3 legal challenges facing the development landscape and 4 tips to help lawyers overcome them
Former USAID General Counsel John Simpkins has warned the legal landscape for lawyers working in development could become even more complex once President-elect Donald Trump takes up office in January.
Lawyers often have an integral role to play in achieving development goals and keeping aid programs running, and considering today’s evolving challenges — the largest refugee crisis since World War II, growing political nationalist rhetoric, international health emergencies, and climate change negotiations — they are likely to be busier than ever, he said.
“Everything will depend on what foreign aid looks like in the Trump administration ... but if we take him at his word, we can already identify a number of challenges that would shape the legal landscape going forward,” Simpkins said.
Specifically, U.S. sanctions and restrictions and the potential for this to interfere with conflict mitigation and humanitarian efforts and U.S. Agency for International Development’s work in countries hostile to a U.S. presence, could create legal problems, Simpkins said. Furthermore, the issue of how the U.S. works with multilateral development banks is also likely to come under legal scrutiny in the near future.
Devex sat down with the lawyer, who left his role at USAID in October and will soon be teaching at Duke University’s law school, to find out more about these challenges and also the kinds of skills and expertise lawyers and aspiring advocates can cultivate in order to be effective in the development sector.
Challenges
1. Sanctions.
U.S. sanctions can interfere with humanitarian and development efforts in some situations, Simpkins said. Sanctions come with legal restrictions, primarily under the Patriot Act, which limit the offering of “material support,” such as money, goods, services and training to terrorist organizations. In most situations these restrictions are clear and don’t clash with USAID operations, for example in Afghanistan where USAID would be prohibited from working with the Taliban, Simpkins explained.
However, the situation is “murkier” in post-conflict — or nearly post-conflict — settings, such as Colombia, where USAID was unable to work with former FARC rebels on job training and education as part of reintegration efforts.
“While these restrictions serve a useful purpose, they also have unintended consequences in countries like Colombia and our attempts to assist with demobilization efforts,” he said.
Similarly, U.S. humanitarian efforts can potentially run into difficulties due to government sanctions. The Department of Commerce could potentially prevent USAID response teams working in disaster-struck countries from using local supplies, such as drinking water containers and cots, if sanctions were in place.
Furthermore, if there are restrictions on purchasing materials from that country, for example Cuba, this creates further problems since supplies will need to be sourced from elsewhere.
Simpkins said sanctions are a combination of legal and political issues and said the best way to address the potential conflicts of interest would be to address them as they arise and not subject them to a “blanket policy.” Instead, where there is “reasonable certainty” that conflict has ended and groups have been demobilized, then the U.S. government should “devote foreign assistance resources to further building peace and stability in the affected areas,” he said.
2. Engaging with multilateral donors.
U.S. engagement with the United Nations and multilateral donor banks could be limited under the next administration as part of a move towards greater “isolationism,” Simpkins said.
Given Trump’s “dismissive remarks regarding NATO and the importance of foreign aid generally,” Simpkins predicts congressional oversight on spending will become more “aggressive” under the new president. More specifically he thinks Trust Funds, such as the Global Environment Facility, which are financing arrangements that hold contributions from a number of donors to fund specific activities but are coordinated by MDBs, will be subject to greater “legislative oversight”. This could be bad for the development sector, in Simpkins’ view, since he says U.S. aid often has a “multiplier effect” when invested in multidonor trust funds.
In legal terms, this is likely to mean the U.S. will honor any existing arrangements, but legislative or executive action could be taken to limit U.S. future engagement with trust funds, and other multilateral institutions. For lawyers, this would mean “being more creative in finding legal authority” to engage with multidonor trust funds, and other similar initiatives.
3. Working in “closed spaces”.
USAID activities in countries where the government is hostile to the U.S. presence, such as Syria and Venezuela, often termed “closed spaces,” are also likely to be an increasingly challenging area of work, according to Simpkins.
The former general counsel said there are questions about how the U.S. will engage in “closed spaces” under the incoming Trump administration. He predicts the U.S. relationship with Syria could become more “aggressive,” which could “complicate efforts to engage with refugee populations.” He also raised questions about whether USAID could see a renewal of development assistance to Russia, traditionally a “closed space”.
On the legal side, Simpkins said USAID’s legal authority to work in certain countries would be the issue at stake. Currently, the key consideration for USAID when working in closed spaces is adhering to Congressional reporting requirements which are designed to make sure the agency doesn’t get involved in covert operations in those countries.
If under Trump, Congress seeks to limit USAID’s operations in “closed spaces,” by refusing funding for specific activities or countries or by increasing reporting restrictions, then lawyers will have a more difficult time justifying U.S. involvement to protect threatened populations, such as Syrian refugees, since there will be no legal basis for undertaking activities.
How lawyers can address these challenges
1. Build relationships.
Simpkins stressed the importance of cultivating relationships with the legal communities in which USAID lawyers find themselves operating.
“Those relationships may be useful in resolving or even preventing problems through familiarity and the ability to talk through something before it becomes an issue,” he said.
On the domestic side, he recommends closer interaction between USAID lawyers and those at other government departments. “Problems can spin out of control when people don’t know who is on the other side of the phone,” he said.
2. Get some hard skills.
He also advocates lawyers brush up on their transactional expertise. Even if a lawyer isn’t directly involved in the details of a deal, he or she should “at least be able to understand how it works and and be experts in what deal flow looks like,” Simpkins said.
Typically, USAID lawyers work on loan guarantees and these require specific drafting expertise, Simpkins said. Experience working on venture capital type deals is also a bonus since Simpkins said lawyers may work on investment deals, for example investing in early-stage clean technology companies.
He also recommends lawyers cultivate an understanding of the programmatic side of development work at their institution, including monitoring and evaluation. “If you have a clear idea of what the objective is you’re trying to accomplish then you have better idea of the legal options open to you,” he said.
3. Decide what type of lawyer you want to be.
“In USAID we have two kinds of lawyers, those who are technicians and only want to practice law, and those who have core legal skills and talent but want to see how the law impacts agency operations,” Simpkins said.
While the first category are encouraged to be “experts in their field,” it is the second category of lawyers, which Simpkins refers to as “lateral thinkers,” who are more likely to get promoted to senior positions within the agency.
4. Make the most of your cross-organizational viewpoint.
Lawyers are “uniquely situated” within USAID since their services are delivered across all parts of the agency, Simpkins said. This gives them a vantage point and knowledge which the organization can and should, in Simpkin’s opinion, tap into.
“Very few other parts of the agency have that view, everyone else is enmeshed in their part of the world or the specific place where their program plays out, but our issue is every issue. I see that as a real source of information and insight that should be tapped more,” he said.
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