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|Law Reunion - Supreme Court Panel
The "Dream Team," as Pre-Law Professor Scott Himsel described them, from left Tom Fisher '91, Seamus Boyce '03, David Kendall '66, and Greg Castanias '87 (not pictured). These four made up the panel of lawyers discussing their experiences presenting cases in front of the U.S. Supreme Court. The panel was part of the Law Reunion and continuing law education seminars.


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Having reviewed the historical, political, and environmental aspects of aid to the Sahel and attempted to analyse the impact of development projects, a few general conclusions emerge together with some specific recommendations. First, it is remarkable how dominant a role political considerations play in the entire process of providing development assistance. At each stage in the process (defined here as allocation, identification, planning, execution, and evaluation) some combination of micro- and macro-scale political forces are influencing the use of public funds. This is not to say that development assistance is not well-intentioned or that the motives in providing aid are anything but the most humane. Rather, the term "political considerations" must be taken in the broadest possible sense, in that every decision involves certain values and beliefs and no decision is based solely on objective considerations. On the macro-scale, for example, decisions must be made on the level of aid to different countries, on whether it will be provided on a bilateral or a multilateral basis, and on the sectoral allocation (e.g. for family planning, infrastructure, or agricultural development). On the micro-scale, one must identify the intended bene ficiaries and select a specific geographical area. In an agricultural development project, a decision must be made whether assistance is to be provided to all farmers, landless farmers, or co-operatives. Aid projects inevitably reflect a particular interpretation of a problem, and the more peopleoriented projects inevitably have a greater subjective component.
Why has Senegal historically had a much higher level of development aid? The obvious answer is that it has a stronger infrastructure and therefore a higher absorptive capacity, but is that not a result of an earlier emphasis on Senegal, which itself is partially due to the more pleasant climate of Dakar as compared to Nouakchott or Niamey? To what extent are projects concentrated in those areas where the ruling party or dominant ethnic group have their roots? Why are donor countries often willing to co-ordinate their activities but reluctant to pool their resources, preferring instead to work on a bilateral basis? Why do certain countries give more support to certain UN agencies and not others? Why has there consistently been a policy to sedentarize nomads and to support farmers in their historical conflict with the nomads? Simple answers are difficult to come by, but each of these questions points out that motivations are complex and depend on much more than a purely objective analysis of needs and priorities. It is probable that our failure to develop a comprehensive theory and understanding of development processes has resulted in tremendous variability in development policies and approaches. While this often can be considered beneficial, it also facilitates a greater intrusion of political and ideological considerations into aid policies than might otherwise be the case.
It is primarily in the political sphere that the drought can be considered to have brought some benefit to the Sahel. Because it focused attention on the sub-Saharan region of West Africa, aid programmes have increased considerably over what they otherwise would have been. Certainly the United States would not have been likely to contribute hundreds of millions of dollars to a region with relatively little strategic value, nor would there have been a UN SudanoSahelian Office to further stimulate project formulation and funding. In turn CILSS and the Club du Sahel, unique among developing countries, probably would not have been formed, and they certainly would not have played such a prominent role in determining the priorities and conditions for development aid. Even though donors still fund ClLSSrecommended projects as they see fit, CILSS and the Club have led to regional and donorrecipient dialogues that are unique and undoubtedly beneficial.
"Better co-ordination" is the single inevitable recommendation that comes out of virtually any aid-review panel or study, but as a concrete goal it is something of a mirage. Without a complete restructuring of the bilateral and multilateral aid system, one can talk only of sharing experience and knowledge and of preventing two agencies from doing the same work in the same geographic area. Effective coordination implies both a willingness to surrender some control to a central authority and an agreement on basic issues; both of these present very serious barriers. It should perhaps be emphasized that co-ordination in the Sahel is not a single process but must be done on three levels: (1) internationally, among both donors and the CILSS countries; (2) at the national level, among both donors and the respective government departments in the recipient country; and (3) in the field, directly exchanging knowledue and experience. On the international level co-operation is taking place at the regular meetings of CILSS, the Club du Sahel, and their respective technical and working group meetings. CILSS is also establishing national committees, but it remains to be seen how effective these will be in enhancing cooperation at either the national or international levels. Perhaps most important is co-ordination at the working or field level, but this is largely dependent on the individuals concerned (GAO 1978; Inter-agency Consultative Board 1967) and thus not easily mandated.
Within the UN system an inordinate amount of time and funds are spent on "co-ordination", when the problem actually stems from the fractured nature of the system. In theory each agency has its own niche, but in practice almost any given activity could be carried out by any one of several agencies. Each agency uses its own broad mandate to jealously protect its historical niche while trying also to expand the scope and volume of its activities. Hence, co-ordination efforts are unable to achieve much other than the appeasement of the governing bodies, each of which requires assurance that its efforts are essential and unique.
From a managerial and operational point of view the UN system is inefficient, if not on the verge of being ludicrous, and many of Jackson's (1969) criticisms are equally applicable today. The United Nations has an Advisory Committee on Co-ordination, which consists of the head of each agency, but this is relatively ineffective. Concrete results seem to be limited to a standardization of project categories and terminology. Agreements between agencies are generally only on paper and are usually ineffective in determining jurisdiction. Each agency sets its own independent course according to the broad outline determined by its governing council, and the director typically has considerable latitude in determining priorities and the means of execution. With the exception of UNDP and its associated agencies, projects are established on an ad hoc basis as funds and political (in the broad sense) preferences dictate. Each agency also has its own administrative procedures, local personnel, and regional offices, and the confusing network of these is documented by Renninger (1979). He argues that the complete inconsistency in terms of regional offices and responsibilities not only makes it difficult for governments to work with UN agencies but also prevents an effective complementarily of programmes between agencies. In contrast, I posit that the clustering and standardization of regional offices which Renninger recommends would just be a superficial solution for a much deeper problem.
In some countries the UNDP Resident Representative has been renamed the Resident Co-ordinator and is the acknowledged leader among equals for all UN activities in a given country. While this is a major step forward, the
Resident Co-ordinators still do not have control over the location or content of non-UNDP projects. This means that their effectiveness in avoiding duplication is primarily at the early stages of project selection and formulation.
A clear example of the difficulties of co-ordination at the international level is the fate of the transnational projects to combat desertification. Formulated as part of the Action Plan to Combat Desertification and presented to the UN Conference on Desertification in 1977, these seven projects were to establish green belts north and south of the Sahara, stratify livestock production in the Sahel, and survey and manage several regional aquifers, all on an international basis. Each of these has now been abandoned, although parts of a few have been taken up as national programmes. At the March 1980 meeting of the Consultative Group for Desertification Control (DESCON) only one regional project was submitted to donors-a meteorological centre for the Sahelian countries-and the director of DESCON noted, "In future they [transnational projects] will have to be designed to cater for the needs of individual countries included in the project. Individual governments would also be involved in the execution of these projects" (Uniterra 1980).
At present there are enough co-ordination and joint pro gemming meetings in the UN system to keep at least one professional officer in each agency doing nothing but attending these. Requests for information from the agencies on their activities in a specific field are constantly received, with the replies to such requests being dutifully compiled, distributed, and ignored. Internecine warfare is a constant preoccupation with some, and can take the place of concrete action (witness the battle between Unesco and UNEP over environmental education, which nearly destroyed the Tbilisi conference in 1978). In short, the present proliferation of agencies is not only inefficient but also counter-productive. Furthermore, the agencies were not created to conduct technical assistance programmes, yet this often constitutes half of their disburse meets (Jackson 1969).
The alternative would be to restructure the UN system, creating five to ten super-agencies under one central authority with centralized budgets, and with special sections or agencies responsible for technical assistance. Since most agency heads or governing boards would be unwilling to surrender some of their influence, the likelihood of change is very small. On its own the United Nations is taking agonizingly slow and painful steps towards at least ensuring proper consultation-e.g., the creation of the World Food Council to work with FAO, the World Food Programme, and the International Fund for Agricultural Development.
In the meantime there is constant pressure to create new bodies to look after specific problems or topics. The mythology is that such bodies will attract new funding that would not otherwise be available, and that creating a new agency with a specific mandate will help resolve the problem. However, the major donors have been increasingly reluctant to add to the cacophony; so new bodies have been created within existing agencies. Among the most recent are the Desertification Control Unit (1977) in UNEP and the Science and Technology Interim Fund (1979) under UNDP. Neither of these is receiving anywhere near the support they were originally designed to attract. Nevertheless, vicious squabbles take place over who is to control these new funds, and since the major donor countries tend to indicate their displeasure by making no or token contributions, the question of control becomes moot. At least part of the reason for the attempted proliferation of new agencies is that developing countries view certain agencies, particularly UNDP and the World Bank, as Westerndominated and therefore not very responsive to their needs and views. Another factor is the need for the United Nations to demonstrate some concrete action with regard to a given set of problems.
One can theorize that as the world economy continues to exhibit relatively little growth, contributions to many of the smaller agencies will drop off. There already seems to be a tendency for the smaller agencies to utilize an increasing percentage of their funds for keeping the door open and thus to have almost no project capability. This in turn further inhibits their fund-raising capability. A class distinction may be developing in the UN agencies -on one hand the large, well-established agencies such as WHO and FAO, whose funding will allow them to keep more or less abreast of inflation, and on the other the smaller agencies who will fall into a vicious circle of less funding and fewer activities. This "marginalization" of some agencies may eventually force a certain amount of restructuring, but in the meantime these marginal agencies continue in their inefficient ways.
A more recent phenomenon with uncertain implications is the tendency for countries to withdraw from those UN agencies whose behaviour is inconsistent with their national goals and values. The United States pioneered this approach with its withdrawal from the International Labor Organisation in 1978. Presumably this forced the ILO to tilt more towards the viewpoint of the United States, which rejoined the organization two years later. It is too early to predict if the withdrawal of the United States and Great Britain from Unesco is again a short term lever to produce desired change or a semi permanent withdrawal that could seriously damage the United Nations' efforts to serve as a universal forum. Certainly the withdrawals have set a dangerous precedent which may already have weakened the commitment of individual countries to the United Nations. The thre at of withdrawal may also result in a certain conservatism in the specialized agencies, as they can't afford to offend their major donors. Of course, this conservatism may also lead to a reduction in the level of political rhetoric.
Operationally there seem to be a number of possibilities for agencies to carry out their work more effectively. The first of these is to provide the field offices with as much control as possible, thereby obviating the need for protracted discussions with headquarters and automatically reducing much of the paper work. The ability of the UNDP Resident Co-ordinators to implement projects of up to $450,000 is a very positive step in this direction. The World Food Programme has its quick-action procedure which gives it the possibility of responding quickly to a country's needs for food aid or food-forwork programmes These efforts must be contrasted with the fact that development projects that proceed through normal channels take an average of two years before they are ready to be implemented.
A major problem for the United Nations is the uncertain level of medium-term and long-term contributions. While UNDP's 1976 fiscal crisis was brought on more by mismanagement than by declines in contributions, it still took three years before it could re-establish an equilibrium between project formulation, project implementation, and the availability of resources. In the past the UN agencies have been accustomed to growth in real terms, but it appears that at least in the near term there will be no real growth for most, and a decline in real terms for others. UNDP's indicative planning figures for 1982-1986 are now simply ideals rather than realistic targets. Although this has been recognized for some time, the severity of the decline was not, and UNDP is being forced to slow down the rates of project formulation and approval as well as lay off staff. It may be that UNDP's fiveyear planning cycle will create its own cycle of expenditures, when times are good, the last year will be a frenetic scene of activity; if contributions are down, the last couple of years will be devoted to keeping the remaining projects on track. in this context the oft-extended, long-term projects may actually help to ease the fluctuations in expenditures. As noted earlier, changes in UNDP's funding then have major repercussions throughout the entire UN system.
For a number of reasons, uncertainties in funding plague those UN agencies that are supported by assessed contributions as well as those that rely on voluntary contributions. First, although support by assessed contributions suggests some long-term stability, the precise level of support changes with each biennial budget. Second, most agencies depend on outside funds for most of their technical assistance activities, and generally these are subject to the same fluctuations as any other voluntary contributions. Third, countries have the right to withdraw from an organization, although advance notice is required. Finally, and perhaps most importantly, currency fluctuations can have a tremendous effect on expenditures and income. An increase in the value of the US dollar can be very beneficial when assessments are in dollars and expenditures are in other currencies, but the effect can be disastrous when voluntary contributions are made in local currencies and many expenditures are in dollars (e.g. when an organization is based in New York and must pay salaries in dollars). Particularly in the past few years, the dollar has shifted by 10 or 20 per cent in relation to other major currencies within a few months, and this makes forward planning and budgeting a very risky business.
While bilateral agencies are not nearly so subject to currency fluctuations, they must be prepared for major shifts in funding as the political winds shift in both the originating and the recipient countries. Given the problems of formulating, signing, and implementing large develop ment projects, continuity in funding must be assured in order to prevent a rush of poorly planned projects when shifts in priorities occur or additional funding materializes.
In the case of most natural resource projects in the Sahel, long term commitments and flexibility in planning are absolutely essential because of the severe climatic fluctuations. If one is trying to introduce animal traction in a dryland farming scheme, for example, what happens if an unusually dry year comes, or a swarm of locusts destroys many of the crops and thus the poor farmer's credit? Rondinelli (1977) describes the different theories that govern development project planning, with one extreme being that detailed planning and preparation is impossible since implementation is uncertain, and the other-the management science approach-being that projects must be planned in their entirety. Such arguments become meaningless out of context, however, for the desired degree of planning depends on the capability of the project officials to anticipate and respond to problems, and also on the degree of certainty that one can attach to items such as the timely arrival of equipment and ex perts. Since all projects involve government counterpart contributions as well as outside funds, the uncertainty is usually high and the value of detailed planning doubtful. A detailed planning phase is essential only to develop a consensus on what needs to be done and how, and the phasing of the various inputs, including the delineation of respective contributions and responsibilities.
Hence the first step in project planning must be to specify the goals of the project clearly. Who is the target audience? And is improved production, equity, or the meeting of basic needs of primary importance? Then the approximate means can be suggested and the basic feasibility {e.g., economic, ecological, social) evaluated, with the results of the basic feasibility assessment feeding back into the identification of means to achieve the set goals. Detailed planning is only needed in order to provide a starting point for the feasibility analysis and assignment of the respective costs and responsibilities. Only when there will not be a competent designated project manager on the spot should it be necessary to spell out every step to be taken. The one aspect that is typically neglected in the planning process is a discussion of alternative scenarios -what to do in case of drought; what might be some unexpected side effects. While these need not be explored in great detail, an initial discussion will ensure a broader sense of agreement on the goals of the project and provide a base for future actions.
With the advantage of hindsight, criticism is too easily given, but the continuing lack of emphasis on education and training, despite the acknowledged need, is difficult to understand. Time and time again projects are frustrated, delayed, or ineffective because of a lack of counterpart technical and administrative staff. It has been estimated that 7,000 agricultural, stock farming, and rural development experts and technicians are needed in the Sahelian countries to carry out present development plans (OECD 1976). Most projects do provide for the training of counterpart staff, but they often are pushed upstairs into administrative positions where their technical training is of little use. UNDP estimated in 1976 that two-thirds of total field expenditures-on the order of $350 million- was spent on outside experts. Yet less than 10 per cent of its expenditures were for training in 1978 and 1979 (UNDP 1 980).
Similar problems are encountered with regard to the provision of counterpart funding. Most development agencies require some contribution of funds and manpower to be provided by the recipient country as a gesture of commitment and good will. Increasingly it has been realized that the cumulative requirements of the various aid projects pose a tremendous burden to these countries, and also that the required provision of counterpart funds is one mechanism to force a country to accept the priorities of the donor. Hence there has been a tendency within the UN system to adopt a more liberal attitude towards counterpart contributions, particularly in the Sahel. In some cases UNSO or UNDP may provide the counterpart contribution, which then allows the country to obtain much larger funds from outside. Traditionally the division between outside assistance and the counterpart contribution was made on the basis of foreign exchange costs versus local costs, especially in capital-intensive telecommunications or transportation projects and in the middle or upper tier of developing countries. For agricultural and rural development projects, however, many of the costs are local, and in such projects in the poorer countries the donors must provide the bulk of the local costs as well.
A more difficult problem is that of recurring costs, especially in view of the fact that most aid agencies are reluctant to commit funds or to support projects for more than a few years. Assuming a ten-year development programme in the Sahel at a rate of $1,000 million per year, Beazer and Pulley (1978) calculate that, under normal procedures, this would involve $6,800 million of aid, $3,200 million of counterpart investment by the recipient countries, and $3,600 million of recurring costs, all over the ten-year period. Since the counterpart investment alone would amount to 40 per cent of projected annual government revenues, donors working in the Sahel must be prepared to provide virtually all the investment funds. Similar problems arise with the foreign exchange component of the recurring costs, especially since the bulk of this would occur after the initial investment is completed. In short, aid should not be regarded as a "free lunch", either economically or in terms of political priorities.
There are also a variety of environmental trade-offs associated with rural development and the acceptance of aid funds in general. Obviously the most significant of these are associated with the expansion of both irrigated and dryland farming, water resources development, and shifts in farming practices.
Perhaps the most significant projects now under way are the construction of dams on the Senegal River. On the positive side, these should open up vast new areas for irrigation, generate electricity, prevent salt-water intrusion, and facilitate inland navigation. On the other hand, 10,000 people will need to be resettled; the seasonally flooded pastures and farmlands will largely be lost; there could be negative effects on the important inland fisheries; and the incidence of waterborne diseases such as schistosomiasis and onchocerciasis could increase (Hunter 1981). Experience elsewhere indicates that salinization and a variety of crop pests have been serious problems (NAS 1983), and the development of new areas has barely exceeded the rate at which old areas have been abandoned (Club du Sahel/CILSS 1980). Since irrigated agriculture requires such high capital and recurring costs, as well as a relatively sophisticated management structure, it is usually these non-environmental factors that are instrumental in deciding whether a given project is to be implemented. Once a project is under way, however, inadequate management can easily result in environmental problems (such as disease, pests, and salinization) becoming the dominant concerns.
The development of the livestock industry, through the provision of veterinary services and watering points, has also resulted in a variety of environmental problems. In some areas localized over-grazing and the resulting desert) fication is so severe that the overall balance of the development effort must be considered negative. Once a few deep wells are provided, local deterioration of soils and pastures will occur rapidly unless grazing pressure is controlled. In the past it was thought that an entire network of watering points would relieve the pressure on a few spots, but it now appears that this only serves to expand the scope of the problem. Access must be limited in time, or by ethnic group, or in the quantity of water made available, but this is politically sensitive and difficult to enforce. Some may advocate the fencing of land for large commercial ranches, but group management is difficult and individual management may violate the general development goals of equity and assistance to the poor.
Mechanization of dryland farming and a switch to cashcropping are two other, interrelated rural development activities designed to increase income and productivity, but they may have a number of negative side-effects. Among these are a decline in soil fertility and a breakdown of soil structure, an increasing need for imported fertilizers, and an increase in erosion. Similarly, the provision of credit can lead to a disparity in incomes and an intensification of farming without the necessary soil conservation measures. Experiences in the Sahel and elsewhere indicate that unless mechanization and other innovations are introduced on a collective or co operative basis, the rich farmers are likely to get richer and the poorer farmers are likely to become tenant farmers or to be pushed onto even more marginal land, further accelerating the process of desertification.
Few of these environmental problems can be considered particularly new. Overgrazing, reduction in the forest cover, and expansion of dryland farming have all been known to occur as a result of climatic change, population shifts, or economic considerations. One key difference seems to be that many of the means to adjust to changed conditions have been lost. Today's pastoralists and dryland farmers are hemmed in by a much larger rural population, stable political boundaries, and fixed land boundaries. There are fewer opportunities for either short-term or long-term migration in response to normal climatic variation. Social structures which served to spread risk and share resources are being weakened or lost.
The rapid increase in population is also forcing a much more intense use of resources and a much faster rate of development than in the past. An annual population growth rate of 2.5 per cent means that all production, services and infrastructure must double every 28 years just to maintain present inadequate standards; very few countries in the industrialized world would be able to cope with such demands. Put these needs in a highly variable climate, and the reason for periodic inputs of food aid is clear. Under these conditions, it is almost inevitable that some environmental degradation will occur.
These and other questions arise with almost any natural resource development project, yet there are few indications that the lessons of the past will not be repeated. For example, obvious questions in an afforestation scheme are who will prevent the animals from eating or trampling the seedings, and who is to provide the required watering and weeding during the first couple of years? The attempt to answer such simple questions leads to the more fundamental problem of how costs and benefits will be distributed. Obviously the local people must perceive a project to be in their own interests or else its chances for success are negligible. This in turn implies that donors must listen to the local people rather than imposing their own value-laden ideas. Unfortunately most donors are not willing to undertake such timeconsuming or humbling tasks; their constraint is usually to disburse funds as quickly and efficiently as possible.
There is a very real problem resulting from the fact that some 80 per cent of all development assistance flows through bilateral or multilateral channels on an official basis. As public institutions, both UN and bilateral development agencies are dependent on annual contributions and are required to be efficient. Since efficiency is defined in terms of funds disbursed, there is real pressure for development to be conceived in units of short-term capitalintensive projects, despite general recognition that smallscale peopleto-people projects are the most effective. More than once a successful small-scale project has been adopted as the blueprint for a large-scale activity, only to result in failure because there was not the same basis of trust, understanding, and responsiveness (including local controls). In many cases it might be better to provide small supporting grants for the multitude of ongoing private and volunteer efforts.
To be effective, aid must be offered in a genuine spirit of co-operation and without preconceived ideas. As indicated above, the very nature of development assistance-despite the dedication of the individuals involved-makes this extremely difficult for both practical and philosophical reasons. The alternative, however, is that poorly conceived development assistance will foster both social unrest and a deterioration of the natural resource base, forcing ever more people onto marginal land and into a marginal existence. Then, when the next, inevitable set of dry years occur, this dispossessed segment of the population will bear the growing burden of suffering.
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Pop star Cheryl Cole is now a member of British aristocracy after Simon Cowell bought her an official title for her 30th birthday.
The former Girls Aloud singer marked the milestone in style over the weekend by partying in Las Vegas and throwing a lavish bash at a huge mansion in Malibu, Calif.
And to top off her celebrations, she was made a 'Lady' after her former The X Factor boss Cowell bought a plot of land in her name in Fife, Scotland.
Uploading her official landowner certificate, which makes her Lady Cheryl Cole for the next 175 years, she tweets, "I will now be referred to as Lady Cheryl Cole when you address me both in person & through the media."
The title is not the same as being made a peer by British monarch Queen Elizabeth II, but refers to the Scottish term 'Laird', meaning 'Landowner'.