Melbourne Law School - Theses
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ItemCivilian detention in United Nations peace operations : the need for a special legal regime governing detention(University of Melbourne, 2009)This thesis is concerned with examining the significant legal issue of UN personnel temporarily detaining civilians in UN peace operations. More specifically, it addresses the question: is the temporary detention of civilians by UN peacekeepers in peace operations appropriately regulated? The argument here is that the temporary detention of civilians by peacekeepers is not appropriately regulated by extant legal frameworks, and, consequently, the thesis proposes the creation of a special legal regime governing detention. Such a regime would provide greater certainty, clarity and consistency of applicable legal norms and would ensure the effective and efficient conduct of UN peace operations in the context of the recognition of the rights and obligations of both the civilian population affected by the operation and the peacekeepers conducting the operation. This thesis argues that the taking and handling of detainees by UN peacekeepers is not appropriately regulated by extant legal frameworks for a number of reasons. The key reasons are: (1) there is no single legal regime that applies to the temporary detention of civilians in UN peace operations; (2) the law applicable to UN peace operations temporarily detaining civilians is fragmented; (3) where norms are identified as applying, they are sometimes, on closer analysis, inadequate to meet the operational necessities of peace operations; and (4) there are a number of gaps in the existing law, and the law, therefore, must be further developed so as to be relevant to contemporary UN peace operations. It should be noted that this thesis does not argue that there is no legal framework applicable to the treatment of civilian detainees nor that existing legal regimes applicable to the treatment of civilian detainees should be abandoned. It does, however, seek to contribute to the search for greater certainty, clarity and consistency of the norms dealing with detention by arguing for formalisation and systematisation. Consequently, this thesis restates, where relevant and appropriate, obligations within the existing legal frameworks that apply to UN peace operations. It also identifies where existing norms do not adequately respond to the needs of either detainees or the peaceoperation, and proposes norms that are more specific and nuanced to meet the requirements of the context. The fundamental aim of this thesis is to argue for a special legal regime to govern UN peacekeepers dealing with detainees.
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ItemLegislating illiberalism : law, discourse and legitimacy in Singapore(University of Melbourne, 2009)This thesis conducts a socio-legal reading of legislation and public discourse to track the manner in which the Singapore state has reframed the liberal idea of the `rule of law' into a rights-eroding `rule by law' while sustaining its legitimacy as a `lawful' state. It demonstrates the complex entanglements between `law', language and struggles for power in the Singapore state's construction and consolidation of its rule. Applying critical theory on language and power to studies of four legislative enactments spanning the first thirty years of Singapore's existence, the thesis shows that the state has responded to moments of public contestation by characterising critics as threats to national security. Legislation relating to seemingly disparate subjects � vandals, the press, the legal profession and religious harmony � effect a uniform outcome: the silencing of non-state actors, and the emasculation of the courts. The thesis uncovers four main strategies relating to the state's use of `law' to render the state the primary legitimate speaker of the public domain. First, through an adherence to procedure, the state claims to be properly `rule of law'. Second, the state uses legislation and its dominance of public discourse to recalibrate state-citizen relations such that citizens are constructed as subordinate to the state. Third, the state links questions of `law' to a state-scripted account of perpetual territorial vulnerability. Through its narrative of Singapore's vulnerability, the state selectively adopts facets of `Western' liberal notions of the `rule of law' such that `law' relating to commerce is substantively equivalent to the `West' while civil and political liberties are treated as grants rather than entitlements. Finally, the thesis demonstrates that legislative text has been scripted in increasingly opaque terms such that `law' becomes comprehensible only through acquiesence to the state's ideologically-driven attribution of meaning.
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ItemJurisdiction : the expression and representation of law(University of Melbourne, 2009)Theories of legal power in modern jurisprudence have tended to focus upon the metaphysical problematic of sovereignty and its relation to the origin, foundation and purpose of State authority. Questions of jurisdiction on the other hand continue to order the local, technical and technological languages of law, the modalities of legal institution and the aesthetics of judgment, in a way that has remained relatively unaddressed in modern theoretical discourse. Thus, while the major philosophies of law can be characterized by surveying a distinctly `representational' aesthetic of legal authority, the matter of the `expression' of this authority is left to relatively minor jurisdictional arrangements or technical contrivances of law. To address what it means for legal power and authority to be thought within the terms of jurisdiction is also therefore to approach the theme of law 's expression�its affects of speech and its modes of repetition�through the medium of its technical genres. In this thesis, jurisdiction is taken as a practical and theoretical tool which allows one to navigate the plural and expressive dimensions of legal authority. The work of Gilles Deleuze is enlisted in this regard as offering not just an important methodological. recovery of an `expressionism' in philosophy�specifically through Nietzsche and Spinoza�but also a jurisprudence which recasts the major technical terms of jurisdiction (persons, things and actions) in terms of their distinctively expressive or performative modalities. As part of the genres of jurisprudence, the fashioning of persons; possessions and procedures of law involve institutional techniques which cannot be easily reduced to the metaphysical co-ordinates of rational judgment, objectivity or a `subject of rights'. In paying attention to the articulation of these technical genres and their relation to the ordering of legal knowledge, this thesis purports to account specifically for how meaning may attach to the instrument and medium of law and how legal desire maybe registered within the texture and technology of jurisdiction.
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ItemChildren's right to health : seeking clarity in the content of Article 24 of the United Nations convention on the rights of the child(University of Melbourne, 2009)The right to health is now firmly implanted within international human rights law. Despite significant work in recent years to develop an understanding as to its content, this project is far from complete. The aim of this thesis therefore is t� examine the extent to which clarity can be brought to the content of one particular formulation of this right, namely article 24 of the United Nations Convention on the Rights of the Child (`Convention'). In undertaking this task, chapter I will detail the methodology by which the interpretation of article 24 offered is to be generated. In the first instance a strong call is made to apply the principles of interpretation under the Vienna Convention on the Law of Treaties 1969 (`VCLT'). Such an approach is considered to impose a constraint on the, interpretative process � a constraint that other bodies examining the right to health, such as the Committee on Economic Social and Cultural Rights and the Committee on the Rights of the Child, have on occasions tended to overlook in their enthusiasm to develop a�vision of the right which may be appealing but has no textual foundation. At the same time, it is generally accepted that sole reliance on an application of the principles of interpretation under the VCLT is problematic. This is because a requirement to identify the ordinary meaning of a treaty in its context and in light of the object and purpose of a treaty is unlikely to produce the meaning of a provision such as a child's right to health given the inherent indeterminacy of language. Chapter I will therefore outline those additional factors that will guide the selection of a meaning for the various subparagraphs of article 24 in this thesis, the aim being to . produce an' interpretation that can be said to be not only principled, but practical, coherent 'and context sensitive. Having detailed the methodology to be used to interpret article 24, chapters 2 to 5 will engage with the core function of this thesis which is to detail the measures required of States that flow from: (a) their recognition of a child's right-to health under paragraph 1 of article 24; (b) their obligation to address a range of specific issues such as child mortality and environmental pollution under paragraph 2; (c) their obligation to abolish traditional practices prejudicial to the health of a child under paragraph 3; and (d) their obligation to promote and encourage international co-operation for the purpose of securing the progressive implementation of children's right to health. Although no claim is made that this thesis will provide the definitive account as to the nature of these provisions, it will be submitted that it is able to offer a greater level of understanding as to the meaning of article 24.
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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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ItemOccupation, resistance & the law: Was armed resistance to the occupation of Iraq justified under international Law?( 2009)The 2003 invasion and occupation of Iraq triggered a plethora of legal questions. This study focuses upon two: Was Iraqi resistance to the invasion and occupation justified under the laws of war? If so, by whom and for how long? ('The research questions') These are questions that the UN Security Council deliberately avoided when it responded to the intervention. Given that most States and commentators regarded the intervention as a violation of the UN Charter, the legality of armed resistance to the invasion and occupation warrants analysis. The present study examines, inter alia, whether Iraq was justified in using force against Coalition forces in the exercise of rights under the jus ad hellum. It considers whether self-defence and self determination provided a juridical foundation for armed resistance to the invasion and subsequent occupation of Iraq. Attention is also paid to the jus in hello. Issues addressed include: the nature of the conflict(s) during the occupation; whether members of various resistance forces qualified as combatants; and the issue of compliance with the jus in hello during resistance operations. In order to address these matters with precision, the occupation of Iraq is considered in several stages: 1. The immediate aftermath of the ouster of the Ba'ath regime (April-May 2003); 2. Post-UNSCR 1483; 3. Post-UNSCR 1511; and 4. Post-UNSCR 1546 (and pre-28 June 2004). The fourth stage highlights a matter of fundamental importance to this study the end point of the occupation. The position adopted here is that the occupation was terminated, with UNSC approval, upon the transfer of power to an Iraqi government on 28 June 2004. Thereafter, armed resistance could not have been justified under the right of national self-defence, as this right is exercisable by governments, not insurgent forces. While it may be argued that military occupation continued, as a matter of fact, beyond the transfer of power, this writer's view is that, as a matter of law, the occupation was terminated on 28 June 2004, in accordance with UNSCR 1546. Discussion of 'the legality of resistance to occupation' is thus confined to the period between the collapse of the Ba'ath regime in April 2003 and the transfer of power on 28 June 2004. In addressing the research questions, a range of contemporary legal issues are highlighted. They include: 1. Unresolved tensions within the laws of war over the precise parameters of 'lawful resistance' to foreign occupation; 2. Overlap and convergence of the jus in hello and the }us ad hellum in the context of armed resistance to occupation. (The clearest example is the right of peoples to fight for self determination against alien occupation which falls within both branches of the laws of war); 3. Whether the right of self-defence may be overridden by the UNSC; 4. Whether UNSC resolutions depend for their validity upon their conformity with jus cogens norms; and 5. Whether armed resistance to UN-authorized forces is, by its nature, a breach of the UN Charter and therefore an unlawful use of force.
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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.