Melbourne Law School - Theses
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ItemCovert operations and the development of international law on the use of force( 2017)This thesis examines how best to recalibrate our understanding of the development of the law on the use of force in the light of increased reporting and legal debate around covert and quasi-covert drone strikes and cyber attacks. It is argued that recent changes in practice and communication call for closer attention to be paid to the requirement of publicity for state practice, since they challenge the perception of the concepts ‘public’ and ‘covert’, and thus raise questions as to the impact that covert and quasi-covert acts do and should have on the development of the law on the use of force. At heart, the thesis is concerned with the need to find ways to address contemporary challenges posed to the law on the use of force without risking the law losing its normativity. Although it is widely accepted that acts need to be ‘public’ in order to constitute state practice relevant for the development of customary international law, the rationales for, and details of, the requirement of publicity remain underexplored by legal scholars. Focusing particularly on quasi-covert conduct such as the United States’ drone strikes on Pakistani territory, and covert operations such as the cyber attacks against Estonia in 2007 and Iran in 2010, this thesis unpacks the requirement of publicity in order to make clear what acts are capable of constituting state practice for the development of the law on the use of force. It is argued that, in order to qualify as such practice, acts must be both acknowledged and publicly known. The thesis further examines how state silence around covert and quasi-covert operations have opened up significant space for interventions by legal scholars and other experts to influence the interpretation of the law on the use of force in light of novel developments. While many covert operations, depending on their level of publicity and covertness, are unfit to constitute state practice for the development of customary international law, the debates surrounding them help shape the interpretation of the rules regulating the resort to force. It is argued that this possibility should be taken seriously by international legal scholars, who can not only push for increased transparency and adherence to legality by states, but also take an active part in filling the voids in the interpretation of jus ad bellum created by covert operations that are publicly known.
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ItemHannah Arendt and the turn to life in international law( 2013)My dissertation investigates the idea of natality in Hannah Arendt’s writing for the purpose of rereading the biopolitical currents of contemporary international law. By referring to biopolitics, I mean the normalising or regularising techniques by which liberal governmentalities manage the physical conditions of life; and the critical perspective that observes, diagnoses and sometimes resists these techniques. International human rights law is a prominent expression of biopolitics in the first sense and provides a key context in which to observe the patterns and hazards of normalising power. More and more frequently, the liberal politics of life draws strength from different modalities (such as institutional activity and civil society movements) that expand what is recognisable as law or which influence its articulation, directs international agendas that affect the physical security and health of populations, makes clear the service of law to politics (particularly state politics), and significantly, leaves human remainders. My interest in biopolitics encompasses each of these effects but focusses upon the last. The humanitarian call of biopolitics sometimes, if not frequently, belies its real political function. Humanitarian practice also points to historical formations of biopolitics in which life mattered according to an assumed scale of human-ness, leaving some persons superfluous to the idea of life itself, and in due course, vulnerable to radical strategies of exclusion, including disenfranchisement, deportation and genocide. For theorists of biopolitics and international law, the ‘aporias of humanitarianism’ are not new even where exclusion takes less exaggerated forms. Regulatory initiatives relating to communicable disease, sex trafficking and enforced disappearance are present-day examples of the more subtle consequences of delineating or framing certain lives for protection, including the production or re-production of the state. The dilemma produced by biopolitics also relates to the limitations of normative critique. Here, biopolitics is a diagnostic tool that reveals the uneven effects of normalising power globally but fails to imagine normative pathways beyond them. The wager of the dissertation is that a refashioned account of natality offers an alternative resource for rereading the negative patterns of biopolitics in international law today. Like many theorists of biopolitics, Arendt was alert to the dangers of normalising power through her contact with its extreme expression in mid-twentieth century German politics. Nazism presented the fatal flaw of organising power around physical life. Arendt’s concept of natality takes its cue from themes familiar to biopolitics but re-envisages biological processes as a metaphor for politics. Natality literally describes physical birth or human reproduction as a counterpoint for the idea’s further meaning, as a reference for the birth or appearance of each human being as a political subject, and the birth of the body politic as a space for democratic action. In each sense, the metaphor notes an innovation, a beginning, an arrival, a rupture, a founding, a revolution, a re-configuration, a spontaneous and surprising event, an initiative, an origin, a configuration, a coming together, the moment of empowerment, and a reminder that life must be the answer for the delicts of biopolitics. Arendt’s imaginative offering supports a new form of normative critique that observes the implications and possibilities of the body’s unrelenting presence in the regulatory practices of contemporary international law. Her vision beyond biopolitics arguably fulfils, for different ends, the ambition of normalising power to make life (and not death) the subject of global governance.
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ItemLocal space, global life: the everyday operation of international law and development( 2012)This thesis engages with the expansive and ground-level operation of international law and the development project by discussing the current international attention to local jurisdictions. In the last three decades, local jurisdictions have become the preferred spaces to promote global ideals of human, economic and environmental development. Through an ethnographic study of Bogotá’s recent development experience, in particular the city’s changing relation to its illegal neighbourhoods, this thesis interrogates the rationale and exposes some of the contradictions involved in the emergence of localities in development discussions and the international normative scene. The thesis pays particular attention to how the current attention to local jurisdictions – a process that has been largely articulated through the idea of decentralization – has involved a global re-accommodation of the exercise of authority over territory and population once assigned primarily to national administrations. However, the process of decentralization has not involved the abandonment of the nation-state but instead a multiplication of levels of governance upon local jurisdictions, a move that has made local administrations more concerned about calibrating their territories and populations in terms of their development aspirations, their fiscal capacities and their internal and external frontiers. This situation has particularly affected the relation between local administrations and their most peripheral subjects. In its evaluation of the multiple ways in which international law and development are shaping local realities, the thesis argues for closer critical attention to how these intimately related projects are constantly operationalized through the actions of national and local administrations, and through a multiplicity of laws, administrative technologies and artefacts of governance, that are rarely considered part of the economy of international law or the development project.