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.

Technology Law

Technology Law: Australian and International perspectives

Author(s): Gregor Urbas

The regulation of technology is an important and topical area of law, relevant to almost all aspects of society. Technology Law: Australian and International Perspectives presents a thorough exploration of the new legal challenges created by evolving technologies, from the use of facial recognition technology in criminal investigations to the rise and regulation of cryptocurrencies. A well-written and fascinating introduction to technology law in Australia and internationally, Technology Law provides thorough coverage of the theoretical perspectives, legislation, cases and developing issues where technology and the law interact. The text covers data protection and privacy, healthcare technology, criminal justice technology, commercial transactions, cybercrime, social media and intellectual property, and canvasses the future of technology and technology law. Written by leading experts in the field, Technology Law is an excellent resource for law students and legal professionals with an interest in the area.

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Centre: CIPL

Research theme: Law and Technology

The Limits of the Natural State Doctrine: Rocks, Islands and Artificial Intervention in a Changing World

The Limits of the Natural State Doctrine: Rocks, Islands and Artificial Intervention in a Changing World

Author(s): Imogen Saunders

The natural state doctrine suggests that under UNCLOS, maritime features must be assessed in their ‘natural state’, before any artificial intervention. While this has been applied in the context of artificial island building, it could also apply to cases of artificial augmentation of features (such as, for example, desalination activities). This article examines the appropriateness of this doctrine in the context of islands, arguing an expansive application of the doctrine is both textually unsupported and practically infeasible in light of changes brought by climate change.

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Centre: CIPL

Research theme: Environmental Law

Excellence, Innovation and Courtesy: Federal Court Procedure and Modernity

Excellence, Innovation and Courtesy: Federal Court Procedure and Modernity

Author(s): Peta Spender

Four decades after its formation, the Federal Court has clearly established itself as a Court of high standing which fosters excellence, innovation and courtesy. The lifespan of the Federal Court has seen the rise of statutory rights and remedies, the conferral of collective redress, as well as the emergence of the modern regulator and the managerial judge. This contribution will focus on significant challenges that have arisen during that time and the adaptation of civil procedure in response. It will use the Federal Court’s ethos of excellence, innovation and courtesy as a framework to illustrate how the Court has responded procedurally to the challenges before it.

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Centre: CIPL

Research theme: Legal Theory

Star Laws: The Role of International Law in Regulating Civil And Military Space Activities

Star Laws: The Role of International Law in Regulating Civil And Military Space Activities

Author(s): Cassandra Steer

There is some notion that outer space is a “Wild West”, or a lawless “final frontier”, but nothing could be further from the truth. The 1967 Outer Space Treaty, and the other core space treaties, apply to all activities in outer space, whether governmental or non-governmental. It is true that these treaties provide general principles, rather than detailed regulation of specific activities. However, together with national laws regulating space activities, these treaties provide a very clear legal framework for both military and civilian space activities. This chapter provides an overview of how this general legal framework ensures that space is well regulated for civilian and military uses of outer space, including how existing branches of international law also apply to activities in space. For military operations, the most important ones are the law on the use of force, the law of armed conflict, human rights law, and environmental law. The imperative is upon States to ensure a stable, secure environment, and to ensure the rule of law prevails, just as in all terrestrial environments.

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Centre: CIPL

Research theme: International Law

The Woomera Manual: Legitimising or Limiting Space Warfare?

The Woomera Manual: Legitimising or Limiting Space Warfare?

Author(s): Cassandra Steer

Military activities in outer space are governed by international law, and the applicability of the law on use of force and law of armed conflict to space is therefore uncontroversial. However, because space has many unique characteristics when compared with other environments, it is not always clear exactly how certain aspects of these bodies of law will apply. For example, at what point does an activity in space amount to a “threat to international peace and security”, or an “armed attack”, both of which would justify some form of forceful response? Where there is ambiguity, there is tension, which can lead to escalation and the risk of space warfare, or of terrestrial warfare in response to a space activity. In an attempt to provide some clarity, the Woomera Manual on the International Law of Military Space Activities is being developed by a group of independent experts from around the world. This chapter tackles the question whether such a Manual has the effect of legitimising space warfare, or rather a restraining effect on the risk of space warfare, and on the impacts if it were to take place.

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Centre: CIPL

Research theme: International Law

Leading Works in Law and Social Justice

Leading Works in Law and Social Justice

Author(s): Faith Gordon

This book assesses the role of social justice in legal scholarship and its potential future development by focusing upon the ‘leading works’ of the discipline.

The rise of socio-legal studies over recent decades has led to a more interdisciplinary approach to the study of law, which prioritises placing law into its wider social context. Recognising the role that culture, economics and politics play in the development of law is important in order to fully understand the position and impact of law in society. Innovative and written in an engaging way, this collection includes leading and emerging scholars from across the world. Each contributor has been invited to select and analyse a ‘leading work’, a publication which has for them shed light on the way that law and social justice are interlinked and has influenced their own understanding, scholarship, advocacy, and, in some instances, activism. The book also includes a specially written foreword and afterword, which critically reflect upon the contributions of the 'leading works' to consider the role that social justice has played in law and legal education and the likely future path for social justice in legal scholarship.

This book will be an essential resource for all those working in the areas of social justice, socio-legal studies and legal philosophy. It will be of wider interest to the social sciences more generally.

Co-authors: Faith Gordon, Daniel Newman

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Centre: CIPL

Research theme: Human Rights Law and Policy

Vulnerability, Legal Need and Technology in England and Wales

Vulnerability, Legal Need and Technology in England and Wales

Author(s): Faith Gordon

This research explores legal need and legal advice in England and Wales, during the COVID19 pandemic. It uses a theoretical understanding of vulnerability to examine the ways in which this crisis has in practice exposed several pre-existing fragilities in the relationship between the state, the advice sector, and individuals who experience social welfare problems. Our research commences by exploring the concept of vulnerability. In this part, we discuss three things: firstly, the broad range of ways in which vulnerability is experienced by those experiencing social welfare-related issues, secondly, how the idea of vulnerability is often used under austerity-informed policies to identify a limited class of people who are in need ofsocial welfare, and thirdly, the vulnerability of the systemsthemselves which support those individuals through the provision of legal advice. Our research then considers the specific context of the COVID-19 pandemic: it interrogates how social distancing and lockdown measures, in combination with the threat of the virus itself, have compounded the existing fragilities within this relationship.

Drawing on policy documents, reports and three case studies accessed from law centres in England and Wales, it discusses the concept of legal need, and demonstrates how the pandemic has transformed the way that social welfare law needs are experienced, as well as impaired the ability of the sector to meet these needs. These case studies assist us in being able to critically consider the topics of vulnerability, changing needs and the role that technology is playing, and can play, during the pandemic and beyond. Lastly, on the basis of these findings, our research advocates a critical consideration of the sustainability and format of legal advice in addressing legal need in the post-COVID-19 landscape. Drawing on examples of technology being utilised in legal advice sectors in other jurisdictions; this paper considers the future potential of technology for addressing legal need in England and Wales. This is important given that the sector continues to be left vulnerable to funding cuts, and at the same time, society is predicted to experience a continued increase in legal need post-pandemic.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Commercial and Military Uses of Space

The Province of all Humankind: A Feminist Analysis of Space Law

Author(s): Cassandra Steer

This edited book brings together a diverse range of chapters on space related topics. The authors included in this book are drawn from Australia and overseas, from academia, government, industry, civil society and the military. This book contains chapters that cover topics such as law, science, archaeology, defence, policy, and more, all with a focus on space. This edited collection is a timely international and interdisciplinary book, which addresses some of the contemporary issues facing activities in space and those attempting to understand, use and regulate the space domain. This edited book seeks to normalise the role of women as experts in the space sector, by not calling attention to the fact that all the authors are women – they are all experts in their respective fields who just happen to be women.  Bringing together these contributions in this book in turn promotes the inclusion of diversity in the space sector.  This edited collection is an opportunity to influence the development of the space industry – in terms of gender diversity, and diversity of disciplines and thinking – while it is in its formative stage, rather than trying to redress imbalances once they are entrenched in the industry.

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Centre: CIPL

Research theme: International Law

Populism, Backlash and the Ongoing Use of the World Trade Organization Dispute Settlement System: State Responses to the Appellate Body Crisis

Populism, Backlash and the Ongoing Use of the World Trade Organization Dispute Settlement System: State Responses to the Appellate Body Crisis

Author(s): Imogen Saunders

Since 2017, World Trade Organization (‘WTO’) Member States have been unable to reach a consensus on Appellate Body (‘AB’) appointments and reappointments. The United States is spearheading a populist backlash against procedural and substantive aspects of the dispute settlement system of the WTO. As a consequence of this, the AB is now facing an unprecedented crisis. The jewel in the crown of the WTO dispute settlement system will be missing: yet countries are still bringing complaints. This paper considers US actions through the framing of populism and backlash, and assesses responses from other countries.

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Centre: CIPL

Research theme: International Law

The Multilateral Human Rights System: Systemic Challenge or Healthy Contestation?

The Multilateral Human Rights System: Systemic Challenge or Healthy Contestation?

Author(s): Jolyon Ford

This essay explores some of the parameters and merits of a putative argument that the announcement of June 19, 2018 that the United States would withdraw from the United Nations Human Rights Council might most properly be understood as but one manifestation of a wider political backlash within the US (and indeed other Western democracies) against the multilateral human rights system epitomized by the Council. There are two prongs to this argument. First, populist-nationalist political sentiment at home simultaneously fuels and is fanned by strident high-profile diplomatic critiques (or even rejections) of global bodies such as the Council. Second, the nature and force of this backlash constitutes a systemic threat to the future of the post-1945 rules-based international order, especially since it comes mostly from the superpower whose values-based rhetoric and leadership has perhaps done most to advance the global human rights agenda in the modern era.

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Centre: CIPL

Research theme: International Law

The Populist Challenge and the Future of the United Nations Security Council

The Populist Challenge and the Future of the United Nations Security Council

Author(s): Jeremy Farrall

This article examines the potential impact of the populist challenge to International Law on the United Nations Security Council. The Security Council is often criticized as ineffective, unprincipled, and an anachronistic mechanism that reflects a power balance from the past, rather than the realities of today. The article argues that the rise of populism is likely to further erode the Security Council’s legitimacy and efficacy. At the same time, however, it emphasizes the need for greater nuance in the way that both the phenomenon of populism, as well as the relationship between national and international concerns, are understood and framed. Taking these complexities into account, the Article explores three scenarios that could result from an escalating crisis of Security Council legitimacy. The first involves reform and renewal. The second comprises retreat and realignment. The third encompasses reimagining the international peace and security architecture and creating something new.

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Centre: CIPL

Research theme: International Law

Deliberative Peace Referendums

Deliberative Peace Referendums

Author(s): Ron Levy

Peace referendums', which seek to manage conflict between warring groups, are increasingly common. Yet they remain erratic forces—liable as often to aggravate as to resolve tensions. This book argues that, despite their risks, referendums can play useful roles amid armed conflict. Drawing on a distinctive combination of the fields of deliberative democracy, constitutional theory and conflict studies, and relying on comparative examples (eg, from Algeria, Colombia, New Caledonia, Northern Ireland, Papua New Guinea, and South Africa), the book shows how peace referendums can fulfil their promise as genuine tools of conflict management.

Co-authors: Ron Levy, Ian O'Flynn, and Hoi L. Kong

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Centre: CIPL

Research theme: Constitutional Law and Theory, Military & Security Law

A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties

A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties

Author(s): Esme Shirlow

Materials produced during the negotiation of treaties, commonly called travaux préparatoires (‘travaux’), 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. Under the proposed sliding scale approach, treaty interpreters assess the utility of material to the interpretive exercise by reference to its precise qualitative features and the context of interpretation, rather than by categorizing materials as ‘travaux’ or not. 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.

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Centre: CIPL

Research theme: International Law

The Specter of Eurocentrism in International Legal History

The Specter of Eurocentrism in International Legal History

Author(s): Ntina Tzouvala

The honeymoon period of the “turn to history” in international law did not last long. On the surface everyone agreed that the past of the discipline remained under-examined and under-theorized. Additionally, few (if any) international legal scholars still believed in the most extreme versions of linear, progressivist narratives that imagined (international) law to be part and parcel of “the long march of mankind from the cave to the computer.” Nevertheless, important methodological differences persisted. These disagreements include the nature of historical time and, correspondingly, the relationship between the present and the past, the appropriate and permissible sources, the relationship between contingency and necessity, agency and structure, and aesthetic and theoretical choices between “thick description” and explanation. These deep theoretical divisions and the increasingly sour tone of the debate make the apparent consensus over the question of Eurocentrism worthy of closer examination. Simply put, scholars who agree on little else nonetheless acknowledge that the history of international law has been profoundly Eurocentric and that correcting this bias should be one of the main preoccupations of contemporary historical efforts. In fact, it is not uncommon that battles over other methodological questions are fought on the terrain of Eurocentrism, a point to which I will return shortly.

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Centre: CIPL

Research theme: International Law

Judging at the Interface Deference to State Decision-Making Authority in International Adjudication

Judging at the Interface Deference to State Decision-Making Authority in International Adjudication

Author(s): Esme Shirlow

This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.

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Centre: CIPL

Research theme: Regulatory Law and Policy

The Province of all Humankind: A Feminist Analysis of Space Law

The Province of all Humankind: A Feminist Analysis of Space Law

Author(s): Cassandra Steer

This chapter argues that greater diversity is needed in the space sector, and this will only be achieved when women feel they are truly part of the structures and institutions that govern space. International space law today contains many powerful remnants of the Cold War era, including gender-specific language in the OST which states that space shall be "the province of all mankind."

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Centre: CIPL

Research theme: Law and Gender

General Principles as a Source of International Law

General Principles as a Source of International Law

Author(s): Imogen Saunders

This book provides a comprehensive analysis of an often neglected, misunderstood and maligned source of international law. Article 38(1)(c) of the Statute of the International Court of Justice sets out that the Court will apply the 'general principles of law recognized by civilized nations'. This source is variously lauded and criticised: held up as a panacea to all international law woes or denied even normative validity. The contrasting views and treatments of General Principles stem from a lack of a model of the source itself. This book provides that model, offering a new and rigorous understanding of Article 38(1)(c) that will be of immense value to scholars and practitioners of international law alike.

At the heart of the book is a new tetrahedral framework of analysis - looking to function, type, methodology and jurisprudential legitimacy. Adopting an historical approach, the book traces the development of the source from 1875 to 2019, encompassing jurisprudence of the Permanent Court of International Justice and the International Court of Justice as well as cases from international criminal tribunals, the International Criminal Court and the World Trade Organisation. The book argues for precision in identifying cases that actually apply General Principles, and builds upon these 'proper use' cases to advance a comprehensive model of General Principles, advocating for a global approach to the methodology of the source.

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Centre: CIPL

Research theme: International Law

SETTLER COLONIALISM, RACE, AND THE LAW: WHY STRUCTURAL RACISM PERSISTS

Review essay: Settler Colonialism, Race, and The Law: Why Structural Racism Persists By Natsu Taylor Saito

Author(s): Ntina Tzouvala

As concerns over COVID-19 grew, an increasing number of Asian Americans as well as migrants of East Asian descent became the targets of violent racist attacks in the United States. This stands in apparent tension with the narrative of the ‘model minority’ that has accompanied Asian Americans for the last few decades. Despite having been the victims of racial discrimination in the past, the story goes, Asian Americans overcame adversity and are now equally or more successful than their white fellow citizens in terms of income, educational achievement and family stability. It is perhaps telling that the opponents of affirmative action programs have recently supported Asian-American claimants in cases against ‘race sensitive’ admissions in higher education, claiming that they unfairly benefit African Americans or Latinx individuals to the detriment of Americans of Chinese, Japanese or Korean descent. 

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Centre: CIPL

Research theme: Constitutional Law and Theory

Yearbook on international investment law policy

The Promises and Pitfalls of Investor-State Mediation

Author(s): Esme Shirlow

This chapter analyses how mediation interacts with investment treaty arbitration, and explores the benefits and risks associated with this form of dispute settlement. It begins by introducing mediation as a non-arbitral means of settling investor-state disputes at the international level, examining uses of investor-state mediation, and references to its use, under investment treaties to date. The chapter then considers the relative strengths of mediation vis-à-vis arbitration. This includes the potential for the mediation of investment disputes to produce a quicker, more cost-effective, flexible, and holistic dispute settlement procedure with different outcomes than are available through investor-state arbitration.

The chapter also looks at three key disadvantages potentially associated with investor-state mediation: issues of confidentiality, issues of authority, and issues of enforcement. It argues that these disadvantages may weaken the efficacy and legitimacy of mediation as a dispute settlement option for investor-state disputes, while also undermining the improvements to investor-state arbitration procedures secured through recent reform efforts. Finally, the chapter looks at how mediation could be leveraged alongside arbitration to improve both procedures for the settlement of investment disputes.

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Centre: CIPL

Research theme: Private Law

Oil, Gas and Energy Law

Comparing the Hydrogen Strategies of the EU, Germany, and Australia: Legal and Policy Issues

Author(s): James Prest

For hydrogen to assist in meeting ambitious decarbonisation goals, national law and policy has a central role. This article presents a critical analysis of Australian law and policy for hydrogen energy, by comparison with selected European jurisdictions. Existing energy policy literature describes divergent paradigms and pathways to hydrogen futures. Australia is a case study of policy conflict over competing methods of hydrogen production and their differing climate change implications.

Co-authors: J. Prest; J. Woodyatt; J.P.J. Pettit.

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Centre: CIPL

Research theme: Environmental Law, International Law

Pages

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