Melbourne Law School - Theses
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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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ItemConstitutionalism as Postwar International Law( 2020)This thesis inquires into the significance of the histories of constitution-making in Germany and Japan for international practices of constitution-making after conflict, and for the discipline of international law. It argues that, in offering constitutionalism as a solution to the problems of civil war and conflict in the decolonised world, contemporary scholarship on international law and constitution-making draws on a tradition that was developed during the post-World War II era in relation to the occupations of Germany and Japan. That tradition represents a rejection of material accounts of the causes of war and imperial aggression, and more radical visions of economic redistribution and political self-determination. In invoking these histories, international legal scholars reproduce an understanding of constitutional forms as an object of legal analysis and of technical reproduction, distinct from broader economic and political choices about the government of a society and about the international legal order in which that society exists. By exploring this tradition, this thesis seeks to denaturalise internationally-directed constitutional transformation, paired with economic liberalisation, as a technique for managing the postwar state. The Introduction sets out the paradox of the internationalisation of constitution-making, on the one hand, and the idea of constitutions as a lawful means of governing a public, on the other. It gives an account of the method of inquiring into the way the discipline of international law has sought to invoke the histories of constitution-making in Germany and Japan to resolve this paradox, which I term ‘discipline as method’. Chapter 1 describes the field of international law and constitution-making, and sets out the significance of the histories of constitution-making in Germany and Japan for the discipline of international law. Chapter 2 explores the emergence of a tradition of constitutional thought in international law in the postwar period, articulated in opposition to economic and material accounts of empire, by reference to the work of three lawyers: Quincy Wright, Ernst Fraenkel and Carl Friedrich. Chapter 3 describes the conduct of the Allied occupations of Germany and Japan, reading Allied practices and debates, and the making of constitutions, through competing ideas of the requirements of peace in the aftermath of imperial aggression. The thesis concludes by reflecting on what knowledge of this tradition offers for the discipline of international law.