Melbourne Law School - Theses

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    The interpretation of the use of force by international legal advisers
    Machado Ramirez, Sebastian ( 2020)
    What do international legal advisers think about when they think about the interpretation of the use of force? For the most part, these discussions have been canvassed in terms of the application of a rule (i.e., Article 31 of the Vienna Convention on the Law of Treaties or Article 38 of the ICJ Statute), but little attention has been paid to interpretation as a philosophical enterprise (i.e. philosophical hermeneutics). Even though hermeneutic scholarship is not commonly cited in international legal theory, some work reflects many of the same sensibilities. For example, much of the contemporary scholarship on the role of history in international law has shown similar movements to the hermeneutical tradition that flourished in Germany in the late eighteenth century, particularly on the importance of historiographical methodology. In addition, interpretive philosophy challenges some epistemic predicates upon which much of the existing, mainstream legal theory on the use of force is built. Some traditions within the world of interpretation highlight that there are alternatives to our way of conceiving reality – and our access to it – as a subject-object mediated relationship. In this context, I discuss how recasting international law as an experience rather than a discipline can articulate some of the possibilities overshadowed by existing discourses. This raises some serious objections to the way we use the past to justify recourse to the use of violence and brings back the political stakes to the argumentative arsenal that the legal adviser has at her disposal. Although the result is a seemingly unfettered argumentative freedom, I argue that the perception of unrestrained rules to guide these interpretive endeavours can be mitigated by the role of disciplinary tradition. By challenging historiographical methods and epistemic predicates, interpretive philosophy further highlights the legal adviser’s uniquely existential position. This means that the situation of advising – the existential moment where the adviser fuses her own horizon of expectations with that object of interpretation, and thereby engages in the experience of international law – essentially incorporates the interpreter’s normativity. Although this subjectivity of interpretation is not new to legal theory, its treatment in interpretive philosophy can provide some insight into the theory of action of a legal adviser when confronting a situation of the use of force. More than insisting on the invasion of bias into decision-making, I argue that prejudice is not only part of any interpretive engagement but one of the most exciting hermeneutic opportunities. Finally, I discuss how the existing expressions of hermeneutic sensibilities in international law as related to history, epistemology, and situatedness can challenge some mainstream narratives on the use of force in international law. By casting legal discourse related to the use of force in international law in the post 9/11 world in terms of its interpretive distortions, interpretive philosophy provides a way to conceive the role of the legal adviser as both critical and normative.
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    Aesthetics of Image in International Environmental Law
    Palmer, Alice Dene ( 2020)
    Environmental treaties often require judgements of aesthetic value yet how these judgements are made is not well understood. This thesis argues that images, particularly photographic images, are central to such judgements but that neither current practice nor scholarship properly account for the significance of images to decisions made under international law. Drawing on debates about aesthetic conceptions of the environment in the visual arts, and in the philosophy of environmental aesthetics, this thesis develops a critical understanding of image and aesthetic value in international law. My aim is to produce a jurisprudence of aesthetics adequate to the task of making image and aesthetic value meaningful in international environmental law. In the thesis, I undertake doctrinal interpretations of aesthetic value for three international environmental treaties – the World Heritage Convention, the Whaling Convention, and the Biodiversity Convention. I find that aesthetic value is conflated and displaced with other environmental values in treaty practice. Aesthetic value is, for example, combined with natural beauty, cultural and ethical values, and overlooked in favour of scientific and economic values of the environment. I consider these practices to compromise reasoned decision-making and, ultimately, the protection of the environment under those treaties. Referencing Anglo-American aesthetic philosophy, I engage visual art to reflect critically on the meaning of aesthetic value from photographs of the environment that I identify as artefacts used in treaty decision-making processes. I employ eco-critical perspectives to examine aesthetic values of natural beauty, the sublime and the picturesque in 19th century landscape art of Western Europe and Britain. Relying on the philosophy of environmental aesthetics, I conceive aesthetic value instead in terms of sensorial experiences of nature shaped by imagination, emotion and knowledge from different cultures. I maintain that this ‘now world’ aesthetic value of the environment can be understood from photographs as important, distinct and capable of protection in international law. I contend that the interrogation of images by international bodies would facilitate the proper judgement of aesthetic and other environmental values to justify the cooperative efforts of a plurality of states in environmental protection. Yet I find that photographs are treated as records of fact in international decision-making processes. They are not formally recognised as representations with layered meanings. To ignore or refuse the place of representational images in international law is improper in jurisprudential terms and inconsistent with the good administration of justice. It also denies international legal practice the concepts and methods required to exploit images for their rhetorical purchase. I conclude that aesthetic methods for the visual arts must be repurposed to articulate meanings for images in the making, implementation and enforcement of international law. In giving close attention to photographs used in treaty decision-making processes, I introduce the philosophy of environmental aesthetics to the interdisciplinary study of law and image, expanding the role of images in international law. I also make the environment’s aesthetic value visible to the practice of international environmental law in the face of indifference, from so many nation states, to the precious nature of the planet.
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    The old bridge of Mostar and increasing respect for cultural property in armed conflict
    Petrovic, Jadranka ( 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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    International law and the determination of risk : science, uncertainty and the role of values
    Peel, Jacqueline ( 2006)
    Increasingly, international law in the health and environmental fields is a site for global governance of risk. Science and expertise play a central role in such governance systems, not only because threats of contemporary concern (climate change, ozone depletion, biodiversity loss, etc) generally require scientific knowledge for their explication, but also given the widespread perception that science provides a neutral, definitive resource for resolving political disputes over risk. This understanding of the role of science in international risk determination is evident in supranational regimes like that of the World Trade Organisation (WTO) and its associated dispute settlement system, under the principal agreement dealing with matters of health and environmental risk, the Sanitary and Phytosanitary Measures Agreement (SPS). However, the content of notions of science and risk assessment - as social scientific critiques have revealed - is far less fixed than is often represented in international debates and decision-making. This has supported the development of different risk regulatory approaches depending upon whether authorities favour `sound' evidence of risk over a `precautionary' focus on uncertainties. In this thesis it is argued that global risk governance, led by developments in the economic area, evidences a trend to privilege science in risk determination, thus overestimating the capacity of scientific knowledge to provide universally valid, universally accepted criteria for international law to resolve risk disputes. In the process, the normative dimension of many risk disputes is denied or overlooked, limiting possibilities for debates over underlying values that are ultimately crucial to the development of responsible risk policy. Beyond the WTO SPS context, supranational regimes as well as domestic systems, illustrate alternative responses to risk regulation. These often permit more explicit consideration of uncertainty, as well as allowing for competing value-driven perspectives about risk to enter the decision-making process, whether under the guise of precaution, negotiated assessments of risk or as part of efforts to democratise risk governance. The institutional strength of economic regimes, like that of the WTO, in comparison to environmental fora where a number of such alternative risk determination approaches are emerging, may reduce the salience of the latter as platforms for political contestation. Moreover, the acceptance of notions of science and risk that are (partially) socially and culturally determined argues in favour of a case-by-case, rather than universal, approach in determining the appropriate balance between science and other non-scientific considerations in decision-making. Nonetheless, the narrowly-focused science-based approaches to risk determination, emerging in dominant supranational governance institutions like the WTO, jeopardise efforts to instil a more realistic understanding of the capacities of science to support risk assessment by perpetuating a myth that complex risk questions can be reduced to matters of (a-political) expertise. By attempting to subsume concerns about uncertainty, or political contests over values within science, global risk determination may undermine its already fragile legitimacy. This poses a threat not only to the viability of global systems for risk governance but also, potentially, to the credibility of science as a resource for generating decisions on appropriate regulatory action to address health and environmental risks.
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    The development of Australian law to protect undisclosed business information
    Jackson, Margaret Anne ( 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.
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    The 1858 trial of the Mughal Emperor Bahadur Shah II Zafar for crimes against the state
    Bell, Lucinda Downes ( 2004-12)
    In 1857, hostilities broke out against the ‘rule’ of the East India Company (EIC) in northern India.Measures to suppress the hostilities, known as the 'Mutiny', 'Rebellion' or 'War' of 1857', included legislation enacted by the EIC's Government of India criminalising 'rebellion' and 'waging war' and establishing temporary civil and military commissions. From 1857 to 1859, the Government of India tried soldiers and civilians, including the last Mughal Emperor, the King of Delhi Bahadur Shah II, for their conduct during the hostilities. The law and trials have not previously been the subject of study. his thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. This thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. The central hypothesis is that the trial was in breach of the international law of the time. The thesis demonstrates that the King of Delhi was a Sovereign recognised by Britain and under its protection until he was deposed three months before the trial. The thesis contends that his status as a recognised Sovereign, which according to the long-established rule of sovereign immunity precluded prosecution in the courts of another State, should have been considered sufficient to entitle him to immunity from prosecution. The criminal trial of a recognised Sovereign was without precedent. The thesis also contends that the apparent basis for the assertion of jurisdiction over the King or Delhi, that he became a British national through the extension of protection to the Kingdom or Delhi in 1803, was untenable in law. According to State practice of the time, protection of one State by another neither deprived the protected State of sovereignty nor effected a change in nationality. The thesis suggests that sovereign immunity was deliberately overridden on the grounds of his status as a protected king, the gravity of his crimes or on both grounds. Unprecedented in 1858, these grounds formed the basis for later challenges to the doctrine of sovereign immunity by plaintiffs in Britain. While neither ground found support in the law of the time, they signalled a new appetite to pierce the shield of sovereign immunity. The thesis concludes that the trial of the deposed and protected King of Delhi, Bahadur Shah, by a British court-martial in 1858, was both invalid according to the international law of the time and heralded an emerging international trend in favour of Head of State accountability.