Volume 12, Issue 1 -

This article examines the evolution of democratic practice in Brazil. The article begins with a discussion on the country’s performance in terms of social equality, violence, and weak economy after the consolidation of democracy in 1985. Based on historical evidence, the article offers explanations concerning the weak performance in Brazil. The case of Brazil provides a challenge to the theory of open access order of North and his colleagues in the sense that open access to political organizations and activities does not necessarily lead to either better political representation or better economic performance. The case of Brazil also shows that open access to economic organizations and activities in the absence of the necessary institutions in the areas of property rights protection and contract enforcement, the financial market, the rule of law, and human resources accumulation does not lead to long-term economic growth.

This article examines whether the current exceptions to copyright granted in contemporary intellectual property agreements give effect to the user rights to learn. It looks into the nature of the user rights to learn and how it is affected by copyright, technological protection measures, and digital rights management. Critical analysis is made of the effectiveness of exceptions to copyrights in international law, for advancing the users’ right to learn in the digital age. The article proposes the right to learn as an independent user right and examines how it can be incorporated in the copyright regulations by maximizing the differentiation principle, so as to advance the overall development in society.

Citing comparative US, UK and European jurisprudence, this article proposes a pre-inchoate offence to punish terror suspects at the African Court of Justice and Human Rights. It traces the Kenya government’s twenty-first-century responses to distorted jihad fundamentalism culminating in the current escalating pogroms. Coercive executive counterterrorism responses make exceptions to universal human rights enshrined under liberal democratic constitutions and international instruments. Yet the legality principle constrains the use of pre-inchoate offences. Hence civil society’s resistance delayed the enactment of Kenya’s Prevention of Terrorism Act. Moreover, the Constitutional Court subsequently struck out as ‘vague and ambiguous’ the Security Law (Amendment) Act’s substantive provision which ‘presumed criminal intent for encouraging terror’. Procedurally, another dilemma arises. This concerns whether it is possible for an international terror suspect to have a fair domestic trial. Although ‘limited executive measures’ require some individuals to trade off their own liberties to safeguard the security of others, due diligence can prevent torture or targeted killings. Instead, following Kenyan ‘Operation Linda Nchi’s’ pre-emptive strikes since 2011, Al-Shabaab’s retaliation arguably spiralled into increased violations of the core human right to life. Enacting pre-inchoate offences instead deems Islamist terrorists, particularly secondary offenders, as rational actors. Using a ‘reverse harm thesis’ to justify the education of pre-inchoate offenders, I argue that regional criminal trials of terror suspects constitute better ‘effective oversight’ on human rights violations than executive, legislative or domestic judicial responses. Invoking ‘concurrent responsibility’ to prosecute Al-Shabaab suspects before the ACJHR can therefore facilitate AMISOM’s dignified ‘exit’ strategy from Somalia.

This article critically examines the role of political leadership in shaping and sustaining institutional reforms. While leadership has recently attracted a great deal of attention from other social scientists, law and development scholars have only begun to seriously consider the influence of leaders on institutions and development outcomes. The article explores the new mantra that “leadership matters” as cause for both careful optimism and renewed attention to some deeper anxieties about the future directions of law and development. On one side, emerging models of leadership provide important insights about how to change dysfunctional institutions and how to sustain those changes over the long run. A number of major studies published in the last few years have made some version of the claim that successful reforms inevitably require the dedicated leadership of one or more prominent individuals, positing good leaders as a necessary condition for institutional transitions. But the argument that good leadership itself determines good institutions also risks reproducing one of the most obstinate dilemmas in modern social theory: the contest between “structure” and “agency” as causal explanations of social change. If the new mantra that “leadership matters” represents a shift in focus away from the structure of law and politics and towards the influence of individual agents’ choices, actions, talents and beliefs, there is good reason to be sceptical about whether simply privileging agency over structure—or the inverse—has any greater chance of success than the many failed attempts to do just that in other fields of knowledge over the past several decades. Instead, the present moment could be a valuable opportunity to assess whether alternative and more integrative approaches to the longstanding structure-agency impasse in development law and policy are possible.

This article provides a detailed economic and legal analysis of the Regional Comprehensive Economic Partnership (RCEP) with regard to foreign investment with the objective to give an assessment of the impact of this new treaty on investment policies and flows in the Asia-Pacific region. Part One analyzes recent foreign direct investment flows in the ASEAN+ 6 countries, focusing on sectors of rapid growth and participation in global value chains and offers an overview of the RCEP rules on investment from an economic and legal perspective. Part Two analyzes the impacts of deep integration agreements on investment, as in the ASEAN Comprehensive Investment Agreement and RCEP’s rules on investment, with particular emphasis on the actual and potential role of small and medium-sized enterprises. The final section looks forward, with best case and plausible-scenario analysis of future impacts on FDI within RCEP, if deep integration progresses among the 16 countries.

Especially in resource rich countries with weak institutions of governance, the interests of governments often diverge from those of their citizens and creditors. Sovereign bond contracts can potentially help align these interests, to the benefit of all parties, by indexing payment obligations to improvements in the health and education of the issuer’s citizenry. To that end, this Article proposes a Human Development Bond (HDB) with a variable coupon schedule that both insures issuers against recessions and incentivizes them to encourage investment in human capital when economic growth is strong. The potential benefits of such an instrument can only be realized, however, with significant support from the international community. Moreover, further empirical research is needed to calibrate the HDB’s coupon schedule to provide well-timed and appropriately sized debt relief.

North Korea is currently one of the most impoverished countries with a history of famine, but the country has a significant potential for economic development that could lift its population from poverty. Neighbored by some of the largest and most advanced economies in the world (South Korea, Japan, and China) and endowed with abundant mineral resources, industrial experience, and a history of successful economic development in the past, North Korea can embark on the path to rapid economic development, as its southern counterpart (South Korea) did so successfully since the 1960s. Yet, the successful economic development of North Korea requires a comprehensive approach, including obtaining a fund for development; normalizing relations with the West and the neighboring countries; improving its human rights conditions; prioritizing key industrial development; and reforming its political-economic system. This note discusses the comprehensive approach necessary for the successful economic development of North Korea.