.29 In the course of preparing the project, the borrower is
under a duty to ‘engage in free, prior, and informed consultation’ with the indigenous
community, which includes disclosure of all relevant information about the project,
including the social assessment.30 The borrower must also prepare an Indigenous
Peoples Plan, which sets out the steps that will be taken to ensure that the indigenous
group benefits from the project and to ensure that any harms are mitigated or
compensated, and which again must be disclosed (in draft form) to the indigenous
community.31 Only if this consultation reveals that there is ‘broad support’ for the
project in the indigenous community can the project proceed.32 As with the other
Safeguard Policies, members of the affected community or a local representative NGO
can file a request with the Inspection Panel if the borrower fails to comply with these
requirements. From this legal overview, it is apparent that the particular segment of
civil society singled out by multicultural theories – ascriptive identities that are
expressed through non-state associations – also receives special consideration in the
WB rules.
By giving rights to indigenous communities, the WB rules seek to foster within
borrower countries the pluralist democracy advocated in multiculturalism theories of

28
OP 4.10; Fergus MacKay, ‘The Draft World Bank Operational Policy 4.10 on Indigenous
Peoples: Progress or More of the Same?’ (2005) 22 Arizona Journal of International &
Comparative Law 65.
29
OP 4.10 para 9.
30
OP 4.10 para 10.
31
OP 4.10 paras 12–14.
32
OP 4.10 para 11.

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Theories of civil society and GAL 337

how to structure the relationship between ascriptive groups and the broader political
community. The provisions on consultation and, in theory, consent are premised on the
recognition that land is of particular concern to indigenous groups and therefore, with
respect to the policy area of land-use planning, they should have special powers:

The Bank recognizes that the identities and cultures of indigenous peoples are inextricably
linked to the lands on which they live and the natural resources on which they depend. These
distinct circumstances expose indigenous peoples to different types of risks and levels of
impacts from development projects, including loss of identity, culture, and customary
livelihoods, as well as exposure to disease.33

This institutional response to ethnic and cultural diversity mimics political arrange-
ments within certain multicultural societies where territorially based groups are given
special prerogatives over policy areas that are considered of particular concern to them,
such as language and education. To name but two examples, Quebec and Trentino-Alto
Adige have been granted considerable autonomy within their respective countries of
Canada and Italy and today are responsible for self-governance in a number of policy
areas.
It is generally believed that the WB’s Safeguard Policies have set the tone and the
pace for the creation of similar policies at other multilateral development banks,
principally the Asian Development Bank, the Inter-American Development Bank, the
European Bank for Reconstruction and Development (EBRD), and the African Devel-
opment Bank.34 Multilateral development banks have, for the most part, adopted
identical procedural and analytical requirements for their own project planning. The
private sector elements of the World Bank Group, in particular the International
Finance Corporation and the Multilateral Investment Guarantee Agency, have also done
so, albeit somewhat later than on the public side.35 With specific reference to
indigenous peoples, the WB’s Operational Policy 4.10 of 2005 triggered a wave of
policy reform at other multilateral development banks: the International Finance
Corporation and Inter-American Development Bank in 2006, the EBRD in 2008, and
the Asian Development Bank in 2010.36 The African Development Bank is the notable
exception on this score, since it has not yet adopted a stand-alone safeguard policy for
indigenous peoples, although it does require an environmental and social assessment
for each project, which includes an assessment of any potential impact on indigenous
peoples.37
A second set of WB policies, most of which are somewhat more recent than the
efforts at better project planning, involves the direct funding of civil society groups.

33
OP 4.10.
34
David Hunter, ‘Civil Society Networks and the Development of Environmental Standards
at International Financial Institutions’ (2008) 8 Chicago Journal of International Law 437, 442.
35
Ibid 444–45.
36
Asian Development Bank, ‘Safeguard Policy Statement’ (Asian Development Bank)
<http://www.adb.org/site/safeguards/policy-statement> accessed 15 March 2015; Fergus McKay,
‘Indigenous Peoples and International Financial Institutions’ in Daniel D Bradlow and David
Hunter (eds), International Financial Institutions and International Law (Kluwer Law 2010).
37
African Development Bank, Integrated Safeguards System (1 Safeguards and Sustainabil-
ity Series 2013) 7.

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338 Research handbook on Global Administrative Law

The Bank has developed an official definition of civil society, which applies across the
gamut of WB policies, but is especially relevant for funding and the question of which
organizations are eligible:

[T]he term civil society [refers] to the wide of array of non-government and not-for-profit
organizations that have a presence in public life, expressing the interests and values of their
members or others, based on ethical, cultural, political, scientific, religious or philanthropic
considerations. Civil Society Organizations (CSOs) therefore refer to a wide array of
organizations: community groups, non-governmental organizations (NGOs), labor unions,
indigenous groups, charitable organizations, faith-based organizations, professional associa-
tions, and foundations.38

A recent report on World Bank–Civil Society Engagement (2010–2012) found that

there were 26 separate programmes across the WB that provided grants directly to
CSOs.39 In contrast with the WB’s Safeguard Policies, the WB’s funding of CSOs is
somewhat anomalous in the universe of multilateral development banks. The one
exception is the Asian Development Bank, which first issued a policy stressing
cooperation with CSOs in 1987; it provides funding for some organizations and has
encouraged partnerships between CSOs and private sector companies.40
WB grants appear to fund roughly three types of CSO activities: the provision of
social services and other public goods such as disaster relief management; small-scale
entrepreneurship; and the direct improvement of citizen engagement and government
accountability and transparency through the dissemination of information, training in
citizenship skills, and monitoring of public and private actors. Some of these activities
are functional to international development objectives, namely the provision of aid and
various types of public goods, and therefore civil society involvement is based on the
contribution it can make to effective governance. However, the bulk of the WB’s
funding, at least in its official presentation, appears to be directed at those associations
and activities that contribute to building social capital. Many of the programmes, for
instance the Governance Partnership Facility, which supports governance work by civil
society actors and is the implementation arm of the WB’s Governance and Anti-
corruption Strategy, are explicitly driven by the relationship between civil society and
stable democracy.41 Other programmes cast citizenship and democracy as an important,
if not primary, effect of civil society funding. To take one passage from the WB’s
recent report:

Community-driven development (CDD) programs financed by the Bank put poor people at
the core of decision making and amplify their voice while delivering key economic resources
and services. They support collective action, build local empowerment, and strengthen social
capital, as community groups and local governments take responsibility for managing

38
World Bank, ‘Defining Civil Society’ (World Bank, 22 June 2013) <http://go.
worldbank.org/4CE7W046K0> accessed 16 February 2015.
39
World Bank, World Bank–Civil Society Engagement: Review of Fiscal Years 2010–2012
(World Bank 2013) 43.
40
Enrique R Carrasco, Wesley Carrington and HeeJin Lee, ‘Governance and Accountability:
The Regional Development Banks’ (2009) 27 Boston University International Law Journal 1, 31.
41
Ibid 25–26.

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Theories of civil society and GAL 339

investment resources. By promoting transparency and accountability, CDD helps empower

citizens and encourages responsive government. CDD can also strengthen local government,
improve the delivery of public goods and services, and promote sustainable community
assets.42

The third and last bundle of institutional reforms, which has gained considerable steam
in recent years, is broad-based transparency and consultation on the policymaking
activities of the WB. While the Safeguard Policies are tied to specific project loans, the
disclosure and consultation afforded in this set of procedures affects virtually all WB
policies, including those with implications for development at the country, regional and
global levels. On the transparency front, the WB has enacted a comprehensive Access
to Information Policy. Since 2010, the vast majority of WB documents have been made
public through a combination of a public database and the right to file requests for
specific documents with the Bank. The database is directly accessible through a website
and contains over 100,000 documents related to projects, statistics, country reports and
more. For the information that is not included in the database, individuals have a right
to file requests, and if denied, they can file an internal administrative appeal, and from
there, an appeal to an independent appeals board.43 With respect to consultation, there
appears to be an emerging procedural norm in favour of publishing draft policies,
soliciting feedback from the public, and explaining in the final version of the policy
how the comments were taken into account.44 The policies that are covered include
cross-cutting global policies, such as revisions to the Safeguard Policies and sector
strategies in areas such as energy and the environment, as well as country-level policies
designed to inform loan and grant programmes, most importantly Country Assistance
Strategies and Poverty Reduction Strategies.45
This law, while still of course profoundly shaped by the WB’s development mission
and the particular constituencies affected by that mission, is more broadly targeted and
motivated than the law on project planning and grant making. Rather than drawing
exclusively on the social capital and multiculturalism traditions, the most recent set of
transparency and consultation standards reflects the liberal and effective governance
theories of civil society. Transparency, in the Policy on Access to Information, is
portrayed as essential to achieving the larger aims of governance that is effective and
that is subject to a variety of liberal checks and balances, so as to protect against
needless and wasteful WB initiatives:

Transparency is essential to building and maintaining public dialogue and increasing public
awareness about the Bank’s development role and mission. It is also critical for enhancing
good governance, accountability, and development effectiveness. Openness promotes engage-
ment with stakeholders, which in turn improves the design and implementation of project and
policies, and strengthens development outcomes. It facilitates public oversight of Bank-
supported operations during their preparation and implementation, which not only assists in

42
Ibid 23–24.
43
World Bank, The World Bank Policy on Access to Information (Report 54873, 2010).
44
Bradlow, ‘The Reform of the Governance of the IFIs’ (n 21), 44.
45
World Bank, World Bank–Civil Society Engagement: Review of Fiscal Years 2010–2012
(n 39) 13; see generally Gráinne de Búrca, ‘Developing Democracy Beyond The State’ (2008)
46 Columbia Journal of Transnational Law 221.

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340 Research handbook on Global Administrative Law

exposing potential wrongdoing and corruption, but also enhances the possibility that
problems will be identified and addressed early on.46

Similarly, consultation is portrayed not only as a means of encouraging citizen action

and mobilization in developing countries, with all of the associated social capital
benefits, but also as a mode of enlisting expertise and improving governance outcomes.
The sourcebook used as a point of reference for the many consultations lists, among the
primary objectives of consultations, those of ‘[improving] the quality of decision-
making process by capturing the experience of specialized civil society organizations
and other similar groups’ and ‘[tapping] the knowledge of CSOs that work at the
community level’.47
Consistent with the broader purposes of access to information and consultation and
the more inclusive set of concerned parties, the preferred term in this area of law is not
civil society but ‘stakeholder’. The latter term covers not only CSOs, but also market
actors, in their lobbying efforts directed at government and in their profit-seeking
activities, as well as public sector actors involved in the specific issue area. As
suggested in one WB publication, the official policy appears to be gaining traction in
the actual practice of consultations. In an overview of consultations held in 2010–2012,
the WB reported a broad range of stakeholder participation. Among the participants in
572 consultation meetings held worldwide, 38 per cent were CSOs, 23 per cent were
governments, 12 per cent were consultants and individuals, 8 per cent were bilateral
agencies, 8 per cent were multilateral donor agencies, 5 per cent were private sector, 4
per cent were academia, and 1 per cent was the media.48
Transparency and consultation have been taken on board by the other four major
multilateral development banks, although they are generally not as extensive as in the
WB. The WB’s move to disclose more information, particularly in the form of draft
policies, prompted other multilateral development banks to follow suit. The current
African Development Bank information disclosure policy, adopted in 2012, obliges it to
disclose all information unless it falls under one of eight exceptions, which include
‘deliberative information and incomplete reports’.49 Certain finalized draft documents,
such as country strategies, are released for public consultation, but without information
that recipient countries deem confidential.50 The Asian Development Bank, under its
2011 policy, lists seven categories of information which it does not release to the
public, subject to a public interest override, and it releases policy and strategy
proposals at the same time that they are sent to the Board for review.51 The Asian
Development Bank has been recognized as one of the most transparent multilateral

46
World Bank, The World Bank Policy on Access to Information (n 43), 1.
47
World Bank, Consultations with Civil Society: A Sourcebook (World Bank 2007) 2.
48
World Bank, World Bank–Civil Society Engagement: Review of Fiscal Years 2010–2012
(n 39) 14.
49
African Development Bank, Disclosure and Access to Information Policy (African
Development Bank 2012) §3.3.
50
Ibid §4.11.
51
Asian Development Bank, Public Communications Policy 2011 (Asian Development Bank
2011) ¶28.

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Theories of civil society and GAL 341

development banks.52 Like the Asian Development Bank, the Inter-American Develop-
ment Bank’s information policy, issued in 2010, mandates disclosure of policy and
strategy proposals simultaneously with their release to the Board, but also maintains a
more extensive list of 10 categories of non-disclosed information.53 The EBRD’s
information disclosure policy was approved in 2014, and includes a presumption of
disclosure. The EBRD publishes draft reports as part of its public consultation process,
and also publishes a summary of public comments received during that process.54
Unlike the Asian or Inter-American Development Banks, it does not release updated
drafts circulated to the Board after the public consultation. The EBRD also publishes
‘Project Summary Documents’ containing overviews of proposed investment projects at
least 30 days prior to review by the Board of Directors.55
Turning to consultation, the practice is most common in the EBRD: annual meetings
include CSOs and civil society consultations are held at both the working level and the
political level.56 The Asian Development Bank also engages in robust dialogue with
civil society partners, although it has been criticized for centralizing those consultations
through its NGO and Civil Society Center rather than allowing CSOs to contact project
or country groups directly.57 The Inter-American Development Bank encourages
consultation with civil society in the development of project or country strategies, but
leaves final responsibility for such participation in the hands of the borrowers.58
Historically, the African Development Bank has engaged in much less consultation than
its peers, but it has recently issued a policy meant to encourage more CSO partici-
pation.59
A last set of institutional rules directed at civil society bears mention. In the WB,
over the years, there have been efforts to involve specific CSOs in general policymak-
ing activities. These institutional arrangements, however, have been unstable over time
and are currently far less prominent than stakeholder consultations. Beginning in 1982,
the WB established a committee composed principally of international development
NGOs that met annually to advise senior Bank management.60 This was replaced in
2002 by the Joint Facilitation Committee, which sought to include a more representa-
tive group of CSOs as well as one with demonstrated and substantial constituencies in

52
Carrasco et al., ‘Governance and Accountability’ (n 40), 23.
53
Inter-American Development Bank, Access to Information Policy (Inter-American Bank
2010) §5.1.
54
European Bank for Reconstruction and Development, Public Information Policy (Euro-
pean Bank for Reconstruction and Development 2014) §2.1.
55
Ibid §3.1.
56
European Bank for Reconstruction and Development, EBRD Sustainability Report 2013
(2014), 12.
57
Carrasco et al, ‘Governance and Accountability’ (n 40), 31.
58
Inter-American Development Bank, Strategy for Promoting Citizen Participation (2004),
15.
59
African Development Bank, Framework for Enhanced Engagement with Civil Society
Organizations (African Development Bank 2012).
60
Jane G Covey, ‘Critical Cooperation? Influencing the World Bank through Policy
Dialogue and Operational Cooperation’ in Jonathan A Fox and L Dave Brown (eds), The
Struggle for Accountability: The World Bank, NGOs, and Grassroots Movements (MIT Press
1998), 81.

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342 Research handbook on Global Administrative Law

developing countries.61 Like the earlier committee, however, it was the subject of a
good deal of controversy, both because of the role of WB staff in directing the
committee’s work and because of the lack of consensus on how to select the committee
members. The Joint Facilitation Committee, therefore, was terminated in 2005, and in
its place, the WB has organized civil society events at its Annual and Spring Meetings,
which do not present the same problems of selection and perceived control as the
policymaking committees.
Along these same lines, two WB-administered programmes have been established
which include civil society representation on their governing committees.62 The first is
the Global Agriculture and Food Security Program, created in 2009, which is designed
to improve agricultural production and sustain small farmers in developing countries,
and which includes three non-voting CSOs on its governing committee. These seats are
distributed regionally: two agricultural producer associations from the South and one
international development NGO based in the North. The other is the Global Partnership
for Social Accountability, which was created in 2012 and which funds various good
governance initiatives in developing countries. The structure of the steering committee
is similar, with the important difference that the three CSOs (out of 10 seats total) have
voting rights on a par with the governments and donor agencies represented on the
committee. Civil society representation on governing committees might reflect a more
general trend in the international development field. For instance, the Programme
Coordinating Board of UNAIDS, a UN institution which coordinates the UN’s response
to AIDS, includes five CSOs. These civil society seats are distributed geographically,
with three from developing countries, but do not come with voting rights.63 Another
example is the GAVI Alliance, a global childhood vaccination partnership between
governments, the World Bank, UNICEF, and the World Health Organization, which
includes CSOs as full voting members of its Board.64
The inclusion of CSOs on WB policymaking committees reflects cosmopolitan
theories in which associations and networks represent a global civil society and
mobilize people transnationally. In line with cosmopolitan theories, these public-private
committees have all sought to include global representation. That is, they have
allocated seats to NGOs based on their geographic areas of activity and have attempted
to achieve comprehensive geographic representation. Depending on the issue area, a
number of the committees have sought to achieve balance in the types of interests and
identities represented. More recently, the selection of NGOs has also turned on the
extent of their membership base in borrower countries. Yet, precisely because it is
necessary to employ selection criteria, the policymaking committee has proven to be a
form of public law that is contested and unstable in the increasingly plural social and
political context in which the Bank operates. It remains to be seen whether this will

61
World Bank, World Bank–Civil Society Engagement: Review of Fiscal Years 2010–2012
(n 40), 3.
62
See generally David Gartner and Kenneth W Abbott, ‘Reimagining Participation in
International Institutions’ (2012) 8 Journal of International Law and International Relations 1.
63
Ibid 10.
64
Ibid 13.

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Theories of civil society and GAL 343

also be the case for the governing committees that have recently been established for
particular policy sectors.
Table 15.2 summarizes the WB institutional reforms that have been made to
empower civil society and the particular theory of civil society embodied in each.

Table 15.2 World Bank civil society reforms

1990s 2000s 2009/2012

Institutional Project planning Transparency Governing committees

reforms analytical and Consultation with civil society
participation representation
requirements
Civil society funding
Theory of civil Social capital and Liberalism and effective Cosmopolitanism
society multiculturalism governance

4 CONCLUSION
In contemporary debates, civil society almost universally signifies a moral good.
However, the political theory differs significantly on how and why civil society is
central to the right and good ordering of democratic societies. By analysing the
mechanisms and specific forms of civil society that are believed to contribute to good
government in a number of important strands of scholarship, this chapter has sought to
bring conceptual clarity to the legal reforms that have been introduced in the global
realm to empower civil society and thus render global governance legitimate. This
chapter has applied the theory to one particularly important area of global governance
and global administrative body – international development and the WB. It has shown
that over the past decades, the WB has enacted three different clusters of civil society
reforms: analytical and procedural requirements for project planning; civil society
grants; and transparency and consultation on WB policies. While the first two clusters
have sought to enhance social capital and multiculturalism in borrower countries, the
third set has been aimed at introducing greater liberal checks and effectiveness into the
WB’s own policymaking. Somewhat surprisingly, cosmopolitan theories on the role of
transnational associations in representing a global people have been more evident in the
politics of reform than in the actual content of the resulting legal rules. Two recently
established governing committees, which include geographically balanced civil society
representation, do reflect cosmopolitan theory, but it is unclear how stable or repre-
sentative this trend is in the larger context of WB governance.
Looking beyond the WB, its trajectory of civil society reform is fairly representative
of other multilateral development banks. The four major regional development banks
have all introduced similar analytical and procedural requirements for their own project
planning. Direct funding of CSOs is less common, although the Asian Development
Bank does operate such programmes. At the policy level, all four regional development

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344 Research handbook on Global Administrative Law

banks have introduced access to information policies and have begun to engage,
somewhat unevenly, in civil society consultations.
This theoretical-empirical exercise is important for both evaluating and constructing
the emerging body of GAL. By identifying the normative ambitions of the WB’s civil
society reforms, which have also shaped other multilateral development banks, the
question of whether or not these reforms have been successful becomes more tractable.
It is now possible to take the second step and evaluate the empirical experience of the
law. Have these institutional reforms contributed to the formation of social capital and
the creation of multicultural policy spaces in borrower countries? Is the policymaking
of multilateral development banks, today, subject to greater liberal debate and is it
better at drawing on the expertise of stakeholders?
By exposing the theoretical foundations of WB law, it also becomes possible to learn
lessons across different sites of global governance. One of the challenges of global
governance is the disaggregated nature of international bodies and policy fields and the
related difficulty of creating a coherent body of law that ensures that particular policy
missions and institutional histories will not compromise the greater public good. Much
of the civil society law that has been enacted by the WB has been driven by the
international development focus of WB governance and is designed to promote social
capital and multiculturalism in borrower countries. To the extent that the WB’s reforms
have proven to be successful, there is good reason to think that other global
administrative bodies in the international development field can learn from the WB’s
experience. This constructive ambition also includes regulatory organizations, such as
the World Trade Organization, which are primarily focused on trade but which also
have profound implications for developing countries. To give but one example, the
analytical, disclosure, and consultation requirements contained in the WB’s law of
project planning could logically be extended to the regulation of areas such as
intellectual property, in which there are similar international development effects. In
sum, uncovering the normative foundations of civil society law can contribute to the
constructive ambitions of the emerging field of GAL.

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