Melbourne Law School - Theses
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ItemAn International Law of Peoples: The International Rights of Nature Tribunal and International Law( 2024-02)International law is a discipline of States. Nonetheless, legal institutions organised by civil society actors have become a popular feature of the international legal arena. This thesis approaches one such institution from the perspective of international law. The thesis explores the emergence and conduct of the International Rights of Nature Tribunal, treating it as a novel space of international law-making. It traces how this peoples’ tribunal authorised itself as an international legal institution and considers what it tells us about the discipline of international law. The thesis reads the institutional legal form of the Tribunal alongside formal international legal institutions, such as the League of Nations and an investor-state arbitration tribunal. It considers how international legal concepts and themes of sovereignty, territory and place, sources, people, jurisdiction and Statehood shape the Tribunal and more conventional institutional forms of authority under international law. The argument that the thesis advances is that the Tribunal is developing an international law of peoples, expressed through the Tribunal’s own convention, statute, legal norms, procedures, conduct and methods of transmission. This is an international law with its own unique shortcomings and possibilities. It is also a law and institutional form that reproduces issues commonly associated with the discipline of international law. But it is, most significantly, a law and institutional form that prompts a more pluralised understanding of the international legal domain – including of what relationships are possible between peoples and nature under international law. It offers a mirror through which we can better understand how international law fails to engage the milieu of international legal relationships that exist between humans and the non-human world. The thesis is an invitation to international lawyers to consider how seemingly given concepts and institutional forms of authority are crafted by competing understandings of the environment – and what world they give shape to. But to also consider what kind of legal practices are needed for an international law that accounts for a range of human and non-human relationships that currently remain offstage.
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ItemHuman rights for the data society( 2022)In 2011, United Nations Secretary-General Ban Ki-Moon launched the UN Global Pulse, an initiative on digital data technologies. According to Ban, the Global Pulse would ‘bring the work of the United Nations fully into the digital age’. By the end of the decade, in 2020, Ban’s successor Antonio Guterres published the ‘Road map for digital co-operation’, in which Guterres declared that the international community stands at ‘new frontiers of technology and human rights’. The aim of the Road map was to co-ordinate activity across the UN system to address both opportunities and risks that Guterres identified at this frontier. The risks were that digital technologies might be used for ‘surveillance, repression, censorship and online harassment’. The opportunities were for digital technologies to ‘provide new means to advocate, defend and exercise human rights’. This thesis is concerned with the UN’s engagement with digital data technologies in its human rights work in the 2010s. During that decade, the UN has both embraced new technologies and attempted to regulate them. Much of the existing scholarship on the relationship between digital data technologies and human rights in the international sphere has mirrored the UN’s ‘opportunities’ and ‘risks’ framing. The question implicit in this scholarship is how to use human rights goals and norms to make the inevitable datafication of the world better. This sense of inevitability is reflected in the commonly used periodisation of ‘a digital age’, which suggests that there is a singular human world that moves from one technological age to another. In contrast to these approaches, this thesis focuses on how the UN’s work on digital data technologies and human rights might make and shape a particular world. I use ‘world’ in the sense of a normative and imaginative universe in which there is a shared common sense about what it is possible to do, and what ought to be done, and the material environment underpinning that common understanding. My argument is that the UN’s attempts to embrace and respond to digital data technologies are producing a world in which the biggest technology corporations and their data technologies are widely accepted as indispensable to the international human rights project. I call that world the data society. The UN does so through a series of technical projects during the 2010s that produce what one might call ‘datafied’ forms of human rights. In these emerging forms of human rights, core concepts and practices are understood by reference to or performed through digital data technologies. The central implication of this argument is that when human rights practitioners – at the UN and beyond – use datafied forms of human rights, they play a significant role in making the data society possible. By the same token, they also play a significant role in foreclosing alternative possibilities – of worlds in which human rights and digital data technologies might be imagined differently.
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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.
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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.
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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.