A big Russia-Eastern Europe story
Otto: “Three years earlier, the Berlin Wall had fallen, and laws of the Communist bloc countries had to be reformed. Furthermore, the initial bad light in which legal capacity building had been seen had cleared up. Since 1990, neo-institutional economics held that institutions, including legal systems, were crucial to achieve economic growth. Addressing bad governance and bad legal systems became a new trend. European donors, including the Netherlands were inspired by this way of thinking.” Van Olden: “We seriously looked at institutions that were involved with Eastern-Europe to find out whether our knowledge and experience would be useful. It turned out that several institutions, such as the Netherlands Helsinki Committee and law faculties were involved in legal cooperation with this region. We concluded that the magnitude of the changes in Eastern Europe was such that there would be space for yet another organisation to be involved in the establishment of legal cooperation projects.” Based on this conclusion, in 1993 the Council for Legal Cooperation with Indonesia was transformed into the Center for International Legal Cooperation (CILC), as it is known today.
In Leiden, there was an institute similar to the NORZOAC/VVI specialised on Russia: the Institute of East-European Law and Russian Studies, headed by Prof. F.J.M. Feldbrugge. Otto: “Jan, professor Feldbrugge and the Dutch government commissioner for the new Civil Code and vice-president of the Supreme Court Prof. W. Snijders travelled to Russia, which finally resulted in a big Russia-Eastern Europe story.”
Van Olden: “Professor Feldbrugge, who was fluent in Russian and a widely acknowledged expert on Russian law, had extensive contacts with the Institute of Law of the Russian Academy of Sciences and with the legislative institute of the Duma. Just before our departure on that first trip to Russia, we were in Feldbrugge’s office discussing our upcoming journey and ways in which our Council, not having any experience with Russia or Eastern Europe, could contribute. At that moment, Feldbrugge received a fax containing a whole list of fields in which these Russian institutes requested legislative cooperation, ranging from the constitution to the penal system, but also assisting in revising their Civil Code from a communist one into one that would best suit the new political situation and a move towards a market economy. Feldbrugge immediately sensed that this should be our topic of assistance, since the Netherlands had a ‘comparative advantage’ here and was able to offer more than other donors.” The new Dutch Civil Code was state of the art work, incorporating the results of extensive research into Civil Law codes, developments and models of other countries.
The Russians told Van Olden that it would make sense to also involve other countries in this legal cooperation, as their legal system was closely related to legal systems of the Ukraine, Kazakhstan, Kyrgyzstan and all the other former Soviet Republics. Van Olden: “Well, we liked that, because of the multiplying effect.”
In this way, the legal assistance of the new Center for International Legal Cooperation (CILC) started with Russia and their new Civil Code. At the same time, CILC was asked by the European Commission in Brussels whether it was interested in engaging in a mission to Kiev. It turned out that the Ukraine wanted assistance with drafting a new Civil Code and the EU was willing to fund the project.
Van Olden: “In Kiev we found out that the Germans had received a similar invitation to assist in legal cooperation, also from the EU, but from another political level in Kiev. Feldbrugge responded immediately: ‘We will not let this happen.’ We visited the German Embassy in Kiev where we had a heated discussion. Feldbrugge argued that we did understand the Ukraine was Germany’s ‘backyard’ and underlined the importance for Europe to cooperate intensively with the country. ‘There is only one field, which you should leave to us and that is assisting in developing the new Civil Code. In this field, the Netherlands is more advanced than you are. Our common roots are the 19th century French Code Civil and your Bürgerliches Gesetz Buch became the dominant code of the 20th century, but as civil law experts you will admit that our new Civil Code is the law book of the 21st century.’ In the end the civil code assistance to Ukraine became the first tripartite law project in which German and Dutch experts fruitfully worked together.”
Van Olden recalls: “The United States had strong interests in Russia becoming a true democracy, with whom they could establish trade relationships. Through the Harvard Business School, they initiated several projects in Russia to get a foot in the door. However, they quickly realised that to address a continental law based civil code was beyond their scope. By funding our legal cooperation projects with USAID resources – at some point up to 80 percent – they remained involved nevertheless.”
In order to make the large cooperation project of revising the Civil Codes of the different former Soviet Republics more efficient, participants agreed on the development of model legislation through the Commonwealth of Independent States (CIS) secretariat in Saint Petersburg. Countries could use this as an example for developing their own legislation. This apparently rang an alarm bell in Washington: it was feared that uniform legislation would contribute to restoring the former Soviet Union under Russian domination. “Is the Netherlands aware of the fact that it is bringing the old Soviet Union back to life?” a telegram from USAID to The Hague read, requesting to carefully reconsider the cooperation and if possible, to terminate the subsidy. “We could explain to them that our approach was simply to promote efficient cooperation by making a joint effort. It was a meeting of sovereign people in their different fields of expertise, having a free hand at home to implement the Civil Code as they felt it was most suitable. In the end, the Civil Codes of these different countries were not identical. But – after five years – it meant the end of the generous US support to the joint approach.”
Otto: “After Indonesia I remained in the CILC board for quite a long time. Looking back, for me the experiences with Indonesia and Russia remained an important point of reference. Those projects were quite deep and had a broad impact, involving academic researchers and practitioners who all learned from each other. Later on, as the market for legal capacity building expanded and became more complex and fragmented, CILC became content with projects for only one group of practitioners, such as ‘bailiffs in the Western Balkans’, or ‘paralegals in Mali’. It became much more difficult to make well-informed choices about what issues to address. This raises the question of how much in-depth knowledge of a country one should possess to become involved.”
There were also differences between the cooperation with Indonesia and Russia – Eastern Europe. Otto: “At the time of our cooperation with Indonesia, the country had a strict, military, authoritarian government, which did not allow any opposition or critical debates. Therefore, one could not advise on a wave of reforms, as in Russia. Movements towards the rule of law went against the leading ideology – although some cracks had already emerged. In that sense, it was very interesting that the Indonesians were interested in our system of administrative justice, in which a civilian could initiate a lawsuit against the government. Looking back, I think president Suharto may have realised that something had to change. He noticed that there was a new generation of military who would be even more eager to fill their own pockets and he concluded that the system should become more democratic.”
With Suharto’s consent, a plan had been developed to introduce administrative justice in Indonesia. Two of his most prestigious lawyers, the secretary-general of the Justice Ministry and the principal legislative advisor to the president, travelled to the Netherlands, initially for a fact-finding mission and to attend academic seminars. Eventually, drafts for an administrative jurisdiction act were drawn up and judges trained and, by the end of the 1980s, a system of administrative justice was introduced in Indonesia. Otto: “The system still stands, an excellent example of how that project, despite going against the dominant political ideology, was able to introduce a new legal structure.”
Van Olden: “It is interesting to note that the introduction of a new system of administrative justice was also an important part of the cooperation with a number of former Soviet Union countries, in particular those countries, like Georgia or the Ukraine, that opted for membership of the Council of Europe. Another thing our cooperation projects in Indonesia and Russia – Eastern Europe had in common was the role of NORZOAC (later VVI) and the Institute of East-European Law and Russian Studies. Today, as a model of cooperation, CILC also involves Dutch lawyers with expertise on a specific topic and lets them work together with lawyers in the receiving countries. However, since one can never sensibly discuss a law without knowing anything about the cultural and political context, the institutions and how the laws are applied, the role of an institute such as the VVI or the Institute of East-European Law and Russian Studies is crucial.”
Lack of context related expertise
This last observation brings up criticism of the manner in which legal capacity building is carried out today. Van Olden: “When looking at current types of technical cooperation, such as those funded with EU money in the new EU member states, we see that it just brings thematic experts together with other thematic experts. Perhaps this approach will work for highly specific technical subjects, but I feel that if one aspires to cooperate effectively on a deeper and broader level, you require in-depth knowledge of the country, its laws and how they work. I am truly disappointed by this limited form of cooperation that is standard these days.”
According to Van Olden, cooperation can only be successful when you aspire to build knowledge about a country. In parallel with the application of technical legal knowledge in projects, in which people exchange such knowledge, are trained to build capacity, one also requires experts that study the context and the inner workings of the system. Van Olden: “…such as the functioning of the Supreme Court. Also for the project on administrative justice in Indonesia, the VVI employed a young researcher to do field work, Adriaan Bedner. He visited courts, lived in the country, talked to judges and observed how things work in practice. From that, one could derive all kinds of relevant knowledge and insights, which one can use in the projects. A long-term investment.”
Responsibility to learn
Otto adds: “If Western donors and academic institutions are not willing to make a certain investment in acquiring knowledge about a recipient country’s legal system in context, and instead come with the outdated idea that it is all about consultants who should offload their western knowledge, chances of success are slim. Enormous amounts of money are channelled into certain countries but, later on, people are frustrated about lack of results. Since the foreign affairs budgets have suffered severe cuts, research and educational institutions have now a heavier responsibility in this matter. At the same time, in the recipient countries, the level of education has improved considerably, resulting in an increased number of qualified legal experts who can play a much larger role.” He refers to an example in Libya, where the VVI tries to involve domestic researchers rather than foreign consultants in their projects and in their academic publications, which also creates more fairness. Otto: “We call this the ‘responsibility to learn’ that rests upon those who are intervening in a country. This means that one should study the country, language and legal system in-depth and aim to address it in cooperation with domestic experts. Unfortunately, this is not the dominant approach yet. For a project organisation such as CILC, restricted by specific requirements for project formulation, it is often too complicated to think about a long-term involvement of academic research into its projects.”
Van Olden agrees: “Currently, one operates on a competitive market with often very strange competition criteria. Conditions are very strict. The context of the project is a given rather than something to be analysed and it is expected that within three to five years institutes for training judges or lawyers should be established and running. Very often, there is no plan for the aftermath and no operational budget for the upkeep of the institute or to pay staff salaries. Meanwhile in Indonesia, we are still working on operationalising an institute for training judges after having taken the first steps in 1986. It is a long-winded process. Whereas the EU requires its projects to have a visible, measurable impact. Right now, one is so bound by the ‘terms of reference’ of all those project models. CILC’s predecessor worked with Indonesia, one country, with a specific programme and a stable budget. One could do one’s utmost and the money was available. After the transformations in Eastern Europe, we entered a market with competitors. Such as the Germans in the Ukraine. For the first time, we had to compete for a project. However, at that time, we could still tell Brussels, ‘Sorry, we are doing this project together with them’ and we submitted a joint project proposal. Twenty years later, CILC is still working together with that German institute, the German Foundation for International Legal Cooperation (IRZ).”
Van Olden: “What we aspired to achieve with the Council was mainly to invest in people.”
Otto: “We still meet some of them. After all, for us it has not been a mere project but rather a lifelong fulfilment. 30 or 40 years down the line it has remained part of our life. Serious legal cooperation is something long-term. Perhaps for a lifetime.”
Van Olden agrees: “Or two.”
Interview by Marjolein C. Groot, 1 June 2015