Law & Justice
Law & Justice
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Transnational Due Process and Article V(1)(b) of the New York Convention: Grounding Interpretation and Application of the Due Process Defence in the Public International Law Framework for Treaty Interpretation(2022) Xie, DanThesisThe thesis examines the interpretation and application of the due process defence under the New York Convention. It argues that the due process defence under the New York Convention should be interpreted consistently with the interpretative framework set out in the Vienna Convention on the Law of Treaties (VCLT) and, more specifically, by recourse to the general principle of audiatur et altera pars and subsequent practice of State Parties to the New York Convention. This interpretative approach ensures that due process under the New York Convention is a genuinely transnational standard distinct from any particular national legal system. In order to support this argument, chapter 2 establishes a particular understanding of the transnational approach grounded in the international interpretative rules contained in the VCLT. Chapter 3 shows that audiatur et altera pars is a well-accepted general principle of law and argues that its dimensions can concretise the normative content of the due process defence under the New York Convention. Chapters 4–7 explore relevant forms of ‘subsequent practice’ for the interpretation of the due process defence under the interpretative framework established by international law. The thesis makes three specific contributions to the theorisation and development of the transnational approach. First, arbitration scholars have talked about the importance of an autonomous approach to ensure predictability, but not fully articulated the scope and analytical possibilities of this approach. This thesis takes on this task via the VCLT, while also providing a structured way for domestic courts to consider and assess legal materials from beyond their own jurisdiction. It specifies a transnational informed approach to thinking about the general principle of audiatur et altera pars and subsequent state practice in interpreting and applying Article V(1)(b) of the New York Convention. Second, it shows how much of the arbitration scholarship on transnationalism can be recast within a public international law framework, thereby contributing to debates within international law about the decentralised interpretation of treaties by domestic courts. Third, the thesis’s preferred understanding of the transnational approach — one grounded in the public international law framework for treaty interpretation — resolves a range of practical questions about the precise content of the due process standard.
(2021) Hodgson, NatalieThesisThis thesis explores the potential of international criminal law to resist state crime. Existing research recognises that law can provide civil society with methods and forums for challenging state power. This thesis aims to develop a greater understanding of the prospects and limitations of using law to resist state crime with a focus on international criminal law and the International Criminal Court (ICC). This thesis explores this topic through a case study of Australia’s offshore detention of asylum seekers. This thesis addresses four Research Questions: 1. How can offshore detention be characterised as state crime? 2. What aspects of offshore detention are formally criminalised under international criminal law? 3. To what extent can civil society access the ICC to resist offshore detention? 4. How can a criminological approach inform our understanding of the potential of international criminal law to resist state crime? To answer these questions, this thesis draws on criminological and legal methods. This thesis argues that offshore detention was a state policy of ‘degradation by design’; that is, offshore detention was a hostile environment designed to compel asylum seekers to ‘voluntarily’ return to their countries of origin. Using this criminological understanding of offshore detention, this thesis argues that aspects of Australia’s offshore detention policy are formally criminalised under international criminal law, constituting crimes against humanity. Thus, this thesis demonstrates how criminological knowledge can inform the interpretation of international criminal law in relation to state crime. This thesis recognises that there are difficulties in civil society accessing the ICC as a forum where state crimes might be prosecuted. Nonetheless, this thesis argues that international criminal law’s potential to resist state crime extends beyond prosecutions. International criminal law provides civil society with a normative language and communicative space for resisting state crime. By mobilising the stigma of international criminal law, civil society can send messages to local, national and international communities, expressing the illegitimacy of state conduct. Therefore, by combining knowledge from the fields of state crime and international criminal law, this thesis contributes to expanding existing knowledge of how law can be used by civil society to resist state crime.
Landscapes of transition: state, company and Indigenous community human rights dynamics in South America’s lithium triangle(2023) Symington, AndyThesisThe scramble for minerals, such as lithium, critical to renewable energy technologies is a feature of our race to decarbonise. At the same time, changing societal expectations are increasing pressure on companies to operate in a manner that respects human rights, including Indigenous Peoples’ rights. Situated at the nexus of these global trends, this thesis examines business and human rights (BHR) dynamics at rights-holder level in the context of extraction in South America’s ‘lithium triangle’. Examining how legal and non-legal factors translate to corporate behaviour and rights outcomes on the ground, the thesis addresses the research question: What are the key intersecting factors shaping corporate engagement with Indigenous communities and their rights in the lithium triangle? Based on extensive in-person empirical research in the region, it examines the complex dynamics between governments, companies and Indigenous communities. Empirical chapters reveal a broad range of factors influencing corporate engagement and thereby better rights outcomes. These can be distilled into four key themes: 1. Human rights pathways: state human rights commitments are transmitted to lithium triangle companies by more indirect means than traditional compliance with horizontal obligations would demonstrate. 2. Shifting dynamics: changing expectations of companies, particularly in the context of decarbonisation, has created a rapidly evolving landscape of pressure on companies from downstream customers and other actors in the lithium value chain. 3. Indigenous rights: Indigenous communities in the lithium triangle have become powerful advocates for their own rights, creating significant bottom-up influence and altering traditional corporate perceptions of risk. 4. State absence: partial absence and significant lack of capacity of the state has resulted in the effective ‘privatisation’ of certain rights, leaving companies to fill the gap. That lithium technology is potentially rights-enhancing at a global level while its extraction at local level may be rights-endangering is a juxtaposition foregrounding the need for a just transition and raising interesting questions about the realities of rights on the ground in the presence of a prevailing global economic imperative. The lithium triangle is a powerful case study highlighting the need for governments, companies and communities to work closely together to minimise negative rights impacts and maximise positive outcomes.
Indigenous Victims of Sexual Violence and the MeToo Movement: Social Media Activism and Patterns of Exclusion within the Justice System(2022) O'Connor, JayneThesisIndigenous women in Australia have remained one of the most at-risk demographics for sexual violence victimisation since colonisation began. Indigenous women have historically been marginalized and excluded from accessing justice for sexual violence through the legal system. Changes to the justice system, including incorporating some Indigenous-focussed practices in sentencing, have resulted in inadequate access to justice for Indigenous women sexual assault victims. Some women who have not been able to find justice or validation in the legal system have sought other avenues for redress, including social media activism. The MeToo movement is one of the largest social media activist movements to date to address the issue of sexual violence. The MeToo movement has been seen as a means by which victims can take control of the narrative around sexual violence and seek recognition and justice outside the courtroom. Millions of women globally have participated in MeToo, but the movement has also been subject to critiques about its lack of inclusivity and its inability to respond to intersecting forms of oppression and trauma. Through MeToo, women have revealed the legal system has fundamentally failed victims of sexual violence, especially Indigenous women. The thesis asks: What does the MeToo movement in Australia reveal about the differences and similarities in narrative and process between the criminal justice system (CJS) and social media regarding sexual violence allegations and the potential for social media to act as an alternative to the CJS? This thesis responds to this question with a focus on a disenfranchised sector of Australian society, namely Indigenous women. By synthesising theories from the frameworks of decolonisation and critical race feminism, the thesis applies critically analyses the phenomena of spectacle and performativity. The thesis reveals several ways by which social media activism replicates the patterns of exclusion and discrimination present in the legal system, leaving Indigenous women substantially excluded from two major avenues for redress of inaccessibility to justice and related grievances. The thesis identifies the replication of patterns of exclusion and discrimination across three contexts: society, the legal system, and social media activism. The thesis concludes alternative justice seeking methods will struggle to succeed while the foundations of colonisation and patriarchy persist. It also reveals three overarching themes, and four conceptual tensions present at the intersection of sexual violence against Indigenous women and social media activism. The themes are: (1) voice, narrative, and visibility; (2) agency and self-determination, and (3) transnational/transcultural phenomena. The tensions are: (1) law and justice; (2) the criminal justice system and MeToo; (3) platforms and targets; and (4) commodification and resistance.
Cultural Appropriation of Indigenous Cultural Heritage: Centring Indigenous Voice and Control in International Legal Responses(2023) do Vale Alves, AylaThesisThis thesis examines the phenomenon of cultural appropriation of Indigenous heritage as a problem without a solution in international law. It centres often-neglected Indigenous voices in exploring legal responses based on Indigenous control over their heritage to fill this gap and provide adequate answers to the problem. I argue that centring Indigenous voices is crucial to shifting conventional understandings of appropriation and its harms in international fora, and to inform and guide international efforts to address the phenomenon. Additionally, I argue that Latin American legal experiences involving Indigenous heritage safeguarding can be not only informative in themselves but also create an additional lever for shifting received wisdom in this debate. Cultural appropriation occurs when a dominant group appropriates from a subordinate one (often the case of Indigenous peoples) without their authorisation or consent, causing harms to the latter by removing or misusing their heritage and affecting their (cultural) identity. The lack of adequate international legal response to appropriation aggravates its harmful effects by not providing Indigenous peoples with appropriate legal tools to prevent, stop, or remedy such practices. Considering the shortcomings of existing international regimes applicable to Indigenous heritage protection and of current efforts tackling appropriation internationally, this thesis examines and proposes pathways to a new international framework addressing appropriation and offering solutions to Indigenous groups. In this analysis, I rely on core claims advanced by Indigenous advocates against appropriation to identify key features of an appropriate international legal response to the problem. Further, besides centring Indigenous voices, and to the extent that international fora remain state-centric and require state-filtering of those solutions, I propose a shift away from the usual focus (in the law and scholarship) on the rationales and interests of Western (Euro/Anglo) and developed states. Instead, we should emphasise the views and propositions of Third World (and more specifically, Latin American) countries in international efforts addressing appropriation and Indigenous heritage safeguarding. This shift is justified by Latin American states’ historical support for and promotion of Indigenous rights internationally, and the existence of several specific laws in these countries directly safeguarding Indigenous heritage, including against appropriation. From these core arguments, I contribute to international legal scholarship on Indigenous heritage protection by promoting the focus on Indigenous voices in debates around appropriation and by highlighting useful Latin American responses to the issue often overlooked in (Anglophone) literature. I also suggest pathways and elements for a new international regime on appropriation that can overcome current impasses and challenges in international fora discussing the matter, recognising Indigenous peoples as subjects, rather than objects of international law, and giving them back the control over their heritage that they never relinquished.