The evolving mandate of the world bank : how constitutional hermeneutics shaped the concept and practice of rule of law reform

Abstract

International organizations (IOs) today contribute to international and transnational law-making in ways that were not anticipated by their constituent charters. The paper analyses this phenomenon of competence creep with regards to the expansion of the World Bank's (the Bank) mandate to the field of Rule of Law (RoL) and governance reform. Two innovative and intertwined conclusions are formulated. First of all, on a general level, the paper argues that the constitutionalization of RoL reform in the Bank exemplifies the path-dependency generated by the constituent charter with regards to the substantive expansion of operational practices in IOs. The legal memorandum by which General Counsel (GC) Ibrahim Shihata introduced and legitimized the expansion of the Bank's mandate to the field of RoL reform, the paper shows, employs a specific constitutional hermeneutic, grounded in the balancing of institutional teleology with charter constraints. Secondly, and most importantly, the paper exposes how Shihata's reliance on the constituent charter shaped his RoL concept, thereby delineating the substantive expansion of the Bank's mandate and operational practice. In light of the inclusion of the RoL as a distinct Sustainable Development Goal, this substantive inquiry into the nature of the Bank's RoL concept is most needed. The paper develops the innovative argument that Shihata's constitutional hermeneutic resulted in a sui generis Bank-specific RoL concept, which cannot-despite persistent attempts in literature-be tied to any legal doctrinal position. The analysis highlights two important features of Shihata's RoL concept: (1) its substantive roots in statistical regression analysis and (2) its dual functionality across the public-private divide. Combined, the two conclusions ameliorate the understanding of constitutional change in IOs and the substantive orientation of RoL reform in the Bank.