Melbourne Law School - Theses
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ItemConsensus in International Law: Authority, Democracy, Difference( 2022)This thesis investigates the idea of ‘consensus’ in international law. It does so through an exploration of two case studies: consensus decision-making in the General Agreement on Tariffs and Trade (1947) (GATT) and the World Trade Organisation (WTO), and the European Court of Human Rights’ use of ‘European consensus’ as a method of treaty interpretation. The thesis redescribes consensus in international law as an historically specific technique of authorisation. It argues that consensus lends authority to institutional practices and decisions by gesturing towards a widespread, yet unfixed, level of agreement. On the one hand, the gesture towards a widespread agreement works to imbue institutional practices with an air of equality, and project visions of unity onto a decision. On the other hand, the variable nature of the agreement means that the idea of consensus can be applied flexibly, including in situations in which no such equality or unity exists. The thesis contends that consensus gained prominence as a technique of authorisation in the GATT and European Court of Human Rights in the 1970s, when the authority of those institutions had come under challenge. This was also a time when alternative accounts of international law were being put forward, which claimed to be more democratic than the existing system. In my argument, the idea of consensus helped to shore up the authority of both institutions and their decisions by enabling them to claim that they spoke in the name of ‘the many’. Yet, by giving rise to discourses of representation and agreement that did not always match the reality on the ground, the notion of consensus has contributed to some of the backlash and instability facing both the WTO and the European Court of Human Rights today.
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ItemThe Structure of Human Rights: A Philosophical Investigation( 2020)There is a tendency for human rights bodies—at the international, regional, and national level—to take each human right to correspond to multiple duties. It has become almost a mantra of human rights institutions that human rights correlate with duties to ‘respect, protect, and fulfil’. This view of the structure of human rights—the Multiple Duty View—is echoed in much of the philosophical literature on human rights—and particularly the accounts of Henry Shue, John Tasioulas, and Rowan Cruft. These philosophers reject outright the claim that there is a one-to-one relationship between human rights and their duties. Instead—on their accounts— correlating to each human right are any and all of the duties that it takes to guarantee the substance of the right or to protect the interests or other features of the right-holder. In this thesis, I present a challenge to the Multiple Duty View. I claim that it struggles to make sense of important cases of waiver of human rights because it does not match each human right with a single duty of identical content. On the Multiple Duty View each human right correlates with multiple duties. So, when a right-holder releases the duty-bearer from just one (or, at least, not all) of the duties correlative to a single human right the Multiple Duty View cannot explain what happens to that right. It can only say that that right is either waived or retained, and neither properly captures the situation. I present an alternative picture of the structure of human rights that addresses this problem—the Individuation View of human rights. The Individuation View takes each human right to correspond to one duty only. As such, it registers that for every duty that a duty-bearer is released from a human right is also suppressed. I consider and address some objections to the Individuation View, including that it is inconsistent with human rights practice and leads to a proliferation of human rights by positing the existence of many more rights than the Multiple Duty View.