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.