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The Implications of International Human Rights Law on China's Protection of Minority Language Rights(2021)ThesisThis thesis analyses how international human rights law (IHRL) influences China’s domestic protection of minority language rights by dissecting the factors obstructing its application and providing an alternative pathway in soft law to overcome these impediments. Using a desk-based and documentary analysis methodology, the thesis’s unique standpoint examining human rights development as a dialectic, evolutionary process contributes to the understanding and promotion of minority linguistic rights not only in China, but also in other multiethnic countries. The thesis argues that soft law, due to its inherent ‘softness’, provides a realistic, if less than optimal, pathway to integrate IHRL in a totalitarian State. The thesis’s contribution is significant as it challenges the canon perception that mere narratives can bring no concrete progress to a State’s human rights situation. The thesis shows that soft law provides a strong narrative function that creates and develops compelling counter-narratives to State-propagated notions of nationalism and international oversight, informing public opinion and creating public space for academic discussion that is essential to the integrating process of IHRL. The thesis first presents the conflicting interests and the inability to provide mitigating mechanisms to reconcile domestic and international commitments in IHRL and China’s current legal systems. It finds that illiberal trends in politics, combined with the inherent hostility of China’s polity towards cultural diversity, mean that direct incorporation of IHRL is impossible. China’s three National Human Rights Action Plans are examined as proof of the viability of soft law to function as the mitigating mechanism needed to overcome the inadequacies of both the domestic and international systems. The thesis refutes the common critique that only hard law reform can provide human rights development due to its punitive nature in the face of violation. As the Xinjiang case study demonstrates, without the necessary democratic architecture, any law, hard or soft, suffers from a lack of restraining power. The inherent softness of soft law is therefore not necessarily a defect, but an advantage to help it manoeuvre around unfavourable domestic circumstances, eventually facilitating the domestic influence of IHRL to protect minority language rights in China and other illiberal systems.
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(2021)ThesisThe complementarity principle that governs the International Criminal Court is a central discourse of international criminal law. It provides a legal basis to prevent international crimes and support accountability in domestic criminal jurisdictions. Thus, judges, lawyers, and academics have come to view the principle as a benevolent instrument of justice and accountability. Several Third World states have contributed to the development of this principle in significant ways. They have reinforced the principle in domestic jurisdictions, but have also challenged its parameters in ICC proceedings. Focusing on the Kenyan and Libyan cases at the ICC, this thesis rethinks the nature and function of the complementarity principle from a Third World perspective. Using a postcolonial practice of reading and textual analysis, it exposes the relationship between the complementarity principle and the legacies of colonial race discourse by highlighting how the discourse surrounding the complementarity principle reproduces Third World states as Other in divergent ways. The thesis develops a single yet dichotomous framework to make sense of how colonial race discourse shapes the complementarity principle and how ICC judges and the Prosecutor evaluate Third World domestic criminal proceedings along lines of racial difference. It raises the possibility of developing a politics of refusal, as opposed to a politics of transformation, through exposing and dismantling international criminal law's Western and Eurocentric form.
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(2021)ThesisThis thesis makes two principal contributions. First, it shows how the specificities of geography shape legal conceptions of conservation. It demonstrates that the ways that law conceives of conservation are contingent on the ways that geography operates on the motivations and actions of the actors who impel and make that law. Second, it explains how conservation and commerce, far from being dichotomous imperatives, are deeply entangled and have been so for a long time. These findings have implications for understanding how law contributes to present crises of global ecological systems. This is because they help expose the variable and contingent nature of the inputs that inform law’s responses to environmental concerns. The thesis draws out these contributions from a detailed episodic historical examination of the development of the international legal frameworks governing the conservation and exploitation of the whales and fish of the Pacific Ocean. It begins with the activities of British agents negotiating legal authority to pursue whales in the Pacific Ocean around the turn of the nineteenth century, and ends in the contemporary era with Japan’s withdrawal from the International Whaling Commission. It examines key events in the development of international legal instruments, principally the International Convention for the Regulation of Whaling and the United Nations Convention on the Law of the Sea, which regulate the exploitation of marine living resources such as whales and fish. This examination illustrates how geography has shaped law’s conception of conservation in the Pacific Ocean. Drawing on disciplinary insights from geography, and particularly from the field of legal geography, it shows how this body of law is co-constituted with ideas of place in that ocean. Two key themes structure this episodic history: commerce, and science and technology. Both through and outside the state, commercial actors at various sites in the Pacific Ocean articulated self-interested conceptions of law regarding natural resource exploitation. Technological developments shaped the ways in which commercial actors exploited marine resources. Scientific study of these resources shaped both legal decision-making and commercial endeavours.
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(2021)ThesisThe purpose of this thesis is to demonstrate that corporate lawyers’ professional ethics, known as legal ethics, requires greater moral content. The role of legal ethics is indicative of how lawyers practice law and is defined by the Queensland Law Society as 'principles and values which, along with conduct rules and common law, regulate a lawyer's behaviour [that give guidance] to ensure right conduct in the daily practice of law'. Legal ethics, therefore, has a vital role in lawyers' professional obligations: legal duties to the law and justice, fiduciary and confidentiality duties as well as discretionary rules such as integrity, practical wisdom, and judgement as well as professional codes of conduct. Legal ethics also refers to theoretical legal ethics (TLE), a generic term coming from philosophical theory, whose function is to provide guiding principles to lawyers when interpreting their professional role and obligations. Lawyers' current TLE, positivist TLE, is guided by a positivist philosophy which the thesis argues is no longer suitable for corporate lawyers and should be replaced. Its narrow scope does not adequately reinforce lawyers’ professional obligations, nor address ethical issues of 21st century corporate law practice. The thesis shows the situation faced by corporate lawyers and the problems with positivist TLE, by analysing the legal and ethical issues in the James Hardie (JH) case study. Here, commercial decisions made by JH, parent company of a company group, were later subject to a commission of inquiry initiated by an Australian state government. The thesis proposes a new TLE: Aristo-Kantian TLE, informed by the moral philosophies of Aristotle and Kant and applying them to legal practice issues. This is developed into a practical model that corporate lawyers (and indeed all lawyers) could use to formulate legal and ethical advice to clients. These moral philosophies are applied in three steps: Step I, Moral Sensitivity; Step II, Moral Reasoning; Step III, Lawyers' Dialogue with Clients, to present lawyers’ advice. The main research question is: Could Aristo-Kantian philosophies provide greater moral content for corporate lawyers’ professional obligations and theoretical legal ethics, with benefits for corporate clients, legal professionals and the public good?
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(2020)ThesisIn recent decades Australian judicial review of administrative action has been characterised as having taken a different shape to review in countries with a similar common law heritage. One explanation given for this difference is an attachment to what has been called ‘formalism’ or ‘legalism’ in Australian judicial doctrine. This thesis argues that instead, the source of the difference lies in the different normative institutional values of the Australian system of law and government. This thesis is divided into two parts. Part I sketches the contemporary framework of judicial review of administrative action in Australia. It looks at three defining features of it, the constitutional separation of judicial power, the distinction between merits and legality and the concept of jurisdictional error. This part of the thesis draws out the ways in which these features can be recognised as the product of a notion of judicial power which is responsive to institutional context. Part II of the thesis turns to a consideration of the normative values that have shaped conceptions of institutional power in Australia. This part of the thesis argues that, owing to the period in which the Australian Constitution was adopted, and certain aspects of Australian history, the Australian conception of government is characterised by what can be termed ‘new liberalism’ or ‘progressivism’, giving what can be recognised as a ‘functionalist’ character to Australian public law. A key tenet of new liberalism was that freedom was to be achieved through the state. A further tenet was that the people should be ‘self-governing’. Both ideas can be distinguished from the classical conception of liberalism at the centre of the traditional Diceyan conception of constitutionalism. This thesis argues that the presence of these ideas in the decades before and after Federation can be regarded as having helped to shape a concept of judicial power, which operates to prevent arbitrary state action and protect the overall health of the constitutional system itself, but otherwise leave questions of public policy or morality for resolution by the people themselves through the political process.
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(2021)ThesisHarold Koh presents Transnational Legal Process (‘TLP’) as a discursive theory of international legal compliance whereby a variety of actors, in a variety of fora, make, interpret, and internalise rules of transnational law. Yet despite its process-orientation, TLP possesses a decidedly top-down character, suggesting that state behaviour trends towards legal compliance over time through a process of interaction, interpretation, and norm-internalisation, while largely ignoring the influence of street-level bureaucrats in interpreting, framing, and applying the law. If TLP generates compliance with legal norms over time, why do non-compliant legal practices persist when they should be corrected in jurisgenerative fora? And, if norm development is a discursive process, how might assumptions about the willingness of courts to preserve liberal conceptions of rights blind us to less-visible logics that structure policy debates and limit the range of legal action? The thesis develops a more nuanced understanding of 'norm internalisation' by examining implementation of the norm of non-refoulement in case studies of Australia and the United States. The work examines the process of ‘entry screening’ asylum seekers at Australian airports and the emergence of the practice of ‘metering’ asylum seekers at the US-Mexico border to advance a theoretical approach to international legal compliance that builds upon two major critiques of TLP theory: that it does not adequately identify the actors and processes of norm ‘internalization’ and that it does not sufficiently identify and describe norm creation processes. This thesis demonstrates that: (1) TLP’s internalisation thesis fails to account for the practices of street-level bureaucrats, who often prioritize competing norms, discourses, and non-compliant practices that influence or are assimilated into formal sources of law; and that (2) relational sites within the network of actors responsible for implementing norms present countless opportunities for contesting meaning and normative frames. This research reveals an overreliance on the role of courts in preserving the norm of non-refoulement and highlights that how we understand sites of lawmaking and legal contestation has real implications for people’s lives, for questions about how subsequent state practice might impact treaty interpretation, how obligations are prioritised in conflicting treaty regimes, or how international organisations interpret international law and where they make interventions.
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(2021)ThesisThis thesis examines the scope and content of article 16 of the 1951 Refugee Convention relating to the Status of Refugees. It asks: What obligations bind Contracting States to provide asylum seekers and refugees with access to courts under article 16 of the 1951 Refugee Convention, and do these obligations extend beyond those that otherwise bind States under international human rights treaties, customary international law, and general principles of law? The thesis identifies eight issues on which scholars’ views have evolved over time on article 16. These are (i) whether the term ‘refugee’ in article 16 encompasses the unrecognised asylum seeker; (ii) the scope of the term ‘courts’, and the provision’s application to refugee status determination proceedings; (iii) the geographic scope of the provision; (iv) whether ‘free’ access implies a guarantee of ‘effective’ access; (v) the appropriate definition of ‘habitual residence’, and whether legal residence is a prerequisite; (vi) the scope of the term ‘matters pertaining to access to the Courts’; (vii) the appropriate comparator for whether a ‘refugee’ is afforded ‘the same treatment as a national’; and (viii) whether article 16 obliges the Contracting State to create jurisdiction to hear a dispute where a court otherwise lacks competence. Through doctrinal analysis, the thesis investigates the historical origins of article 16; the extent to which its protections have been subsumed by international human rights law, customary international law, and general principles of law; and its ultimate scope. It concludes that gaps remain in the protective framework of international human rights law and general international law, but that the interpretative approach taken by courts and treaty bodies to the human rights treaties analysed – particularly regarding the principle of effectiveness – could usefully be adapted to interpret article 16. Applying an evolutionary, teleological approach to the interpretation of the 1951 Convention, the thesis then reaches conclusions on article 16’s scope and content that respond to the eight issues identified. It concludes that article 16 remains a relevant and robust source of protection for asylum seekers and refugees.
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(2021)ThesisThe aim of this thesis is to utilise transnational regulatory network (TRN) theory to examine the effectiveness of the regulatory framework promulgated by the International Organisation of Securities Commissions (IOSCO) — to address the activities of transnational hedge funds. Scholarship employing TRN theory has not previously accounted for the distinctive role that IOSCO — a body well-described as a TRN — has played in developing hedge fund regulation to prevent, identify and mitigate systemic risk related to transnational hedge funds. It is a gap that this thesis attempts to fill. This thesis asks whether and in what ways the IOSCO framework contributes to systemic risk mitigation in relation to transnational hedge funds operating at the global level. It does so to help academics and policymakers to better understand and appreciate the value, and overcome the limitations of IOSCO in this respect. Using the case studies of the failure of Long-Term Capital Management at the end of the 20th century and the demise of Bear Stearns’ hedge funds during the global financial crisis, it argues that it is the systemic hazards posed by hedge funds that make them merit extra regulation at both national and transnational levels. Deploying the findings of the TRN theory, it further demonstrates that the IOSCO framework for transnational hedge fund regulation holds not only advantages to be maintained but also shortcomings to be overcome in addressing these systemic hazards. The significance of this study lies in its contribution to advancing comprehension of the global regulatory framework for transnational hedge funds. It makes the advance by introducing a focus on systemic risk mitigation, hitherto lacking, and developing a critical, doctrinal understanding of the relatively understudied rules and standards under IOSCO.
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(2021)ThesisThe research is an examination of the question of whether China, with a substantial number of State-Owned Enterprise (SOEs) active in the market, can effectively maintain a level playing field through the existing competition law and policy framework and, if not, what strategies or policies it could adopt in order to address this problem. The Thesis takes the position that the current competition law and policy in China have limited effect in ensuring a level playing field between SOEs and non-SOEs. To be clear, the Thesis does not suggest that the existing Chinese competition law and competition policy completely fail to address competition concerns caused by Chinese SOEs; on the contrary, there are cases that suggest that SOEs, like all the other market players, are under the scrutiny of Chinese competition law (the Anti-Monopoly Law ‘AML’) and will continue to be so in the future. Chinese competition policy is developing into a more comprehensive policy and the newly established Fair Competition Review System (FCRS) potentially addresses one aspect of competitive neutrality concerns caused by SOEs, the regulatory advantages of SOEs. Collectively, the Thesis argues that the application of AML and the FCRS cannot address all aspects of competitive neutrality problems caused by SOEs, leaving the problem of lack of competitive neutrality between SOEs and non-SOEs unaddressed in the market of China. Given the current reform of SOEs has increased pressure on Chinese SOEs to be more competitive, this Thesis argues that it is a good time for China to reconsider how level the playing field is between SOEs and non-SOEs. To ensure competition between SOEs and non-SOEs is based on efficiency, rather than on who can benefit from government ownership and political connections, the Thesis proposed to reform the AML. It also provides policy recommendations for China to consider when introducing a competitive neutrality policy in its regime. These measures, if adopted, would provide stronger domestic competition and would help Chinese SOEs to be more competitive in the market.
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(2020)ThesisClimate change poses a serious threat to the long-term structural integrity, if not existence, of the Australian constitutional system. This means that Australian government action worsening climate change poses a threat to this constitutional system. When government action threatens this system, even in a partial or incremental manner, the High Court may derive implications from the Commonwealth Constitution (‘Constitution’) to restrain such action. This is the reasoning underpinning the Court’s establishment of implied limitations such as the Melbourne Corporation and political communication limitations. Based on this reasoning, I explore in this thesis whether a doctrinal argument can be made for deriving a new implication from the Constitution that I refer to as the ‘ecological limitation’. This limitation, if established, would restrain some forms of Commonwealth or State legislative and executive action worsening climate change in the interests of preserving the Australian constitutional system. My methodology for assessing the doctrinal merits of this proposed implication is framed by the High Court’s ‘text and structure approach’ articulated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. This interpretive approach requires implications to be derived from the text and structure of the Constitution. I supplement this approach by drawing comparisons between the ecological limitation and established implications to gain further insights on what aspects of a proposed implication may be deemed acceptable and unacceptable by the Court. Finally, I tease out the operation of the ecological limitation by considering its hypothetical application in relation to a real occurrence. Namely, I consider how the limitation might apply to restrain Queensland government approval of a proposed coal mine – the Carmichael mine currently being pursued by Adani Mining Pty Ltd. By following this methodology, I arrive at the doctrinal argument for deriving the ecological limitation outlined above and assess the doctrinal arguments against its derivation that might be raised in response (such as concerns regarding the political decision-making judges would have to engage in if the limitation is established). I conclude that a compelling doctrinal case can be made in support of the ecological limitation that can withstand these counter-arguments.