Law & Justice

Publication Search Results

Now showing 1 - 10 of 12
  • (2022) Xiao, Zhenyu
    Thesis
    China is a key actor in global investment governance and has experienced incredible growth of inward and outward investment over the past four decades. It has also built a dense network of investment treaties. China’s engagement with the investor-state dispute settlement (ISDS) mechanism in investment treaties has followed a distinctive trajectory. This thesis is an attempt to explain the evolution of China’s ISDS policymaking over time. In particular, it seeks to explain why China expanded access to investor-state arbitration in the late 1990s and why that expansion of access involved integration with China’s domestic administrative review procedures. The thesis also examines subsequent changes in China’s approach to ISDS up to the present, paying particular attention to questions of whether the key policy shift of the late 1990s achieved its intended objectives and how Chinese policymakers’ concerns about domestic investment governance continue to shape the design of the ISDS mechanism in China. This thesis combines close analysis of primary and secondary materials, including newly uncovered government policy documents, with insights from semi-structured interviews with government officials and academics exposed to the policymaking processes. It finds that existing accounts of the key policy shift of the late 1990s, which emphasize China’s economic interests in protecting outward Chinese investments and encouraging inward foreign investments, are inadequate. Instead, an analytical framework incorporating China’s domestic investment governance and policymaking processes is necessary to build a new, more sophisticated explanation. This thesis argues that Chinese policymakers’ decision to expand access to investor-state arbitration emerged from an incremental internal reflection process that began with China’s accession to the ICSID Convention in the early 1990s. The objectives of this policy process were to understand the source of investor-state disputes in China and to develop a plan for how investor-state arbitration could be integrated with existing processes and structures of domestic investment governance. Chinese policymakers’ concerns about domestic investment governance, especially local governments’ interactions with foreign investors, shaped the drafting of ISDS provisions in China’s investment treaties in the late 1990s. The administrative review procedure was integrated with a stronger consent to investor-state arbitration, aimed at dispute prevention, dispute management and regulatory control over local governments. Despite the central role that considerations of domestic investment governance played in the policy shift of the late 1990s, this thesis finds that the policy change did not achieve its intended objectives. Concerns about managing the interface of domestic and international regimes of investment governance continue to shape the evolution of China’s approach to ISDS.

  • (2022) Cama, Elena
    Thesis
    Dating and hookup platforms have become a popular tool for seeking romantic and sexual relationships. While there are numerous benefits to making connections online, popular media and academic literature have begun to document how these platforms are implicated in the perpetration of sexual harms. Drawing on feminist and queer understandings of sexual violence and technology, this thesis provides a mixed-methods examination of sexual harms experienced in the context of online dating. Data collection included an online survey (N=527) and in-depth interviews (N=25) with adult Australians who use dating and hookup platforms. Findings indicate that experiences of safety and sexual harms and their impacts in the context of dating and hookup platforms can be complex and varied, with many experiences diverging from legal and normative understandings of sexual violence. Participants documented a range of harms, including unwanted requests for sex, unsolicited sexual images, harassment based on gender, sexuality, and race, and unwanted sexual experiences, among others. These harms were gendered and intersectional, with women and sexuality diverse participants disproportionately affected. Minimisation and normalisation of sexual harms appeared to be common, due to the sexualised nature of these platforms and largely unquestioned acceptance of a ‘hookup’ culture in online dating. Cisnormative and heteronormative discourses of gender, sexuality, sexual behaviours, and sexual violence were both (re)produced and resisted by participants, illustrating how socio-cultural and sexual norms may become inscribed within digital platforms, and alternatively how these platforms may be co-opted to resist or reject these norms. Existing reporting and response options from platforms to these harms were viewed as inadequate, with participants calling for greater transparency and accountability in reporting processes and tangible consequences for perpetrators of harmful behaviours. This thesis concludes with recommendations as to how platforms, law enforcement, and communities could better prevent and respond to these harms.

  • (2023) Tualima, Saeumalo Hai-Yuean
    Thesis
    This thesis uses a Talanoa Research Methodology (TRM) approach to explore the concepts of traditional knowledge, knowledge, custom and customary law in Samoa. TRM uses the principles of fa’asamoa to guide and conduct interviews where participants are collaborators, co-developing the research agenda. Open-ended questions focused on centring participant perspectives to reflect their authentic voices, understand their life experience and recommendations for future directions for reform. Interviews were conducted with Samoan government officers, cultural practitioners, and village individuals across 2019 to 2021. Participants were asked to identify traditional knowledge or knowledge, intellectual property, custom and customary law from their perspective, allowing the terms and examples to demonstrate connections between where knowledge is situated, and how life is lived and practiced, and its day-to-day regulation. A TRM approach was chosen to help make more visible how knowledge is regulated in a pluralist post-colonial legal order. In Samoa, customary law is not inferior or superior to the legislative framework of the state. Customary law plays a crucial role in village governance and regulates how knowledge operates in society. This is not well understood in the international literature about TK and intellectual property and this creates problems in implementing treaty conventions such as the World Trade Organization Agreement on Trade-Related Rights of Intellectual Property Rights 1994 (TRIPs), Convention of Biological Diversity 1992 (CBD), Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from the Utilization to the Convention of Biological Diversity 2010 (Nagoya Protocol), and the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage 2003 (Convention on ICH). Participants reflected on their experiences with current regulatory frameworks, including the role of the village fono. Discussion includes reflections on the value and limitations of international legal frameworks and externally funded development initiatives. Recommendations are canvassed for improvement of current regulatory frameworks and alternative mechanisms that could provide practical avenues for the future development for the protection of knowledge or traditional knowledge in Samoa. Recommendations also have potential relevance for other Pacific Islands. This research has wider relevance beyond the Pacific, providing critical insights into the significance of international discussions about traditional knowledge, access and benefit sharing, and other attempts to decolonise intellectual property. Understanding the value of research informed by TRM is particularly relevant to outside researchers, consultants and international agencies who work in the Pacific and are interested in progressing TK and intellectual property reform agendas in ways that benefit and support the local community.

  • (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) 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.

  • (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.

  • (2023) Zeng, Lynn
    Thesis
    This thesis compares the integration of and support for adult sexual assault victims in the Australian and Chinese criminal processes. Its aim is to explore the strengths and weaknesses of these two justice systems in terms of law, policy and practical treatment of adult sexual assault victims with a view to identifying pressure points for potential reform. New South Wales is chosen as a proxy for comparing with Mainland China, with some reference to Victoria and South Australia where relevant. In addition to doctrinal studies and empirical findings of other scholars, this study is informed by interviews and surveys of criminal justice professionals, courtroom observation, Chinese court judgments, and Chinese determinations to not proceed with a prosecution. The thesis is founded on the assumption that victims of crime in Australia and China have strong and direct interests in procedural justice and dignified treatment in their nation’s criminal justice system. It recognises that over the past few decades, both countries have endeavoured through procedural reforms to ameliorate the predicament of victims in the criminal justice system based on their individual legal traditions. This study reveals that despite the striking differences in these countries’ legal traditions, victims face some similar restraints to participation. These restraints arise from quite different institutional, structural and cultural dynamics. Three themes emerge from the key findings of this study. They are: (i) in both jurisdictions, victim-focused or victim-related criminal procedural reforms towards inclusiveness and enhanced dignity are mere tweaks rather than major changes to the existing system; (ii) because of institutional and cultural resistance to progressive reforms in both jurisdictions, there are gaps between law on the ‘books’ and law in action in terms of victims achieving important participatory rights in the prosecution of sexual assault offences; and (iii) the Australian and Chinese systems are both impacted by globalisation trends, and accordingly influenced by feminism and fair trial discourse. However, the impact is of different degrees in relation to providing for sexual assault victims. This thesis concludes that the integration of sexual assault victims into the Australian and Chinese criminal processes suggests points of convergence, despite the divergent legal traditions and cultural and socio-political backgrounds. It ultimately argues that domestic systems can learn from each other; and it should be a common goal for all domestic systems to respond to victims’ needs for procedural justice and respect their dignity, to achieve a triangulation of interests between the state, the victim, and the accused.

  • (2023) Mulder, Thomas
    Thesis
    Disasters affected more than four billion people worldwide between 2000 and 2019. This number is expected to rise as experts predict that climate change will increase the frequency and intensity of disasters around the globe. While not every disaster warrants an international response, major disasters may necessitate concerted efforts of the international community to protect affected communities. Yet, the applicable regime of international law that regulates cooperation in the response to disasters is comparatively underdeveloped. International Disaster Response Law (IDRL) is a fragmented regime that evolved haphazardly, resulting in a patchwork of rules and only a rudimentary set of principles. In order to prepare for the future of international disaster response, this thesis examines whether and, if so, how the development of IDRL could be advanced. This thesis explores this question through the lens of the fundamental yet underexplored principle of solidarity. Drawing from treaties, practice and literature, it finds that solidarity has emerged as an underlying principle of IDRL and can be applied as an interpretative tool that presents an alternative interpretation and suggests new norms. This thesis argues that the principle of solidarity reorients IDRL from a set of rules premised on state sovereignty towards a set of rules for the pursuit of the common interest of protecting persons in disasters through differentiated obligations of international cooperation and assistance. This interpretation, however, is balanced with other applicable principles of IDRL, including sovereignty, humanity and international cooperation. This thesis then analyses how the principle of solidarity could help in advancing the development of IDRL in relation to ten key legal and practical issues that challenge the practice of international disaster response. This thesis demonstrates that the principle of solidarity could help in advancing the development of IDRL by proposing an alternative interpretation and suggesting new norms that promote differentiated cooperation and assistance in disaster response. As such, this thesis does not only contribute to preparing IDRL for a future of more frequent and more intense disasters but also illustrates how the principle of solidarity could be applied in addressing global needs and challenges in other regimes of international law.

  • (2023) Poonjatt, Justin Jos
    Thesis
    In disputes between corporations and individuals, those seeking remedies through court litigation may find themselves in protracted legal and financial battles. Right-holders may face possible structural disadvantages if they do not have access to adequate resources, whereas corporations are risking their market reputation. Because of the risks involved, corporations may establish private processes to settle disputes outside of courts and avoid litigation. During the process, corporations use different tools that facilitate dispute settlement, which may adversely affect the right to access judicial remedies. One such tool is a legal waiver. This thesis investigates the use of legal waivers by corporations in private processes (also called operational-level grievance mechanisms) to settle human rights claims using cases from Papua New Guinea and Tanzania. Through examining the two cases, I explore the use of legal waivers to facilitate corporate-friendly remedies while limiting the right of victims to access judicial remedies. The use of legal waivers in private processes raises doubts regarding their consistency with different legal frameworks, such as international human rights law and the United Nations Guiding Principles on Business and Human Rights. The thesis interrogates legal waivers through multiple lenses, such as the role of inequality of bargaining power, the emerging regulatory gulf between states and corporations and the legal validity of waivers as per the domestic laws of Papua New Guinea and Tanzania. It concludes that legal waivers should be transparent, facilitate victim-oriented remedies, be limited to civil claims and not be a tool for enforcing standardised remedies.

  • (2023) Gacutan, Jordan
    Thesis
    Shifting patterns in consumption and the inadequate disposal of wastes has led to the escape of anthropogenic debris into the marine environment. The growing volume of debris, both within and entering coastal and marine areas, has prompted global concern over the risks they may pose to environmental and human health. Responses to curb further entry and address debris already within the environment include several management interventions, informed by policies and legislation. Effective debris management requires an understanding of potential sources, subsequent dispersion and an estimate of the risks posed to habitats and biological assemblages, which could be attained through environmental monitoring. Monitoring across relevant spatio-temporal scales, however, is often outside the reach of formal government and research programs and there is a growing recognition of the role citizen science data may play in debris management and decision making. This thesis aims to bridge environmental monitoring with policy and decision making, combining citizen science with other data into an evidence-base for management. The thesis assesses several citizen science datasets from a local to Federal scale to identify debris trends and their drivers (Local: four estuaries; State: Queensland; Federal: Australia). Further, I combine expert elicitation and empirical debris data to assess the risk posed by debris. I provide a framework for linking debris identified within the environment to economic sectors, as part of a formal accounting framework. The thesis also provides methodological guidance to refine citizen science sampling during monitoring programs, to improve the accuracy and reliability of resulting datasets. Through careful application and consideration of data quality, citizen science data could be used to supplement formal monitoring efforts to better understand and address the challenge of marine debris. This thesis advances the role of citizen science beyond environmental monitoring to inform management efforts at scale.