Volume 10, Issue 1 -

One of the many post-colonial claims of indigenous people is the re-assertion of their rights over their land and its resources. Colonial history has created for many people a plural legal system and this, combined with social and economic changes, presents new challenges for development in the realm of traditional or customary land. This article focuses on the Pacific island state of Vanuatu, formerly known as the New Hebrides. At independence in 1980 allodial title to all land was returned to the custom owners while colonial forms of land law were also retained. In 2013, after nearly a decade of concern about land alienation, the Vanuatu government introduced the Custom Land Management Act. This article critically analyses this attempt to safeguard customary law and customary institutions in formal, written law, considering in particular the implications for law and development in a plural land law regime.

Industrial policy has become a new development priority for many African countries. In this context, many scholars point to the WTO and argue that a key impediment towards Africa’s successful industrialization is the narrowing of the WTO policy space. This paper challenges that argument through examining the extent to which African countries actually take into account the WTO policy space when implementing their industrial policy objectives. Through an empirical analysis of industrial policy priorities and key trade and investment laws and regulations in Kenya, Ghana and Namibia, this paper concludes that a significant policy constraint to effective industrialization in Africa is not the WTO policy space per se, but rather a lack of alignment between a country’s industrial policy objectives, trade and investment laws, and the WTO policy space.

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.

The past decade and a half of the new millennium has ushered in dramatic changes to the architecture of world trade creating both opportunities and challenges for Africa’s development. The paper is critical of the recent paper of the World Bank that resuscitates the approach to trade liberalization and regional integration propagated by the Washington Consensus. The paper argues that African countries should adopt a “development integration” approach to regional integration that seeks to combine trade liberalization, industrial development and infrastructure development. The paper urges the World Bank and Africa’s trading partners from the north and south, such as the EU, the US and China, to work closely with the African Union to advance the negotiations and implementation of the Continental Free Trade Area (CFTA) and the African Union Agenda 2063.

Development narratives have often hinged on the idea of regulatory governance, particularly in developing countries where the regulatory agencies are generally dysfunctional. The paper argues that inefficient performance of regulatory agencies of poor countries can be explained, inter alia, by the existence of informal institutions that are embedded in these ‘formal’ organizations. Presence of informal networks in a regulatory governance structures may often erode the independence of the agency while benefiting the network. As an important factor overlooked in literature, informality in regulatory bodies breaks the mainstream narrative of regulatory bodies. I use the example of India and examine the institutional endowments of informality and its stickiness through time in regulatory frames. I show how the informal network of civil servants permeates every regulatory agency in the country and undermines an independent functioning. Policy conclusions follow.