Melbourne Law School - Theses
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ItemWhen Choice of Forum clauses in international commercial contracts are challenged: key lessons from Asian jurisdictions( 2019)While Asia leads the world in cross-border trade and investments, no comparative study exists on the approaches of Asian courts to Choice-of-Forum clauses in international commercial contracts. This thesis fills this important gap by seeking to explore, identify, compare and explain the approaches of courts in Singapore, Hong Kong, Malaysia and the Philippines when Choice-of-Forum clauses in international commercial contracts are challenged. Employing a comparative law method, this thesis argues that the manner courts characterise Choice-of-Forum clauses, party autonomy, procedure, factors considered during enforcement, choice of law process, state and international interests are the factors which determine how courts decide cases and issues. The key lessons gathered in this thesis highlight the need for parties to consider the direct and indirect effects in drafting their Choice-of-Forum clauses, the need for courts to be predicable, reliable and coherent in their analysis, the importance of maintaining court discretion, the need for procedural and legislative reforms, and the existence of a conducive environment in Asia for strengthening laws on party autonomy and for the accession of Asian countries to the Choice-of-Court Convention.
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ItemGoverning from Above: A History of Aerial Bombing and International Law( 2020)The advent of aircraft in the early twentieth century brought significant changes to human society, from transportation and infrastructure to surveillance and warfare. This technology provided a new way of seeing the world from above – an aerial perspective – with its assumptions and frames of understanding space, peoples and objects. In armed conflict, airplanes facilitated interventions in foreign places and attacks directed at cities and civilians, leading to significant changes to military strategy and to legal and political discourses on how wars should be pursued. This thesis studies how the rise of aerial bombing transformed the central concepts of international law of armed conflict. The focus is on the concepts of aerial territory, civilian population, military objectives, and the principle of proportionality. I argue that these core concepts of the laws of war emerged from or were substantially transformed by the emergence of aerial warfare. The thesis covers the period of 1899 to 1977. It begins with the first considerations by international lawyers of how international law should respond to the introduction airplanes in war and ends with the conclusion of the Additional Protocols to the Geneva Conventions, where the concepts and ideas that had emerged in the preceding decades were codified. I argue that the central debates and paradoxes of the contemporary laws of war can be traced back to the ideological, material and institutional transformations that took place as a result of aerial bombing in the period between 1899-1977. This thesis aims to shed light on the early history of aerial bombing and international law, a period often forgotten or ignored in scholarship on the laws of war. It uncovers the politics and assumptions behind international humanitarian law in its relation to aerial bombing. I challenge the universality and assimilation of the core concepts of international humanitarian law, exposing how legal discourse has played a central role in the legitimation of aerial violence. The thesis explores what alternative views have been articulated in the past and what could be gained from grasping the possibilities and arguments put forward by international lawyers throughout the rise of air power. This historical inquiry has substantial repercussions for current debates on drone warfare, autonomous weapons and new military technologies, which it claims are the culmination of a much longer history of international humanitarian law embracing a view from above.
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ItemA marriage of convenience: marriage migration policy and Cambodia’s lean into China( 2019)Since the first cases emerged in 2012, an estimated 10,000 Cambodian women have migrated through marriage to China. As a result of allegations relating the practice to abuse and exploitation, hundreds of these women have been repatriated annually through the aid of international institutions and reactionary government policies. Although marriage migration is not new to Cambodia, this movement of women was unique for two reasons. First, as a previous ‘sending country’, China differs from other ‘receiving countries’ in that it does not formally allow marriage migrants, and there is no visa to accommodate them. Second, Cambodia officially banned commercial matchmaking for marriage migration in 2008, resulting in a system now defined by irregular recruitment and smuggling practices that have proven difficult to monitor. Drawing on original fieldwork conducted in Cambodia between 2015-2017, this thesis presents the results of a socio-legal analysis of marriage migration that examines law within the context of female agency, the cultural and historical status of women, and shifting international influences within the Cambodian legal and political system. This thesis first highlights the lived experiences of the migrants, with an aim to present their original motivations for migration as a counter to the perception that the women are migrating solely as victims of fraud and deception. I then trace the influence of the international development community within Cambodia, examining how their involvement impacted the language and approaches utilised by the government. Finally, this thesis explores the legal approach to marriage migration through an analysis of the related negotiations and aftermath of Cambodia and China’s bilateral approach. As a result of unmatched institutional approaches and distinctly different legal systems, negotiations aimed to establish a bilateral agreement resulted in a non-binding and limited Memorandum of Understanding (MoU), signed in October 2016. The MoU defines the practice solely in relation to trafficking, leaving doubts that the legal mechanisms they have proposed will curb the flow of any hopeful brides wishing to migrate legitimately. To justify my use of such a varied mix of theories, methods, and approaches to this topic, I look to Peter Katzenstein and Rudra Sil’s ‘analytic eclecticism.’ Traditionally applied within the social sciences, analytic eclecticism is an approach which aims to encourage creative recombination of theory free from singular paradigmatic approaches. Analytic eclecticism allows for a mixed-theoretical approach intended to provide practical answers to empirical questions about problems within international life. My use of this approach employs feminist and development theory to answer questions that I argue cannot be answered through one paradigm or discipline. I argue that it is important to understand the perspectives of all the involved actors in order to grasp the full scope of the problem, and in turn, how the problem has been inadequately addressed.
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ItemIsraeli Settlements and the ICC: what does the application of the crimes of the Rome Statute to the continued existence and expansion of Israeli Settlements in the West Bank reveal about the operation of the Rome Statute?( 2017)The International Criminal Court, established by the Rome Statute, was created to provide a venue of last resort for the prosecution of the most serious international crimes. However, whether the Statute successfully established a coherent and legally effective system of international criminal justice is open to question. This thesis examines this issue by considering how the crimes of the Rome Statute might apply to the continued existence and expansion of Israeli settlements in the West Bank. The examination reveals some of the difficulties caused by incorporating the principles and obligations of international humanitarian law generally and the law of military occupation specifically into the crimes of the Rome Statute. This methodological approach allows for parts of the Statute to be ‘stress-tested’ to see how they meet, or fail to meet, the Statute’s broader aim of establishing a coherent and legally effective international criminal justice system where the law is knowable, predictable, and able to be applied. Two crimes have been identified as being particularly relevant to the settlements. First, the war crime of transfer of population in article 8(2)(b)(viii) and second, the war crime of unlawful appropriation of property in article 8(2)(a)(iv). The texts of these two war crimes in the Rome Statute are taken verbatim from relevant provisions of international humanitarian law (IHL) and the law of occupation more specifically. This thesis also addresses the threshold question of whether the law of occupation applies to the West Bank, and how the principles of individual criminal responsibility, and specifically common purpose liability, might operate in this context. The study of the operation of these crimes shows some of the consequences of taking clauses from IHL and inserting them wholesale into the Rome Statute, without any amendments to reflect the reality that individual criminal responsibility is different from state responsibility. This thesis demonstrates how the interface between IHL and international criminal law can be problematic. It shows how the adoption of vague and flexible principles from IHL into crimes for which individuals can be held liable has the potential to cause serious inconsistencies between IHL doctrine and the operation of international criminal law. In addition, in the event of an investigation or prosecution in relation to the settlements, the thesis provides a point of comparison to the legal approaches of the Prosecution and of the Court’s Chambers, allowing for an assessment of how each organ is carrying out their roles, and providing insight into how each organ may perform in any specific future case. While the thesis does not set out to determine the criminal responsibility of any particular individual, it does in some instances stake a claim about what is the most persuasive legal position to take on the scope and operation of the crimes. Deviation by the Prosecutor or the Judges from these positions could reveal a different attitude to the most persuasive legal position to take but may also suggest something about the priorities and operation of the relevant organs of the Court.
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ItemOrdering human mobility: international law, development, administration( 2017)This thesis examines how international laws and institutions have come to regulate human mobility in the contemporary world. The last two decades have seen a flurry of activity within international institutions concerned with facilitating the movement of people between states, including to and from states in the Global South. In this thesis, I characterise this activity as a form of international administration through which international institutions exercise authority over mobile people and contribute to shaping the conditions and possibilities of human mobility. In the contemporary moment, I argue that the international administration of human mobility has made lawful particular forms of human mobility, crafted certain migrant subjectivities and shaped specific practices of statehood for governing human mobility. This thesis demonstrates this argument through narrating three illustrative episodes of international migration administration from the mid-20th century onwards. These episodes identify a repertoire of techniques and practices that international institutions have used to render human mobility a problem of international concern and a subject of international administration. Specifically, I show that these diverse techniques and practices have been organised around two technologies of international administration: those of ‘population’ and the ‘human’. In paying attention to how these techniques and practices of international institutions have come to order different forms and subjects of international migration, this thesis foregrounds two recurring imperatives of the international administration of human mobility: that of authorising the lawful control of states over human mobility on the one hand, and that of facilitating and regulating the ‘optimal’ movement of peoples across the world on the other. I contend that the articulation of these imperatives has been mediated through the enterprise of development directed towards Third World states and people that underpins the contemporary international administration of human mobility. This thesis thus invites readers to take seriously how international law and institutions have shaped and ordered human mobility in the world. This thesis suggests that the techniques and practices of international migration administration have important consequences for the states and people of the Global South, who in the contemporary moment have become both subjects of ever-more restrictive migration controls and objects of ever-more prescriptive political interventions.
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ItemThe status of autonomous weapon systems under international humanitarian law( 2017)Autonomous weapon systems (AWS) are an emerging class of advanced weapons which utilise technologies associated with robotics and artificial intelligence to select and attack targets without human intervention. Various States are developing AWS for possible use in armed conflict over the coming years. This thesis analyses the legal implications of that path of weapon development, primarily in relation to international humanitarian law. The main forum for debate on legal issues relating to AWS is within the framework of the Convention on Certain Conventional Weapons (CCW). States parties to the CCW are engaged in an ongoing series of meetings about AWS with a view to regulating their use. This thesis discusses three unresolved questions arising from those meetings: (1) How should machine autonomy be regarded, and how should AWS be defined for the purpose of legal regulation? One of the main challenges facing participants in the legal debate about AWS has been to understand the nature of the technical developments to which the law must respond. This part of the thesis presents an understanding of how the emerging technical capabilities of AWS relate to the applicability and efficacy of relevant legal rules. (2) How can States meet their obligations under international humanitarian law when using weapon systems which operate autonomously? In particular, the thesis examines the basic principles of distinction, proportionality and precaution in attack, a proposed requirement for ‘meaningful human control’ over AWS, and the novel challenges of reviewing AWS for legal compliance. (3) How can States and non-State entities be held responsible for proscribed acts done in armed conflict via AWS? This question is primarily about whether the required accountability standards could be upheld under the current law of State responsibility and international criminal law. Additionally, some alternative accountability regimes are surveyed. The thesis is based primarily on legal doctrinal research and cross-disciplinary technical research in relevant subject areas. In addition, fieldwork was conducted in the form of discussions with a range of operational military personnel, policy analysts and academic researchers in relevant legal and technical fields, in Australia and the United States.
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ItemNauru: international status, imperial form, and the histories of international law( 2017)This thesis is a critical redescription of the changing status of Nauru in international law from 1888 to 1968. As Nauru’s status shifted from protectorate to mandate to trust territory to state, what occurred at the administrative level was an accretion of an imperial form established in the protectorate era.
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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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ItemPublic-private partnerships and the transformation of the third world state: the case of Indonesia( 2017)This thesis aims to answer the question of how we should understand the transformation of infrastructure finance, and with it the Third World state, through the adoption of public-private partnerships (PPPs), with a focus on the case of Indonesia. It also seeks to understand the role of international law and institutions in that transformation. In this thesis, ‘PPPs’ refer to a range of contractual mechanisms used in the infrastructure sector. This thesis mainly focuses on PPPs as long-term contracts between Third World states and foreign private investors for the provision of ‘economic’ infrastructure that is vital for daily economic activity. PPPs have been widely promoted by international financial institutions (IFIs) as offering an innovative, technical and apolitical means to deliver better infrastructure and development for Third World states. This thesis offers a different way of understanding the role of PPPs in the Third World, presenting them as instruments of development and state transformation that must be studied within broader historical and geopolitical perspectives. It situates the promotion of PPPs within the project of Third World development championed by international institutions and law. The thesis argues that the translation of concessions into an instrument of development, and their incorporation into global development policy in the form of PPPs, has revived an older colonial project of remaking the Third World through concessions. Through promoting PPPs, IFIs have transformed domestic economic governance, the state and market relationship and the way the state understands infrastructure provision. In conjunction with their establishment, PPPs provided ‘efficiency’ as the new single reference for the state. Further, PPPs have transformed the economic role of the state beyond merely supporting the market, to a level where the state is also accountable to the market, thus putting democracy at risk. The thesis takes Indonesia as its focus, and uses a historical method to understand the ideological and legal-technical basis of PPPs, the role played by international law and actors in their promotion, their relation to earlier colonial concessions, and their role in the displacement of a collectivist post-independence economic model and interventionist establishment of market-friendly institutions. It reveals that Third World PPPs are a distinct project, shaped by the interventions of the international actors involved, and aimed at the transformation of the state. By these interventions and conceptualizations, the promotion of PPPs by IFIs has transformed Third World concessions and expanded the role of international law from a regulatory system governing concessions to one that creates market-friendly institutions in the domestic sphere.
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ItemReconsidering REDD+: law, life, limits and growth in crisis( 2015)This thesis examines the legal and social implications of an emerging carbon sequestration scheme under the United Nations Framework Convention on Climate Change (UNFCCC), called Reducing Emissions from Deforestation and Forest Degradation (REDD+), in order to investigate contemporary reconfigurations of control by the global North over land and resources in the global South. It critically examines the rise of carbon markets as a dominant climate mitigation strategy and their distributive consequences. This thesis argues that this marketisation of climate governance operates to foreclose possibilities for climate justice. This thesis makes an original contribution by asking novel questions in relation to the REDD+ scheme and its legal framework. Its primary concerns lie with interrogating the new form of authority, new modalities of power and the reconfiguration of social and legal relations this scheme produces. In particular, the thesis is concerned with the social implications of REDD+, given the 1.6 billion people globally living in and around forest areas and dependent in some way on forests for their livelihoods. There is now an extensive body of academic literature that examines the social impacts of REDD+ that primarily focuses on how to avoid doing harm or realise rights or co-benefit through REDD+ implementation. This thesis offers a unique contribution to this literature by focusing not only on the question of formal title rights, but also their underlying basis of authorisation and the broader political economy of the carbon economy. It therefore provide a complex account of appropriation of forested land through the reconfiguration of legal authority over land, that occurs alongside, and is perhaps even facilitated by, greater tenure formalisation.