International Law and Development

This is chapter 20 of M Crouch and T Lindsey (ed), Law, Society and Transition in Myanmar (Oxford, Hart Publishing, 2014). In this chapter I report on the views of participants at a remarkable workshop at NUS in 2013. On the basis of this report I argue for a changed approach to law and development. after 50 years and faced with a new situation in Myanmar we can adopt a more contextual and more informed approach to law and development.

Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in local languages. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute elements of the right to education under international human rights law (IHRL). Extraterritorial state obligations (ETOs) under IHRL – obligations of states, in appropriate circumstances, to observe the human rights of those beyond their borders – could assume a key function in “civilizing” intellectual property (IP) law. This Article demonstrates the significance of ETOs for IP law by focusing on the issue of how ETOs under the right to education of IHRL prescribe requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well‐known typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept is introduced and 20 typical ETOs relevant in this context are identified. The discussion relates to the situation in developing countries more generally, focuses, however, on Africa.

The natural environment and its governance through law have a long history in the global South. As in the global North, nature has been regulated since ancient times through complex plural regimes of sovereign, religious, customary and tribal laws, and in more recent times colonial, state, regional, transnational and international laws. This chapter specifically examines how international lawyers that are part of the Third World Approaches to International Law (TWAIL) movement have approached environmental issues and international environmental law. As I am part of this movement and have focused on the environment in recent years, this chapter is a self-reflective critique on a subject of increasing interest within TWAIL. Section 2 introduces TWAIL and explains our continued usage of the term Third World despite allegations of its being anachronistic. Section 3 examines TWAIL and the environment through division into three phases: first, the period following independence, particularly the 1960s and 1970s, where Third World international lawyers prioritized natural resource governance; second, the inauguration of the acronym TWAIL in the 1990s and a movement that remained largely skeptical of and disengaged from international environmental law; and third, the contemporary moment with the resurgence of interest in the environment within TWAIL.

It will not be an overstatement to say that postcolonial theory remains the single most influential theoretical approach to the study of non-Western societies or the Third World, after Marxism. Trawling through past issues of JCR, and publications in various Critical Realism series by Routledge, what stands out is the absence of engagement with postcolonial theory in critical realism. Conversely, Third World Marxism has produced a sustained and engaging critique of postcolonial theory from realist perspectives, but remains, by and large, distanced from critical realism. The absence of engagement in critical realism with a theoretical orientation that has a profound influence on the way we see the Third World constitutes a problematic in its own right that calls for interrogation. My aim in this editorial is a more modest one. I propose to identify certain key concerns raised by postcolonial theory and the critique of those concerns in Third World Marxism in the hope that it will open up possibilities of a fuller, more nuanced critique of postcolonial theory in critical realism in the future.

LLB Subject - 2020, Autumn - Kent Law School.

Feel free to use it with due acknowledgment.

About the Subject: Law has always been central to debates about international development but this is becoming increasingly and markedly the case. In this course we will critically explore what development means and its history, its key role in the international legal, political, social and economic order, and the many ways in which law is entangled in this central and controversial concept.

The first half of the module (Weeks 1-6) will provide students with detailed knowledge and understanding of the idea of development; the international development project; the main international development institutions and the context in which these institutions emerged; the national effects of the development project; and the field of Law and Development.

The second half of the module (Weeks 7-11) will examine contemporary topics in law and international development, including human rights and development; decentralization and local development; sustainability and development; law and the informal sector; rule of law promotion; and the intersection between security and developmental concerns and discourses.

In this book, I have tried to establish two points. Firstly, that there is
a strong relationship between law and development. Even with all of its
different manifestations and meanings, development is almost
impossible without the intervention of law. This point is mainly based
on existing literature in which it has been explored and to a small extent,
established. The literature reviewed may not be exhaustive but is I hope,
enough to substantiate the argument, or at least to stir debate on the topic.

Secondly, that the measurement of a society’s development is just as
possible through the use of indicators relating to law as it is by using the
social indicators (education, health, housing, water & sanitation and
poverty) employed by the United Nations Development Programme’s
(UNDP) Human Development Report. Based on Amertya Sen’s concept
of ‘freedom from tyranny’, I have suggested that the measurement of
human development in a society may also be possible from the
perspective of law; by developing indices like Rule of Law, Access to
Justice, Tolerance in Society and Type of Litigation (disputes) that are
prevalent in a society. This may very well become an addition to the
Human Development Index in the future.

LLM Subject - 2020 - Kent Law School.

Feel free to use it with due acknowledgment.

About the Subject: Law has always been central to debates about international development but this is becoming increasingly and markedly the case. In this course we will critically explore what development means, its history, its key role in the international political, social and economic order, and the many ways in which law is entangled in this central and controversial concept.

The first half of the module (Weeks 1-6) will provide students with detailed knowledge and understanding of the idea of development; the international development project; the main international development institutions; the national effects of the development project; and the movement of Law and Development.

The second half of the module (Weeks 7-11) will examine contemporary topics in law and international development, including human rights and development; decentralization and local development; sustainability and development; legal empowerment of the poor; and the intersection between security and developmental concerns and discourses.

This paper explores the shift in the human rights movement regarding the interaction between criminal justice - whether international(ized) or nationalized – and truth commissions. Once regarded as mutually exclusive institutions, focused on contradictory goals, they are now praised by the international community, human rights and transitional justice advocates as being “complementary” in the global fight against impunity. Focusing on the legal development and institutionnalization of the "right to truth", this paper questions this relatively new rhetoric and examines the effects of this consensual discourse on complementarity. In particular, it situates this shift in the broader context of the emergence of a truth and memory “industry” and the rise of new types of knowledge, expertise and technologies of truth-telling and truth-finding practices concerning the factual and legal determinations of mass atrocities.

Through mapping the rights discourse and the transformations in transnational finance capitalism since the world wars, and interrogating the connections between the two, Radha D’Souza examines contemporary rights in theory and practice through the lens of the struggles of the people of the Third World, their experiences of national liberation and socialism and their aspirations for emancipation and freedom.
Social movements demand rights to remedy wrongs and injustices in society. But why do organisations like the World Bank and IMF, the G7 states and the World Economic Forum want to promote rights? Activists and activist scholars are critical of human rights in their diagnosis of problems. But in their prognosis, they reinstate human rights and bring back through the backdoor what they dismiss through the front.
Why are activists and activist scholars unable to ‘let go’ of human rights? Why do indigenous peoples find the need to invoke the UN Declaration on Rights of Indigenous People to make their claims sound reasonable? Are rights in the 20th and 21st centuries the same as rights in the 17th and 18th centuries?
This book examines what is entailed in reducing rights to ‘human’ rights and in the argument ‘our understandings of rights are better than theirs’ that is popular within social movements and in critical scholarship.

Feel free to use the syllabus with due acknowledgment, and please let us know if you are using it for your course or teaching for our own information.

About the Subject: Both trade and human rights have come to be understood as key elements of successful development policy. However, both the historical and conceptual foundations of this apparent convergence demand careful investigation. While mainstream economic thinking presumes that trade is beneficial for poor countries, critics have pointed out that the terms of trade have long been weighted in favour of western, developed states. Similarly, while the emerging consensus that adherence to global human rights norms is necessary for the achievement of good development outcomes, in the past the goals of development and of human rights were often understood as at odds with one another. Utilising historical, discursive, and case study based approaches, this subject provides students with an opportunity to critically examine the convergence of trade and human rights with contemporary development policy and practice.  it is taught as an LLM at the Melbourne Law School in Australia.

The early 21 st century will be remembered for its shift in global economic power dynamics. Within three decades, China has fostered the growth of globally prominent firms and its capital market advanced as the world's second most meaningful market. Chinese firms-many of which are subject to an illiberal, political governance-are increasingly integrated with the world economy, attracting domestic and global public investors. Neither state ownership and control, political influence, or weakly functioning legal institutions stand in the way of these firms' access to capital. This reality challenges law and development theories and notions of corporate governance best practices. This Article discusses the puzzling allure of Chinese public firms to external suppliers of capital, while illuminating the functions of illiberal governance in Chinese firms through both the state's and Communist Party capacities. The Article shows how alongside its many obstructions, China's illiberal governance system plays an important role in promoting market regularity, providing investors with the assurances necessary to secure the flow of external finance. Implications for global investors and policymakers outside China are assessed against the backdrop of recent developments in U.S.-China relations.

Telah lama menjadi kesepakatan di antara para ahli hukum internasional bahwa organisasi internasional dapat membentuk trust fund untuk mencapai tujuan spesifik yang telah ditetapkan. Hal ini dilakukan melalui pembentukan rekening khusus yang terpisah dari anggaran operasional yang dipakai sehari-hari oleh organisasi tersebut.
Pendekatan lain untuk membentuk trust fund adalah melalui perjanjian yang dilakukan di antara organisasi atau negara donor. Apabila dibentuk melalui perjanjian internasional, trust fund akan berada di luar dari organisasi yang membentuknya. Ada dua cara yang lazim dilakukan untuk membentuk trust fund dengan metode ini yaitu dengan menitipkan trust fund untuk dikelola oleh organisasi internasional yang telah ada (World Bank atau UN) atau dengan membentuk entitas baru di bawah hukum nasional suatu negara.

This article explores the relationship between international law and the natural environment. We contend that international environmental law and general international law are structured in ways that systemically reinforce ecological harm. Through exploring the cultural milieu from which international environmental law emerged, we argue it produced an impoverished understanding of nature that is incapable of responding adequately to ecological crises. We maintain that environmental issues should not be confined to a disciplinary specialization because humanity's relationship with nature has been central to making international law. Foundational concepts such as sovereignty, development, property, economy, human rights, and so on, have evolved through understanding nature in ways that are unsuited to perceiving or observing ecological limits. International law primarily sees nature as a resource for wealth generation to enable societies to continually develop, and environmental d...

Observers view the expansion of China’s relationship with African countries not only from its perspective as a multifaceted endeavour but also from the nuances extant in the academic and non-academic professional circles. The factors underlying the relationship have created debates across diverse academic disciplines including trade and finance, development, Peacekeeping and global security, diplomacy as well as in the areas of geopolitics and technology transfer. These discussions and debates emerged after China’s aid and investments in Africa increased with incredible annual surges; thus
attracting global attention. Drawing on the background of those discussions, this study aims to contribute to the ongoing debate by producing the perceptions (pros and cons) of individuals unrelated to official voices and state policies with regard to China’s exploitations of African resources and the oft cited Chinese policy of ‘no strings’ attached.
Keywords: China-Africa relations, development, FDI, ‘no strings’, US, West

65 roSarIo naPolItano, Il Russo nel Baltico: un'Indagine Linguistica e Culturale in Estonia » 91 V i INTRODUZIONE Il presente volume nasce dalla collaborazione tra l'Associazione Noi@Europe e il Ceicc-Europe Direct del Comune di Napoli, Koinaid EEIG, il Centro di Eccellenza Jean Monnet sui Diritti dei Migranti nel Mediterraneo e la Cattedra Jean Monnet Ad Personam La tutela dei diritti umani nell'Unione europea dell'Università degli Studi di Napoli "L'Orientale", nell'ambito del partenariato Europe Direct e mira a celebrare il convergere di una serie di coincidenze internazionali che hanno visto la luce nel 2015 e che nei prossimi anni vedranno l'impegno congiunto della Comunità Internazionale. Il 2015 è stato, infatti, l'Anno europeo per lo sviluppo (conclusosi il 31 marzo 2016), l'anno del bilancio finale degli Otto Obiettivi di Sviluppo del Millennio (MDGs) che l'ONU si era prefissa di raggiungere tra il 2000 e il 2015, l'anno dell'adozione della nuova agenda di sviluppo con i Sustainable Development Goals (SDGs) nonché l'anno di entrata in vigore dello Statuto dell'Agenzia per la Cooperazione allo Sviluppo (Decreto 22 luglio 2015, n. 113) a seguito dell'attuazione, in Italia, della legge di riforma della cooperazione allo sviluppo varata dal governo italiano (Legge dell'11 agosto 2014 n. 125 sulla "Disciplina Generale sulla cooperazione internazionale per lo sviluppo", entrata in vigore il 29 agosto 2014). In particolare, il 2015 quale anno europeo per lo sviluppo ha visto il dispiegarsi in Europa di una serie di iniziative volte alla sensibilizzazione, informazione ed approfondimento su questioni calde e di particolare interesse per la Comunità Internazionale, quali la riduzione della povertà a livello globale, le nuove sfide della cooperazione allo sviluppo, nuove strategie per raggiungere l'obiettivo della sostenibilità e tutela ambientale, punti chiave su cui si dovrà ragionare poi il quadro globale post-2015 in virtù dell'agenda 2030 adottata lo scorso 25 settembre 2015 dall'Assemblea Generale.

As the largest economy in Southeast Asia and member of the G-20 major economies with the GDP over US$ 888 billion, Indonesia still faces a lot of challenges with its financial capacity to sustain the national development funding. In this regard, external financing such as loans and grants could serve a strategic role to fill the gaps and to provide vital inputs for the government to fund the national development. One of the incipient alternatives in which the government can effectively make best use of prevailing resources is through a development trust fund.  The history of the development trust funds has emerged along with the history of foreign aid itself. It is also highly related with the evolution of aid conditionality provided by international donors to the recipient countries. With the signing of a Paris Declaration in 2005 by over a hundred donor agencies and recipient governments in attempt to change the nature of contemporary aid relationships by adopting ownership as the key pillar of a new aid paradigm, the pattern of aid conditionality also has changed.  A development trust fund is a fund established using money from either foreign or domestic grants that legally set aside from the regular state budget. The funds will be used for the development purposes and managed by the national trustee institution. Development trust funds have only recently been permitted in Indonesia based on Presidential Regulation No. 80/2011 regarding the Establishment of Trust Fund (Perpres No. 80/2011). The enactment of Perpres No. 80/2011 was followed by the establishment of two national development trust funds in Indonesia: the Millennium Challenge Account-Indonesia (MCA-I) and the Indonesia Climate Change Trust Funds (ICCTF).  Despite Indonesia’s best effort to set up development trust funds to maximize its financial capacity for development, the legal and organizational framework of the trust funds has an uncertain conceptual foundation. This situation will lead to several fundamental problems such as uncertain legal status of the trust fund, inadequate governance procedure and lack of accountability of the organization’s activity.  This thesis explores the problems with the Indonesian development trust funds as currently constituted. After providing introduction, this article discusses the historical background of the development trust fund, some precedents of development trust funds in several countries and development trust funds under international law. It also identify the key principles of the development trust funds which has been established around the world. Finally, this article evaluates the Indonesian development trust funds regulation as well as the implementation of the existing development trust funds. This research concludes that the current trust fund regulation is still absent from some substantial provisions regarding the legal status, and provisions related to good and accountable governance of Indonesian development trust funds.  This work has made clear that the government of Indonesia should amend the current trust fund regulation in order to make the development trust fund operated more accountable, effective and efficient.

Despite the more than fifty year war between the north and south parts of Sudan, which officially ended with the signing of the Comprehensive Peace Agreement (CPA) in 2005 , South Sudanese women and girls continue to be marginalized. They are to a large extent excluded from enjoying the benefits of peace in the newly independent nation of South Sudan. One of the greatest constraints to South Sudanese women in accessing their rights is their limited access to justice due to the severely weak justice sector. Access to justice is underpinned by a complex plural legal system where customary and statutory systems are struggling to harmoniously function side by side.

Competition law provisions relating to intellectual property (IP) rights should play an enhanced role in facilitating the domestic and international transfer and dissemination of technology. IP-related competition rules in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) create an obligation for Member States to apply competition law in the IP context. TRIPS competition rules should be read in a "prodevelopment" fashion – IP rights need to be read reductively, IP-related competition law expansively. Ten considerations for a "prodevelopment" IP-related competition law are formulated.

This is a long version of: Beiter, K.D. (2020) Extraterritorial Human Rights Obligations to “Civilize” Intellectual Property Law: Access to Textbooks in Africa, Copyright, and the Right to Education. Journal of World Intellectual Property, 23(3&4), 232-266.

The article inter alia adds more information on the 20 ETOs identified and includes a discussion in the final section on “ETOs as constitutionalization ‘from below’ in IP law,” exploring the relationship between ETOs as part of international human rights law and international IP law, touching on issues of hierarchy and conflict resolution.

Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in learners’ native tongues. Digital content, for many reasons, does not prove a wondrous solution. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute essential elements of the right to education under international human rights law. Intellectual property (IP) law has so far refrained from endorsing the concept of extraterritorial state obligations (ETOs) under international human rights law (IHRL), that is, of states, in appropriate circumstances, bearing human rights obligations toward those living beyond their own territory. This reluctance is regrettable if it is borne in mind that most IP, including copyright law originates at the international level, where each state plays a role in designing rules that may affect the lives of those in other countries. ETOs could assume a key function in “civilizing”—as it were, “constitutionalizing”—IP law. This Article will demonstrate the significance of ETOs for IP law by focusing on the issue of how the right to education under IHRL prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a “constitutionalization” of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research.

This article offers a biography of Professor Upendra Baxi, as a Southern international lawyer, so as to draw from his conduct a training in how international lawyers could authorize other worlds (and their international laws) amidst these times of crisis.

E-mail:  [email protected]


The subject of liberal economic international (LEI) discourse has incited a debate within the academic-circles with implication on policy. The debate appears largely to centre on two divergent viewpoints; while on one hand, scholars from developed global-north, summarily argue that LEI agenda will help to reduce the resource gap in the LDCs, by improving the trade imbalance and encouraging a net capital inflow, eradicate poverty and improve economic-development of underdeveloped states. On the other hand, scholars from developing countries, summarily posit that LEI movement is a dilemma of development in the global-south created by the
Westerners, MNCs, and IFIs which pretends the development of the global-south, but really is a way to penetrate the states and economies of developing countries in order to influence, control, and restrict their decision-making and development policies to favour them. This paper examines LEI from international law and international relations contexts. It uses theoretical, interdisciplinary, and critical-analytical approach, with empirical evidence from developing countries. It argues that LEI is in principle a good international development agenda that would have benefited the developing poor nations if it has been conscientiously implemented, but as it has not, it failed and continues to fail the developing countries.

Key Words: International Law, International Relations, International Law & Development, Liberal Economic Internationalism, Developed Global North, Developing Global South.

Until recently, doing business in developing countries, and in Sub-Saharan Africa in particular, was associated with high risk. Although each investment decision is associated with some risk, there are always obligations incumbent on host States in that regard. However, when domestic law is too obsolete to match the requirements of an evolving investment and commercial environment which it is supposed to regulate, and when its effects are unpredictable, one of the fundamental conditions for attracting investment goes missing. This eventually underscores the need for a legal reform. The phenomenon of ‘globalisation’ on the one hand, and the need for (developing) countries to integrate their economies into the global market, on the other hand, considerably accentuated the postulate of development through law.

Against this background, some African countries, at the dawn of the 1990s, felt a need to ‘modernise’ their legal systems for the major part inherited from colonialism. In this vein, they entrusted a supranational organ, the OHADA, to perform that legal reform. This paper is an attempt to test the OHADA against the discourse of law as a development engine. Furthermore, this is an assessment of the extent to which OHADA, as a legal tool, could be useful in serving the purpose of regional integration and economic growth in Africa.

In November 2015, State Parties to the World Heritage Convention approved a resolution adopting a policy integrating sustainable development into World Heritage conservation (WH Policy). A central component of the WH Policy was an expectation for participatory models of management involving local communities in site management. This paper uses a case study of Sri Ksetra in Pyu Ancient Cities, Myanmar's first entry onto the World Heritage list, to identify how management practices toward local communities can frustrate the implementation of WH Policy goals. The paper argues that the implementation of WH Policy involves not only the contents of policy statements but also the actions of site management practices, such that efforts to promote sustainable development via community participation require consideration of both the articulation of appropriate management systems in formal policy documents as well as the practice of appropriate conduct by those systems. K E Y W O R D S co-management, community management, conservation, cultural heritage, natural heritage, sustainable development, World Heritage

One of the important elements in achieving an efficient free market economy is the development of efficient capital and securities markets that facilitate access to capital, innovation and competition. Capital markets are vital for promoting meaningful participation of the private sector and the public in corporate ownership and development. While in Tanzania there is not that much to regulate since the capital markets across East Africa, and especially in Uganda, Tanzania, Rwanda and Burundi are largely underdeveloped and in their infancy or formative stages; Kenya"s capital market has a had history which is traced to the 1920s in the East African region. This article reviews the challenges of regulating capital and securities market in the light of the context of the law and policy in the United Republic of Tanzania. The main thesis of this article posits that the emerging capital markets in Sub Saharan Africa (SSA) in general and the United Republic of Tanzania in particular are faced with the challenges of ownership, shifting posts in the still evolving regulatory policy architect, inward looking and perpetual lack of the capacity of facilitating vibrant capital markets despite the vital role that they could play to promote competition, efficiency and local and international ownership in corporate enterprises and allocation of resources. The underlying concern throughout this work is the issue: is how will such emerging capital markets in Sub Saharan Africa to develop sustainable capital markets that can contribute to the country's economic growth in the region"s quest to eradicate poverty through entrepreneurship and wealth creation.

Increasingly, the economy of industrialised countries moves away from being based on a multiplicity of independent innovators to one characterised by cross-licensing and the pooling of intellectual property (IP) rights. Competition law is accorded a more limited role. Refusals to license or restrictive licence terms are tolerated. This paradigm emphasises the innovation at the expense of the dissemination rationale of IP and competition law. The pressure on developing countries is to follow suit. However, this approach jeopardises overcoming the technology dependence of these states. Yet, the political consensus underlying the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was that, in exchange for IP rights protection, a transfer and dissemination of technology benefiting the global South would occur. This has not taken place so far. Taking this promise seriously requires according an enhanced, more social role to competition law. Articles 8(2), 31 and 40 of TRIPS – the TRIPS competition rules – could be interpreted in a way to accomplish this. This article argues in favour of a “prodevelopment” approach to IP-related competition law. This could be viewed as a demand of the rule of law at the international level. On the one hand, treaties such as TRIPS are to be interpreted in good faith. On the other, public interest and human rights considerations justify, as it were, require, such an approach. Articles 7 and 8 of TRIPS can play a crucial role in this regard. They reflect such public interest considerations as “object and purpose” of TRIPS. They also provide a link to international human rights law (IHRL). IHRL protects a (group) right to development, confirming “policy space” for World Trade Organization (WTO) members and the freedom to opt for a competition law model that facilitates dissemination. The International Covenant on Economic, Social and Cultural Rights (ICESCR) further protects various economic, social and cultural rights, including the right to enjoy the benefits of scientific progress and its applications (REBSPA). These rights may be said to give rise to “transfer and dissemination of technology” as a human right. Duties under the right to development and “territorial” and “extraterritorial” human rights obligations (ETOs) under the ICESCR support an understanding of competition law which is pro development, which takes account of local access and welfare needs. The article concludes with a set of 10 consolidated considerations for a “prodevelopment” IP-related competition law.

Louwette A, ‘Le Fonds Mondial de Lutte Contre Le Sida, La Tuberculose et Le Paludisme : Les Droits de L’homme Comme Bonne Pratique’ in Arnaud Hoc, Stéphanie Wattier and Geoffrey Willems (eds), Human rights as a basis for reevaluating and reconstructing the law. (Bruylant 2016)

KEYWORDS: Millennium challenge account, foreign aid, trust funds. Millennium Challenge Account-Indonesia (MCA-I) is designated by Government of Indonesia to implement the US $600 Million grants Compact, from the United States of America. The purposes of this research were to analyze: (1) the MCA-I's legal status and its consequences under international law perspective; and (2) legal and organizational problems of MCA-I during the operation of the program. This research concluded that the current legal status of MCA-I, as a quasi-legal entity, is not commonly used in the area of international law. Such legal status was led to some problems such as lack of ability to enter into agreement with other international organizations and might loose its access to potential development funds from some donors. Moreover, the establishment documents of MCA-I were also absent from some substantial provisions related to good governance and its funding mechanism might have potential conflict with state budget and national tax system.

E-mail:  [email protected]

The way in which international law has been constructed and reconstructed over the ages in favour of the Western countries has driven Third-World categories to perceive international law as ‘a global law made by the West’ for the purpose of controlling global undertakings. In the past, international law was used by the Westerners to legitimise colonialism and all their acts of exploitation in the developing countries. In the modern period, international law is predominantly used to protect, project and promote (3Ps) the interest of the Westerners. This includes their multinational businesses scattered globally, and protectionist bid against terrorist attacks. This paper uses theoretical, critical and multidisciplinary approach to examine this perception of international law by third-world category, and finds that construction and reconstruction of international law in the favour of the Western countries has been one key instrument that perpetuate severe inequality between the global-North and global-South, which in turn hampers efforts toward global-peace and security.


Key Words: International Law and Development, Third World, Inequality, Global-North, Global-South, Global Peace, Global Security, Humanitarianism

This is a short version of: Beiter, K.D. (2020). Extraterritorial Human Rights Obligations to “Civilize” Intellectual Property Law: Access to Textbooks in Africa, Copyright, and the Right to Education. Journal of World Intellectual Property, 23(3&4), 232-266,

which, in turn, is a short version of: Beiter, K.D. (2020). Not the African Copyright Pirate is Perverse, but the Situation in which (s)he Lives: Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization “from below” in IP Law. Buffalo Human Rights Law Review, 26, 1-79.

By way of example, this chapter will demonstrate the significance of extraterritorial state obligations (ETOs) under international human rights law (IHRL) for intellectual property (IP) law by focusing on the issue of how the right to education under international law prescribes requirements that international copyright law must comply with to facilitate access to printed textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfil human rights, the ETOs concept will be introduced and typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified.

The rise of expert knowledge in constitutional matters marks a turn toward ‘constitutional technicity,’ where constitution drafting is regarded as a domain of technical expertise inhabited by neutral and politically divested actors.  This article considers the emergence of the constitution drafting manual or handbook in the post-Cold War period as a genre in which technical expertise seeks to confront and regulate the political. Produced by and circulated within a diverse network of actors, these documents consolidate a view of what constitutes ‘best practice’ in the production of contemporary state identity. Yet in claiming that they merely reflect what they present as an existing consensus of state construction, these manuals also act into the field of state-building, naturalizing particular understandings of the ontology of the state that reflect liberal legalist norms.

This is the powerpoint of a workshop conducted on 25 June 2016 at the Tulane Legislative Drafting Institute in New Orleans. It builds on earlier publications related to Rule of Law in transitioning and developing countries, much of it available for free download on Academia.edu and/or ResearchGate.
The first part is a diagnosis of the failures and their consequences. The second part offers some suggestions on how we can address the failures and improve the Rule of Law and, consequently, the quality of democracy, economy, and life in these countries.

A great deal of ink has been spilled over the years about sovereignty and human rights. Both concepts have long pedigrees and have been examined from an exceptionally wide range of perspectives. In The Sovereignty of Human Rights, 1 Patrick Macklem undertakes to develop a novel approach to both concepts (and the relation between them). In his view, the central "purpose of international human rights law is to identify and mitigate adverse effects of the structure and operation of the international legal order." 2 That is to say, human rights-which are typically framed as rights of individuals and non-state collectivities-are designed to "monitor the distribution and exercise of sovereign power to which international law extends legal validity." 3 If international law is a system that allocates and regulates the assertion of sovereign authority, human rights, on Macklem's account, are the rules and principles that assess the legitimacy and ameliorate the deficiencies of this system. Put differently, for Macklem, human rights are palliative responses to especially significant shortcomings of an international legal order that is unlikely to be replaced within the foreseeable future and is staunchly resistant to top-to-bottom transformation. To a significant degree, Macklem's argument is a contribution to a long-standing tradition of legal structuralism: it is the "structures" of the international legal order that must be scrutinized and it is in relation to these "structures" (and the way that they operate and change over time) that human rights law is to be positioned and interrogated.

Originally published in Law, Text, Culture.  A reflection on the way in which the international constitutes the national, and on the way in which law is an essential element in the discursive construction of the nation-state. In a way, this article is also a postcolonial, international (law) engagement with the argument made in Benedict Anderson's famous book.  A version of this article was also published in the book, The Postcolonial and the Global (Krishnaswamy & Hawley (eds).