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This chapter explores both a brief typology for the import and export of law, and three different stages in the law and development movement. It also examines the export of US clinical legal education in the context of that movement and argues that it is not legal imperialism, at least in the context of law and development theory as it is practiced today. It reviews the first stage of law and development policy (1960s to mid-1970s), which comes the closest to legal imperialism, but argues that even that critique is flawed. In the second, “rule of law and democracy” stage (1980s and 1990s) and the third, or “human rights and freedom” stage (late 1990s forward), clinical legal education has taken on an increasingly important, but always secondary place in the range of development priorities and alternatives.

This chapter describes key aspects of the history of clinical legal education in Latin America, which began in the 1960s, and the evolution of new approaches to clinical education in the region. It also explains the influence of the “First Generation” and “Second Generation” of the Law and Development Movement on the Latin American clinical movement, and the emergence of clinical programs based on the ideological and practical tenants of Public Interest Law (PIL). It explains further that while PIL clinics have been particularly fertile in proposing new forms of judicial intervention—they have just recently started to think more consciously about the limits of these strategies and the necessity to reconsider their role in both legal education and professional practice. The chapter then examines these developments from the perspective of four countries in the region with substantial clinical experience: Argentina, Chile, Colombia, and Mexico.

International sustainable development law is characterized by creative, dynamic instruments and institutions with fresh potential for legal solutions that integrate environmental, economic, and social dimensions of legal problems. In particular, sustainable development law often employs the most recent scientific methods, drawing upon indigenous and traditional knowledge, uses new measures for technology transfer, and provides for corporate responsibility and public-private partnerships. Sustainable development law seeks more integrated, effective, and efficient approaches to environment, social, and economic regulation. These procedural aspects of sustainable development law regimes are engaged by each of the research agendas discussed above. Understanding the effect of these “cross-cutting issues” on sustainable development law regimes helps to explain the integrative potential of sustainable development law principles, for these themes serve as vehicles for weaving together environmental, economic, and social priorities.

In its dictum in the Barcelona Traction case, the International Court provided a concept of obligations erga omnes that applies to selected international obligations. On the other hand, as this chapter shows, international writers have proposed candidates of obligations erga omnes that would go well beyond the International Court's list and the restrictive idea contained in its dictum. For example, candidates in the area of human rights are obligations deriving not only from particular rules but also from general principles; candidates in the area of development law are not only prohibitions but also positive obligations; and candidates in the area of environmental law have extended to correlative obligations to optional rights. While showing the vitality of the concept, there is a risk of proliferation beyond the clear limits that define the concept and ensure its relevance to international society.

International sustainable development law is found at the intersection of three principal fields of international law, each of which contribute to sustainable development. Since the call for a clarified and strengthened relationship between international agreements in the field of environment and relevant social and economic agreements in Chapter 39 of Agenda 21, the areas of intersection between international economic law, international law related to social development, especially human rights, and international environmental law have been growing. The scope of potential conflicts between international norms represented in treaties is limited to certain circumstances. A true conflict occurs where there is overlap ratione materiae, personae and temporis between norms, and one constitutes, has led to, or may lead to, the breach of the other.

The debates about Chinese development policy that are the subject of this volume contrast doubts about neo-liberal orthodoxies in the West with the experience and choices available to policymakers in China today. As the neoliberal orthodoxy unravels in economics, the same doubts have unfortunately not been raised about the parallel neo-liberal orthodoxy about legal and institutional arrangements. After assessing the relationship between legal and economic expertise in development policy planning, this article proposes that development policy in the post-neoliberal period could be improved by harnessing related heterogenous traditions in economics and legal science.

Classical International Development Law (IDL) has not kept its promises despite continuing attempts to implement it. Major legal principles such as the right of peoples to self-determination, sovereignty over natural resources, and the right to nationalize against just compensation have helped to found and consolidate the sovereignty of newly independent states and let them properly consider their development. However, the set of legal norms that were subsequently adopted, which are legally binding and have been provided with some effectiveness, have proved extremely disappointing in their application. The new IDL of the post-Cold War years, which currently applies concurrently with conventional law on the matter seems no more effective. To change the existing dire condition, three options are open: sticking to the neo-liberal pro-market paradigm — an economically efficient but socially unfair solution; jettisoning any model of development — a blind alley; and changing the rules of the global economic system, and creating a new and fair New International Economic Order. This third option aims at changing the rules of the global economic system, recasting the Bretton Woods financial institutions, changing the rules of the General Agreement on Tariffs and Trade, and revising the World Trade Organization in a more equitable direction so that it finally refocuses relations between the various North(s) and South(s).

This chapter provides practical case studies of law and policy instruments at the various degrees of integration, illustrating challenges, and innovative methodologies that have been implemented over recent years. These case studies provide examples of international legal instruments and regimes at the various degrees of integration. Three case studies are presented. The first case study, of Sustainability Impact Assessment, is examined as an example of an integrated tool of sustainable development law, describing stakeholder participation strategies and recent innovations in integrated assessment procedures. The second case study surveys Regional Integration Agreements in the Americas for the use of innovative instruments to address environmental and social concerns in diverse economic integration arrangements, with notes on mechanisms to ensure increased openness. Finally, a third case study focuses on the application of international human rights instruments relating to economic, social, and cultural rights in order to address international economic and environmental concerns.

This chapter proposes a ‘systemic’ conception of labour market institutions as a basis for understanding how labour law can facilitate economic and human development. Labour law rules are seen as having co-evolved with economic and political institutions to create the conditions for the emergence of modern labour markets. Labour law regulation has a ‘market constituting’ role, in addition to ‘correcting’ market outcomes where they lead to negative externalities and ‘limiting’ the market where this is necessary to achieve human developmental goals. A certain level of economic development is a necessary precondition for a functioning labour law system, and some labour law rules may be inappropriate for developing and transition systems. However, there is also evidence that labour law rules can be effective in stimulating development, and do not depend on the prior existence of fully developed economic and political institutions.

This book has sought to advance understanding of the development and implementation of international sustainable development law. To this purpose, it has led the reader through current concepts of sustainable development law, surveyed recent developments in the fields of international social, economic, and environmental law, analysed the proposed principles of sustainable development law, provided practical case studies of sustainable development law instruments, analysed the challenges of sustainable development governance and implementation, and identified prospects for further legal research. In these chapters, there has been no attempt to analyse all situations in which international economic, social, and environmental legal regimes relating to sustainable development intersect. Indeed, it is unlikely that these myriad instances could be satisfactorily analysed in one publication. To conclude, it is important to consider what general observations can be made at these early stages in the investigation and analysis of sustainable development law.

To further the study of differential treatments within international environmental agreements, this chapter looks into the several different aspects of differential treatment in international law. Also, since differential treatment may manifest itself either implicitly or explicitly and through different degrees, this chapter also examines the different needs for such differential treatment. This chapter presents an illustrative survey that shows how differential treatment is evident in different parts of international law, how differential treatment would probably bring about better effects across different countries in different international regimes, and how various controversies are encountered in attempts to establish and push through with such differential treatment. In this chapter, differential treatment in industrial countries is distinguished from that in developing countries so that the factors and characteristics of the two setups — in terms of various laws like economic law, international development law, human rights law, disarmament law and international arms control — may be emphasized.

This chapter identifies emerging issues in international sustainable development law, primarily from recent developments in international economic law. Different economic instruments at global and regional levels integrate economic law with environmental and social provisions. For example, while the proposed International Trade Organization was designed to integrate social and economic policy in one treaty instrument, the General Agreement on Tariffs and Trade (GATT) was provisionally enacted and thought to be limited to trade issues. However the GATT's agenda was soon expanded into neighbouring economic issues, such as trade-related investment measures, and at Doha, Qatar, governments launched international negotiations in the World Trade Organization which reach far beyond a “trade only” agenda into important social and environmental issues. This chapter provides a survey of a new sustainable development law research agenda in this area.

This chapter examines the two “waves” of law and development that have characterized the movement and describes the characteristics associated with each wave. The first wave was essentially about law and modernization, and the second wave was essentially about law and institutions. This chapter proposes a departure from the standard law and development template and calls for a new, culturally informed framework for the study of law and development. A primary purpose of this chapter is to provide a brief history of the field, expose its flaws and blind spots—its cursory treatment of culture and heavy emphasis on the technocratic aspects of “rule of law”—and show how these flaws have contributed to the movement’s failures.

This chapter offers a forward-looking legal research agenda for the next decade using an international sustainable development law approach. This sustainable development law agenda focuses on development and implementation of laws relevant to natural resources. To set the context, this chapter begins by reviewing why natural resources law and legal analysis is important now, highlighting the emphasis on natural resources at the 2002 World Summit on Sustainable Development, the constraints to implementation of natural resources law and persistent trends of natural resource degradation. Then, the foundations for the proposed sustainable development law research agenda are further elaborated, by emphasizing the intersection of economics, society, and the environment and the need to consider, in an integrated fashion, the dynamics and laws in these three realms. In the final part, four key areas are proposed for the attention, analysis, and action of the legal research community.

This chapter demonstrates how a thick conception of development necessitates an examination of both law and culture. First, the chapter deals with culture change in Turkey, Japan, and Germany., which postconflict This chapter centers on Japan’s experience, particularly its modernization in the Meiji era. Japan’s drive to modernize involved the active participation of many civic organizations, not just directives issued by a ruler. The chapter also discusses efforts by different countries as well as nongovernmental organizations involved in transnational social movements. The chapter then explores efforts taken in Kosovo, East Timor, Iraq, and Afghanistan. These case studies show how actors, mainly the United Nations and United States, have tried to establish legal systems in countries that have recently been embroiled in conflict and unrest. An important element to consider is the effect of security, or rather a lack of security, on forces attempting to implement law and development.

It is largely accepted that “rule of law,” secure property rights, and good institutions are essential for successful development. But what do these concepts mean? Is there a universal set of precepts that should apply to all countries? This book argues that the answer is no, and this introductory essay explains why. While the question of appropriate sets of institutions, including legal frameworks, is of importance to all countries, it is of particular relevance for China in its transition to a market economy with Chinese characteristics. Part of that transition will entail creating the institutional foundations (including the legal frameworks) for China's market economy. The decisions China makes now will shape the course for its economy and its society for decades to come. All too often, discussion of the institutional pre-requisites to economic success, in China as elsewhere, reflect a “neo-liberal” law and economics orthodoxy (sometimes labeled the "Chicago School") purporting to identify the “best practice” legal and institutional arrangements necessary for market efficiency and growth. This orthodoxy is mistaken. There is no one set of “best practice” institutions for a market economy. Choices must be made among alternatives. Moreover, the ability to transplant legal frameworks from one society to another has rightly been questioned. A growing movement of economists and legal scholars have challenged the Chicago tradition and conventional wisdom; the recent financial crisis has destroyed a large number of prevailing myths surrounding the relationship between law and economics in the West and sprouted skepticism about the desirability of extending these popular beliefs about the legal prerequisites for strong economic performance in a market economy elsewhere, including to China. The chapter explains the deficiencies in both the economic and legal analyses underling the neo-liberal law and economics orthodoxy, and provides a broader, alternative framework for thinking about the political choices embedded in any effort to build legal institutions for a market economy. Such choices inevitably touch issues of equity as well as efficiency. Set against the backdrop of China’s economic development, the book offers economists and policymakers a concrete setting within which these issues can be discussed. The ultimate goal of this work is to inform the choice of regulatory and institutional forms for China’s own evolving economic and political strategy, and to assist those in both developing and developed countries who seek to create, or reform, institutional and regulatory frameworks to achieve equitable and sustained development

What might the emerging competition regimes learn from more established ones? One would think that after 100 years, the goals of antitrust would be clear both in the United States and around the world. Unfortunately, this is not the case. Competition law systems (including the United States') may have a number of complementary or even contradictory goals. Although for developed countries the main driving force of their competition law is the efficient allocation of resources, this is not always the case. Efficiency concerns may be at odds with goals such as employment, poverty alleviation and the empowerment of previously marginalized groups. The transplantation of competition law to a developing country setting may pose challenges to the traditional understanding of competition law and its role/function in public policy.