Melbourne Law School - Theses
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ItemCovert operations and the development of international law on the use of force( 2017)This thesis examines how best to recalibrate our understanding of the development of the law on the use of force in the light of increased reporting and legal debate around covert and quasi-covert drone strikes and cyber attacks. It is argued that recent changes in practice and communication call for closer attention to be paid to the requirement of publicity for state practice, since they challenge the perception of the concepts ‘public’ and ‘covert’, and thus raise questions as to the impact that covert and quasi-covert acts do and should have on the development of the law on the use of force. At heart, the thesis is concerned with the need to find ways to address contemporary challenges posed to the law on the use of force without risking the law losing its normativity. Although it is widely accepted that acts need to be ‘public’ in order to constitute state practice relevant for the development of customary international law, the rationales for, and details of, the requirement of publicity remain underexplored by legal scholars. Focusing particularly on quasi-covert conduct such as the United States’ drone strikes on Pakistani territory, and covert operations such as the cyber attacks against Estonia in 2007 and Iran in 2010, this thesis unpacks the requirement of publicity in order to make clear what acts are capable of constituting state practice for the development of the law on the use of force. It is argued that, in order to qualify as such practice, acts must be both acknowledged and publicly known. The thesis further examines how state silence around covert and quasi-covert operations have opened up significant space for interventions by legal scholars and other experts to influence the interpretation of the law on the use of force in light of novel developments. While many covert operations, depending on their level of publicity and covertness, are unfit to constitute state practice for the development of customary international law, the debates surrounding them help shape the interpretation of the rules regulating the resort to force. It is argued that this possibility should be taken seriously by international legal scholars, who can not only push for increased transparency and adherence to legality by states, but also take an active part in filling the voids in the interpretation of jus ad bellum created by covert operations that are publicly known.
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ItemInternational law in Australian public debate: 2003, 1965, 1916( 2017)This thesis argues that the contemporary prominence of international law in public debate is not new. Drawing on law as language scholarship, and using analyses of the language of the debates over Australia’s participation in the 2003 Iraq War, the Vietnam War and the First World War, this thesis contends that international law has played a role in public debates about war across the 20th and now 21st centuries. The claims of legality that continue to be made in Australian debates about war are one of a number of forms of international legal language that speakers have used. This interest in ‘legality’ is therefore part of a longer practice of speaking international legal language in public debates about war.