Law & Justice

Publication Search Results

Now showing 1 - 10 of 11
  • (2021) Edelbi, Souheir
    Thesis
    The 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.

  • (2021) Jefferies, Regina
    Thesis
    Harold 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.

  • (2021) Dunlop, Emma
    Thesis
    This 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.

  • (2021) Li, Xun
    Thesis
    The 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.

  • (2022) Hush, Anna
    Thesis
    For decades, feminists at Australian universities have fought to publicise and politicise the issue of campus sexual violence. These efforts have recently come to fruition, with universities publicly acknowledging the problem and undertaking various institutional reforms. However, there has been little scholarly attention paid to political struggles over sexual violence within universities. This thesis critically examines the politics of feminist activism against sexual violence at Australian university campuses. It situates this activism against the backdrop of the neoliberalisation of Australian universities, to reveal how feminists have challenged – and at times, acted in complicity with – these transformations in the landscape of Australian higher education. This analysis is both historical, drawing on archival material relating to the history of campus feminist politics, and contemporary, using data from interviews with students currently engaged in organising against sexual violence. It explores the strategies and tactics adopted by feminist collectives, the constraints on feminist mobilisation in the neoliberal university, and the shortcomings of these movements. This thesis makes two original contributions to knowledge. Firstly, it extends existing analyses of university sexual violence and contributes to the growing body of scholarship on this topic. Research on campus sexual violence in Australia has so far focused on policy analysis and prevalence data. While this provides an important basis for evaluating the scope of the problem and potential remedies, it is largely disconnected from political struggles over institutional responses to sexual violence, a gap this thesis seeks to fill. I offer an analysis of the historical and contemporary struggles that have created the conditions for institutional change, as well as the complex ways in which the neoliberal university undermines and constrains oppositional movements. Secondly, this thesis makes a theoretical contribution to the field of New and Feminist Institutionalism. It critically intervenes in the institutionalist field, drawing greater attention to the roles of macro-social contexts and actors in the form of social movements in processes of institutional change and proposing a framework that foregrounds these aspects of institutional politics. The findings of this research reveal significant limitations in Australian universities’ responses to sexual violence, with their actions falling short of both student demands and expert recommendations. I argue that these actions have largely functioned to consolidate managerial power and mitigate reputational risk, in doing so narrowing the space of political contestation. My analysis further illuminates the specific institutional constraints that bear upon student feminist organisers within the neoliberal university. This analysis offers strategic insights into feminist engagement with institutions, suggesting that student movements must develop the capacity to disrupt processes of institutional reproduction and challenge the reformist approach adopted by universities. A transformative response to campus sexual violence, I argue, will require broader and better-organised coalitions of staff and students in order to collectively challenge and overcome these constraints.

  • (2021) Hodgson, Natalie
    Thesis
    This 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.

  • (2022) Frishling, Nana
    Thesis
    This thesis is about multi-stakeholder initiatives that seek to regulate the human rights impacts of global apparel supply chains (Apparel MSIs). MSIs have the aim of improving human rights for millions of apparel workers worldwide, but after two decades they show little evidence of such improvement. Civil society critics argue that MSIs are ineffective, unreformable private regulation that is not fit-for-purpose and lacks legitimacy. This thesis argues that Apparel MSIs still perform a valuable regulatory function, however they must adopt new regulatory approaches. These include moving beyond social audit as a regulatory technique, expanding stakeholder participation and better measuring and communicating impact. MSIs must transform to realise their aim of improving apparel workers human rights and consequently preserve their legitimacy. To understand and contribute to this transformation the thesis method incorporates existing literature; it applies theoretical frameworks; and the insights of original empirical research. From the latter the voices of worker advocates, union leaders and academics reveal recent and promising regulatory innovations and changes in MSIs. Along with this empirical research, the original contributions of this thesis are to emphasise the interconnected nature of legitimacy criteria and assess the overall legitimacy of Apparel MSIs in the light of the functional model adopted by each MSI. This legitimacy analysis is supported by the regulatory theory of responsive regulation, which explicitly contemplates self-regulatory forms like MSIs. The original contribution of bringing responsive regulation to bear on Apparel MSIs, provides new insights into how they can bolster their regulatory effectiveness and legitimacy. Interviews undertaken with key stakeholders provide a sociological perspective to this analysis. Interview data also drive the final recommendations for reform which coming from MSI stakeholders point to recent innovations in private regulation as a more promising alternative. Given the opportunity to build a more just world after the Covid-19 pandemic, these recommendations could not come at a more critical juncture.

  • (2022) Xie, Dan
    Thesis
    The 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.

  • (2022) Harley, Tristan
    Thesis
    One of the most significant issues to emerge in international refugee law and policy in recent years has been the push to enhance the meaningful participation of refugees in decision-making processes. Around the world, refugee-led networks and organisations have advocated for refugees to be able to engage directly with states, international organisations and other stakeholders in decisions that affect them. Further, states have recognised the value of meaningful participation and have made commitments through new international instruments, particularly the 2016 New York Declaration for Refugees and Migrants and the 2018 Global Compact on Refugees, towards enabling the participation of refugees in designated responses to refugees and displacement. These developments represent a significant shift in thinking. However, for these developments to be implemented effectively, greater clarity is needed as to what meaningful refugee participation looks like and how the international law and policy framework governing participation can be best designed. This thesis provides a detailed socio-legal analysis of these issues. The thesis asks: what does participation in decision-making refer to in the context of the international refugee regime; in what ways and to what extent have refugees been included in different decision-making areas in practice; and how could the legal and policy framework be improved to enhance meaningful refugee participation. This thesis argues that despite recent commitments towards advancing the participation of refugees in decision-making processes, the international legal and policy framework governing refugee participation has insufficiently provided for this to occur. The thesis demonstrates how refugees have been restricted from fully participating in a variety of decision-making areas. These areas include law and policy reform; the implementation of durable solutions and other relocation decisions; and the delivery of programmes and services for refugees. Additionally, the thesis highlights the current limitations of international refugee and human rights law for ensuring meaningful refugee participation. To address these issues, the thesis proposes novel reforms to improve the international legal and policy framework. Central among these reform options is the proposal for a new international law instrument that more clearly commits states and others to ensuring that refugees are heard.

  • (2022) Azad, Ashraful
    Thesis
    Rohingya are the largest stateless group in the world. Most Rohingya, originally from Myanmar, are stateless in their home country and in various states where they live as refugees and migrants. They are denied citizenship papers in Myanmar, and their movement is restricted there as well as in their main host country, Bangladesh. Despite these restrictions, many Rohingya have travelled overseas, including to Malaysia, Saudi Arabia and India. This thesis examines the agency of stateless people in unauthorised movements and access to documents amidst restrictions by the states, focusing on Rohingya in Myanmar, Bangladesh and Malaysia. To understand the scope and extent of the movement of Rohingya throughout the region, it is essential to understand the manner in which they exercise agency. The central research questions this thesis considers are (a) how do we best understand the phenomenon of stateless Rohingya migrants exercising agency to move across borders (domestic and international) in the Global South, despite the strategies adopted by states to restrict their movements? and (b) what does this phenomenon tell us about how we understand migration more broadly? Based on extensive empirical research through a grounded theory methodology, I identify several factors that are central to understanding how Rohingya exercise agency. Firstly, the scale and nature of their movements is determined by the states’ border regimes, geographic proximity to borders, and certain modes of transport. Secondly, they exercise agency by drawing on migration capital which comes from their identity—primarily the similarity and fluidity of their ethnic and religious identity with the host society, and shared community knowledge and culture of migration. Thirdly, the opportunity they have to draw on migration capital or exercise agency is dependent on actors who function in the middle space between states and migrants. I identify two key actors in the middle space of migration—corrupt government officials and migration brokers—who facilitate unauthorised movements and access to documents. This thesis contributes original empirical findings on migration and integration processes and the interdisciplinary theorisation of migration through a Global South perspective. It offers a critique of the border control measures under anti-trafficking efforts and biometric registration of refugees and highlights the protection capacity of unauthorised and informal practices.