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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    When Choice of Forum clauses in international commercial contracts are challenged: key lessons from Asian jurisdictions
    Lopez, Lemuel Didulo ( 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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    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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    A marriage of convenience: marriage migration policy and Cambodia’s lean into China
    York, Brandais Alexis ( 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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    Occupation, resistance & the law: Was armed resistance to the occupation of Iraq justified under international Law?
    Clarke, Benjamin Matthew ( 2009)
    The 2003 invasion and occupation of Iraq triggered a plethora of legal questions. This study focuses upon two: Was Iraqi resistance to the invasion and occupation justified under the laws of war? If so, by whom and for how long? ('The research questions') These are questions that the UN Security Council deliberately avoided when it responded to the intervention. Given that most States and commentators regarded the intervention as a violation of the UN Charter, the legality of armed resistance to the invasion and occupation warrants analysis. The present study examines, inter alia, whether Iraq was justified in using force against Coalition forces in the exercise of rights under the jus ad hellum. It considers whether self-defence and self determination provided a juridical foundation for armed resistance to the invasion and subsequent occupation of Iraq. Attention is also paid to the jus in hello. Issues addressed include: the nature of the conflict(s) during the occupation; whether members of various resistance forces qualified as combatants; and the issue of compliance with the jus in hello during resistance operations. In order to address these matters with precision, the occupation of Iraq is considered in several stages: 1. The immediate aftermath of the ouster of the Ba'ath regime (April-May 2003); 2. Post-UNSCR 1483; 3. Post-UNSCR 1511; and 4. Post-UNSCR 1546 (and pre-28 June 2004). The fourth stage highlights a matter of fundamental importance to this study the end point of the occupation. The position adopted here is that the occupation was terminated, with UNSC approval, upon the transfer of power to an Iraqi government on 28 June 2004. Thereafter, armed resistance could not have been justified under the right of national self-defence, as this right is exercisable by governments, not insurgent forces. While it may be argued that military occupation continued, as a matter of fact, beyond the transfer of power, this writer's view is that, as a matter of law, the occupation was terminated on 28 June 2004, in accordance with UNSCR 1546. Discussion of 'the legality of resistance to occupation' is thus confined to the period between the collapse of the Ba'ath regime in April 2003 and the transfer of power on 28 June 2004. In addressing the research questions, a range of contemporary legal issues are highlighted. They include: 1. Unresolved tensions within the laws of war over the precise parameters of 'lawful resistance' to foreign occupation; 2. Overlap and convergence of the jus in hello and the }us ad hellum in the context of armed resistance to occupation. (The clearest example is the right of peoples to fight for self determination against alien occupation which falls within both branches of the laws of war); 3. Whether the right of self-defence may be overridden by the UNSC; 4. Whether UNSC resolutions depend for their validity upon their conformity with jus cogens norms; and 5. Whether armed resistance to UN-authorized forces is, by its nature, a breach of the UN Charter and therefore an unlawful use of force.
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    Israeli 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?
    McKenzie, Simon ( 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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    Ordering human mobility: international law, development, administration
    Dehm, Sara ( 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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    The status of autonomous weapon systems under international humanitarian law
    McFarland, Timothy ( 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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    Nauru: international status, imperial form, and the histories of international law
    Storr, Anne Caithleen ( 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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    Corporate peacebuilding and the law: regulating the private sector for conflict transformation
    Kolieb, Jonathan Asher ( 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.