Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 10 of 71
-
ItemFreedom and fairness in contract law : a republican theory of contract law(University of Melbourne, 2005)
-
Item
-
ItemThe participation of states in international organisations : the role of human rights and democracy(University of Melbourne, 2008)
-
ItemBioethics and human rights : mapping the boundaries of the human subject(University of Melbourne, 2007)
-
ItemThe Milo�evi? trial : lessons for the conduct of complex international criminal proceedings(University of Melbourne, 2007)
-
ItemNo Preview AvailableMeasures to deter illegal, unreported and unregulated fishing in the Southern Ocean in the absence of flag state control(University of Melbourne, 2005)Overfishing threatens the viability of high seas living resources. Furthermore, controls to prevent overfishing are inadequate. Illegal, Unreported and Unregulated (IUU) fishing is a product of overfishing and affects all marine fisheries. Southern Ocean fisheries have been particularly targeted by IUU fishing. No scholar has fully examined the efforts of CCAMLR and Australia to adopt measures to deter IUU fishing in the Southern Ocean. The original contribution of this work lays in the author's analysis of action taken by the CCAMLR Commission and Australia. The research in Chapters 4 and 5 is original work in that no other scholar has approached the issue of IUU fishing in the Southern Ocean in this manner or to the depth demonstrated. Chapter 5 in particular stands alone as original work on Australia's efforts to deter IUU fishing. There is a paucity of published work in this area and reliance upon court decisions, governmental publications and NGO material has been necessary. My conclusions are that in the absence of flag State control, alternative measures and strategies have proved to be effective in influencing the behaviour of IUU fishing vessels. By improving coastal State surveillance, enhancing regional co-operation, imposing port and market State controls, establishing IUU vessel databases and vigorously prosecuting offenders, RFMOs and coastal States can jointly increase the risk of conducting IUU fishing activities. At the same time financial returns can be diminished so that engaging in IUU fishing becomes economically unattractive.
-
ItemNo Preview AvailableZones of cooperation : the emergence of a cooperative and functional Australian approach to the resolution of disputes over maritime jurisdiction and sovereign rights(University of Melbourne, 2003)This thesis attempts to demonstrate the emergence of a cooperative and functional Australian approach to the resolution of overlapping claims to maritime jurisdiction and sovereign rights. Maritime boundary arrangements agreed by Australia and its northern neighbours - Papua New Guinea, Indonesia and now, East Timor � reveal a strong Australian resolve to overcome difficult and complex geographical, geomorphological, historical and political obstacles to agreement through a thorough and patient process of negotiation. With Indonesia and Papua New Guinea respectively, Australia has adopted the unique approach of agreeing to separate boundaries delimiting overlapping claims to sovereign rights in respect of the seabed on the one hand, and the water column on the other. The adoption of distinct lines for these distinct categories of maritime sovereign rights gives rise to a number of practical difficulties, the most acute being the exercise of jurisdiction in areas where Australian seabed jurisdiction underlies the water column rights of its northern neighbours. Common to the finely balanced regimes agreed under the 1978 Torres Strait Treaty and the 1997 Australia-Indonesia Maritime Delimitation Treaty is the prescription that the state intending to conduct marine activities pursuant to one set of sovereign rights must variously cooperate, inform, consult or seek agreement so as to avoid the unannounced infringement of the treaty partner's rights or interests. In the Timor Gap, maritime boundaries have proven elusive, necessitating the pursuit of more creative approaches to the resolution of overlapping maritime claims. Guided by the wording of article 83(3) of the 1982 United Nations Convention on the Law of the Sea, Australia has concluded with Indonesia (the 1989 Timor Gap Treaty) and subsequently with East Timor (the 2002 Timor Sea Treaty) 'provisional arrangements of a practical nature' that have underpinned ongoing petroleum activities in the Timor Gap whilst at the same time preserving the disputant states' maritime claims and negotiating positions in respect of permanent maritime boundaries. Similarly, the International Unitisation Agreement fir Greater Sunrise provides a secure and 'sovereignty-neutral' legal and fiscal framework for the development of a major gas resource that straddles two distinct jurisdictional regimes. None of these agreements involved the intervention of a third party, nor reference of the overlapping claims to a process of arbitration, and appear, at least in part, to be motivated by the clear and unambiguous Australian preference for a press of bilateral negotiations to discuss, consider and eventually resolve its overlapping maritime claims. There is no stronger expression of this preference than the Australian Government's decision in 2002 to withdraw maritime boundary disputes from the scope of its consent to the compulsory jurisdictions of the International Court of Justice and the International Tribunal on the Law of the Sea. The Australian approach is based on a belief that parties to a negotiation are in a better position than third parties to achieve stable and desirable outcomes that are conducive to cooperation in the management of marine resources. Whatever the motivations for this distinctive approach, Australia has emerged as a global leader in the negotiation, design and conclusion of creative and cooperative maritime arrangements aimed at overcoming otherwise intractable maritime sovereignty disputes. The raft of arrangements agreed between Australia and her northern neighbours is an exemplar to other disputant states of the utility of creative international legal regimes to underpin access to the marine and seabed resources between them.
-
ItemThe responsibility to protect against crimes against humanity and genocide : effective operationalisation of the principle( 2008)In 1994, genocide in the tiny landlocked nation of Rwanda, was the catalyst for a debate that would persist throughout the 1990s: Did the international community have a right to intervene in the domestic affairs of a nation state if the intervention was for humanitarian purposes? Conflict between the moral imperative of helping vulnerable populations and the international legal principles of sovereignty and non-interference, as well as the prohibition on the use of force, led to much discussion and no resolution of the issue. In 1999, when NATO forces led a `humanitarian intervention' in Kosovo without UN Security Council authorisation, the debate was brought to a head. The UN Charter made the use of force illegal in international law with just two exceptions: self defence, or when authorized by the UN Security Council. The NATO intervention in Kosovo did not meet either of these requirements, and yet there were many in the international community who felt although the intervention may have been illegal it was `legitimate'. In 2001, following a long study into the conflict between sovereignty on one hand, and the moral imperative to intervene for humanitarian purposes on the other, the International Commission on Intervention and State Sovereignty released its landmark report "A Responsibility to Protect" and an important new international principle was. born. No longer was the idea of humanitarian intervention about the rights of States to use force, but about the rights of vulnerable populations to be protected. The Responsibility to Protect principle notes that when a State is either unwilling or unable to protect its own population from the crimes of genocide, crimes against humanity, ethnic cleansing, and war crimes, then the international community has a responsibility to do so. By 2005, the international community outlined its own understanding of the Responsibility to Protect principle and endorsed it by consensus in the UN World Summit Outcome Document. This thesis explores the emergence of the Responsibility to Protect principle through a study of the genocide in Rwanda, the history of humanitarian intervention, and the resulting debate throughout the 1990s on the nature of sovereignty, non-interference, and the use of force. It then explores the implications of the World Summit commitment by the international community to the Responsibility to Protect principle. But importantly, is it possible that the principle will affect the actions and responses of the international community to atrocity crimes? This thesis proposes the establishment of a Global Protection Unit at the heart of the United Nations to fulfill some of the tasks essential for the effective operationalisation of the Responsibility to Protect principle.
-
ItemCivil penalties under the Corporations Act 2001 (CTH) and the enforcement role of the Australian Securities and Investments Commission( 2008)The civil penalty regime was introduced in 1993 to ensure ASIC would have at its disposal criminal penalties for conduct that is genuinely criminal in nature and civil penalties for breaches of the directors' duties where no criminality is involved. The regime was designed to comply with strategic regulation theory. This thesis examines ASIC's use of the civil penalty regime for the purpose of determining whether or not ASIC has utilized it for the reasons for which it was introduced. One of the research questions examined in this thesis is whether or not the civil penalty regime has provided ASIC with an effective enforcement mechanism for non-criminal contraventions of the civil penalty provisions. In order to answer that question this thesis examines the factors which inform ASIC's choice of the civil penalty regime. Various factors inform ASIC's choice, however in situations where ASIC has the choice of the civil penalty or the criminal regime, the overriding factor is ASIC's and the DPP's stated policy to pursue a criminal prosecution in all cases where there is sufficient evidence to support one. A consequence of the implementation of this policy is that very few civil penalty applications have been issued when compared with other enforcement activity instigated by ASIC. The civil penalty regime has been utilised almost exclusively in situations where a criminal prosecution was not available, or the DPP was satisfied there was insufficient evidence to sustain one. This factor, coupled with the fact that ASIC has achieved a high level of success with the civil penalty applications it has issued means that the civil penalty regime has provided ASIC with an effective enforcement mechanism for contraventions of the civil penalty provisions in situations where a criminal prosecution could not have been sustained or was not available. Another research question examined in this thesis is whether the civil penalty regime has been utilised in a manner envisaged by strategic regulation theory. A consequence of the adoption of a policy of issuing criminal prosecutions in all cases where one is available is that the civil penalty regime does not map on to the enforcement pyramid in a manner envisaged by strategic regulation theory.
-
ItemThe old bridge of Mostar and increasing respect for cultural property in armed conflict( 2008)This thesis concerns international legal protection of immovable cultural property in armed conflict. Drawing on the relevant rules of international humanitarian law (IHL) and jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the thesis analyses the incident of the deliberate targeting and destruction of the Old Bridge of Mostar, Bosnia and Herzegovina, first from a normative point of view and then it examines enforcement efforts to identify issues relating to international legal protection of cultural property in armed conflict arising from this incident. The objective of the thesis is to evaluate the adequacy of the IHL, regime relating to the targeting and destruction of cultural property in armed conflict and the adequacy of international enforcement regime based on the study of the Old Bridge of Mostar. Although it is precious to all humanity, including future generations, cultural property is targeted wilfully during armed conflict The deliberate destruction of the Old Bridge is emblematic of tragedies wrought on priceless cultural objects internationally. The Old Bridge was a monument of exceptional historical and architectural. significance. It formed part of the cultural heritage of all humankind. The Old Bridge was a protected object within the meaning of IHL. At the time of its destruction it was devoid of military significance and did not constitute a legitimate military target. Its destruction was in violation of the relevant rules of IHL protecting cultural property in armed conflict. The wilful destruction of cultural property amounts to a war crime and incurs individual criminal responsibility. In the litany of Balkan war crimes the wilful destruction of cultural property has been pushed from centre stage. Cultural property-related crimes have not been as `visible' as they should have been. Although some important steps have been made towards ending impunity for cultural property-related crimes, there are still problems at both the normative and enforcement levels. Despite numerous legal prohibitions on the destruction of cultural property in armed conflict, these norms require further clarity and implementation. Until this happens and blatant attacks on cultural property are paid closer attention it will be difficult to ensure respect for cultural property in armed conflict.