Melbourne Law School - Theses
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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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ItemBetween rhetoric and reality: the people’s procuracy as a human rights protector in the Vietnamese criminal process( 2018)The Vietnamese people’s procuracy (viện kiểm sát nhân dân) is a transplanted Soviet institution, which concurrently prosecutes and supervises judicial activities, including criminal investigation and trial. The 2013 Constitution, for the first time, explicitly recognises human rights and entrusts the procuracy with a responsibility to protect them. This thesis critically examines to what extent the procuracy can deliver on its new constitutional human rights protection responsibility. The thesis focuses on the protection of human rights in the criminal process, specifically the right to a fair trial for criminal suspects and defendants. My hypothesis is that the realisation of the human rights protection aspirations in the 2013 Constitution through the work of the procuracy depends not only on how the legislative changes introduced following the passage of the 2013 Constitution match the rhetoric of human rights protection objectives, but also on the performance of the procuracy in practice, both of which are contingent on the priorities and conditions of the environment in which the changes take place - the criminal justice system. To structure my analysis, I drawn on Pitman B. Potter’s institutional capacity framework but adapt it to examine the contextual, legal and institutional factors that shape the procuracy’s performance of its human rights protection responsibility. This thesis argues that, despite the recent human rights and procuracy-focused legislative reforms, there remain fundamental challenges to the procuracy’s protection of human rights, due to the resilience of the socialist essence within the procuracy and the criminal justice system in general. The key cause of the problem is the ambition of the Communist Party to maintain its authority and control, which prevents meaningful reforms from being carried out. Consequently, the underlying conceptions, motivations and structural arrangements of the criminal justice system remain untouched. Being drafted in this context, the law introduces certain changes to advance human rights protection but at the same time falls short of the human rights objectives, with many ambiguities, gaps, and loopholes. The contextual factors, which remain intact, also continue to shape the institutional factors, and thus undermine the protection of human rights. In terms of institutional purpose, there is a strong focus on crime control. Regarding orientation, there is a lack of desire to protect human rights, due to the procuracy’s collaborative relationship with the court and the investigating agency, the bias against suspected persons and defendants, and the disrespect of lawyers. Democratic centralism, and other mechanisms claimed to ensure cohesion within the procuracy, in fact undermine its performance of the rights protection responsibility. Factors of location - different goals, conditions, technical capacity and leadership in the procuracy at different levels and in different geographic areas - lead to uneven practices. Added to these factors are the lack of staff, technical skills and resources.
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ItemLaw, change and socialisation: constructing an account of the role of NHRIs in addressing systemic human rights violations( 2017)National human rights institutions (NHRIs) are domestic statutory bodies established with broad mandates to protect and promote human rights within states. Over two decades since NHRIs agreed to minimum standards for independent institutions and set them out in the Paris Principles, scholarship has moved from its initial focus on the design, form and proliferation of NHRIs to examining their effectiveness, accountability role and contribution to social change. In my thesis I set out to answer the question: what, and how, do national inquiries conducted by NHRIs contribute to the socialisation of international human rights norms? I answer this question by exploring how NHRIs in the Asia-Pacific have utilised national inquiries to address systemic human rights violations. I privilege the experiences of NHRIs in conducting national inquires and adopt a constructivist grounded theory methodological approach. I explore three thematic areas: an NHRI’s foundation in law, what (if any) change has occurred, and the socialising dynamic which facilitates it. I analyse the mandate, functions and powers granted to NHRIs in their founding legislation including their capacity to undertake a national inquiry. I develop an anatomical conceptualisation of the national inquiry process to document the common procedural approaches taken by NHRIs. I begin my examination of the change created by national inquiries with the Mongolian Commission’s national inquiry on torture. From interviews with commissioners and Commission staff, judges, lawyers, prosecutors, police, prison guards, civil society representatives and leading NGOs, academics and donors I construct an account of the national inquiry process and the change it created. I also consider the change created by national inquiries in three jurisdictions across the Asia-Pacific. Focusing on process and impact, I review the Indian Commission’s national inquiry on the right to health care, the New Zealand Commission’s national inquiry addressing transgender discrimination and the Australian Commission’s national inquiry on the forced removal of indigenous children from their parents. I then analyse the socialisation processes evidenced through the national inquiries examined in the preceding chapters. I find that there are four core characteristics of the national inquiry which contribute to socialisation: a foundation in law, a relational dynamic, its public nature and orientation towards change. This complex socialisation process is a long-term project, and a national inquiry can be an influential part of it. While there are barriers to change and uncertainty about the extent of NHRI impact, the evidence does permit cautious optimism: national inquiries conducted by NHRIs offer an avenue to foster progressive and incremental domestic socialisation of international human rights norms.
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ItemValuing women in Timor Leste: the need to address domestic violence by reforming customary law approaches while improving state justice( 2016)Domestic violence remains prevalent in Timor Leste and is widely considered a normal part of married life for Timorese women. Many women experience deep conflicts in how to respond to violence occurring within relationships that also offer love and children, and are typically at the centre of women’s social, cultural and economic lives. In this context, many see the option of seeking state help as demanding untenably high risks for uncertain overall gain, and fear it will ultimately entail even greater suffering for them and their children. While women who do seek help overwhelmingly turn to customary law systems, these operate within a patriarchal cultural framework that also produces and maintains wider community values of tolerance towards domestic violence. Within these processes, women often find themselves disempowered and dissatisfied with the outcomes they achieve, as they typically fail to recognise and address the violence or deter further abuse, resulting in human rights violations. Drawing on socio-legal tools of analysis, and through 110 detailed interviews with women who have experienced domestic violence and actors involved in customary law systems, this study argues that, despite their serious flaws, there is an urgent need for investment in reform of customary law systems to create an expanded menu of more effective options for women, to tackle the problem of domestic violence in Timor Leste. Using a feminist human rights analysis and critical anthropological theories of legal pluralism and cultural change, this study shows how a progressive realisation approach to reforming customary law norms and procedures by empowering women within customary processes and building on their protective aspects is not only justifiable, but also necessary and viable to better protect women’s rights and to discredit and change dominant attitudes towards domestic violence. While there is no standard script for addressing domestic violence or other manifestations of gender inequality in customary law systems, this research highlights conditions in contemporary Timor Leste and qualities of Timorese customary law systems that provide rich openings for creative reframing and reform of aspects of customary law practice. Expanding legal reform efforts to encompass both customary and state justice systems, while seeking to productively exploit the dynamics between them, provides the best prospects for protecting women and respecting their choices, while sustainably reducing the societal prevalence of spousal violence. This could create a model for change that might also contribute to broader efforts toward gender equality in Timor Leste. The field research undertaken provides a unique and powerful insight into victims’ varied perspectives on what they hope to achieve through interventions into violence, and a nuanced exploration of how customary law authorities see their roles and the potential of customary law systems to help reduce the incidence of domestic violence in Timor Leste. By combining academic analysis with primary field research covering two groups of informants whose views are often overlooked in the literature, this study makes an innovative and original contribution to the legal discourse around strategies for advancing gender equality and women’s rights in plural legal environments, and may have broader relevance in other contexts where women face similar challenges.
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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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ItemA critical analysis of Pakistan's blasphemy law( 2013)The thesis critically analyzes Pakistan’s blasphemy law and demonstrates that it is a harsh law that violates the rights of both Muslim and non -Muslim citizens of the state. But the idea that repealing this law, as demanded by human rights organizations, will stop the violations of human rights is a misguided one. The thesis recognizes that there are broader religious, political, and social problems surrounding Pakistan’s blasphemy law that provide a particular context to this issue. For this purpose, it examines examples of various social and political problems and incidents that provide the necessary background for understanding the issue of blasphemy in Pakistan. These include incidents of violent public protests, mob justice and extra judicial killings. The thesis argues that Pakistan’s identity as an Islamic state plays a key role in retaining and implementing the blasphemy law. Pakistan upholds its status as an Islamic state by maintaining various religious laws including the blasphemy law and often disregards human rights standards in the name of protection of the state religion. This presents a useful case study for renowned scholar Abdullahi A. An-Na’im’s theory on Islamic state and religious positivism. According to this theory, when religious laws are converted into positive laws, they become static and rigid and a manifestation of state sponsored policies, which is the case in Pakistan’s blasphemy laws. The thesis explores Pakistan’s historical journey to achieve its current status of an Islamic state and the resultant promulgation of religious laws, including blasphemy law, using An-Na’im’s theory as the key approach. It analyzes the provisions of this law and the judicial decisions taken under it to demonstrate its effects and legal problems and identify the various legal trends that the courts have followed in dealing with this issue, concluding that this law often results in the violation of human rights such as freedom of speech and expression, freedom of religion, as well as the right to a fair trial. Finally, the thesis establishes that in Pakistan’s case, international solutions fall short. The ratification and implementation of human rights standards through international treaties cannot provide a solution to Pakistan’s problem of blasphemy law. The thesis uses An-Na’im’s theory of overlapping consensus on the implementation of human rights as the key approach to establish that human rights standards can only be effectively implemented in a state or society when there is an acceptance for such standards from within that society. Pakistan presents an example of such a society that values its purported religious values and laws more than human rights standards. The case of Pakistan and its blasphemy law confirms An-Na’im’s theory that an effective implementation of human rights standards can only take place in a society when that society accepts these standards to be part of their societal and cultural norms. Without such validation from within the society, human rights will continue to be violated in the name of religion.
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ItemTowards a binding international human rights regime for transnational corporations( 2003)Since its elaboration in the aftermath of the Second World War, international human rights law has remained primarily concerned with the relationship between the State and the individual; in particular, the obligations that the State owes to individuals (and peoples) and the legal rights that each individual may claim ‘by virtue of being a human being’. Under international human rights law, the State is primarily responsible for upholding and implementing the full diversity of human rights. At the national level, the State is required, as part of its international duties, to ensure that private entities within its jurisdiction do not violate the rights that the State is obligated to protect. Where private entities do violate those human rights, the State has a duty to make available means of redress for victims who have had their rights transgressed. Individuals are therefore entitled to make claims at the national level against those private entities that violate their rights. Where the State fails to protect human rights, including by failing to provide means of redress for private entity violation, it is said to be in breach of its international duties. The rights and duties just outlined constitute the ‘classical approach’ to international human rights law, whereby only the State is obligated to respect, ensure and protect the human rights of individuals. This approach to international human rights law contemplates that the State has international duties that require it to impose obligations on private entities not to violate human rights. Thus the obligations of private entities are derived from international law, but are not imposed directly by international law. (From Introduction)
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ItemRights, wrongs and the river between: extraterritorial application of the human right to water in Africa( 2011)Since it was declared as a human right for the first time in the General Comment of the Committee on Economic, Social and Cultural Rights (CESCR) in 2002, the human right to water has been a favourite subject of academic controversy. Much of the debate has been about whether the right exists as such, and, if so, whether it exists as an auxiliary right or as an autonomous, self-standing entitlement. This debate arises from the absence of an explicit reference in the texts of the main human rights treaties to the right to water. The CESCR found the right in the implicit terms of related rights. This purposive approach to ‘reading-in’ the right has been endorsed by the African human rights monitoring and adjudicatory body, the African Commission on Human and People’s Rights, a conclusion that is supported in the present study. This thesis joins the debate but, more importantly, also goes ahead of the current controversy and analyses the immediate implementation problems triggered by declaration of the right given the shared nature of scarce water resources in regions such as Africa. Unlike or beyond the necessities of implementing other socio-economic rights, the human right to water often depends primarily on a uniquely international resource for its realisation. Of the 54 African states, 51 states are dependent for drinking and sanitation water on international rivers that are shared between/among 2-10 co-riparian states. An action or omission relating to a shared river in one state thus has a direct impact on the fate of the human right to water in co-riparian states. Unless riparian states are held to account for their (in)actions that produce extraterritorial effects, some co-riparian states would be unable to realise the human right to water within their territories. Thus, the declaration of the human right to water would be an empty gesture for the right holders unless the relevant legal regime provides for ways to hold foreign states accountable for their acts or omissions that cause the violation of the human right to water abroad. The thesis thus analyses the extraterritorial scope of the right to water, relevant state duties and attendant remedies. The central question of the thesis is whether states owe extraterritorial obligations directly to individual and group right holders in a co-riparian state’s territory for the realisation of their human right to water. After analysing the corpus of relevant international and regional human rights treaties, the rules and principles of international water law and related case law (which may be relied upon as ‘inspirational sources’ of the African Charter on Human and Peoples Rights) the thesis answers this question in the affirmative. It is argued that while the extraterritorial duties to respect and protect the human right to water have firm legal bases in the international human rights regime, the duty to fulfil - a crucial guarantee in the water-scarce regions such as Africa - needs to be sought in international water law. The thesis therefore calls for ‘humanising’ international water law, and pinpoints textual bases in the 1997 Convention on International Watercourses and related customary rules for such an approach.
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ItemRecognition, redistribution and resistance: the legalisation of the right to health and its potential and limits in Africa( 2009)This thesis examines the use of the right to health as a legal tool for ensuring access to better health care in Africa and as a means of dealing with threats to human health on the continent. The thesis critically assesses some of the key ways in which the right to health has been used at the local, regional and global levels as part of efforts to improve health on the continent. The aim of the thesis is to assess the utility of the right to health in Africa particularly in light of challenges posed by the power of international economic actors, local and international structural constraints and the paradoxical position of the state as both a potential violator and protector of the right. As this thesis shows, human rights are a powerful and inspirational language for people struggling against degradation, domination and deprivation for the reason that they give expression to the notion that human dignity, equality and freedom ought to be respected and protected. They are also a tool for resisting oppressive power, in addition to providing legitimacy for the redistribution of material resources necessary to meet basic human needs and to alleviate human suffering. The thesis further shows that these benefits of human rights have been enhanced through legalisation, a process through which human rights have been translated from moral or natural rights into legal rights capable of being enforced through judicial and quasi-judicial processes. But legalisation has its drawbacks, as the thesis demonstrates. The thesis argues that despite the significant advances that have been made, particularly in the last fifteen years, in the elaboration and clarification of the content and justiciability of the right to health, its limitations as a legal right are particularly evident in light of a number of factors. These include the power of international economic actors, local and international structural constraints and the problematic potential of the state as both a protector and violator of the right to health. By examining concrete instances in which efforts have been made to use the right to health in the context of some or of all these factors, the thesis demonstrates the limits and potential of the right as a legal right. The thesis thus argues that a proper account of the utility of the right to health should not overemphasise the legalisation of the right but must include an analysis of the power relations and structural constraints at play at both the international and local levels, which jeopardise good health in Africa in the first place. It is further argued that such an account offers a better understanding of how the moral, legal and political forms of the right to health might be strategically and productively combined in the struggle for better health in Africa.