Melbourne Law School - Theses
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ItemCivilian detention in United Nations peace operations : the need for a special legal regime governing detention(University of Melbourne, 2009)This thesis is concerned with examining the significant legal issue of UN personnel temporarily detaining civilians in UN peace operations. More specifically, it addresses the question: is the temporary detention of civilians by UN peacekeepers in peace operations appropriately regulated? The argument here is that the temporary detention of civilians by peacekeepers is not appropriately regulated by extant legal frameworks, and, consequently, the thesis proposes the creation of a special legal regime governing detention. Such a regime would provide greater certainty, clarity and consistency of applicable legal norms and would ensure the effective and efficient conduct of UN peace operations in the context of the recognition of the rights and obligations of both the civilian population affected by the operation and the peacekeepers conducting the operation. This thesis argues that the taking and handling of detainees by UN peacekeepers is not appropriately regulated by extant legal frameworks for a number of reasons. The key reasons are: (1) there is no single legal regime that applies to the temporary detention of civilians in UN peace operations; (2) the law applicable to UN peace operations temporarily detaining civilians is fragmented; (3) where norms are identified as applying, they are sometimes, on closer analysis, inadequate to meet the operational necessities of peace operations; and (4) there are a number of gaps in the existing law, and the law, therefore, must be further developed so as to be relevant to contemporary UN peace operations. It should be noted that this thesis does not argue that there is no legal framework applicable to the treatment of civilian detainees nor that existing legal regimes applicable to the treatment of civilian detainees should be abandoned. It does, however, seek to contribute to the search for greater certainty, clarity and consistency of the norms dealing with detention by arguing for formalisation and systematisation. Consequently, this thesis restates, where relevant and appropriate, obligations within the existing legal frameworks that apply to UN peace operations. It also identifies where existing norms do not adequately respond to the needs of either detainees or the peaceoperation, and proposes norms that are more specific and nuanced to meet the requirements of the context. The fundamental aim of this thesis is to argue for a special legal regime to govern UN peacekeepers dealing with detainees.
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ItemBioethics and human rights : mapping the boundaries of the human subject(University of Melbourne, 2007)
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ItemEmergency Powers in Times of Terror: A Comparative Study of Canada and France( 2022)Constitutions establish the fundamental principles of government, both grounding and limiting the legal exercise of state power. In times of emergency, when public safety is threatened and the state must act to protect its citizens, these two constitutional functions can come into tension. A constitution may provide the legal basis for the state’s response to an emergency, but it may also constrain the state’s ability to act effectively during the time of crisis. Some constitutions, like France’s Constitution du 4 octobre 1958, anticipate this dilemma with emergency provisions. Other constitutional texts, like those of Canada, have no special provisions for emergencies. In either case, the state may choose to provide for an emergency framework by statute, accepting that the law must necessarily be constrained by the overarching constitution. Following the attacks of 11 September 2001, this constitutional dimension of emergency management acquired a new urgency because terrorism places extraordinary pressures on constitutional systems. By its nature, terrorism affects the state in its very essence. Through its immediate effects, terrorism calls into question the state’s ability to provide for the physical security of its citizens and challenges its corollary monopoly on violence. Through its induced effects, terrorism affects constitutional rights through the restrictions that it causes. Two decades after the attacks of 11 September 2001, amidst an ongoing global terror threat, constitutional systems continue to grapple with these pressures. This thesis investigates whether and why constitutional emergency provisions are necessary, or desirable, or even useful for dealing with the threats posed by terrorism. To this end, it seeks insight from the comparison of two constitutional systems that exemplify these opposite approaches: Canada and France.
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ItemReconciling the responsibilities of parents and the state: Is the best interests principle still the appropriate test for making decisions about the provision of life sustaining treatment to young children?( 2022)High profile court cases in England and Wales, such as those involving Charlie Gard and Alfie Evans, highlighted the challenges of determining that life sustaining medical treatment is not in a young child's best interests. These cases led to calls for law reform, which reflect broader criticisms of the best interests principle that is applied under current laws. The criticisms suggest that the application of the best interests principle is too indeterminate to guide decisions and that the principle requires an impractically narrow focus on the child. This thesis considers whether the best interests principle should be retained to guide decisions about whether a young child receives life sustaining treatment. The thesis explores the theoretical foundations of the best interests principle and alternatives offered in the academic literature. The frameworks for decision-making identified in the academic literature are used to examine the application of the best interests principle in practice in England and Wales, Australia, and New Zealand through a review of the case law and qualitative research with specialist paediatric doctors. The exploration of theory and current practice demonstrates that although there are difficult cases, in which there is reasonable disagreement, there is actually substantial agreement about the circumstances in which a child should be provided life sustaining treatments. It is argued that it is necessary to retain the best interests principle in order to ensure that children's interests are not marginalised. However, a more comprehensive explanation of the situation is required and this may be provided through a rights-based approach. A rights-based approach provides a transparent process for determining what is in a child's best interests and when the child's best interests should be prioritised over the interests of others.
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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.
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ItemSecurity and liberty : Australia's counter-terrorism laws and freedom of expression( 2008)The legal subject areas covered by this thesis are international human rights law, Australian constitutional law and Australian federal criminal law. The thesis examines four selected provisions of the Commonwealth Criminal Code against the standards set by art 19 of the International Covenant on Civil and Political Rights (`ICCPR') to determine whether they breach Australia's international obligations to protect the right to freedom of expression. The four provisions are selected on the basis that they are identified as counter-terrorism laws that clearly affect the right to freedom of expression as defined in international law, and were controversial when they were enacted. The provisions are analysed carefully to identify their impact on freedom of expression. Article 19 is selected as the standard for the measurement of the effects on freedom of expression by the provisions because the ICCPR is the most prominent human rights covenant that Australia is a party to. The ICCPR has not, however, been fully implemented at federal level in Australia as yet. In particular, art 19 has not been expressly implemented at all. The result is that that Australia's compliance with art 19 is haphazard and dependent upon Australia's domestic laws (the Constitution and statutory mechanisms)confining the restriction of the right to freedom of expression within the boundary permitted by art 19(3), which sets out a limited basis for the governmental restriction of the freedom. Accordingly, the protection's for human rights established by Australian domestic law, particularly the implied constitutional freedom of expression on political and governmental matters, are examined to see whether they restrain the provisions from infringing article 19. The thesis concludes that all of the four provisions do breach article 19, notwithstanding the operation of these domestic legal protections, for identified reasons. The thesis suggests amendments to the provisions to avoid this effect, as well as general law reform measures that would strengthen the protection of all human rights in Australia, including freedom of expression.
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ItemAre 'Asian values' 'universal' : international discourses on human rights policies( 2006)This thesis focuses on the international discourses between Southeast Asian governments and the international community regarding domestic human rights policies. It argues that the assumption that this discourse is only based on the politically-motivated rhetoric of certain authoritarian Southeast Asian governments is misleading. Certainly, the discourse is mostly political in nature but it does also include legal and philosophical aspects. Moreover, it is not a regionally-confined discourse but appears also outside the Southeast Asian context. A range of particular policies on human rights advocated at certain times by some Southeast Asian governments in attempts to restrict the application of international human rights standards are usually summarised as 'Asian Values', suggesting that a unique 'Asian' approach to human rights exists. In particular, Southeast Asian governments of the 1990s are seen as typically utilising three distinct arguments to justify these policies: state sovereignty, cultural relativism and prioritisation of economic development. At the centre of this thesis lies the question of whether 'Asian Values' is a regional or, if indeed, it is a 'universal' phenomenon. The obvious answer would be that a regional phenomenon cannot be 'universal'; the phenomenon has to be one or the other but it cannot be both. In order to demonstrate that 'Asian Values' are both, the characteristics of 'Asian Values', that is the historical context, content and development of 'Asian Values' will be analysed in the Asian context. Selected geographical and historical contexts outside modern Southeast Asia will then be explored. If these different discourses have elements in common, then it is possible to argue plausibly that 'Asian Values' are 'universal'. The 'Asian Values' debate has usually been considered a monolithic and static debate, while it is, in fact, a multi-faceted and evolving discourse. In reality, 'Asian Values' are not, and have never been, a unified concept shared by all Southeast Asian governments. 'Asian Values' have also never been an idea exclusive to state actors. Therefore, to assume that the 'Asian Values' discourse is only political rhetoric employed by authoritarian governments seeking to consolidate their power in that region ignores aspects of the discourses whereby Asians outside government who criticise authoritarian accounts of 'Asian Values' nonetheless attempt to infuse international human rights discourses with an 'Asian' flavour. Moreover, the development of the three main arguments, mentioned above - state sovereignty, cultural relativism and prioritisation of economic development - shows that the discourse was never exclusive to the 1990s but started at a much earlier time - and, indeed, continues to develop and change today. The difficulty will be whether the cultural relativism as advocated by 'Asian Values' proponents can be found outside Southeast Asia. It is in the nature of cultural relativism that its essence cannot always be entirely the same in different cultural settings, as cultural relativism argues that due to cultural diversity, universally applicable rules are difficult to find. However, the cultural relativism argument could be reframed in a way that would allow for differences in specific discourses, thus becoming a shell that can be filled with different conceptualisations of cultural preferences of human rights. This has implications for international discourses of human rights, because it challenges the common perception of a dichotomised debate between universalism and cultural relativism. 'Asian Values' have been perceived as an archetypical example of the discourse of cultural relativity of human rights. However, if 'Asian Values' policies are 'universally' employed, it no longer makes sense to frame the international human rights discourse in these simplistic juxtaposed terms. In fact, the condensing and dichotomising of human rights discourse as seen in the case of `Asian Values' can obscure potentially constructive dialogues.
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ItemAporias of sovereignty( 2005)This thesis presents a post-structuralist analysis of the aporias of sovereignty; specifically, of friendship, of hospitality and of justice in law. Philosophers and theorists - at the forefront: Emmanuel Levinas, Jacques Derrida and Giorgio Agamben - are read to address the political and a justice sans or beyond law. The concept of sovereignty is therefore deconstructed or fractured. The relationship between unconditional and conditional polarities is explored through a jurisprudential discourse which traces the topology and ontology of law on a multiplicity of related levels, including signification and the failed juridical opposition law/violence. This leads to the question of what it means to live simultaneously inside and outside of the law. Consequently naked or bare life emerges as the category of this inclusiveexclusion (and the violence and injustice of this banishment) as legitimized by law. The other as this life is where sovereign power, so to speak, unleashes its biopolitical force par excellence; of which the modern category is the figure of the refugee. The refugee moves beyond law/violence, the nation-state, politics, justice as law, and democracy; however in doing so, the refugee becomes the present-day subject/object of legitimized violence. Thus in fracturing the concept of sovereignty, and in being sacrificed to the performative violence of law, the other opens our conceptual thinking to the possibility of a politics, law, community and justice yet-to-come. This is based on alterity and otherness, as opposed to the (paleo-) ethos of similarity and homogeneity. A community or city premised on unconditionality, difference, singularity, indeterminacy and otherness rejects State-homology, property, domestic contract, conditional inclusion, and so forth. In loving alterity, one argues for the to-come of politics, law and justice. Unforeseeable categories of otherness, since they cannot be anticipated in advance, may only be welcomed through one's commitment to the abyssal, at once dangerous and wondrous, of the yet-to-come both here and now (in the urgent and responsible decision) and beyond our own deaths, or , else accept the responsibility of effacing the ethics . of tomorrow.
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ItemWar crimes against women and international war crimes tribunals( 1996)This thesis reviews the treatment of women in practice and theory in regards to laws of war and gender prosecution in international war crimes tribunals. Dating back two thousand years, rape and sexual abuse of women has been commonplace during periods of armed conflict, and punishment of these crimes has been a low, or nonexistent, priority. From the evolution of the customs of war in the Middle Ages, to the first codification of the laws of war, to the initiation of international instruments regulating war, to international tribunals to punish war criminals of World War P, gender based violence against women during wartime has been shamefully neglected in both domestic and international laws (human rights and humanitarian). As such, the thesis combines the historical survey of the treatment of women in past war crimes tribunals, with practical steps to prosecute gender crimes in present war crimes tribunals, and with propositions to amend the laws to provide future protections. This thesis reviewed the history and establishment of the Nuremberg and Tokyo War Crimes Tribunals. In reviewing these tribunals, and subsequently the trials, special emphasis was placed on the crimes within the jurisdiction of the tribunals, and the Allied power's eagerness to invoke innovative crimes regarding persecution on religious or political grounds, particularly regarding the massacre of the Jews, but their reluctance to afford the most minimum of efforts to prosecute gender related offenses. In order to reconcile the international communities neglect of women's issues, the status of women in domestic and international law and practice was reviewed, both in the past and in the present, and scenarios presented as to how certain issues have contributed to the failure of the legal community to address women's issues, and suggestions made as to how some of these problems can be rectified. With the past history as a cornerstone of proof of the urgent need to afford adequate protection to women during wartime, and the desperate need to support this protection with enforcement, the Balkan conflict will be reviewed, and the International Criminal Tribunal for the former Yugoslavia will be analysed. Reports of gender specific violence will include rape, forced prostitution, genocide, torture, sexual mutilation, forced impregnation, forced sterilization, and forced maternity. Particular emphasis will be placed upon instances of organized, systematic rape and cases of single, isolated rape, and the prosecution of these offenses under the terms of the Yugoslav Statute. The central argument throughout the thesis will be that all gender based violence against women committed as a direct result of the armed conflict should be explicitly defined and rigorously punished as serious violations of international humanitarian law. An extensive analysis will be presented on ways in which the Yugoslav Tribunal, and subsequently the Rwandan and future tribunals, can prosecute gender related violence, and why they must do so. Throughout the thesis, reviewing women's subordination from 500 B.C. to the present, it will be consistently argued that the abuses against women in wartime are subjugated in part because women have not been afforded sufficient recognition and protection domestically. Domestically, women continue to be discriminated against when the international community ignores the abuses committed against them, or labels wartime abuses as belonging in the domestic sphere. Violence against women in wartime continues to be regarded as a natural occurrence of war, typically rejected for investigation or prosecution by both the domestic and international communities. As the poor treatment of women domestically marginalizes the attention given to victims of wartime violence, lack of attention to wartime violence against women marginalizes all women. The continuous circle of ignoring gender specific abuse against women continues, with neither domestic nor international laws affording adequate attention, protection, or redress. However, it appears that the cycle of complacency about gender issues in the international community has come to a halt, with several indictments in the Yugoslav Tribunal charging defendants with sexual assault offenses. Successful prosecution of gender related crimes in the Yugoslav and Rwandan Tribunals will not only provide current victims with a remedy, but will also extend protections to women in ongoing and future armed conflicts, by terminating the impunity with which sex crimes have previously been afforded.