Melbourne Law School - Theses
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ItemCivilian detention in United Nations peace operations : the need for a special legal regime governing detention(University of Melbourne, 2009)This thesis is concerned with examining the significant legal issue of UN personnel temporarily detaining civilians in UN peace operations. More specifically, it addresses the question: is the temporary detention of civilians by UN peacekeepers in peace operations appropriately regulated? The argument here is that the temporary detention of civilians by peacekeepers is not appropriately regulated by extant legal frameworks, and, consequently, the thesis proposes the creation of a special legal regime governing detention. Such a regime would provide greater certainty, clarity and consistency of applicable legal norms and would ensure the effective and efficient conduct of UN peace operations in the context of the recognition of the rights and obligations of both the civilian population affected by the operation and the peacekeepers conducting the operation. This thesis argues that the taking and handling of detainees by UN peacekeepers is not appropriately regulated by extant legal frameworks for a number of reasons. The key reasons are: (1) there is no single legal regime that applies to the temporary detention of civilians in UN peace operations; (2) the law applicable to UN peace operations temporarily detaining civilians is fragmented; (3) where norms are identified as applying, they are sometimes, on closer analysis, inadequate to meet the operational necessities of peace operations; and (4) there are a number of gaps in the existing law, and the law, therefore, must be further developed so as to be relevant to contemporary UN peace operations. It should be noted that this thesis does not argue that there is no legal framework applicable to the treatment of civilian detainees nor that existing legal regimes applicable to the treatment of civilian detainees should be abandoned. It does, however, seek to contribute to the search for greater certainty, clarity and consistency of the norms dealing with detention by arguing for formalisation and systematisation. Consequently, this thesis restates, where relevant and appropriate, obligations within the existing legal frameworks that apply to UN peace operations. It also identifies where existing norms do not adequately respond to the needs of either detainees or the peaceoperation, and proposes norms that are more specific and nuanced to meet the requirements of the context. The fundamental aim of this thesis is to argue for a special legal regime to govern UN peacekeepers dealing with detainees.
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ItemFreedom and fairness in contract law : a republican theory of contract law(University of Melbourne, 2005)
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ItemLegislating illiberalism : law, discourse and legitimacy in Singapore(University of Melbourne, 2009)This thesis conducts a socio-legal reading of legislation and public discourse to track the manner in which the Singapore state has reframed the liberal idea of the `rule of law' into a rights-eroding `rule by law' while sustaining its legitimacy as a `lawful' state. It demonstrates the complex entanglements between `law', language and struggles for power in the Singapore state's construction and consolidation of its rule. Applying critical theory on language and power to studies of four legislative enactments spanning the first thirty years of Singapore's existence, the thesis shows that the state has responded to moments of public contestation by characterising critics as threats to national security. Legislation relating to seemingly disparate subjects � vandals, the press, the legal profession and religious harmony � effect a uniform outcome: the silencing of non-state actors, and the emasculation of the courts. The thesis uncovers four main strategies relating to the state's use of `law' to render the state the primary legitimate speaker of the public domain. First, through an adherence to procedure, the state claims to be properly `rule of law'. Second, the state uses legislation and its dominance of public discourse to recalibrate state-citizen relations such that citizens are constructed as subordinate to the state. Third, the state links questions of `law' to a state-scripted account of perpetual territorial vulnerability. Through its narrative of Singapore's vulnerability, the state selectively adopts facets of `Western' liberal notions of the `rule of law' such that `law' relating to commerce is substantively equivalent to the `West' while civil and political liberties are treated as grants rather than entitlements. Finally, the thesis demonstrates that legislative text has been scripted in increasingly opaque terms such that `law' becomes comprehensible only through acquiesence to the state's ideologically-driven attribution of meaning.
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ItemJurisdiction : the expression and representation of law(University of Melbourne, 2009)Theories of legal power in modern jurisprudence have tended to focus upon the metaphysical problematic of sovereignty and its relation to the origin, foundation and purpose of State authority. Questions of jurisdiction on the other hand continue to order the local, technical and technological languages of law, the modalities of legal institution and the aesthetics of judgment, in a way that has remained relatively unaddressed in modern theoretical discourse. Thus, while the major philosophies of law can be characterized by surveying a distinctly `representational' aesthetic of legal authority, the matter of the `expression' of this authority is left to relatively minor jurisdictional arrangements or technical contrivances of law. To address what it means for legal power and authority to be thought within the terms of jurisdiction is also therefore to approach the theme of law 's expression�its affects of speech and its modes of repetition�through the medium of its technical genres. In this thesis, jurisdiction is taken as a practical and theoretical tool which allows one to navigate the plural and expressive dimensions of legal authority. The work of Gilles Deleuze is enlisted in this regard as offering not just an important methodological. recovery of an `expressionism' in philosophy�specifically through Nietzsche and Spinoza�but also a jurisprudence which recasts the major technical terms of jurisdiction (persons, things and actions) in terms of their distinctively expressive or performative modalities. As part of the genres of jurisprudence, the fashioning of persons; possessions and procedures of law involve institutional techniques which cannot be easily reduced to the metaphysical co-ordinates of rational judgment, objectivity or a `subject of rights'. In paying attention to the articulation of these technical genres and their relation to the ordering of legal knowledge, this thesis purports to account specifically for how meaning may attach to the instrument and medium of law and how legal desire maybe registered within the texture and technology of jurisdiction.
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ItemChildren's right to health : seeking clarity in the content of Article 24 of the United Nations convention on the rights of the child(University of Melbourne, 2009)The right to health is now firmly implanted within international human rights law. Despite significant work in recent years to develop an understanding as to its content, this project is far from complete. The aim of this thesis therefore is t� examine the extent to which clarity can be brought to the content of one particular formulation of this right, namely article 24 of the United Nations Convention on the Rights of the Child (`Convention'). In undertaking this task, chapter I will detail the methodology by which the interpretation of article 24 offered is to be generated. In the first instance a strong call is made to apply the principles of interpretation under the Vienna Convention on the Law of Treaties 1969 (`VCLT'). Such an approach is considered to impose a constraint on the, interpretative process � a constraint that other bodies examining the right to health, such as the Committee on Economic Social and Cultural Rights and the Committee on the Rights of the Child, have on occasions tended to overlook in their enthusiasm to develop a�vision of the right which may be appealing but has no textual foundation. At the same time, it is generally accepted that sole reliance on an application of the principles of interpretation under the VCLT is problematic. This is because a requirement to identify the ordinary meaning of a treaty in its context and in light of the object and purpose of a treaty is unlikely to produce the meaning of a provision such as a child's right to health given the inherent indeterminacy of language. Chapter I will therefore outline those additional factors that will guide the selection of a meaning for the various subparagraphs of article 24 in this thesis, the aim being to . produce an' interpretation that can be said to be not only principled, but practical, coherent 'and context sensitive. Having detailed the methodology to be used to interpret article 24, chapters 2 to 5 will engage with the core function of this thesis which is to detail the measures required of States that flow from: (a) their recognition of a child's right-to health under paragraph 1 of article 24; (b) their obligation to address a range of specific issues such as child mortality and environmental pollution under paragraph 2; (c) their obligation to abolish traditional practices prejudicial to the health of a child under paragraph 3; and (d) their obligation to promote and encourage international co-operation for the purpose of securing the progressive implementation of children's right to health. Although no claim is made that this thesis will provide the definitive account as to the nature of these provisions, it will be submitted that it is able to offer a greater level of understanding as to the meaning of article 24.
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ItemThe participation of states in international organisations : the role of human rights and democracy(University of Melbourne, 2008)
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ItemBioethics and human rights : mapping the boundaries of the human subject(University of Melbourne, 2007)
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ItemThe Milo�evi? trial : lessons for the conduct of complex international criminal proceedings(University of Melbourne, 2007)
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ItemNo Preview AvailableMeasures to deter illegal, unreported and unregulated fishing in the Southern Ocean in the absence of flag state control(University of Melbourne, 2005)Overfishing threatens the viability of high seas living resources. Furthermore, controls to prevent overfishing are inadequate. Illegal, Unreported and Unregulated (IUU) fishing is a product of overfishing and affects all marine fisheries. Southern Ocean fisheries have been particularly targeted by IUU fishing. No scholar has fully examined the efforts of CCAMLR and Australia to adopt measures to deter IUU fishing in the Southern Ocean. The original contribution of this work lays in the author's analysis of action taken by the CCAMLR Commission and Australia. The research in Chapters 4 and 5 is original work in that no other scholar has approached the issue of IUU fishing in the Southern Ocean in this manner or to the depth demonstrated. Chapter 5 in particular stands alone as original work on Australia's efforts to deter IUU fishing. There is a paucity of published work in this area and reliance upon court decisions, governmental publications and NGO material has been necessary. My conclusions are that in the absence of flag State control, alternative measures and strategies have proved to be effective in influencing the behaviour of IUU fishing vessels. By improving coastal State surveillance, enhancing regional co-operation, imposing port and market State controls, establishing IUU vessel databases and vigorously prosecuting offenders, RFMOs and coastal States can jointly increase the risk of conducting IUU fishing activities. At the same time financial returns can be diminished so that engaging in IUU fishing becomes economically unattractive.