Conceptualizing The Schmittian ‘Exception’ in the European Union: from the ‘Opt-Out’ Procedure(S) to indirect forms of secessionism

Too often, legal and sociopolitical scholars concerned with European policies anddecision-making procedures focus their efforts only on the official essence ofconventional opt-out forms of nonparticipation in the European integration process,such as those established in the Treaty of Lisbon. Yet, far from being just an internalmatter, the independentist instances which informed the Scottish referendum had asignificant impact on delicate issues of EU law, biopolitics, political anthropology,political theology, and foreign policy which deserve to be properly addressed. Thenecessity of conducting such an analysis is self-evident, and mainly related to thepossibility that the Scottish experience may be soon replicated, with different results,in the Italian regions of Venetia, Sardinia, and Lombardy, and in the Spanishcommunity of Catalonia. Delving into this dimension through Schmitt’s politicaldecisionism and adopting a comparative and interdisciplinary approach thattranscends the limits of pure positivistic and analytical lines of inquiry, this paperpresents a country’s choice to leave the EU or stop cooperating with it through thedirect opt-out mechanisms officially regulated in its Treaties, or through indirectforms of secessionism, in terms of an ‘exceptional’ act of sovereign will.

Against fundamentalism: the silence of the Divine in the work of Karen Armstrong

Three and a half centuries after the treaty of Westphalia ended the bloody religious wars in Europe, religious zealots are again threatening to undo the progress of Western civilised society, the achievements of science, the Enlightenment and liberal democracy. Such is the charge of the 'new atheist' movements of which Michael Onfray is but one example. Onfray's self-confessed task is to rekindle the Enlightenment, to shine 'Atheology's dazzling light' on the tyranny and darkness of monotheism. And in just 219 pages, Onfray exposes 4,000 years of evil and darkness perpetrated by the three monotheistic religions-or so his Atheist Manifesto claims (2007: 219).It is the new atheists' rejection of the Enlightenment principle of toleration that prompted Karen Armstrong to write her book The Case for God. The Case for God is an argument and demonstration that all forms of fundamentalism represent a 'defiantly unorthodox form of faith that frequently misrepresents the tradition it is trying to defend' (2009: 7). As a modem twentieth century movement, fundamentalist movements are essentially pragmatic, 'modem, innovative, and modernizing' and have a symbiotic relationship 'with an aggressive liberalism or secularism' (Armstrong 2000: 178).

Is Hong Kong part of China for tax treaty purposes?

A commentry on Edwards v The Queen (Tax Court of Canada, 27 June 2002) and the implications for Australian tax law.

Taxation of branches of international banks : towards a multilateral tax treaty

Examines the taxation of branches of international banks under the OECD Model Tax Treaty. Argues that globalisation has made the current international tax system obsolete and suggests that a multilateral tax treaty system is a twenty-first century solution.

The status of child offenders under international criminal justice: lessons from Sierra Leone

This article analyses the status of child offenders under international criminal justice. International criminal proceedings, especially those in the African continent, have recently highlighted the significance of children and young people as perpetrators of genocide, crimes against humanity and war crimes. It has been suggested by one commentator that there exist international prohibitions on the prosecution of children for international crimes. It will be argued here that this claim is not substantiated in respect either of customary or treaty-based international obligations.

The TRIPS agreement and developing countries: a discussion of the paragraph 6 of the Doha declaration on public health

The Paragraph 6 solution arrived on 30th August 2003 to facilitate export of drugs to the countries which were not able to manufacture said drugs shows the total marginalization of developing countries in international treaty negotiations. A simple proposal by developing counties to use Article 30 of the TRIPS Agreement for such manufacture and export to non-manufacturing countries in order to avoid expensive litigations with the pharmaceutical multinationals took an ugly turn where not only the said proposal was totally rejected but export was added as one of the patenting rights in the TRIPS Agreement with payment of remuneration to patent holders. This introduction of export as one of the patenting rights was surrounded by a thicket of rules on the plea that such products would be diverted to ensure that the needing countries never acquire the requisite drugs. This article analyses the events leading to the establishment of the TRIPS Agreement, the elimination of developing countries from such negotiations through the use of suitably placed officials in the negotiating forums, the role of CEOs of the multinationals and the business NGOs such as International Intellectual Property Alliance and IPC (Intellectual Property Committee), epistemic community consisting of individuals such as Jacques Gorlin and Eric Smith and the subsequent development leading to the finalization of Para 6 Solution, which was an exact replication of events during the TRIPS negotiations. The analysis suggests that developing countries do not have any say in international negotiations and their agreements to such negotiations are essentially to legitimize their colonized existence.

Treaties as tools of foreign policy : a psychopolitical inquiry via Keatings's vision for Australia

Paul Keating will be remembered by some Australians as a visionary. As Prime Minister he outlined the structure of external and domestic reform that he believed would guarantee global security for all Australians. Driving these reforms, more often than not, were interstate agreements, often in the form of multilateral treaties, sometimes in the guise of bilateral compromise, rarely as unilateral declarations. In areas as diverse as collaborative scientific research or the protection of children in the workplace, the Keating Executive set out, through codification, to transform Australia’s political landscape. The fields of trade, military, environmental and human rights were all included in the attempts by Keating to forge a new image of and for Australia in the Asia Pacific region. Treaties were vital agents of change in this milieu in the bid to reformulate regional perceptions of Australia. The path of inquiry in this thesis stemmed from a quest to examine the origin, role, purpose and efficacy of treaties in the Keating Government’s foreign policy aimed at regional military security. In order to make this examination it develops a polyphonic1 analytical model whose purpose is to explore the psychopolitical underpinnings of these agreements. Thus the thesis has a two fold task. To develop an analytical model of how treaties work as tools of foreign policy and to outline and assess the Keating treaty strategy. Its principal contribution is on the theoretical side.

Nuclear rivalry in South Asia : an examination of post Cold War nuclear arms control initiatives

South Asia has emerged in the post-Cold War era as a region where ongoing nuclear rivalry has the potential to result in a nuclear exchange between India and Pakistan. The United States, together with the global community, is devoting considerable effort to prevent the further development and deployment of nuclear weapons by India and Pakistan. This thesis analyses the underlying reasons for the ongoing nuclear rivalry between India and Pakistan, details post-Cold War initiatives to end the nuclear rivalry and examines the prospect of United States efforts to cap, reduce and eventually eliminate the nuclear arsenals of India and Pakistan. The thesis finds that historical factors form the basis of the continuing hostility and animosity between the two nations. The two nations have been bitter rivals since the time of partition in 1947 and the disputed territory of Kashmir continues to be the manifestation of deep seated antagonism and hostility. Pakistan's geography leaves it extremely vulnerable to conventional Indian attack and possession of nuclear weapons is seen as a means to redress the imbalance. Strong domestic support together with fervent nationalism and international prestige will continue to drive the nuclear programs of each nation. This thesis concludes that the nuclear rivalry between India and Pakistan is regional in nature and the end of the Cold War has done little to improve the prospects for nuclear disarmament in the region. United States led efforts have failed to persuade India or Pakistan to either accede to the Non-Proliferation Treaty (NPT) or dismantle their nuclear weapons. The thesis also notes that the United States has failed to take account of China as a significant regional power and it's impact on the nuclear programs of India and Pakistan. A fresh approach (to include China) with more emphasis on regional dialogue is suggested as a first step to ending the nuclear rivalry.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

Variation in age and physical status prior to total knee and hip replacement surgery : a comparison of centers in Australia and Europe

Objective : To investigate whether variation exists in the preoperative age, pain, stiffness, and physical function of people undergoing total knee replacement (TKR) and total hip replacement (THR) at several centers in Australia and Europe.
Methods : Individual Western Ontario and McMaster Universities Osteoarthritis Index data (range 0-100, where 0 = best and 100 = worst) collected within 6 weeks prior to primary TKR and THR were extracted from 16 centers (n = 2,835) according to specified eligibility criteria. Analysis of covariance was used to evaluate differences in pain, stiffness, and physical function between centers, with adjustment for age and sex.
Results : There was marked variation in the age of people undergoing surgery between the centers (TKR mean age 67-73 years; F[6,1004] = 4.21, P < 0.01, and THR mean age 63-72 years; F[14,1807] = 7.27, P < 0.01). Large differences in preoperative status were observed between centers, most notably for pain (TKR adjusted mean pain 52.5-61.1; F[6,1002] = 4.26, P < 0.01, and THR adjusted mean pain 49.2-65.7; F[14,1802] = 8.44, P < 0.01) and physical function (TKR adjusted mean function 52.7-61.4; F[6,1002] = 5.27, P < 0.01, and THR adjusted mean function 53.3-71.0; F[14,1802] = 6.71, P < 0.01). Large effect sizes (up to 0.98) reflect the magnitude of variation between centers and highlight the clinical relevance of these findings.
Conclusion : The large variations in age and preoperative status indicate substantial differences in the timing of joint replacement across the centers studied, with potential for compromised surgical outcomes due to premature or delayed surgery. Possible contributing factors include patient preferences, the absence of concrete indications for surgery, and the capacity of the health care systems.