University of Botswana Law Journal - PULP

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18 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 Reform efforts, however, should be approached with caution. Simply earmarking foreign aid funds for Rule of Law reform, for example, will probably have little positive impact because institutions grafted on exogenously are unlikely to stick. In order to stick, an institutional change must be rooted in the informal practices and expectations of the indigenous population, and be compatible with their prevailing culture and norms. For this reason, it is unlikely that aid can provide the appropriate shock to the indigenous institutional regime to help them break out of their current institutional trajectory. Indeed, most underdeveloped nations in Sub-Saharan Africa remain mired in poverty despite recent attempts to exogenously introduce institutional change. For Rule of Law reform to be successful, an amenable cultural climate is an essential prerequisite. Therefore, recognizing and articulating the importance of the Rule of Law is at least an important first step because attempts to impose institutional reform without widespread support are premature and likely to fail. The entire mindset of central planning, even for Rule of Law reform, needs to be dropped. Instead, effort should be spent trying to discover mechanisms that effectively constrain predatory government and make it possible for poor nations to get past stakeholder problems. The population and the political leaders must support and devise mechanisms based on their own indigenous institutions to coordinate around new rule changes and usher in a Rule of Law regime. Development planning merely interferes with individual decision making (individual planning) and the natural evolution of market institutions. Ill-conceived development planning, such as foreign aid, undermines the foundation that makes development possible. The answer to poverty is not foreign aid, which does more harm than good. What is needed instead is an institutional environment that unleashes the creative energy of a society. Economic development depends upon the attitudes of the individual citizens and the conduct of their government. When individuals have freedom, their natural drive to improve their own lives brings about the process of economic development. If the impoverished masses of the third world want living standards comparable to the people in the west, they must adopt the institutions of Western civilization that make such wealth possible. If individuals in developed countries want to help those in poor countries get out of poverty, they must convince them to adopt the necessary institutions, such as the Rule of Law, and help them devise mechanisms to secure it.
19 Paradigm shifts in international justice and the duty to protect; in search of an action principle ABSTRACT P. Glen* This article places the emerging “responsibility to protect” within the historical development of international human rights and criminal law, while also attempting to more fully theorize the responsibility to ensure that it can be a basis for action in the face of a state’s commission of atrocities against its citizens. The main point of departure concerns the issue of “right authority” at that point in time when a coercive intervention is justified. Rather than rely solely on the Security Council in these situations, this article contends that unilateral and multilateral action must be countenanced by a fully theorized “responsibility to protect.” Such action is the only likely action to be taken in many circumstances, on account of the self-interest of Security Council members and general apathy towards intervention in the United Nations. There are solid legal and policy grounds for permitting such interventions and no compelling arguments to the contrary. Without sanctioning such action, it is very likely that the responsibility to protect will become just another quaint theory in international law, irrelevant to on the ground decision-making and incapable of the protection it was created to provide. 1. INTRODUCTION In his seminal work on the history of scientific development, Thomas Kuhn described the structure of that development as revolutionary in nature, occurring at that point in time “in which an older paradigm is replaced in whole or in part by an incompatible one.” 1 The impetus for this paradigm shift is malfunction – “scientific revolutions are inaugurated by a growing sense … that an existing paradigm has ceased to function adequately in the exploration of an aspect of nature to which that paradigm itself had previously led the way ... [T]he sense of malfunction that can lead to crisis is prerequisite to revolution.” 2 Kuhn himself analogized his conception of the theory and operation of scientific revolutions to political revolutions, drawing out parallels in genesis, form and function between the two. The notion of revolutionary change, or paradigm shifts, itself provides a useful framework to judge the evolution, current state, and potential future of international human Associate Professor, Georgetown University Law School, Washington, DC. 1 T.S. Kuhn, The structure of scientific revolutions 92 (Chicago: University of Chicago Press, 1996) (1962). 2 Id.
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