Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 3 of 3
-
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.
-
ItemProtecting the child-parent relationship: the place of children’s rights in temporary labour migration( 2019)Low-waged, temporary labour migration (TLM) is a global phenomenon that involves the migration of workers for months or years at a time generally without their dependent children. This thesis examines how policies governing this form of migration interfere with provisions of the Convention on the Rights of the Child (1989) (‘CRC’) that protect the child-parent relationship and parental role in children’s lives. The specific CRC provisions examined in this thesis include children’s rights to be cared for by their parents as far as possible under Art 7; to maintain direct and regular contact and relations with their parents if separated transnationally under Art 10(2); to receive direction and guidance from their parents under Art 5; and to have their family life (which includes their relationship with their parents) protected against arbitrary interference under Art 16. It also examines State obligations under the CRC to provide appropriate assistance to parents to enable them to fulfil their responsibilities and role as their children’s primary caregivers under Art 18, which includes assisting parents to provide for their children’s overall development needs under Art 27. This thesis argues that, to date, States have failed to address or justify interferences with these children’s rights caused by TLM policies that deliberately disrupt the child-parent relationship. It combines a human rights-based framework with qualitative social science research to understand State duties under human rights law to protect the child-parent relationship; identify potential harms to children’s rights caused by TLM policies that create prolonged periods of child-parent separation; and recommend measures to reduce interferences with children’s rights by better supporting the maintenance of the child-parent relationship in the context of TLM. The rights examined in this thesis are considered in light of general obligations and principles in international human rights law that include the obligation on States to give due consideration to children’s best interests in all policies affecting them; the principle that the family is the most fundamental unit in society entitled to protection by the State; and the principle of international cooperation, which entails that the protection of children’s rights is a shared responsibility between labour-sending and labour-receiving countries.
-
ItemTransnational land acquisitions in sub-Saharan Africa: competing claims and the role of (international) law( 2017)Over the last decade, there has been a dramatic surge in large-scale acquisitions of farm land, popularly referred to as ‘land grabs’, mainly in the Global South. Roughly two-thirds of these land acquisitions have occurred in sub-Saharan Africa (SSA). This thesis critically analyses the shaping of legal relationships around transnational large-scale acquisitions of land in SSA. It considers the interaction of domestic and international laws against the background of historical patterns of land ownership in Africa. The study focuses on Ethiopia, though many of the observations are generalisable to other countries in Africa, and perhaps elsewhere. By employing a critical-doctrinal analysis of the laws at play, the thesis argues that the legal regimes shaping the relationships around transnational land acquisitions in countries such as Ethiopia privilege (foreign) investors as compared with destination countries’ host people, particularly prior land users. By conferring restricted land rights on people who are legally required to give way to investors, the law generally facilities these land deals and inhibits measures aimed at leveraging them for local needs such as addressing the prevalent hunger challenges in SSA host states, or reversing their adverse effects. This occurs despite some recalibration exercises in international investment law in recent years and the potential corrective role of human rights law. The global responses to ‘land grabs’ aimed at alleviating the social and environmental problems associated with large-scale acquisitions of land in SSA also leave largely unaddressed many of the structural issues embedded in domestic and international laws that shape relations around these land acquisitions. The implication of this is that although transnational land deals are often justified in terms of various development promises such as enhanced food security, the way they shape legal relations are likely to perpetuate hunger in investor host states like Ethiopia. Therefore, the role of the law needs to be considered more seriously in the debates around the growing number of transnational land acquisitions in Ethiopia and across Africa.