Vietnamese Legal Reform: The Discourses of Aid?

Abstract

In 2006, Pip Nicholson attended a conference in Seattle convened by the Universities of Washington and Umea together with the Illinois Urbana-Champaign College of Law. In the course of discussion she perceived divergent bases invoked to legitimate legal development initiatives in developing or transitional economies. More particularly, she noted that from parts of Europe public international law is used as a framework to morally inform and legitimate international legal aid. Those speaking on or about American and multilateral donor interventions identified sustainable economic 'development' as the legitimating mantra in the area of law and its development (either implicitly or explicitly). This remained the case even though 'sustainable economic development' is now often linked to or discussed using the language of good governance and rule of law. As a result two issues emerged, at least for the authors. The first was the hoary and enduring issue of the extent to which the 1960s law and development movement has been replaced or continues as the rationalisation for aid. This issue has been taken up at quite some length in the literature. David Trubek explores this issue when he argues that we are now in a 'Third in Law and Development' which he characterises as containing:a mix of very different ideas for development policy. These include the idea that markets can fail and compensatory intervention is necessary; as well as the idea that 'development' means more than economic growth and must be redefined to include 'human freedom'. As Trubek notes later in his chapter, 'despite rhetorical change the development assistance world still places primary faith in markets.' More particularly, this is acted out through development agency policies that largely retain the universal solution of 'market fundamentalism and market integration'. Trubek puts to rest the notion of a static law and development movement locked within the 1960s tradition. He thereby answers this first question.The contours of the third law and development Moment are fluid, but as Trubek notes they retain a privileged space for aid for markets. The question this paper then asks is whether the current law and development Moment, as defined by Trubek, captures all aid activity. Alternatively, are there deviants? Put another way, are there donor-generated legitimations for aid that do not privilege markets? Trubek offers a paradigm to which we can return. After analysing the respective aid agendas of Australia and Sweden comparatively, the issues of a taxonomy of aid in the twenty-first century can be revisited. At a greater level of specificity, this paper asks to what extent different legitimations for bilateral legal aid emanate out of parts of Europe and other parts of the globe (such as America or Australia). This is an important and relatively unexplored question. Its significance lies in the fact that if indeed bilateral aid is, even in part, motivated and activated by different aims, strategies and implementational models this contributes to the debate about whether we are in a law and development paradigm alone or whether other approaches to aid exist, at least with respect to bilateral aid. Discerning what might be used to legitimate aid and how it may be rationalised may also have implications for those seeking to look to the comparative aid experience. For example, if the objectives and domestic policy agendas differ between aid agencies, then 'inter-aid borrowing' (borrowing between aid agencies) needs to be undertaken with that information to hand. We argue that there are indeed apparent differences between how Swedish and Australian aid is rationalised. This in turn reflects at least partially divergent objectives for international aid in the legal sector. However, the differences are at their most explicit in aid policy documentation and project documents generated for the donors' domestic audience. During implementation, arguably, the differences soften as each agency steers a practical course in negotiating aid commitments with the recipient countries and delivery. Therefore, through an analysis of the discourses of aid in each country we offer a preliminary reading of the many ways in which aid is legitimated and articulated by these two donors in the legal sector in Vietnam, noting how the legitimations vary.