Melbourne Law School - Theses
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ItemCorporate peacebuilding and the law: regulating the private sector for conflict transformation( 2017)Corporations have social responsibilities and legal obligations in conflict zones. Moreover, many large transnational corporations (TNCs) have the capabilities and capacities to positively contribute to the prevention and resolution of armed conflicts around the globe. However, the potential of “corporate peacebuilding” has yet to be fully realised in theory or in practice. This thesis argues that unlocking this potential requires legal and regulatory innovation. It examines the relationship between peace, corporations and the law, and suggests that the private sector has a largely untapped peacebuilding potential in large part, due to weak governance at the global and national levels. Focusing on the governance of Australian-based TNCs, the thesis argues to realise this potential requires legal and regulatory innovation. Building upon the theory of responsive regulation, a novel regulatory framework is developed for this purpose, embodied in the regulatory diamond heuristic. It encompasses three key components: minimum standards, compliance regulation and aspirational regulation. The thesis then applies this framework to the problem at hand, and in particular explores the law’s roles in each of the constituent elements of a regulatory diamond framework that may help realise the promise of corporate peacebuilding. The thesis argues that international criminal law norms of behaviour are the most legitimate source of minimum legal standards for TNC conduct in conflict-affected areas. It is argued that these norms are applicable to corporations as borne out by the jurisprudence of the Nuremberg-era and later international trials. It is crucial that effective pathways exist to legally enforce such standards. Despite a dearth of viable international enforcement options, it is argued that there exist several promising, but underexploited, domestic avenues for legal accountability when TNCs breach those standards. Finally, despite traditional conceptions of the law’s role being focused on norm-setting and norm-enforcement, it is suggested that well-designed laws may also facilitate and encourage TNCs to go above and beyond mere compliance with minimum standards, to become partners, alongside governments and civil society, in peacebuilding efforts around the globe.
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ItemTargeting during armed conflict: a legal analysis( 2007-12)This thesis deals with the law applicable to targeting during an armed conflict — in particular, the law concerning military objectives and the rule of proportionality. The law concerning military objectives is further considered in the context of a UN sanctioned military operation.Using the law applicable to Australia as the frame of reference (particularly Additional Protocol I of 1977), the existing treaty law, relevant case law, and the extensive commentary available is analysed. Separate chapters deal with the law concerning human targets, non-human targets, and currently controversial targets (along with effects based operations). Further chapters deal with precautions in attack and proportionality.The law of targeting in the context of United Nations operations is addressed; and in particular, how a United Nations Security Council mandate might affect what objectives are lawful targets.Finally, I put forward a process by which responsibility for individual components of a targeting decision can be analysed. This will allow for the determination of legal responsibility for discrete steps in a targeting decision. This should prove particularly useful in two situations. First, it will enable military commanders to appreciate what needs to be considered in each targeting decision and thereby ensure that somebody is assigned responsibility for each discrete step. Second, in the event of an investigation into an alleged targeting mishap, it will be possible to identify who had, or at least should have had, responsibility for discrete aspects of the overall targeting decision.