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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ItemFreedom and fairness in contract law : a republican theory of contract law(University of Melbourne, 2005)
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ItemOvercoming legal impediments to a comprehensive legislative basis for war crimes trials in Australia(University of Melbourne, 2010)There are persistent allegations of war criminals from various conflicts that have occurred since the end of the Second World War residing in Australia. This raises difficult moral, legal and political questions for Australian authorities about how to deal with such allegations. War crimes, crimes against humanity and genocide are deemed to be the most serious crimes of concern to the international community and are now reflected in established international criminal law designed to bring individual perpetrators of such crimes to justice. However, Australia's record of domestically enforcing crimes found under international law is mostly non-existent. The practice of successive Australian Governments in dealing with war crimes reflects a piecemeal approach, whereby legislation has been enacted to give effect to various international treaties dealing with different types of war crimes. But, this legislation has either proven inadequate or has remained unused. Where war crimes trials have been initiated, they have ultimately proved to be ineffective. The thesis will challenge the existing state of affairs in Australia by firstly presenting a philosophical basis justifying the prosecution of individuals accused of committing international crimes in domestic Australian criminal courts and secondly, establishing that it is possible to overcome potential legal impediments to a comprehensive legislative basis for war crimes trials in Australia. The thesis proceeds on the basis that there is no justification for excusing war criminals from prosecution. The strong moral impact on society that the perpetration of war crimes has should ultimately be reflected in domestic legislation that provides for the prosecution and punishment of those committing such crimes in Australian courts. Indeed, there is a moral imperative that justice is done on behalf of victims and Australian society; and that the perpetrators are held accountable for their actions. The thesis employs an empirical analysis of existing Australian war crimes legislation and jurisprudence and then extends and relates that discussion to the possible conduct of future war crimes trials. A comparative analysis of domestic and international law is undertaken throughout the thesis that will demonstrate the legal capacity for establishing a systematic framework to facilitate prosecutions in Australia. This includes adopting a proper jurisdictional basis for war crimes trials; the enactment and operation of retrospective war crimes legislation; and challenges to the conduct of war crimes trials in Australian domestic criminal courts, such as appropriate judicial methodology in hearing and deciding such cases and whether a fair war crimes trial is possible. In demonstrating how the various perceived legal impediments and challenges can be overcome, the thesis also provides a broad blueprint for designing future Australian war crimes legislation. Ultimately, the contribution of the thesis will be to provide a validation for a comprehensive legislative basis for war crimes trials in Australia, particularly for the period between the end of the Second World War and the beginning of legislation giving effect to the provisions of the Rome Statute of the International Criminal Court. At the same time, the thesis will recognise that political reality in Australia suggests that enacting such legislation is far from inevitable. The political unwillingness and reluctance by successive Australian Governments to investigate and prosecute alleged war criminals living in Australia is instructive. But as the thesis will argue, there is strong moral and legal justification for enacting new war crimes legislation in order to conduct war crimes trials and in doing so, it will announce that there is no safe haven for war criminals in Australia.
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ItemThe development of a standard of review in world trade organization disputes(University of Melbourne, 2010)
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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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ItemBioethics and human rights : mapping the boundaries of the human subject(University of Melbourne, 2007)