Faculty of Law

This article engages with the work of three international legal theorists
(Kennedy, Orford and Mutua) on the question of human rights and argues that whilst each provides a critique, each also makes a redemptive return to human rights. The article maps and critiques this tendency in contemporary international legal thought.

This paper is a brief review essay of Anne Orford's book 'International Authority and the Responsibility to Protect' which, along with three others and a response by the author published in the inaugural issue of the 'London Review of International Law', was first given at an author-meets-reader session at the University of Sydney. This review addresses the Foucaultian dimensions of Orford's book.

Michel Foucault is not often read as a theorist of human rights. On the one hand, there is a tendency to read his works of the mid-1970s — his celebrated poststructuralist genealogies of subjectivity, of discipline, of bio-politics, and so forth — as proposing a critique of rights discourse which definitively rules out any political appeal to rights. On the other hand, somewhat curiously it has to be said, there is a tendency to read his works of the late 1970s and early 1980s — his perhaps less celebrated concern with ethics and with technologies of the self — as tacitly re-introducing a liberal humanist notion of subjectivity and, with that, an embrace of orthodox rights discourse. Beginning from this curious disjunction between the rejectionist Foucault and the liberal Foucault, this article attempts to articulate a Foucauldian politics of human rights along the lines of a critical affirmation. Neither a full embrace nor a total rejection of human rights, the Foucauldian politics of human rights developed here elaborates (and attempts to connect) several disparate figures in his thought: rights as ungrounded and illimitable, rights as the strategic instrument-effect of political struggle, and rights as a performative mechanism of community.

I INTRODUCTION The Sydney 2000 Olympic Games left Australia with a legacy that extends beyond the sporting, cultural and artistic boundaries that are commonly assumed to arise as a result of a nation hosting the Olympic Games. The Games saw a greater number of disputes over selection to national teams than had occurred for any previous sporting event,l The resolution of these disputes between competitors and their associations is conducted according to a set of distinct legal rules, dictated by the International Olympic Committee, which may not bear any relationship to domestic legislation. Given the traditional hostility of the courts to the infringement of their sovereignty,: the expectation of immunity for international federations from interference by domestic courts has the potential to cause great tension.(3) This tension is best illustrated by a situation where domestic competitors seek to challenge their non-selection for Olympic teams and yet are denied recourse to their do...

Community title schemes are an increasingly popular form of housing in Queensland and throughout Australia in general. Community title housing (typically apartment buildings and townhouses) involve medium to high-density living, which in turn tend to produce a higher incidence of neighbourhood disputes than lower density living options. However, a second reason for the prevalence of the disputes is the varied nature of interests in a community title scheme. Within the single scheme, there may be owner occupiers (either residential or commercial or both), tenants (again, residential, commercial or both), members of the body corporate committee, and property managers. Each of these types of stakeholders has different interests and perceptions of how a scheme ought to operate, with the potential for serious disputes to result. Recognising the potentially harmful effects of community title disputes and the need for accessible dispute resolution options, the Office of the Commissioner for Body Corporate and Community Management (OBCCM) was established to provide specialist dispute resolution procedures. The OBCCM offers conciliation and adjudication, with avenues of appeal available to the newly-established Queensland Civil and Administrative Tribunal. The OBCCM’s self-identified objective in relation to this service is to offer “a quality dispute resolution service which is timely and responsive.” In practice, the dispute resolution services are a hybrid of inquisitorial and adversarial approaches, focussing on the legal aspects of the dispute. This paper combines academic and practitioner perspectives to explore the possibility of a therapeutic approach to body corporate and community title disputes. The paper firstly provides an overview of the dispute resolution context of community title disputes and the role of the OBCCM. It then considers the effect of current OBCCM practices on participant wellbeing, and questions whether the introduction of a therapeutic approach might not only improve outcomes in discrete cases, but in fact have the potential to enhance or restore community living within troubled schemes. Finally, the paper comments on the type of legal and dispute system changes that might be required to facilitate such an approach.

The notion of the 'best interests of the child' plays a central role in Australian family law. Section 60CA of the Family Law Act 1975 (Cth), as amended in 2006, reiterates the longstanding principle that, in making a parenting order, 'a court must regard the best interests of the child as the paramount consideration.' The Australian judiciary has adopted a strong interpretation of the paramountcy principle, according to which the interests of children prevail absolutely over the interests of all other parties. The authors argue that such a strong emphasis on children’s interests cannot be ethically justified; only a weak view of the paramountcy principle can be supported on ethical grounds.

By the end of 2011, China will have been a member of the World Trade Organization (the WTO) for a decade. While China has undergone dramatic changes to implement commitments contained in its Protocol of Accession, debate continues as to whether China has adequately complied with its obligations under the WTO Agreements in both letter and spirit. Some of this debate remains in the political arena, where China is censured over such issues as currency controls and or equality of access for foreign firms like Google; however, it is in the legal arena, and specifically within the WTO's Dispute Settlement Body, that some of the most controversial issues are raised, both against and by China.  This paper  analyses China's record of disputes in the WTO since its accession in 2001.

The Socialist Republic of Vietnam's accession on 11 January 2007 to the World Trade Organization was not an isolated foray into the global trading system, but rather the culmination of nearly twenty years of incremental integration and adjustment to WTO standards through preferential trade agreements.

Vietnam is a fascinating looking glass through which to examine the dynamics, benefits, and drawbacks of preferential trade agreements. As this chapter will illustrate, PTAs, and in particular the bilateral agreement between Vietnam and the United States, provided a critical stepping stone towards Vietnam's WTO accession. On the other hand, these same PTAs expose Vietnam to the problems generally associated with PTAs, such as the potential for trade diversion, increased regulatory complexity, and resource strain. These are the 'stumbling blocks' to the type of genuine, multilateral, less trade restrictive possibilities offered by the World Trade Organization. Although its place in the WTO is secured, and its overall trade and development prospects are still very positive, Vietnam remains a relative newcomer amidst the region's 'fuzzy, leaky trade blocs', and needs to make the difficult decision as to whether to join the PTA frenzy or exercise restraint.

The existing literature on ASEAN’s trade disputes focuses on whether the organization will indeed develop into a rules-based association, or whether political methods will continue to be used in preference to legal principle. The conclusion, generally from outside observers, is that if ASEAN seeks to prioritize economic integration and increased cooperation on trade liberalization, it will likely be forced to become more ‘legalized’. The discussion thus tends to revolve around legal mechanisms that will best achieve this end-point.
The assumption that underpins the existing literature is that it is an inevitability, or perhaps simply a matter of time, that the available dispute settlement mechanisms will be used by the ASEAN members. However, this Chapter argues that Western authors need to rethink their analysis of ASEAN, and that the key questions should be framed differently.

It argues that across the range of major ASEAN disputes – those concerning trade and territory – the ASEAN members have shown clear preference for quiet self-resolution or external adjudication rather than internal adjudication, not just in relation to trade disputes, but also in relation to territorial disputes. More importantly ‘legalism’, within the ASEAN context, does not mean referring disputes to institutionalized and procedurally sophisticated adjudicatory mechanisms, but rather relying on the legal rights and obligations established by the ASEAN agreements in a substantive sense.

Whereas the WTO has the benefit of being a self-contained regime for trade, in ASEAN trade must cohabit the same forum as other, more explosive, political concerns such as territorial integrity and the physical security of the state. ASEAN members rely instead on the ̳ASEAN Way‘, which holds that progress can be made through consensus and discussion, not confrontation. Paradoxical as it may sound to the adversarially-inclined Western trade lawyer, the absence of ASEAN trade law cases may actually be an indicator of the system‘s success.

"The status of lawyers in development practice was greatly advanced by Nobel laureate Amartya Sen, who declared in 2000 that “the notion of development cannot be conceptually delinked from legal and judicial arrangements.”  This development paradigm gave renewed impetus for law as the lynchpin for economic and social development, with the international institutions such as the World Bank focussing great efforts on  reform of legal system in Asia, and particularly in transitional countries such as Vietnam.  Between 1900 and 2007, the World Bank has averaged an expenditure of US$375.5 million per annum on rule of law projects in Asia.  Considerable resources have been directed towards law reform in Vietnam, not just by the World Bank but by other international and bilateral donors.  Domestically, the highest level of the Vietnamese government have supported an ambitious programme of reform.

This article examines this present focus on legal and judicial reform in Vietnam, taking as its focus the recent Western scholarship on the Vietnamese legal system.  The major publications in the last year have each focussed on the phenomenon that might be described as judicialization, juridification, constitutionalism or legalization, depending on the perspective of the author.  Broadly these terms all refer to the same phenomenon, namely the orientation of political, social and commercial life around the rule of law, rather than more discretionary considerations such as individual power. 

Despite the broad reach and fairly diverse subject matter of these works, there are a number of recurring themes. The first is the context in which juridification is taking place, namely the legal cultural traditions that shape Vietnam’s contemporary legal culture. Each of these works takes account, explicitly and implicitly, the complexities, apparent inconsistencies, and the synergies, of the foreign influences that most strongly shape the Vietnamese legal system.  The second can be termed popular juridification – or the struggle make the law a concept that is integrated in, and relevant to, the daily lives of ordinary citizens.  The third recurring theme is the changing roles of lawyers in contemporary Vietnam, and the discourses that shape the professional socialization of  lawyers as independent, analytical advocates.  Each of these is examined in turn.

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This article examines the feasibility of achieving the World Trade Organization's stated aspiration of achieving universal membership. The article first examines the requirements for accession, and argues that the commonly-used definition of universal membership -accession to the WTO by all members of the United Nations -is too narrow having regard to the accession provisions of the relevant WTO Agreements. A broader interpretation of the concept of universal accession reveals the true extent of the 'accession issue' by showing the number of accessions that may be negotiated in future. The article then considers the potential for truly universal membership of the WTO, and the obstacles to that being achieved. This broader potential membership includes a very high proportion of less-and leastdeveloped countries, micro-states, and transitional economies, all of which face particular accession challenges that are examined in the final part of the article.

CITE AS: L Toohey, 'Boi Thuong Thiet Hai Do Chat Doc Da Cam O Viet Nam' (2006) Nghien Cuu Lap Phap (Journal of Legislative Studies, the Official Journal of the National Assembly of Vietnam). TÓM TẮT Bài viết này tìm hiểu tranh chấp giữa Mỹ và Việt Nam về những thiệt hại mà người dân Việt Nam phải gánh chịu do hậu quả của việc sử dụng hoá chất diệt cỏ, Chất độc màu da cam trong cuộc chiến tranh giữa Mỹ và Việt Nam. Bài viết sẽ chỉ ra những vấn đề pháp lý của tranh chấp giữa các bên và không tán thành việc quá tập trung vào quá trình tố tụng, đồng thời cho rằng các hình thức giải quyết tranh chấp quốc tế khác sẽ tạo ra một cơ chế hữu hiệu hơn cho việc giải quyết tranh chấp. Lisa Toohey là giảng viên Luật tại trường đại học tổng hợp Queensland, Australia. Trước đây bà đã từng làm việc với tư cách là luật sư nước ngoài tại Việt Nam và đã từng phục vụ cho một số tổ chức và các uỷ ban quốc tế về luật nhân đạo. Các nghiên cứu của bà tập trung vào lĩnh vực luật quốc tế và phát triển và giải quyết tranh chấp quốc tế. Bồi thường thiệt hại do chất độc màu da cam tại Việt Nam Lisa C. Toohey* "Quá khứ nếu như không được giải quyết thích đáng thì không những không biến mất hay nằm xuống và ngủ yên mà còn quay trở lại làm ta xấu hổ và ám ảnh ta một cách dai dẳng".