Melbourne Law School - Theses
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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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ItemHow do institutions engage with the idea of a human rights-based approach to matters involving children? A case study of UNICEF and the World Bank( 2015)This thesis examines some of the different ways in which institutions engage with the idea of human rights-based approaches to matters involving children. Despite the widespread adoption of human rights-based approaches, legitimate concerns continue to be raised about what a human rights-based approach actually is, and the extent to which the change in discourse has resulted in any meaningful change in practice. Additionally, significant confusion exists about where children fit into the idea of human rights-based approaches, with many organisations espousing child-rights programming as a separate approach. However a number of scholars have rightly criticised this distinction, arguing that a conceptually coherent understanding of human rights implies the consideration of children’s rights, needs, perspectives and interests within human rights-based approaches – a strategy this thesis terms “human rights-based approaches to matters involving children”. Against this background of promise, perplexity and scepticism, this thesis analyses how UNICEF and the World Bank engage with the idea of human rights-based approaches to matters involving children, and reveals inconsistencies within and across the two organisations vis-à-vis the formulation, understanding and implementation of human rights-based approaches, particularly in relation to children. The analysis examines coherence at multiple levels: between international human rights norms and institutional rhetoric; between institutional rhetoric and institutional practice; and, ultimately, between international human rights norms and institutional practice. The underlying objectives of this multi-layered approach are, first, to uncover conceptual, institutional and operational explanations for the differences in organisational engagement with the idea of human rights-based approaches to matters involving children, including the opportunities and challenges they face; and, second, to contribute to the development of a conceptually coherent, workable model of a human rights-based approach to matters involving children. A better understanding how institutions engage with the idea of human rights-based approaches to matters involving children is a necessary first step toward these objectives.