Melbourne Law School - Theses
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ItemTwo Worlds, One Forum: Investor-State Arbitration and Indigenous Rights( 2020)Investment treaties and investor-state dispute settlement (‘ISDS’) have been seen to have a significant effect on the rights of indigenous peoples, which has led to development in regards to both the substantive rights of investors in investments treaties (such as the inclusions of ‘carve out clauses’ which are intended to preserve the rights of indigenous from foreign investors) and how arbitral tribunals deal with the rights of indigenous peoples when adjudicating investor-state disputes. Accordingly this paper seeks to further examine developments in this niche jurisprudence and discuss the implications of these developments. This paper will firstly consider the various rights of indigenous peoples that are seen to be at play in an international law context, and various legal instruments in which some of those rights are reflected in and derived from. Secondly, this paper will examine a selection of relevant investment treaties which have provisions affecting the right of indigenous peoples that have been considered by tribunals. More recent investment treaties that have more developed provisions which affect the rights of indigenous peoples are also considered. Thirdly, this paper will examine how the rights of indigenous peoples have been applied by tribunals in investor-state arbitrations. Fourthly, this paper will explore how the rights of indigenous peoples may be further applied in investor-state arbitrations and consider the practical application thereof. Finally, this paper will briefly explore how ISDS reform may affect the rights of indigenous peoples being applied in investor-state arbitrations. In doing so, this paper argues that the development of ISDS jurisprudence in cases concerning the rights of indigenous peoples, indicate an openness to considering, incorporating, and applying the rights of indigenous peoples in investor-state arbitrations.
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ItemNo Preview AvailableCommon risks in construction contracts: resolution and revision( 2020)This thesis explores the common risks in construction contracts and a review of the law in the relevant risk areas regarding their resolution, comments on what role standard form contracts play and could play in resolving these risks and thereby proposes revisions to terms often negotiated between parties on the same issues. The thesis also presents a comparison between AS4000-1997/AS4902-2000 and draft NCW4 released in 2019 to demonstrate and advocate how standard forms have progressed in the last 20 years in response to changing trends with more complex transactions arising. The thesis also provide some prospective from builders and developers on the common risks detailed and how those matters are generally resolved which support the overall thesis.
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ItemNon-charitable purpose trusts and the beneficiary principle( 2020)The thesis discusses whether the existence of valid trusts for purposes is conceptually consistent with the content of the beneficiary principle.
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ItemThe Victorian treaty process: towards an authentic and meaningful form of Indigenous self-determination?( 2020)This thesis offers a reflection on the transformative potential of the Victorian treaty process with regard to self-determination of the Aboriginal community of Victoria. It postulates that the creation of an Indigenous political constituency through the First Peoples’ Assembly, together with the preponderance given to Aboriginal voices throughout the treaty process and the collaborative approach observed by the Victorian government, testify to the emergence of a political culture based on the accommodation of the interests and aspirations of both Indigenous peoples and the Victorian state. In the meantime, it stresses the challenges of a consensual form of self-determination, which arise from the weak negotiating leverage of Aboriginal parties, the structural weaknesses of the treaty making process, as well as the dissatisfaction and disillusionment among a significant part of the Aboriginal community. Also, drawing on the treaty experience in countries with a colonial history close to Australia, as well as on the crucial and extensive work carried out by Indigenous advocacy, the thesis provides a set of key avenues for the elaboration of a treaty framework and the conclusion of subsequent agreements carrying an authentic and meaningful form of Indigenous self-determination.
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ItemForestalling nuclear proliferation and use through preventative uses of force( 2020)75 years after the cataclysmic nuclear strikes on Hiroshima and Nagasaki, nuclear weapons pose an existential threat to human civilisation. In spite of this fact, the international community has proven largely unable to peacefully halt the spread of nuclear weapons. With Iran’s nuclear intentions in question and North Korea now in possession of a small nuclear arsenal, a debate has ensued on the legality of States using force to forestall the proliferation or use of nuclear weapons. Using the Iranian and North Korean situations as case studies, this thesis enters the debate by analysing the legal permissibility of preventative uses of force. In particular, the thesis considers: (1) the traditional interpretation of anticipatory self-defence and its crucial ‘imminence’ requirement; (2) growing calls for a broader interpretation of imminence; and (3) the potential existence of a customary rule permitting pre-emptive self-defence in the nuclear proliferation context. After applying these concepts to the Iranian and North Korean situations, it is concluded that preventative strikes on these States’ nuclear programs would not be lawful at the time of writing.
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ItemArtificial intelligence and Article 36: Implementing minimum standards for reviewing artificially intelligent military systems( 2020)Artificially intelligent military technologies are being rapidly developed for use in the contemporary battlefield. Such technology includes drones, sentry-robots, and missile-launch systems, as well as surveillance, reconnaissance, and decision-making support systems. With such complicated and sophisticated systems in use, it is increasingly important to ensure that these systems comply with international humanitarian law (‘IHL’). Recent debates in international fora indicate that a specific and effective treaty governing the uses of artificial intelligence in the military context is unlikely. There is, nevertheless, a very real need to ensure that systems used in armed conflict comply with IHL. This paper proposes that the best way to monitor and regulate the development of artificially intelligent military technologies is to subject them to thorough testing, verification, validation and certification processes.
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Item'I will fight for freedom until I die': international humanitarian law, international human rights law and the grey zone of regulating violence in cities( 2020)This thesis argues that international human rights law and international humanitarian law do not adequately govern the conduct of violence in cities, including violent protests, riots and civil unrest. Specifically, it is theorised that situations of violence in cities fall into a "grey zone" of international law insofar as neither international humanitarian law nor international human rights law provide clear and specific rules governing the conduct of violence in these contexts. While international humanitarian law is the field of public international law best equipped to govern the use of force, including the use of certain kinds of weapons and the protection of civilians from violence, modern situations of urban violence often fall below international humanitarian law’s threshold of application for non-international armed conflicts. Consequently, it falls to the international law of human rights to govern these types of violence. However, international human rights law’s ability to be derogated from, lack of specificity regarding permissible and prohibited means of use of force, and general lack of applicability to non-state armed actors, often means that it has limited utility in regulating such situations and effectively protecting victims. Consequently, there is a clear impetus for a policy-oriented approach based on norms found in both international humanitarian law and international human rights law to protect those affected by urban violence. Specifically, this thesis proposes the development of a “Basic Principles” style document to seek to set standards for the use of force, by both state and non-state parties to violence in cities.