Melbourne Law School - Theses
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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.
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ItemThe development of Australian law to protect undisclosed business information( 1998)Traditionally, information has not generally been regarded by the common law as being property and able to be legally protected in the same way as land, money or goods. Australian courts have demonstrated great reluctance to change this approach, even though information is increasingly considered to be a valuable asset, particularly by the business community. However, a change in the way information is regarded has taken place over the last four to five decades, resulting primarily from the increased use of computer technology. In Australian law, organisations or individuals who wish to restrict access to their business information and keep it confidential currently have limited legal means to achieve their aim. The breach of confidence action, contract law, copyright law and criminal law may all be used to protect information from unauthorised access or use but only to a certain extent. In most instances these traditional legal approaches require that there is a confidential or contractual relationship between the parties, that the information be in an original form, or that the unauthorised access be made using computer technology. There are particular deficiencies in the legal protection available when undisclosed business information is accessed by a party outside a contractual or confidential relationship, often through improper means. Ways in which these deficiencies, particularly in respect to the breach of confidence action, could be overcome have been proposed by a number of law reform bodies, in Australia and overseas. However, no legislative amendments adopting these proposals have been introduced in Australia and judicial decisions indicate that the courts are likely to continue a conservative approach to the protection of information to avoid creation of barriers to the free flow of information. Different legal approaches to the protection of business information have developed in continental Europe and America. However a review shows that deficiencies in the protection offered have not been fully overcome in these jurisdictions. More recently, a number of international developments have taken place which are of significance to the protection of business information. The developments take different forms, either as binding international agreements, or non-binding agreements. Examples are the Trade Related Aspects of Intellectual Property Agreement (TRIPS); the OECD Guidelines of Security for Information Systems and for Cryptography Policy; and the WIPO Model Provisions for Unfair Competition. These agreements establish new international standards relating to the protection of business information. The way in which these international agreements may become part of Australian domestic law and policy can be predicted and explained by analysing the nature and form of the relevant international agreements and the process by which they may become part of domestic law; by having regard to recent developments in this field in other countries; by analysing Australia's response to similar developments in the past, for example, the OECD Guidelines on the Protection of Privacy and Transborder flows of Personal Data; and by reviewing Australia's response so far to the latest developments relating to the protection of confidential business information.