Melbourne Law School - Theses
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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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ItemHannah Arendt and the turn to life in international law( 2013)My dissertation investigates the idea of natality in Hannah Arendt’s writing for the purpose of rereading the biopolitical currents of contemporary international law. By referring to biopolitics, I mean the normalising or regularising techniques by which liberal governmentalities manage the physical conditions of life; and the critical perspective that observes, diagnoses and sometimes resists these techniques. International human rights law is a prominent expression of biopolitics in the first sense and provides a key context in which to observe the patterns and hazards of normalising power. More and more frequently, the liberal politics of life draws strength from different modalities (such as institutional activity and civil society movements) that expand what is recognisable as law or which influence its articulation, directs international agendas that affect the physical security and health of populations, makes clear the service of law to politics (particularly state politics), and significantly, leaves human remainders. My interest in biopolitics encompasses each of these effects but focusses upon the last. The humanitarian call of biopolitics sometimes, if not frequently, belies its real political function. Humanitarian practice also points to historical formations of biopolitics in which life mattered according to an assumed scale of human-ness, leaving some persons superfluous to the idea of life itself, and in due course, vulnerable to radical strategies of exclusion, including disenfranchisement, deportation and genocide. For theorists of biopolitics and international law, the ‘aporias of humanitarianism’ are not new even where exclusion takes less exaggerated forms. Regulatory initiatives relating to communicable disease, sex trafficking and enforced disappearance are present-day examples of the more subtle consequences of delineating or framing certain lives for protection, including the production or re-production of the state. The dilemma produced by biopolitics also relates to the limitations of normative critique. Here, biopolitics is a diagnostic tool that reveals the uneven effects of normalising power globally but fails to imagine normative pathways beyond them. The wager of the dissertation is that a refashioned account of natality offers an alternative resource for rereading the negative patterns of biopolitics in international law today. Like many theorists of biopolitics, Arendt was alert to the dangers of normalising power through her contact with its extreme expression in mid-twentieth century German politics. Nazism presented the fatal flaw of organising power around physical life. Arendt’s concept of natality takes its cue from themes familiar to biopolitics but re-envisages biological processes as a metaphor for politics. Natality literally describes physical birth or human reproduction as a counterpoint for the idea’s further meaning, as a reference for the birth or appearance of each human being as a political subject, and the birth of the body politic as a space for democratic action. In each sense, the metaphor notes an innovation, a beginning, an arrival, a rupture, a founding, a revolution, a re-configuration, a spontaneous and surprising event, an initiative, an origin, a configuration, a coming together, the moment of empowerment, and a reminder that life must be the answer for the delicts of biopolitics. Arendt’s imaginative offering supports a new form of normative critique that observes the implications and possibilities of the body’s unrelenting presence in the regulatory practices of contemporary international law. Her vision beyond biopolitics arguably fulfils, for different ends, the ambition of normalising power to make life (and not death) the subject of global governance.
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ItemFood security as social provisioning: insights from the international approach and the Indonesian( 2013)The thesis argues that the international community’s struggle to effectively deal with and take responsibility for food crises is rooted in both the structure of international law and the economic thinking that was wired into the early UN organisations. It presents a heterodox conception of economics — institutionalism — as an alternative way of thinking about problems of food and hunger. Building on the institutionalist emphasis on social provisioning, the thesis locates the legal dimension of institutionalist thought within a public law framework that emphasises authority and duty. This approach links economics and jurisprudence and conceptualises economic policy as a duty to provide.
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ItemLocal space, global life: the everyday operation of international law and development( 2012)This thesis engages with the expansive and ground-level operation of international law and the development project by discussing the current international attention to local jurisdictions. In the last three decades, local jurisdictions have become the preferred spaces to promote global ideals of human, economic and environmental development. Through an ethnographic study of Bogotá’s recent development experience, in particular the city’s changing relation to its illegal neighbourhoods, this thesis interrogates the rationale and exposes some of the contradictions involved in the emergence of localities in development discussions and the international normative scene. The thesis pays particular attention to how the current attention to local jurisdictions – a process that has been largely articulated through the idea of decentralization – has involved a global re-accommodation of the exercise of authority over territory and population once assigned primarily to national administrations. However, the process of decentralization has not involved the abandonment of the nation-state but instead a multiplication of levels of governance upon local jurisdictions, a move that has made local administrations more concerned about calibrating their territories and populations in terms of their development aspirations, their fiscal capacities and their internal and external frontiers. This situation has particularly affected the relation between local administrations and their most peripheral subjects. In its evaluation of the multiple ways in which international law and development are shaping local realities, the thesis argues for closer critical attention to how these intimately related projects are constantly operationalized through the actions of national and local administrations, and through a multiplicity of laws, administrative technologies and artefacts of governance, that are rarely considered part of the economy of international law or the development project.
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ItemEnemies of mankind: the doctrine of international law enforcement in Vattel's Droit des gens( 2012)This thesis investigates the ‘enemy of mankind’ concept in early-modern international law. It argues that the concept played a pivotal role in the collective security theory of Swiss jurist Emer de Vattel. This historical analysis also throws light on current debates concerning the legal status of terrorists, pirates and irregular combatants.