Melbourne Law School - Theses

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    An International Law of Peoples: The International Rights of Nature Tribunal and International Law
    Lindgren, Tim ( 2024-02)
    International law is a discipline of States. Nonetheless, legal institutions organised by civil society actors have become a popular feature of the international legal arena. This thesis approaches one such institution from the perspective of international law. The thesis explores the emergence and conduct of the International Rights of Nature Tribunal, treating it as a novel space of international law-making. It traces how this peoples’ tribunal authorised itself as an international legal institution and considers what it tells us about the discipline of international law. The thesis reads the institutional legal form of the Tribunal alongside formal international legal institutions, such as the League of Nations and an investor-state arbitration tribunal. It considers how international legal concepts and themes of sovereignty, territory and place, sources, people, jurisdiction and Statehood shape the Tribunal and more conventional institutional forms of authority under international law. The argument that the thesis advances is that the Tribunal is developing an international law of peoples, expressed through the Tribunal’s own convention, statute, legal norms, procedures, conduct and methods of transmission. This is an international law with its own unique shortcomings and possibilities. It is also a law and institutional form that reproduces issues commonly associated with the discipline of international law. But it is, most significantly, a law and institutional form that prompts a more pluralised understanding of the international legal domain – including of what relationships are possible between peoples and nature under international law. It offers a mirror through which we can better understand how international law fails to engage the milieu of international legal relationships that exist between humans and the non-human world. The thesis is an invitation to international lawyers to consider how seemingly given concepts and institutional forms of authority are crafted by competing understandings of the environment – and what world they give shape to. But to also consider what kind of legal practices are needed for an international law that accounts for a range of human and non-human relationships that currently remain offstage.
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    Governing from Above: A History of Aerial Bombing and International Law
    Bogliolo Piancastelli de Siqueira, Luis Paulo ( 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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    Forestalling nuclear proliferation and use through preventative uses of force
    Hickleton, Marcus Robert ( 2020)
    75 years after the cataclysmic nuclear strikes on Hiroshima and Nagasaki, nuclear weapons pose an existential threat to human civilisation. In spite of this fact, the international community has proven largely unable to peacefully halt the spread of nuclear weapons. With Iran’s nuclear intentions in question and North Korea now in possession of a small nuclear arsenal, a debate has ensued on the legality of States using force to forestall the proliferation or use of nuclear weapons. Using the Iranian and North Korean situations as case studies, this thesis enters the debate by analysing the legal permissibility of preventative uses of force. In particular, the thesis considers: (1) the traditional interpretation of anticipatory self-defence and its crucial ‘imminence’ requirement; (2) growing calls for a broader interpretation of imminence; and (3) the potential existence of a customary rule permitting pre-emptive self-defence in the nuclear proliferation context. After applying these concepts to the Iranian and North Korean situations, it is concluded that preventative strikes on these States’ nuclear programs would not be lawful at the time of writing.