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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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(2022)ThesisChina 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.
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(2022)ThesisDating 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.
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(2022)ThesisThe 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.
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(2022)ThesisRohingya 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.
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(2021)ThesisThis 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.
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(2023)ThesisDisasters 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.
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(2023)ThesisIn 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.
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(2023)ThesisShifting 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.