International development law emerged in the 1960s as a way to apply development theories to developing countries and justify foreign aid programs. It focused on economic growth and viewed law as a tool for development. This first phase failed due to assumptions about legal pluralism and the role of courts. The second phase in the 1980s promoted neoliberal policies of privatization, deregulation, and free markets through the World Bank and IMF. While increasing growth, this exacerbated inequality. The third ongoing phase sees development as holistic and inclusive of human rights and sustainability, with law both enabling and constituted by development.

1. INTERNATIONAL
DEVELOPMENT LAW
Definition of general concepts

2. INTRODUCTION
 The objective of this class is to
 A. Define key terms of this module
i. Law
ii. International Law
iii. Development
 Understand the origin of international Development discourse

3. I. What is Law ?
 Blacks Law dictionary (6th edn) defines law as a body of rules of
action or conduct prescribed by controlling authority, and having
binding legal force. That which must be obeyed and followed by
citizens subject to sanctions or legal consequence is a law
 Generally, law is any set of rules that guide the conduct of
individuals/groups in a given set up and is enforced by those in
authority.
 What are the examples/types of law of law you can think of based on
the definition above ……
 From the examples we can classify law in levels
i. Family level
ii. Community level
iii. National Level – what are the sources of law in Kenya(art 2 of the
Kenyan constituion)
iv. International Level

4. Sources of law in Kenya
 Article 2 of the Constitution of Kenya and the Judicature Act Cap 8
sec 3 provides that
a) The Constitution is the supreme law of the Republic and binds all
persons and all State organs at both levels of government.
b) Laws –national and county
c) Customary Law
d) Statutes of General application
e) Common law and equity
f) The general rules of international law
g) Any treaty or convention ratified by Kenya

5. II. International Law
 International = involving two or more nations
 International Law can be defined as
a) The body of law that governs the legal relations between {bilateral- two}
or among {multilateral- more than two} states or nations.
b) Another definiton is the legal responsibilities of States in their conduct with
each other, and their treatment of individuals within State boundaries.
 To qualify as a subject under the traditional definition of international law, a
state had to be sovereign :
a) It needs a defined territory,
b) A distinct population with a shared national identity,
c) a recognized government
d) ability to engage in diplomatic or foreign relations
 Is Kenya a state? Justify is the state of Chicago a sovereign state ?
Palestine?
 International law regulates many areas: human rights, disarmament,
international crime, refugees, migration, problems of nationality, the
treatment of prisoners, the use of force, and the conduct of war.

6. Sources of international law
 Sources of international law As under Article 38(1)(b) of the International
Court of Justice Statute **
a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
 It is important to discuss the sources of international law in the discourse
of development for many reasons
a) Shows the diversity of thought in enactment of international law
b) Explains the delay and/or progress on creation and implementation of
development as a right. i.e African Charter on Womens Rights was only
enacted in 2005 , whereas the UN has been in existence since 1945. Also
it was not until the year 200 that the United Nations Security Council
Resolution 1325 acknowledged the disproportionate and unique impact
of armed conflict on women and girls

7. Sources cont…
c. It shows the strength of international law in impacting national
constitutions. Prior to 2010 , the Kenyan Constitution did not
recognize economic , social and cultural rights i.e the right to
education , food , housing, property, family . Art 43 of the C.O.K
d. Enables us appreciate the divergent understanding of what
development is as will be discussed on definition of development.

8. II. Development
 The definition of development is one which is complex yet diverse as it is a term
that has multiple definitions from diverse quarters. i.e as a social science
terminology, as an economic term, and most recently as a legal term , when we
speak of ‘the right to development’
 By and large early definitions of development were hinged on one the Keynisian
theory of economic development(1930) An economy’s output of goods and
services is the sum of four components: consumption, investment, government
purchases, and net exports (the difference between what a country sells to and
buys from foreign countries)
 John Maynard Keynes along with U.S. Treasury official Harry Dexter White, Keynes
is considered the intellectual founding father of the International Monetary Fund
and the World Bank, which were created at Bretton Woods
 This is because , the world bank became the source of the definition of
development as Gross National Income per capita an as such classifying countries
into developed, less developed and least development countries.
 Thus Early definitions of development such as those of British Development
economies Dudley Seer defined Development as when a country experiences a
reduction or elimination of poverty, inequality and unemployment.

9. Cont… Development
 Criticisms on the Bretton woods institutions to improve development led to studies
of development as not just an economic theory, but as a social theory and human
rights theory
 Hettne in “Racism, Migration and Development.” posits that ‘development in the
modern sense implies intentional social change in accordance with societal
objectives’
 Woolcock in“The next 10 Years in Development Studies.” sees development as ‘the
internal and external processes that shape, in a given society or for a particular
social group, the welfare, justice and opportunities of any given society, but
especially its poorest and most marginalized.
 The commonalities of the definitions include: improvement, welfare and social
change.
 Simply development means “improvement in country’s economic and social
conditions”.
 More specially, it refers to improvements in way of managing an area’s natural and
human resources In order to create wealth and improve people’s lives
 The most notabe definition is by Amartya Sen, Development as a process of
expanding the real freedoms that people enjoy

10. III. Development Law
 Legal provisions, guidelines, and principles that; Control, Regulate,
Promote, Protect Development in various aspects depending on the
need of the society
 There are two aspects of Development Law
a) Law and development- the field that emerged in the 1960s and 70’s
and was linked to American Aid programs and other organizations. It
identified law as a tool as a necessary tool of progress as well an
instrument to achieve development. Emphasis is to develop legal
institutions in the hope of increasing equality and widen
participation
b) Law in development – it’s a concept that looks at the role of law in
development alongside political economic and social aspect of
development. Law is a both an element and a tool to achieve it.
Development law recognizes that development cannot move on its own
and requires regulatory measures of modern law.
.

11. IV. International Development Law
: an origin phase 1
 International development law is a relatively recent branch of international law that
developed in the 1960s surrounding the debate over how best to approach
international development.
 The term “law and development” emerged and gained significance after the Second
World War, when a group of scholars, practitioners, private foundations, and aid
agencies. The aim was to
a) Apply development theories to developing countries
b) Justify American aid programs in third worlds countries by pushing for efforts to
adopt laws and legal practices from developed countries.
 The focus was primarily on the state as the area for development and the focus was
on economic development.
 The objective was that for there to be development, the rule of law,and the key
components , equality, enhanced freedom of participation, were important in
introducing social responses to the economies needs but central to the concept of
economic needs on the subject of development
 The result was an upsurge on development partners i.e Ford Foundation, Usaid ,
Oxfam etc.

12. Cont…An origin OF Intl Dev.t
 Aside from the propagation on the role of law they saw there was
need for lawyers to be a part of the development process in; policy
formulation , enforcement of regulation and advising on policy
formulation and implementation.
 Therefore there was training of lawyers among other professionals .
In the words of Tom Shachtman, “understood that in post-colonial,
independent Africa, without education there could be no
government, no democracy, and no justice.”
https://www.theeastafrican.co.ke/tea/magazine/airlifts-of-us-the-
first-kenyans-to-study-in-america-1358684

13. Failures of legal liberalism/
propagation of role of law
The failure of the role of law was predicated on the fact that the on the following
assumptions:
a. Rules were pluralistic for the good of society. What is legal pluralism ?- the
existence of multiple legal systems in a country prevalent in colonial
countries
- Social stratification and authoritarian government
a. The focus of social control was the state –hence emphasis to centralized
systems of government
-tribes ,clans and local communities were the focus of social control
a. Courts were autonomous and central actors of social control- there was a
presupposition on the embrace of courts
- Courts were not autonomous people generally dispobeyed rules
a. Also the lawyers who studied abroad did not become westernized enough i.e
like Tom Mboya became alive to development economics and opposed the
American system of development.
b. The term of development was defined narrowly to only encompass economic
development

14. Phase 2 Neo-liberalism
 Law and development was resuscitated in the 1980s and the 90s after the fall
of the Soviet bloc, with the proliferation of neoliberal law reform projects
that sought to reduce state intervention in the economy by promoting
privatization and deregulation of the economy.
 What is neoliberalism? It’s a classical political economic ideology that
reaffirmed that markets promote economic efficiency and fair social
distributions. https://www.youtube.com/watch?v=DLtxUiwY6j8
a) Its main characteristic discourage positive government intervention in the
economy . Ie propoents against the KQ bailouts
b) The government should subsidise and promote private companies i.e
funding private market players.
c) Promotes free markets approaches i.e priviatization of companies acquisiton
or closure of government corps to promote of private companies.
d) Promote globalization by removal of trade barriers. The push for bilateral
and multilateral trade agreement
 This second law and development movement was substantially larger in scale
and impact than the first, with significant effects on development projects
and policies around the world

15. Neo-liberal Movement
 The World Bank and IMF have been the best proponents of neo-liberal
approaches which were guided by the Washington Consensus
The Washington consensus , refers to a set of principles or rules that represent
the lowest common denominator of policy advice that Washington based
institutions advances , such as
- fiscal discipline ,
- a redirection of public expenditure and priorities towards areas offering
high economic returns and potential to improve income distribution i.e
primary health care, education and infrastructure.
- Tax reform to lower marginal rates and broaden the tax base , interest rate
liberalization – remember banks,
- competitive exchange rate ,
- trade liberalization, liberalization of inflows of FDI ,
- privatization and deregulation to abolish barriers to entry and exit and
protection of property rights-titling.

16. Effect of neo-liberalism
 The keeping of wealth with the top corporations and
individuals
 Heavily socially stratified societies ,the large rich and poor
margin – they say Kenya is country of Ten millionaire and
ten million poor people.
 The lack of government involvement in provision basic
rights and freedoms which ahs led to a poor a standard of
life. i.e maziwa ya nyayo was an equalizer effect under
liberalism that faded away.

17. Phase 3
 Development is still under reflection. Which some argue is the third phase.
 The definitions of development are multiple but clear is the position that
development needs to be holistic. That means including non market values in
the idea of development i.e the rule of law
 The Rule of law means that, law is not just a means to achieve development
but a crucial component of development
 The third phase is also characterized by development organizations UN
initiative on global efforts to eradicate poverty such as MDGS (2000-2015) and
(2015 -2030). The SDGs include the rule of law as among the 17 targets
the purpose has evolved to among others
 the concept of institution building.
 Consider the importance of access to justice
 the importance of sustainable development
 the importance of ensuring human rights and dignity for all

18. SOURCES
 Nathan Andrews & Sylvia Bawa (2014) A Post-development Hoax?
(Re)-examining the Past, Present and Future of Development Studies,
Third World Quarterly, 35:6, 922-927
 Yong Shik Lee, “General Theory of Law and Development” 50 Cornell
International Journal 415(2017)
 https://www.un.org/en/our-work/uphold-international-law
 https://www.thebalance.com/keynesian-economics-theory-definition-
4159776#citation-32