Band 17, Heft 1

In sub-Saharan Africa, public sector breeding programs depend on local seed companies to deliver new maize varieties to farmers. Such varieties are needed to adapt cropping systems to climate change. While dozens of small and medium seed companies have emerged in the last two decades, the maize seed market in Kenya remains dominated by the parastatal seed company Kenya Seed Company, with multinational seed companies making major inroads. We assess whether parastatal and multinational seed companies have captured Kenya’s seed laws to the detriment of local small and medium seed companies (‘regulatory capture’), negatively effecting competition and the capacity of local companies to introduce new varieties in the hybrid maize seed market. We conducted in-depth interviews based on legal clauses with maize seed companies active in Kenya, as well as interviews with regulators and stakeholders. Results show that local companies do not feel disadvantaged compared to their multinational counterparts or the parastatal. However, all of them are wary of the entry of new actors. Moreover, through excessive procedures, the Kenyan government keeps a sovereign grasp over the seed sector. Despite frustrations with some of these excessive procedures, seed companies felt comfortable in the protective environment of the Kenyan seed market and were generally happy with the technical aspects of Kenya’s seed laws, which are based on international norms. We suggest some improvements to make Kenyan seed laws more conducive to varietal turnover, in line with seed companies’ suggestions and taking into account the political sensitivities of the Kenyan government.

Despite there being a well-documented need, as well as opportunity, to enhance foreign direct investment (‘FDI’) inflow to climate-friendly (‘green’) economic activities in Bangladesh, the reality portrays a stark contrast. Nowhere is it more obvious than the evolving investment relationship between China and Bangladesh under the Belt and Road Initiative (BRI). Originally under the rubric of the Bangladesh-China-India-Myanmar (BCIM) economic corridor, and later under the garb of the BRI, Chinese investments in Bangladesh have predominantly ended up in fossil fuel-based sectors. Even after the advent and expansion of the ‘green BRI’ initiative, reality has not changed much. This article offers an assessment of investment inflows from China to Bangladesh under the BRI umbrella against the backdrop of a growing green investment trend and the existing applicable legal framework. It finds that key legal and policy challenges that prevent leveraging of the BRI for green investment into Bangladesh include: an uncoordinated approach from the government, a disregard for the role of economic policy instruments for climate action, and politically motivated, as well as path-dependent decision-making with respect to investment promotion. This paper suggests that ambitious climate commitments combining economic policy tools, along with a more integrative and holistic domestic approach to climate action and investment promotion, can help shift the status quo.

The rapid collapse of the Afghan state did not come as a surprise to those who are well-versed in the chequered history of the Law and Development Movement. While the Movement’s one-size-fits-all modernization project has been largely rejected, such misguided efforts continue under the aims of “building the Rule of Law” or “improving governance.” The fallout from the U.S. withdrawal from Afghanistan is a stark reminder for states and multilateral organizations not to overlook the lessons of the Movement that may have been obscured by the different banners under which state- and market-building efforts have been pursued. From the Movement’s sincere yet naïve efforts of state-building between the 1950s and 70s, to its swing to build and support markets under the Washington Consensus paradigm in the 80s and 90s, and a later emphasis on good governance through state institutions from the 2000s onwards, it is clear that top-down state-building efforts have had limited success. The paper argues that the failure of the Afghanistan mission may have been avoided if the U.S. had turned to the lessons learned from the law-and-institutions-building enterprises of the past 70 years. Instead, the failure to heed these lessons led to the building of a state akin to a house of cards. By overlooking the importance of embedded cultural institutions, the legitimacy of the state as perceived by its people, and the dynamic interaction between formal and informal institutions, the state-building project in Afghanistan was bound to fail. Following the takeover by the Taliban, the small gains made in Afghanistan over the past two decades on the issues of hunger, poverty, health, and education have seen rapid deceleration and require urgent attention. The critiques outlined in this paper, informed by the experience of the Law and Development Movement, are meant to inform, not discourage, global engagement in advancing the human development agenda in Afghanistan and other fragile contexts.

Reducing inequality in its multiple dimensions is key to sustainability. Under the United Nations 2030 Agenda for Sustainable Development, one way to meet the goal of narrowing gaps between and within countries is by implementing the special and differential treatment (SDT) principle. The most concrete and well-established implementation of this principle within international trade law is through the Enabling Clause, which authorizes wealthy States to grant, under specified conditions, preferential market access to select developing countries. Yet commentators, consisting primarily of economists and developing-country representatives, argue that tariff preferences are often inadequate to grow the economies of many in the Global South, much less to reduce inequalities. A legal perspective that could bolster this argument remains sparse. This article fills said gap by explaining that while international trade law operationalizes the SDT principle with a heavy emphasis on tariff preferences, the principle is additionally expressed in several other provisions under the other World Trade Organization (WTO) covered agreements: Agreement on Technical Barriers to Trade; Agreement on the Application of Sanitary and Phytosanitary Measures; Agreement on Trade Facilitation. These under-studied provisions demonstrate crucial but overlooked aspects of the SDT principle, namely, capacity-building and international assistance and cooperation. Therefore, critically analyzing these provisions is important to ascertain whether and how implementation of the SDT principle can reduce inequalities and support sustainable development. This legal analysis contributes in two ways to the broader inquiry about the role of international trade law in achieving the Sustainable Development Goals (SDGs). First, on a practical level, the article suggests legal bases or sources for additional indicators needed to better measure and monitor progress in reaching the target. Second, the analysis reveals a necessity to revisit and further scrutinize assumptions underlying the legal mechanisms within the trade regime that States and other relevant actors are using to pursue valuable global objectives.

On October 5, 2020, President Joko Widodo (Jokowi) passed Law no. 11/2020 on Job Creation (Job Creation Law/JCL) designed to improve Indonesia’s private investment climate. The law changed various legal landscapes that were identified as obstacles to accelerated development and economic growth. However, the Law has sparked widespread protests because it can potentially encourage environmental damage, exacerbate workers’ vulnerability and increase socioeconomic inequality. Describing JCL as a neoliberal legality project, this paper explores the elected executive’s role in mobilizing authoritarian state practices through disciplinary measures that undermine democratic accountabilities. It is argued that the configuration between the pre-existing illiberal democracy and Jokowi’s autocratic tendencies offers predatory business alliances an adequate legal and institutional platform to formulate a neoliberal legal breakthrough while eliminating resistance to them. Through a socio-legal analysis of the three areas targeted by the JCL amendments, we further argue that Jokowi’s success in advocating for his preferred neoliberal agenda hinges on what is called an executive aggrandizement strategy. This is characterized by interventions designed to safeguard the neoliberal legality preferences promoted by the elected executive from the disruption of meaningful checks and balances in the future, thereby deepening the features of authoritarian statecraft. This paper contributes to an advanced understanding of the bleak picture of Indonesian democracy over the past few years by proposing neoliberal legality as one of the ingrained legal characteristics of Jokowi’s authoritarian regime.

This paper examines the nature, impact, ramifications, and root causes of the corporate-community resource conflict in Anambra’s oil-bearing communities. It approaches this objective from the standpoint that such a conflict may be appropriately termed “a legacy of oil transnational corporations” in Nigeria, given their antecedents in the Niger Delta region. Unlike the existing literature that blames such conflicts for the most part on environmental, socio-economic, and political factors, with limited emphasis on the legal factors, this paper takes the position that an unhealthy legal apparatus of the Nigerian state and regulatory gaps in Nigeria’s oil industry provide the enabling environment that makes the conflict inevitable. Essentially, this paper tweaks the “resource curse” theory as espoused by mainstream political economists by demonstrating that, apart from greed and grievance, the “curse” is equally underpinned by inept legal structures and regulatory gaps that show little regard for good governance and the well-being of the local people in host communities. But two possible solutions are proffered. One is the institutionalization of a statutory scheme for consultation with the local communities before appropriation of their lands for oil production projects, and the other is encouraging the participation of indigenous peoples or indigenous entities in the development of their natural resources, following the example of Orient Petroleum Resources Plc.

This article examines the status and importance of the European Convention on Human Rights (ECHR) and European Court of Human Rights (ECtHR) Jurisprudence in the national legal system of the Republic of Kosovo. This will be accomplished by pursuing two main paths: first, by a doctrinal analysis of the constitutional status of the ECHR and the Jurisprudence of the ECtHR in Kosovo and, second, through a closer examination and analysis of specific cases as to the level of their (non) implementation by the Constitutional Court and regular courts of Kosovo. Even though Kosovo is not a member of the Council of Europe and has not ratified the ECHR, the ECHR has a specific and privileged place in the legal system of Kosovo and is part of its constitution. This makes Kosovo a very special case regarding the technique chosen for the incorporation of international instruments for human rights in its internal legal order. Public authorities in Kosovo agree to the obligation that the scope and meaning of fundamental rights should always be determined based on the standards established in Strasbourg. However, implementing these Strasbourg-derived standards is not simple or easy. Some of the elements identified for the application of these standards in internal judicial practice include the degree and measure of implementation, the methodology of choosing cases, the methods of interpretation, and local legal culture. This article, explains these elements by analyzing statistical data and specific court cases.

International tourism is a main sector of economy that witnesses continuous and tremendous growth in developed and developing countries and expresses destabilization by several factors including climate change. Being considered as a sensitive sector to climate, tourism shows, through several criteria such as number of arrivals and receipts, an influence by environmental and socioeconomic modifications. This article will outline the interrelationships between climate change phenomenon and the business component of the international tourism. Three focal elements that were developed through literature on the effects of climate change for tourism will be critically reviewed: climate change and temporal shifts in tourism demand, climate-inducted change and destination competitiveness within the major market segment of business tourism, and future tourist mobility. The review will develop the differential weakness of tourism destinations and the consequence in competitiveness that will transform some international markets. This will be relevant to explain why destinations will need to adapt to the risks and opportunities posed by climate change. Despite several elements illustrating progress in the past years, an important gap of knowledge in each of the major impact areas needs to be looked into in order to indicate to the concerned tourist the necessity for a well preparation toward challenges of climate change.