Melbourne Law School - Theses
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ItemA conceptual history of recognition in international law( 2015)This thesis presents a conceptual history of recognition. It examines the development of ideas about the nature and meaning of recognition in the writings of British jurists from 1800–1950. After introducing recognition as a recurring metaphysical and ontological problem of international law and ordering, and explaining the focus on British juristic writings (Introduction), this thesis outlines a methodology for writing the history of concepts in international law (Chapter Two). While recent work in international legal history demonstrates a new attentiveness to the problems of historiography, efforts to grapple with these problems have rarely involved direct engagement with historical theory. In urging just such an engagement, this thesis adapts the themes, insights, and methods of conceptual history to the examination of concepts in international law. Conceptual history investigates the development of ‘basic concepts’: essentially contested ideas that are indispensable for political and thought and action throughout a period of time, within a national-linguistic society. This thesis adapts this methodology to guide a focus on juristic texts and their contexts. This forms the thesis’s first contribution to the field, specifically methodological debates in international legal history. It shows that historical theory is of real use in understanding and improving our attempts to grapple with the historiographical problems of international law. The thesis’s second contribution takes the form of a conceptual history of recognition (Chapter 3). In examining how recognition became a foundational idea in international law, as reflected in one important national tradition of juristic thought, this history shows how recognition was used to establish hierarchies of political communities and control entry into international society. Nowhere is this plainer than in the writings of British jurists in the context of the rise and fall of the British Empire. This development proceeded in four strands. In the first strand (1800–1880), generalised accounts of the criteria of recognition that are fixated almost solely on intra-European diplomatic disagreements gradually emerge. During the second strand (1871–85) recognition begins to incorporate ideas of Christianity, civilisation and progress to exclude non-European political communities from entry into the international community. The third strand (1885–1914) furthers this progress-orientation into the period of late colonialism and the ‘scramble for Africa’, shifting the focus of recognition to the technicalities of government and territorial control and, eventually, to a state-centric account that normalises civilisational inferiority into ‘difference’. With the fourth and final strand emerges (1915–50), recognition becomes a basic concept in international law, reflected in intense debates over its meaning and its use to advance or undermine a range of political projects within the League of Nations, including the universalisation of international law, changing modes of imperialism, and the constraint of state action through law. The thesis concludes with brief reflections on why British thinking turns away from recognition in the 1950s. With the collapse of the British Empire, the establishment of the United Nations, recognition is no longer a useful frame for exclusion and marginalisation, as the decolonising world turns to a new international law and self-determination.
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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.
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ItemReconsidering REDD+: law, life, limits and growth in crisis( 2015)This thesis examines the legal and social implications of an emerging carbon sequestration scheme under the United Nations Framework Convention on Climate Change (UNFCCC), called Reducing Emissions from Deforestation and Forest Degradation (REDD+), in order to investigate contemporary reconfigurations of control by the global North over land and resources in the global South. It critically examines the rise of carbon markets as a dominant climate mitigation strategy and their distributive consequences. This thesis argues that this marketisation of climate governance operates to foreclose possibilities for climate justice. This thesis makes an original contribution by asking novel questions in relation to the REDD+ scheme and its legal framework. Its primary concerns lie with interrogating the new form of authority, new modalities of power and the reconfiguration of social and legal relations this scheme produces. In particular, the thesis is concerned with the social implications of REDD+, given the 1.6 billion people globally living in and around forest areas and dependent in some way on forests for their livelihoods. There is now an extensive body of academic literature that examines the social impacts of REDD+ that primarily focuses on how to avoid doing harm or realise rights or co-benefit through REDD+ implementation. This thesis offers a unique contribution to this literature by focusing not only on the question of formal title rights, but also their underlying basis of authorisation and the broader political economy of the carbon economy. It therefore provide a complex account of appropriation of forested land through the reconfiguration of legal authority over land, that occurs alongside, and is perhaps even facilitated by, greater tenure formalisation.
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ItemFairness, the rights of the accused, and procedure in international criminal trials( 2015)This thesis examines the relationships between fairness, the rights of the accused, and procedure in contemporary international criminal trials. I argue that while fairness and rights are closely related in principle, by examining procedural decision-making in contemporary international criminal trials and the implications of these decisions, we observe a distancing between fairness and rights. This thesis ultimately calls for a renewed close association between fairness and the rights of the accused, particularly when making determinations on matters of procedure in international criminal trials. This thesis asks, ‘how are fairness and the rights of the accused connected in procedural decision-making in contemporary international criminal trials?’ I argue that fairness, rights, and procedure are three separate but interconnected aspects of international criminal trials. I explore these relationships through two case studies: the rules and practices of disclosure, and determinations on the use of adjudicated facts. I particularly examine practice at the ICC and the ICTY, and this thesis examines contemporary trials, as the cases analysed were in trial between the years 2008–14. This thesis engages with ongoing debates in the existing scholarship, particularly to address questions of the political and ideological underpinnings of international criminal law and procedure, and the flaws, limits, and potential of this legal system. I undertake a factual and normative analysis of fairness, rights, and procedure in international criminal trials. I examine how fairness and rights are located in this system of law; what fairness and rights are considered capable of achieving; and how fairness and rights connect the individual accused to the legal system. I also use the primary texts of the ICTY and ICC (the statutes, Rules of Procedure and Evidence, and Regulations), as well as selected procedural motions and decisions at both trial and appellate level in contemporary international criminal trials, held at the ICTY and ICC. I examine this law and related motions and decisions, to understand how fairness and rights are addressed in the international criminal procedural framework. I analyse both the relevant Chamber’s approach, and the effect of the decisions. In doing so, I have asked: ‘how has the Chamber addressed fairness concerns?’; ‘how has the Chamber accounted for the rights of the accused?’; and ‘what have been the implications of this decision for the rights of the accused?’ These documents permit an analysis of what procedural questions have arisen, and how they have been resolved, in relation to both fairness and rights. This ultimately facilitates an analysis of how fairness, rights, and procedure interact. This thesis ultimately calls for a renewed close alignment between fairness and rights in procedural decision-making in international criminal trials. I offer normative arguments for why fairness and rights should be closely linked, and reflections on the implications of this thesis for the future of international criminal trials.
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ItemThe changing meanings of 'judicial activism' in the United States and Australia, 1947-2008( 2015)This thesis is concerned with the origins and changing usages of the term ‘judicial activism’ from its first use in the 1940s to the very recent past. It examines how the term was coined in 1947 by a young historian in the United States to describe judges who believed that judicial power should be used to promote social objectives. This was to be contrasted with judges described as ‘champions of self-restraint’, who approached the use of judicial power as an instrument of review and left the other branches of government to deal with matters of policy. This dichotomous understanding of judicial method was taken up by legal scholars and political scientists, and later, by the popular media as a paradigm through which to evaluate cases. A settled definition of judicial activism eluded lawyers, scholars and commentators, but the terminology took on a new meaning in the late 1960s as a political slogan in the United States. Presidents Nixon and later, President Reagan, engaged in political campaigns against what they saw as the excesses of judicial activism. As this use of the term flourished, public commentary became increasingly polemical and more remote from meaningful discussion of judicial method. Activism was no longer considered as the antonym of self-restraint, but instead as illegitimate behaviour. It had now become a derisory epithet, a descriptor of judges who are deemed to have exceeded power, and trespassed into the political arena. This thesis charts the history of the use of the judicial activism terminology, first in the United States and then in Australia. It argues that the term became known to Australian scholars as early as the 1950s, but remained dormant for over forty years because the academy deemed it inapplicable to the work of the High Court of Australia. It then examines the emergence of the term in Australia following a series of controversial decisions of the High Court in the 1990s on native title and on implied rights in the Constitution. A traditional legal account of this period suggests that the activism terminology arose to describe the new approach of the High Court, insofar as it had begun openly taking into account community values and expectations as part of the interpretative process, and engaging in policy-based analysis in the development of the common law. The thesis suggests this is an incomplete explanation of the emergence of the terminology in Australia because the initial critics of activism relied on sources far removed from interpretive theory to bolster their claims. This thesis argues that a fuller understanding of the charge of activism is gained by considering the Court’s decisions in the context of Australia’s political culture in the 1990s. It should be emphasised that this is neither a thesis in constitutional law, nor one that compares the arguments in the two countries. Rather, it is a study of how, when and why the activist terminology was transported from the United States to Australia. It is a cross-disciplinary study that employs both historical and legal methodologies to examine the emergence of the charge of judicial activism in Australia.
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ItemAfrica and the ailing promise of the Doha development agenda in the WTO negotiations on agriculture( 2015)This thesis argues that the promise of development in the Marrakesh Agreement Establishing the World Trade Organization (‘WTO Agreement’), the General Agreement on Tariffs and Trade 1994 (‘GATT 1994’), the Agreement on Agriculture (‘AoA’), and the Doha Work Programme is not being realised for the African Group, particularly in the agriculture negotiations. The primary incentive for the African Group to join the Round was the emphasis on development in the 2001 Doha Ministerial Declaration, in line with the WTO Agreement and the AoA. However, for several reasons, the Doha Round is not delivering on its promise. First, the Declaration and WTO agreements forming the basis of the promise do not articulate the term ‘development’ in a robust manner nor impose binding obligations on Members to ensure that the less developed among them develop. This omission has led to mixed interpretations by the negotiators, GATT/WTO panels and the Appellate Body. Secondly, Africa’s encounter with trade and development over the years has negatively affected Africa’s economic standing and makes Africans sceptical of development promises. The WTO’s attempt to deal with Africa’s development problems is very limited and unlikely to have much impact. Thirdly, the principles and decision-making processes underlying the agriculture negotiations are contentious and do not benefit Africa. Fourthly, the development promise has been undermined by the failure of developed and major developing country Members to eliminate trade distorting agricultural subsidies as required by the AoA and continuously committed during the negotiations, and the continued failure to agree on the modalities for the agriculture negotiations. Fifthly, although the African Group is well organised and has experts in the various areas under negotiation, it does not have well-articulated development goals to achieve from the Round, and instead continuously seeks ‘special and differential treatment’. The Group’s ability to present a unified negotiating position is also compromised by the varied interests and capacities of its members. Finally, although other initiatives such as technical cooperation and capacity building were emphasised in the Doha Ministerial Declaration as core to development, their contribution is undermined by conditionalities of donor funds and the lack of clear process and capacity of the recipients to utilise the funds provided. Therefore, balancing the achievements and failures of the agriculture negotiations to date, the thesis concludes that the promise of development is not being realised, and questions whether the Doha Round can offer a solution to the development concerns of the African Group.
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ItemHow do legal and regulatory frameworks of liberalized electricity markets influence the promotion of renewable energy?: Lessons for Australia from international case studies( 2015)The decarbonization of the stationary energy sector is crucial for reducing greenhouse gas emissions in Australia and across the world. Renewable energy as alternative means of generating electricity provides a key component of the transition to a low carbon society. Yet, successful transition depends not only on the development of suitable renewable technology, but also on the ability of regulatory frameworks to support and adopt this technology. In Australia, Germany and the United Kingdom, electricity provision is governed by regulatory frameworks, which provides for competitive retail and wholesale electricity markets and regulated electricity networks. This thesis critically examines the capacity of these regulatory frameworks to integrate renewable energy. Drawing on systems conceptions of electricity and ideas of regulatory space, this thesis comparatively assesses the role of law in Australia, UK and Germany in creating and sustaining market solutions for electricity supply, arguing that these systems have operated to the detriment of renewable energy. Legal frameworks have co-developed and therefore ‘fit in’ with fossil fuel-based infrastructure. Hence existing legal frameworks for electricity provision lock-in out-dated generation profiles and institutional frameworks, thereby limiting the uptake of renewable energy and retarding transition to low carbon energy systems. The thesis contends that overcoming this lock-in to promote the transition to a renewable energy-based electricity sector requires targeted regulatory reform. Drawing on experiences from Germany and the United Kingdom, it finds that reforms need to include the integration of sustainability concerns into the legal frameworks of the electricity market. It also requires network and market regulation, which provide specifically for the different requirements of renewable energy. Finally, reforms to introduce whole-of-system planning into regulatory frameworks for the electricity system will be necessary. It is shown that because liberalized electricity markets inherently further existing generation and network profiles, they will not achieve these changes without governmental intervention. The thesis argues that reforms will require a reengagement of the state in directing and planning the electricity system, in other words, choosing a new path. While the re-conception of a decarbonized Australian electricity system can take different forms, the thesis provides a foundation for considering where legal reform will be necessary to support this process.
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ItemIntegration of specialist expertise in the Chinese renewable energy consultative drafting process: towards a pluralist-empirical model( 2015)The thesis explores how China’s renewable energy institutions are contributing to industry scale-up, through the utilization of specialist expertise in the consultative drafting process. Thus it examines one aspect of the overall regulatory issue of how the Chinese Renewable Energy Law and related regulations have been formulated. The first core contention is that the process is pluralist to a significant degree, in that specialist expertise drawn from a broad range of institutions is utilized. Gu Xin’s formulation of plural institutionalism provides a primary point of reference for the analysis of the increasingly sophisticated and diverse institutions and interrelationships in the sector. Perspectives from new institutional, network and intellectual public space scholarship, together with legal and organizational politics scholarship on pluralist trends in the Chinese legislative system, provide a multi-theoretical evaluation of the plural institutionalism theme. Contrasting theoretical perspectives on more instrumental aspects of the system, such as those of Carol Jones and Richard Baum, serve to further develop an accurate characterization of the balance of top-down, state-driven and more pluralist tendencies at play in the regulatory process under study. Interviews conducted with senior staff in regulatory-related positions in Chinese renewable energy institutions explore specific examples of pluralist regulatory development, through consultative drafting processes and institutional synergies. The second central contention is that the process is an empirical approach to regulation. This is a composite concept including the integration of research into regulation through consultative drafting, as well trial/experimental regulations, projects and institutions. Regulatory case studies of these approaches explored in the interviews is combined with scholarly evidence of experimental approaches in the Chinese legislative system more generally, drawing on political science scholars such as Heilman as well as legal scholars such as Linda Chelan Li and Perry Keller. This regulatory approach is grounded in the Chinese government’s concept of scientific development, which is explored through four aspects. Firstly its roots in Marxist-Leninist theory are examined, and how this underpins instrumental use of law to implement Party objectives. Secondly an empirical aspect is based on the Chinese experience-based theory of lawmaking (jingyan lifa lun), that laws should be the ‘legalisation’ of policies that have proven successful in practice. The inclusive aspect relates to the view of some senior Chinese legislators that a more open and consultative legislature can contribute to the scientific validity, and thus the legitimacy of regulatory outcomes. Hence it forms the rationale for consulting a broad range of specialist expertise. In the process diverging interests can be resolved into a single ‘correct’ policy, which may then then be used to ‘educate’ all concerned to accept and support it. In this way, pluralist and instrumentalist aspects of scientific development are closely interrelated. Finally the ‘balanced’ or ‘harmonious’ development aspect refers to the integration of social and environmental with economic objectives. This was the ideological centerpiece of the Hu Jintao-Wen Jiabao administration, and the most prominent aspect in interviewees’ understanding of the term. Nonetheless scientific development was also understood in a more general sense, reflecting the Chinese understanding of the relationship between scientific methodology, experimentation and law and policy development, grounded in Marxism-Leninism, Deweyan philosophy and the experience-based theory of law-making.The thesis explores how China’s renewable energy scale-up supports its environmental and climate change, energy security and economic modernization objectives, reflecting the balanced development aspect of the scientific development concept. This provides an additional rationale for the involvement in the renewable energy consultative drafting process of the range of institutions discussed in this thesis. It then details salient aspects of the Chinese legislative system, focusing on the tension between pluralist and instrumental aspects, consultative drafting processes and experimental regulation. Chinese renewable energy institutions, key provisions of the Renewable Energy law and related regulation are then discussed, followed by a historical account of the consultative drafting of that law. Interview responses are then evaluated in terms of the thesis’ pluralist and empirical contentions, in the light of the relevant scholarly evidence. The concluding chapter explores the implications of the research findings for China’s environmental and climate change objectives, innovation-oriented model of economic modernization, and industry development in the context of recent international trade law disputes. Despite strong evidence of plural institutionalism in terms of institutional diversity and complexity of interrelationships, the term ‘pragmatic pluralism’ is proposed as a thesis conclusion. This concept captures the ways in which Chinese regulatory development is pragmatic in both its empirical/experimental (as opposed to ideological) and instrumental aspects, and how this approach limits the operation of plural institutionalism. Thus it characterises the Chinese government’s utilization of pluralist institutions and empirical approaches to regulation to realize objectives determined through the centrally controlled planning process. This study shows that plural institutionalism, at least at the intermediate level of national government, and empirical approaches to regulation are key features of the Chinese renewable energy regulatory process. The view that integration of heterodox views into the legislative process can enhance the scientific validity of outcomes (the inclusive aspect of scientific development) underlies China’s pluralist approach to the integration of specialist expertise in a wide range of renewable energy institutions. Thus it forms a key integrating concept for the pluralist-empirical model of regulatory development that has been central to the Chinese renewable energy consultative drafting process.
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ItemModelling legislation for a sustainable cadastral system( 2015)A cadastral system deals with land — a very important resource for sustaining people’s livelihoods. No wonder, therefore, that a large volume of research has been undertaken on land management, land administration and most specifically on the cadastre and land register systems. Such research also deals with the manner of continually improving a cadastral system, and has included various models, principles and guidelines for this purpose. Nonetheless, the models developed so far have a shortcoming because they do not deal with cadastral system legislative principles. Researchers have thus underestimated the crucial role legislation might play with respect to the setting up of a successful cadastral system. Most existing cadastral systems, especially those in less-developed countries, do not achieve their intended objectives. One major reason for this is the lack of appropriate guidelines prescribing parameters for the preparation of a robust cadastral system legislation. This thesis argues that a cadastral system must be founded on a number of requirements and principles to be sustainable. It especially argues that a sustainable cadastral system must be based on a legislative framework which effectively encompasses such requirements and principles. The thesis will set the relevant factors and principles in a comprehensive and coherent framework in the form of a model — hence the title: ‘Modelling Legislation for a Sustainable Cadastral System’. The principles used to construct the model are derived from various sources. Firstly, the model is based on a set of principles already known by models of a cadastral system. Secondly, it is informed by the essential requirements of a sustainable cadastral system drawn out in the thesis. Thirdly, it makes use of principles of cadastral system legislation derived from general principles, theories and philosophy of law. Finally, it relies on the principles and best practices solicited from an analysis of the cadastral system legislation of Victoria, Sweden and Kenya. These jurisdictions are selected because they give a wide geographic and socio-economic coverage representing Africa, Australasia and Western Europe, with the view to constructing a model which is both representative of the broader experience across the globe and is able to be applied in a flexible manner. In short, this thesis develops a theoretical framework of principles for an effective cadastral system legislation, which is identified as one of the essential requirements of a sustainable cadastral system.
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ItemThe figure of the victim in international criminal justice( 2015)In international criminal justice (ICJ), victims appear centre stage. Victims are invoked in the arguments for setting up international(ised) criminal courts and they appear in a range of institutional practices of these courts. Yet, while they appear centre stage, there is nothing self-evident about their particular appearances. This thesis turns to one particular international(ised) criminal court for a close reading of the ways in which victims figure in ICJ. The Extraordinary Chambers in the Courts of Cambodia, the ECCC or the Khmer Rouge Tribunal, was set up through an agreement between the United Nations and the Cambodian government to bring to trial senior leaders and those most responsible for crimes committed during the period when Cambodia was known as Democratic Kampuchea. Amongst the currently operating international(ised) criminal courts and tribunals, the ECCC is a productive context in which to examine victim figurations. This is not because it is ‘typical’ institution, but because it goes further than its predecessors and contemporaries. In the thesis, I trace the victim moving through the ECCC, a movement that holds both repetition and difference. Rather than asking how a certain ICJ instrument is or is not working for subjects that hold ontological priority, I ask: how do practices of international criminal justice represent victims when representation is understood as a practice of subject formation? How do the practices of a court make a subject called ‘victim’ intelligible? Against a backdrop of a few iconic and ordinary trials in ICJ, I attend to the ECCC practices of victim figuration as the workings of both representation and performativity. In each chapter, something new is brought, a new moment in the proceeding, a new iteration of the victim. It advances from the pre-trial, to the trial and then beyond the trial in outreach. In each chapter, I ask the same question about how the victim figures, I make the same assumption as to the significance of language. Studying crimes against humanity, victim participation, and photographic images, I argue that the figurations of the victim – both individual and collective – are manifold and indeterminate. Ultimately, what these figurations bring to bear is a performance of the international legal order as a politics of transition.