Melbourne Law School - Theses
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ItemThe participation of states in international organisations : the role of human rights and democracy(University of Melbourne, 2008)
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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.
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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.
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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.
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ItemLaw, medical practice and policy development( 2008)This application is based on a range of achievements Which establish, as required by Regulation 3.16 of the university's statutes, that 'I have made `a substantial and original contribution to legal scholarship' (see Part A); and that my work `is of such standard as to give [me] authoritative standing in the field of [my] study [Health and Medical Law]' (see Part B). My achievements include scholarly critique and analysis and cross-disciplinary publications in leading international journals (see Part C).
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ItemFrom convention to classroom: the long road to human rights education( 2008-01)A core function of the United Nations over the past six decades has been the promotion and protection of human rights. In pursuit of this goal, the UN General Assembly has adopted numerous human rights treaties covering a vast array of rights. Because it has the highest number of ratifications, the Convention on the Rights of the Child (CROC), is often lauded as the most successful of all the human rights treaties. Although the breadth and depth of human rights treaties is impressive, the amount of research into their effectiveness is not. Very little scholarship has been undertaken to evaluate the extent to which human rights treaties are being complied with by countries that have ratified them and whether ratification of a human rights treaty has a positive impact on the human rights situation within a State Party’s jurisdiction. The research that has been undertaken has been largely quantitative and limited to studies of compliance with civil and political rights. This thesis builds on this limited scholarship by qualitatively analysing the ‘compliance’ levels of two States, Australia and the United States, with the norm in Article 29(1) of CROC relating to human rights education (HRE). Although the United States has not ratified CROC, it was selected as one of the case studies for this research in order to enable comparison to be made between HRE in a State that has ratified CROC, and a State that has not, thereby shedding light on whether ratification of a human rights treaty makes a difference.
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ItemDevelopment, culture and the dilemma of equality in 'modern' Omani society: the practice of Kafa'a in marriage and Talaq( 2008)This thesis explores the tension between socio-economic development and religious-tribal culture in contemporary Omani society. This exploration is based on the investigation of two cultural traditions in Oman: kafa 'a in marriage and talaq. Whereas kafa 'a refers to the idea that the husband's family should be equal or superior in terms of social, religious or economic background to the wife's family if the marriage is to be accepted, talaq refers to the right of the husband to unilaterally divorce his wife. The social practice and cultural justification of kafa 'a in marriage and talaq in contemporary Oman are recognized by the State authority and enhanced by the State's Family Law which derives its justification from Islam. Thus, both kafa 'a and talaq as they are practiced in Oman are, as argued throughout this thesis, not merely Islamic, but more importantly, are inextricably linked to the socio-political and cultural nature of the current Omani State. While the rhetoric of the State of Oman asserts that equality exists between Omanis regardless of their gender and ethno-linguistic and cultural backgrounds, cultural constraints associated with marriage and talaq perpetuate inequality and discrimination against women and other groups. In this thesis, I argue that kafa 'a in marriage and the rules regarding unilateral and triple talaq demonstrates Oman's persistence in maintaining tribal and religious traditions that are at odds with the State's rhetoric on equality and modernization. Kafa 'a was developed in the second Islamic century within the context of other social, economic and legal changes, which occurred in the early development of Islamic law. While kafa 'a literally means equality, in practice it is associated with social, religious and economic inequality and discrimination. The Omani Personal Status Law stipulates kafa 'a in marriage and culture justifies the practice of kafa 'a in society. Unilateral and triple talaq as it is literally interpreted by religious scholars and socially practiced in Oman, not only represents inequality between men and women, but it is also indicative of the way in which Omani society deals with the social and economic problems associated with modernization. The legal recognition of kafa'a in marriage and the social practice of talaq are inconsistent with the State's rhetoric on equality and modernization, and demonstrate the necessity for the reform of religious and tribal practices in Oman in a manner commensurate with the socio-economic development that has taken place since 1970.
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ItemMaking international criminal law: factors influencing judicial behaviour at the ICTY and ICTR( 2008)The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) established by the UN Security Council in the early 1993 and 1994 respectively in the wake of mass atrocities commented in the Balkans and in Rwanda are arguably the first truly international criminal tribunals (ICTs). While the Nuremberg and Tokyo tribunals set up by the Allies to prosecute the Germans and Japanese responsible for atrocities committed during World War II provided some precedent, much of the ICTs’ substantive law had never been litigated. In addition, differences in the circumstances surrounding the two sets of prosecutions meant that the ICTs’ procedural system was effectively brand new. In this context, the role of the ICTs’ judges in progressively developing international criminal law and the international criminal justice system assumes great importance. Since the establishment of the ICTs, a permanent international criminal court and several ‘hybrid’ international courts have been created. Each of these has drawn heavily on the jurisprudence and procedural law, practices and norms of the ICTs. This further underscores the importance of understanding the development of international criminal law by ICT judges. Studies of factors influencing the behaviour of judges have generally focused either on micro-level factors, primarily the policy position of judges, or macro-level factors, primarily the relationship between States and international courts. This thesis argues that the exploration of factors influencing judicial behaviour on both levels is important. This thesis uses a broad institutional perspective to identify the types of factors likely to be salient influences on judicial behaviour and the way in which those factors operate, in particular the way in which the ICTs as organisations operate to mediate exogenous influences. The thesis uses a range of data sources, including interviews with judges and defence counsel to empirically explore two micro level and three macro level influences. The micro-level influences explored are judges’ national system and professional backgrounds. The macro-level influences explored are the reliance of the ICTs on States, the need for the ICTs to establish and maintain legitimacy and the broader expectations directed towards war crimes tribunals. The thesis findings show that exploring both the micro and macro-levels provide important insights into judicial behaviour at the ICTs. The findings on the influence of the micro-level factors explored in the thesis reveal that both national system background and professional background do influence some aspects of judicial behaviour. The findings also suggest the importance of understanding the process of institutionalisation when exploring judicial behaviour and the organisational factors that facilitate or impede this. The findings on the influence of the macro-level factors explored in the thesis suggest that each of these factors do influence judicial behaviour at the ICTs in certain ways, but that the level to which the factors influence behaviour is context-contingent.