Volume 7, Issue 1 -

The legal origin movement is implicitly functionalist, while it explicitly prioritizes economic dimensions of development. From this perspective, the empirical findings presented in this paper seem to uncover the existence of a paradox. On the one hand, common law countries are apparently characterized by countless advantages, yet they do not grow faster than civil law countries. On the other hand, common law countries present a more unequal distribution of income, thus suggesting that also from a static perspective there is no a priori reason to prefer a common law system. To further investigate this paradox, we analyze if common law countries are at least characterized by a better kind (earned) of inequalities. However, as the economic distinction between inequalities of opportunities and inequalities of effort is too fragile, this proved to be an impossible task. We are therefore left with the unsolved riddle of the contradicting results obtained by the legal origins literature. From a more practical perspective, the empirical findings seem to disprove the dogma that common law countries are under every condition the perfect benchmark for reforms in developing countries.

Nigeria has been acclaimed as a model for the implementation of the principles established under the Extractive Industries Transparency Initiative (EITI). The goal of the principles is to promote accountability and effective management of resource revenues, which in turn would result in improvements in public welfare and better developmental outcomes, such as a more equitable distribution of wealth, improved socio-economic conditions, and poverty alleviation. However, a look at the socioeconomic condition in Nigeria raises questions regarding the impact of the achievements of NEITI on public welfare. Corruption remains endemic in the oil and gas industry, the sector on which the implementation of the EITI principles has been almost entirely focused. This article analyzes Nigeria’s experience with the implementation of NEITI with a view to theorizing about the reasons behind the lack of, or minimal, improvements in the lives of ordinary Nigerians as well as the persistence of corruption despite Nigeria’s acclaimed achievements in EITI implementation. The article argues that while EITI is an important driver of economic progress in Nigeria, it should not be viewed as enough to overcome the broader problems hindering improvements in public welfare. Other factors are necessary to translate the gains of EITI into visible public welfare improvements. The article identifies those factors and analyzes how they hold back the gains of EITI in Nigeria as well as its implications for emerging extractive countries signing or considering signing up with EITI.

This paper discusses Cambodia’s legal framework relating to Economic Land Concessions (ELCs) and looks at the implementation gaps. It argues that despite Cambodian’s legal framework governing land and ELCs being well-developed, its social benefits, such as protecting the rights of the poor and vulnerable and contributing to transparency and accountability, are almost non-existent. Recent evidence suggests that the Government’s handling of natural resources is a far cry from its official land policy which is “to administer, manage, use and distribute land in an equitable, transparent, efficient, and sustainable manner”. This paper argues that this is due to (1) a large gap between the country’s legal framework and the implementation of the country’s land concession policies and (2) a complete disregard of the country’s customary land rights. Widespread corruption and nepotism encourages growing inequality in land ownership and a significant power imbalance between small groups of powerful, politically and economically well-connected elites and poor and vulnerable people in Cambodia. This is exacerbated by the lack of implementation of appropriate regulations. This elite exercises control over the judiciary and has created a climate of impunity, thus hindering the overall implementation of the legal framework and serving their own interests. The paper further looks into recent Government actions such as the moratorium on ELCs and a new land titling initiative to re-allocate ELC area and forestland to the rural poor and assesses whether these actions have the potential to reverse or perpetuate the current inequality in land holdings.

Taking into consideration the Law and Development approach and some useful theoretical insights provided by systems theory, this article aims at analyzing the role of law in general, and state lawyering in particular, in the design and implementation of development policies that promote social inclusion, with special regard to the Brazilian context. Firstly, this role is described as the provision of “legal sustainability” to government decisions and public policies in general. Then, the legal dimensions of three recent inclusionary policies in Brazil are stressed as an attempt to show how the goal of social inclusion can be pursued by means of law, with an active participation of state lawyers: (i) the Bolsa Família Program (BFP), (ii) the Pre-Salt Social Fund (PSSF) and (iii) the affirmative action programs adopted by some Brazilian universities, especially the University of Brasilia (UnB). At the end, some light is shed on the limits of the use of law as an instrument to foster development and social change. These limits, although inevitable, do not change the fact that the multiple demands for social inclusion and participation are always to be considered as a matter of juridical justice in its “sociological” sense.

Despite increased global awareness that measures, policies and rules aimed at combating climate change may act as barriers to international trade; trade and climate change regimes continue to operate at the international level, without the desired level of coherence and harmony. While emission reduction obligations are negotiated under the purview of the United Nations Framework Convention on Change (UNFCCC); trade-related rules and regimes are under the purview of the World Trade Organization (WTO). The result is the proliferation of several international obligations, standards, procedures and requirements that ultimately make international trade more difficult; and efforts to combat climate change, less concerted. For example, the availability, affordability and accessibility of environmentally sustainable technologies (ESTs) needed in developing countries to mitigate and adapt to climate change is occurring at a slower pace due to different technology importation requirements, efficiency standards, trade requirements and WTO procedures; while unilateral measures adopted in developed countries such as the alternative energy programs and the “food mile” policy; currently threaten the importation of goods produced in developing countries. The result is an international legal system where emission reduction obligations overlap and sometimes conflict with trade obligations and vice versa. A solution to this problem is the harmonization and integration of trade and climate change obligations and institutions, through a coordinated and holistic approach. This approach would include taking into account the institutional aspects of these relationships and establishing more normative platforms for cross-fertilization between trade and climate change regimes. This paper evokes the importance of the principles of systemic integration and coherent interpretation of international law obligations laid down in Article 31(3)(c) of the Vienna Convention on the Law of Treaties in arguing that the idea of integrating obligations established in climate change treaties with obligations in trade instruments is a mandatory requirement of treaty interpretation and implementation under international law.

International Development Law or the legal regime relating to International Development is one of the aspects of international law that is of greatest interest to developing countries. When the International Law and Development movement began in the early 1960s, the aim was to reform the existing legal system in developing countries in order to pave the way for economic freedom, social welfare and cohesion. This brought about many hopes and aspirations in developing countries; however, these hopes and aspirations faded after a short period when international law and development movement appeared to fail. This paper examines the international law and development movement/regime since the 1960s and why it came to be seen as a weak, dysfunctional and/or collapsed instrument. The paper argues that the international law and development movement collapsed because: (i) the goals of developing countries are not identical to those of developed countries and/ or imperial powers that piloted the movement; (ii) the people of developing countries, where it was envisaged the movement would develop, were not involved along with those that headed the implementation of international law and development agenda; and (iii) that the current international law and development regime has put more emphasis on militarisation than on socio-economic development. The failure, though it did not come as a surprise to many, continues to impact negatively on developing countries. This paper uses structural-functionalist legal theory (often paraphrased as “functionalism”) and an interdisciplinary and critical-analytical approach within the framework of international law and development. It employs qualitative empirical evidence from developing countries for illustrative analysis.

Use of solar and wind power as a variety of renewable energy sources is one of the types of environmental entrepreneurship. Currently, this area of power engineering is booming in the states of the European Union, China and the United States. The authors of this article explore the reasons for insufficient development of alternative power engineering in Russia. Based on the legal traditions of the post-Soviet states, they suggest consideration of solar and wind power as natural resource that is not private or public property, but heritage of the people of these countries. The article presents analysis of activities in the USA and the EU states aimed to obtain electric power from renewable energy sources. The authors suggest a range of administrative and urban planning activities providing conditions for development of this economy sector in the republics of the former Soviet Union. Moreover, the authors suggest measures for development of law of neighboring tenements, which is insufficiently developed in many countries of the former USSR; the presence of these measures can resolve power disputes between owners.