Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Capitalism as Civilisation

Capitalism As Civilisation: A History of International Law

Author(s): Ntina Tzouvala

Methodologically and theoretically innovative, this monograph draws from Marxism and deconstruction bringing together the textual and the material in our understanding of international law. Approaching 'civilisation' as an argumentative pattern related to the distribution of rights and duties amongst different communities, Tzouvala illustrates both its contradictory nature and its pro-capitalist bias. 'Civilisation' is shown to oscillate between two poles. On the one hand, a pervasive 'logic of improvement' anchors legal equality to demands that non-Western polities undertake extensive domestic reforms and embrace capitalist modernity. On the other, an insistent 'logic of biology' constantly postpones and engages such a prospect based on ideas of immutable difference. By detailing the tension and synergies between these two logics, Tzouvala argues that international law incorporates and attempts to mediate the contradictions of capitalism as a global system of production and exchange that both homogenises and stratifies societies, populations and space.

> Offers a fresh perspective to disciplinary debates about legal indeterminacy by showing that the contradictions of 'civilisation' are the way the pro-capitalist bias of international law manifests itself

> Combines methodological tools drawn from Marxism and deconstruction, enabling the reader to take the textuality of the law seriously while also situating these texts within the structures of global capitalism

> Elucidates the role and continuing purchase of racialised and gendered tropes for international legal argumentation and helps its audience decipher the racist and sexist presuppositions of supposedly neutral legal doctrines

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Research theme: International Law

Book Review: Martin Jarrett, Contributory Fault and Investor Misconduct in Investment Arbitration

Author(s): Esme Shirlow

Investment treaties and investor-State arbitration have both been subject to sustained criticism and calls for reform in recent years. Critics have called, inter alia, for a ‘rebalancing’ of treaties to address perceived asymmetries between States and investors, and for a reconnection of investment law to other bodies of law. As reform discussions have matured, analysis of how to address these asymmetries and fragmentations in investment law have become increasingly nuanced. Contributing to this line of scholarship, Martin Jarrett‘s book tackles difficult questions associated with when an investor’s ‘faultworthy’ conduct should impact the analysis of a host State’s responsibility for internationally wrongful conduct under an investment treaty. Jarrett’s book introduces and examines three defences to investor-State arbitration claims, which are each based on an investor’s contribution to investment damage and/or an investor’s misconduct in connection with a protected investment. Jarrett’s analysis holds important implications for the apportionment of liability between States and investors for their contribution to the injury at issue in an investor-State arbitration claim.

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Book Review: Martin Jarrett, Contributory Fault and Investor Misconduct in Investment Arbitration

Author(s): Esme Shirlow

Investment treaties and investor-State arbitration have both been subject to sustained criticism and calls for reform in recent years. Critics have called, inter alia, for a ‘rebalancing’ of treaties to address perceived asymmetries between States and investors, and for a reconnection of investment law to other bodies of law. As reform discussions have matured, analysis of how to address these asymmetries and fragmentations in investment law have become increasingly nuanced. Contributing to this line of scholarship, Martin Jarrett‘s book tackles difficult questions associated with when an investor’s ‘faultworthy’ conduct should impact the analysis of a host State’s responsibility for internationally wrongful conduct under an investment treaty. Jarrett’s book introduces and examines three defences to investor-State arbitration claims, which are each based on an investor’s contribution to investment damage and/or an investor’s misconduct in connection with a protected investment. Jarrett’s analysis holds important implications for the apportionment of liability between States and investors for their contribution to the injury at issue in an investor-State arbitration claim.

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Using Travaux to Interpret Treaties: A Proposed Sliding Scale

Author(s): Esme Shirlow

Materials produced during the negotiation of treaties, commonly called travaux préparatoires, are given formal significance as a ‘supplementary means’ of treaty interpretation under article 32 of the Vienna Convention on the Law of Treaties (‘VCLT’). Travaux present both risks and opportunities for treaty interpretation, and international adjudicators have differed in how they define the rationale for referring to travaux; how they use these materials, and even more fundamentally, what materials they classify as travaux. This article proposes a methodology to guide the more structured identification and use of travaux. The article uses the interpretation of investment treaties in investor-state arbitration as a case study to illustrate the proposed approach and its utility. The discussion, including the proposed sliding scale approach, is nonetheless equally relevant for interpreting all manner of treaties. Section I illustrates three practical challenges associated with the use of travaux in investment treaty disputes to highlight the advantages and pitfalls associated with using travaux. Section II considers what may constitute ‘travaux’. Based on an extensive review of arbitral practice, Section II argues in favour of a sliding scale approach to travaux, whereby treaty interpreters assess the utility of a given material by reference to its precise qualitative features and the context of interpretation. Section III considers how arbitral tribunals have used – and should use – travaux by reference to the interpretive framework established by the VCLT. Section IV considers how investment tribunals have regulated access to and use of travaux through their powers to order document production.

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Regulating transparency on human rights and modern slavery in corporate supply chains

Regulating transparency on human rights and modern slavery in corporate supply chains: the discrepancy between human rights due diligence and the social audit

Author(s): Jolyon Ford

This article examines some of the limits of reporting schemes as a tool for addressing business-related human rights risks and for engaging business in a collaborative effort to improve human rights. Australia’s Modern Slavery Act 2018 (Cth) (MSA) is the latest example globally of a legislative scheme intended to foster corporate action on such risks within businesses’ operations and supply chains. Some such schemes require firms to implement human rights due diligence (HRDD) measures, as envisaged by the 2011 UN Guiding Principles on Business and Human Rights. However, the MSA’s model is best described as a disclosure or reporting regime. Such regimes do not require businesses to take HRDD measures; rather, they only require businesses to report on any such measures that they have taken during the relevant reporting period. In this article, we analyse some of the assumptions underlying the design of reporting-based schemes. We then consider one practice used by firms facing supply chain scrutiny: social auditing. We caution against an over-reliance on this practice, which is not synonymous with HRDD. It does not necessarily promote fulsome, non-cosmetic reporting compliance or foster corporate action on underlying human rights risks. We finally offer some alternative approaches that could improve the effectiveness of measures to address human rights risks in supply chains.

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War and Peace in Outer Space

War and Peace in Outer Space

Author(s): Cassandra Steer

This book delves into legal and ethical concerns over the increased weaponization of outer space and the potential for space-based conflict in the very near future. Unique to this collection is the emphasis on questions of ethical conduct and legal standards applicable to military uses of outer space. No other existing publication takes this perspective, nor includes such a range of interdisciplinary expertise.

The essays included in this volume explore the moral and legal issues of space security in four sections. Part I provides a general legal framework for the law of war and peace in space. Part II tackles ethical issues. Part III looks at specific threats to space security. Part IV proposes possible legal and diplomatic solutions. With an expert author team from North American and Europe, the volume brings together academics, military lawyers, military space operators, aerospace industry representatives, diplomats, and national security and policy experts. The experience of this team provides a collection unmatched in any academic publication broaching even some of these issues and will be required reading for anyone interested in war and peace in outer space.

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Data Protection and Consumer Protection

Data Protection and Consumer Protection: The Empowerment of the Citizen Consumer

Author(s): Damian Clifford

This chapter explores the alignment of the EU data protection and consumer protection policy agendas through a discussion of the reference to the Unfair Contract Terms Directive in Recital 42 of the General Data Protection Regulation. This non-binding provision refers to the need to assess the (un)fairness of pre-formulated declarations of data subject consent to personal data processing. Through this lens the introduction of the Directive on Contracts for the Supply of Digital Content and its relationship to the data protection and privacy framework is also explored. The protections provided by both the data protection and privacy and consumer protection frameworks aim to bolster the decision-making capacity of individuals. However, as this chapter outlines, there are potential conflicts when the respective frameworks are assessed together.

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Using multi-member panels to tackle RSD complexities

Using multi-member panels to tackle RSD complexities

Author(s): Jessica Hambly

Research across a range of European jurisdictions suggests that the use of multi-member judicial panels at appeal stage improves the quality and fairness of RSD. 

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Ethical Climate, Job Satisfaction and Wellbeing

Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers

Author(s): Stephen Tang, Vivien Holmes, Tony Foley

It is clear from research that workplace environments can influence employees to behave ethically or unethically. To date, such research has focused on corporate workplace culture; legal workplaces have come under limited scrutiny. This Article reports on a study that expands that scrutiny by surveying perceptions of ethical climate in legal practices. The study breaks new ground by correlating perceptions of ethical climate with measures of psychological health, organizational learning culture, job and career satisfaction, and under-standings of professionalism. Our findings are clear enough for legal practice managers, professional bodies, and regulators to take note of the organizational factors linked to sound mental health and job satisfaction and to develop interventions aimed at promoting these factors.

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We are not Epidemiologists

“We are not Epidemiologists”: COVID-19 in the High Court

Author(s): Amelia Simpson

The High Court of Australia is soon to consider the constitutional validity of state border closures in response to COVID-19. This comment explores the constitutional issues raised in the current proceedings of Palmer v State of Western Australia by reference to the current state of High Court jurisprudence in relation to sections 92 and 117. Both provisions guarantee some degree of freedom of movement and equal treatment to persons moving between states or wishing to do so. Both, however, turn on questions of proportionality that will require the Court to decide how deferentially it should regard the public health experts on whose advice the border closures have proceeded. These proceedings might also provide the Court with an opportunity to extend its ‘structured’ approach to proportionality, currently confined to the political communication setting, into new terrain.

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Editors' Introduction to Index Volume 2 (2020)

Editors' Introduction to Index Volume 2 (2020)

Author(s): Desmond Manderson

This introduction contextualises the new interdisciplinary field of law and visual studies, with a particular emphasis on new work on Australian legal and art history.

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The Dancer from the Dance

The Dancer from the Dance

Author(s): Desmond Manderson

This essay argues that representations of public space both illustrate concepts of governance in visual terms, and actively constitute, through image, those modes. Starting from images of public space in Lorenzetti and Hobbes, the author moves to consider contemporary representations of public space under the influence of neoliberalism. A particular focus is place on video games as constitutive of relations to the public realm, space and order. A sub theme of the essay is the role of pandemics in how we constitute a vision of the public realm. Lorenzetti, Hobbes, and neoliberalism can both be seen as having been profoundly influenced by concepts and varieties of disease.

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The Dangers of Human Rights-Compliant Counterterrorism

The Dangers of Human Rights-Compliant Counterterrorism: A Critical Review of the Indonesian Approach

Author(s): Jayson Lamchek

Against the prevailing wisdom that legal frameworks can make the fight against terrorism compatible with human rights, the paper offers an extended pause to draw out the bases for disbelief in the power of constitutional law to tame counterterrorism in Indonesia. It argues that the idea of human rights-compliant counterterrorism partakes of a fantastical quality and involves a great deal of unawareness of counterterrorism as a hegemonic order. The identification of counterterrorism with human rights action is a defining feature of this counterterrorism hegemony. The paper contextualizes this argument in Indonesia. It offers explanations for how Indonesia’s counterterrorism achieved acceptability despite the Constitutional Court having had no role to play in shaping it and despite the counterterrorism legal framework lowering human rights standards. Three characteristics of Indonesian counterterrorism, namely, its focus on Islamist militants, that it is police-led and criminal justice-based, allow it to be presented as consistent with constitutional values. The rhetoric of counterterrorism as fundamentally consistent with human rights helps maintain impunity for extralegal killings and torture of terrorism suspects by police. The paper concludes with an invitation to develop a human rights practice that rejects rather than seeks accommodation with counterterrorism hegemony.

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Friends and Foes

Friends and Foes: Human Rights, the Philippine Left and Duterte, 2016-2017

Author(s): Jayson Lamchek

The Philippine left’s short-lived association with the government of Rodrigo Duterte from 2016 vexed political observers, whether sympathetic to or critical of the left. Against the charge that the left was simply subordinated as a political force to Duterte’s multi-class populist-cum-fascist project, this article argues that the left was both friend and foe of Duterte, who promised an aggressive War on Drugs as well as socioeconomic reforms. It situates the left–Duterte relationship within the history of engagement by new political actors with elite democracy in the Philippines since 1987. The friend-and-foe or dual strategy analysis uncovers some of the richness of the left’s progressive engagement with Duterte. This contributes to an understanding of Philippine political history by providing a profile of progressive engagement involving a set of actors different from those who have previously been analysed – viz. national democrats rather than social democrats – and an increasingly authoritarian administration explicitly espousing anti-human rights rhetoric. We specify the conditions for the emergence of the left–Duterte relationship, how it unfolded, and the tipping points that led to its collapse. The findings underscore the complexities and extreme difficulty of transforming Philippine politics through progressive engagement.

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Law Teachers Speak Out

Law Teachers Speak Out: What do Law Schools Need to Change

Author(s): Colin James

This Chapter presents the results of national surveys of UK and Australian legal academics conducted in 2017 and explores law teachers’ perceptions of their well-being and of their experience of stress at work. First, we consider the neo-liberal landscape of higher education in the 21st Century, a landscape that provides the context and framework for how law teachers experience law school as a work environment. Second, we explain the methodology and results of the studies conducted in the UK and Australia in 2017. Third, we discuss the themes presenting from the law teachers’ responses to the open question: please explain what you think your university could do to improve staff quality of working life? The Chapter concludes with a suggested to-do list for law school leaders to provide a work environment that better supports the well-being of their academics and in turn enhances their capacity to support law student well-being.

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Cybercrime Legislation

Cybercrime Legislation, Cases and Commentary, 2nd edition

Author(s):

Cybercrime: Legislation, Cases and Commentary provides a comprehensive analysis of cybercrime legislation and case law in Australian jurisdictions. Since the publication of the first edition, there have been significant developments in legislation, cases and policies directed at cybercrime. More generally, there have been new developments in the regimes governing law enforcement access to data, telecommunications and internet service provider obligations, and key institutions dealing with cyber security and data protection.

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Living with Myanmar

Living with Myanmar

Author(s): Jonathan Liljeblad

Since 2011 Myanmar has experienced many changes to its social, political and economic landscape. The formation of a new government in 2016, led by the National League for Democracy, was a crucially important milestone in the country’s transition to a more inclusive form of governance. And yet, for many people everyday struggles remain unchanged, and have often worsened in recent years. Key economic, social and political reforms are stalled, conflict persists and longstanding issues of citizenship and belonging remain.  

The wide-ranging, myriad and multiple challenges of Living with Myanmar is the subject of this volume. Following the Myanmar Update series tradition, each of the authors offers a different perspective on the sociopolitical and economic mutations occurring in the country and the challenges that still remain. The book is divided into six sections and covers critical issues ranging from gender equality and identity politics, to agrarian reform and the representative role of parliament. Collectively, these voices raise key questions concerning the institutional legacies of military rule and their ongoing role in subverting the country’s reform process. However, they also offer insights into the creative and productive ways that Myanmar’s activists, civil society, parliamentarians, bureaucrats and everyday people attempt to engage with and reform those legacies.

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privacy_at_the_intersection_of_public_law_and_private_law.jpg

Privacy at the Intersection of Public Law and Private Law

Author(s): Jelena Gligorijevic

To demonstrate that any common law system can adequately and legitimately protect informational privacy through a private law action influenced by public law, this paper argues that: tort law can accommodate privacy protection, and the English action is appropriately labelled a ‘tort’; the English tort does not depend upon the Human Rights Act 1998 (HRA), allowing other common law jurisdictions to choose to adopt aspects of that tort; and the public law tool of proportionality can determine privacy tort outcomes in a way that ensures credible legal protection of the fundamental right to privacy in the private sphere, without unjustifiably encroaching upon other rights.

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Centre: CIPL

Research theme: Private Law

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