Melbourne Law School - Theses
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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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ItemInternational law and the determination of risk : science, uncertainty and the role of values( 2006)Increasingly, international law in the health and environmental fields is a site for global governance of risk. Science and expertise play a central role in such governance systems, not only because threats of contemporary concern (climate change, ozone depletion, biodiversity loss, etc) generally require scientific knowledge for their explication, but also given the widespread perception that science provides a neutral, definitive resource for resolving political disputes over risk. This understanding of the role of science in international risk determination is evident in supranational regimes like that of the World Trade Organisation (WTO) and its associated dispute settlement system, under the principal agreement dealing with matters of health and environmental risk, the Sanitary and Phytosanitary Measures Agreement (SPS). However, the content of notions of science and risk assessment - as social scientific critiques have revealed - is far less fixed than is often represented in international debates and decision-making. This has supported the development of different risk regulatory approaches depending upon whether authorities favour `sound' evidence of risk over a `precautionary' focus on uncertainties. In this thesis it is argued that global risk governance, led by developments in the economic area, evidences a trend to privilege science in risk determination, thus overestimating the capacity of scientific knowledge to provide universally valid, universally accepted criteria for international law to resolve risk disputes. In the process, the normative dimension of many risk disputes is denied or overlooked, limiting possibilities for debates over underlying values that are ultimately crucial to the development of responsible risk policy. Beyond the WTO SPS context, supranational regimes as well as domestic systems, illustrate alternative responses to risk regulation. These often permit more explicit consideration of uncertainty, as well as allowing for competing value-driven perspectives about risk to enter the decision-making process, whether under the guise of precaution, negotiated assessments of risk or as part of efforts to democratise risk governance. The institutional strength of economic regimes, like that of the WTO, in comparison to environmental fora where a number of such alternative risk determination approaches are emerging, may reduce the salience of the latter as platforms for political contestation. Moreover, the acceptance of notions of science and risk that are (partially) socially and culturally determined argues in favour of a case-by-case, rather than universal, approach in determining the appropriate balance between science and other non-scientific considerations in decision-making. Nonetheless, the narrowly-focused science-based approaches to risk determination, emerging in dominant supranational governance institutions like the WTO, jeopardise efforts to instil a more realistic understanding of the capacities of science to support risk assessment by perpetuating a myth that complex risk questions can be reduced to matters of (a-political) expertise. By attempting to subsume concerns about uncertainty, or political contests over values within science, global risk determination may undermine its already fragile legitimacy. This poses a threat not only to the viability of global systems for risk governance but also, potentially, to the credibility of science as a resource for generating decisions on appropriate regulatory action to address health and environmental risks.
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ItemThe 1858 trial of the Mughal Emperor Bahadur Shah II Zafar for crimes against the state( 2004-12)In 1857, hostilities broke out against the ‘rule’ of the East India Company (EIC) in northern India.Measures to suppress the hostilities, known as the 'Mutiny', 'Rebellion' or 'War' of 1857', included legislation enacted by the EIC's Government of India criminalising 'rebellion' and 'waging war' and establishing temporary civil and military commissions. From 1857 to 1859, the Government of India tried soldiers and civilians, including the last Mughal Emperor, the King of Delhi Bahadur Shah II, for their conduct during the hostilities. The law and trials have not previously been the subject of study. his thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. This thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. The central hypothesis is that the trial was in breach of the international law of the time. The thesis demonstrates that the King of Delhi was a Sovereign recognised by Britain and under its protection until he was deposed three months before the trial. The thesis contends that his status as a recognised Sovereign, which according to the long-established rule of sovereign immunity precluded prosecution in the courts of another State, should have been considered sufficient to entitle him to immunity from prosecution. The criminal trial of a recognised Sovereign was without precedent. The thesis also contends that the apparent basis for the assertion of jurisdiction over the King or Delhi, that he became a British national through the extension of protection to the Kingdom or Delhi in 1803, was untenable in law. According to State practice of the time, protection of one State by another neither deprived the protected State of sovereignty nor effected a change in nationality. The thesis suggests that sovereign immunity was deliberately overridden on the grounds of his status as a protected king, the gravity of his crimes or on both grounds. Unprecedented in 1858, these grounds formed the basis for later challenges to the doctrine of sovereign immunity by plaintiffs in Britain. While neither ground found support in the law of the time, they signalled a new appetite to pierce the shield of sovereign immunity. The thesis concludes that the trial of the deposed and protected King of Delhi, Bahadur Shah, by a British court-martial in 1858, was both invalid according to the international law of the time and heralded an emerging international trend in favour of Head of State accountability.