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.

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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.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

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Backlash against a Rules-based International Human Rights Order? An Australian Perspective

Author(s): Jolyon Ford

This article engages with the question of whether we can identify a recent populist political ‘backlash’ within some Western democracies against the institutions, instruments and even the ideas of the multilateral (United Nations and treaty-based) human rights system. An associated question concerns what the implications of any such phenomenon might be for the universalist human rights system (or at least Australia’s participation therein), and perhaps the implications for the wider global legal order of which the human rights project has, for decades now, been such an important part. A second question-bundle is whether we can discern signs recently that Australia may be one of those ‘backlash’ states, and what systemic implications this may have for Australia’s oft-repeated fidelity to, and reliance upon, the international rules-based order. Sitting above or behind these questions is the broader issue of whether the concept of ‘backlash’ is useful at all in explaining or analysing recent developments, and/or what modifications or qualifiers it might need. This article attempts to address these questions, focussing first on exploring ways to approach, unpack refine or re-frame the ‘backlash’ concept. It then takes the resulting frame(s) to provide a general overview of recent Australian practice and rhetoric. This is so as to advance a useful characterisation of Australia’s conduct, even if it does not in a ‘Yes/No sense’ meet Sunstein’s definition of systemic-level ‘backlash’ intended to reject a legal order and remove its legal force.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

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Navigating the Backlash against Global Law and Institutions

Author(s): Jeremy Farrall, Jolyon Ford, Imogen Saunders

This article considers the recent ‘Backlash’ against global norms and institutions fuelled by various contemporary political developments within and between states. Understanding the shape, significance and drivers of this phenomenon better is a pre-requisite to developing and analysing possible responses by Australia and other states. The recent rise of populism and ‘illiberal democracy’ especially within major Western democracies has challenged the longstanding and widespread commitment of those states to the rules-based order. These phenomena have also eroded the traditional global leadership, in multilateral forums, of key powers including UN permanent members the United States and the United Kingdom. The populations of these and other states have responded to perceptions of economic and political disempowerment by pressuring political representatives to focus their energies domestically. In order both to appeal and respond to domestic political forces, leaders in these states have sought to target or sometimes scapegoat the international institutions that have hitherto been so useful to their foreign policy agenda. This article examines the consequences of understanding the current populist moment as part of a Backlash against global law and institutions and the ramifications of the Backlash frame for international peace and security. It also considers the implications of the Backlash frame for the international human rights system, the impact of the turn inward for global trade and finance and the Backlash against environmental norms.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Legal History and Ethnology, Private Law, Regulatory Law and Policy

Two Steps Forward One Step Back

Two Steps Forward One Step Back: The Non-Linear Expansion of Judicial Power in Pakistan

Author(s): Moeen Cheema

Pakistan’s superior courts have evolved from marginal state institutions to key players mediating the balance of powers in a deeply divided and politically fragmented polity during seven decades of the country’s postcolonial history. Although the political salience of the Supreme Court’s recent actions — including the disqualification of two elected prime ministers — has created the sense of a sudden and ahistorical judicialization of politics, the courts’ prominent role in adjudicating issues of governance and statecraft was long in the making. The perception of an historically docile and subservient court which has suddenly become activist has been shaped by an undue focus on the big constitutional moments of regime or governmental change in which the Apex Court has more often than not sided with the military or military-backed presidency. While these constitutional cases and crises are important, an exclusive focus on this domain of judicial action hides the more significant and consistent developments that have taken place in the sphere of “administrative law.” It is through the consistent development of the judicial review of administrative action, even under military rule, that Pakistan’s superior courts progressively carved an expansive institutional role for themselves. This article highlights the progressive, though non-linear, expansion of judicial power in Pakistan and argues that despite some notable and highly contentious moments of judicial interference in mega politics, the bedrock of judicial review has remained in administrative law — i.e., the judicial review of executive action.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

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Pakistan: The State of Liberal Democracy

Author(s): Moeen Cheema

2017 was the year of the Panama case. That one case overshadowed all the business in the Apex Court and has shaped public perception of the Court’s role. Just as in the previous electoral cycle, the Supreme Court has disqualified and dismissed a prime minister from office in the year leading up to the messy business of elections. Just as during the tenure of former Chief Justice Chaudhry, the Court has ended up in an overt tussle with a government that is determined to present itself as a victim of a “judicial coup.” The disqualification of the head of the largest political party in Pakistan in the run-up to an election has also raised anxieties about of a political court acting in collusion with the country’s powerful military intent on destabilizing the transitional democratic system.

The Panama case marks the Court’s return to the center of the political stage after a brief hiatus, a position it seems likely to occupy in the foreseeable future. The Supreme Court’s political role is not a recent development. Over the last three decades, the Supreme Court has evolved from a peripheral state institution to a key player mediating the balance of powers in a deeply divided and politically fragmented polity. However, the Court’s exercise of its judicial review jurisdiction appears to be “promiscuous” rather than principled. Despite the larger claims, the superior courts appear to have become “institutions of governance” and judicial review the mode of a “delicate and political process of balancing competing values and political aspirations” . . . providing “a workable modus vivendi” which in turn enables the courts to claim a seat at the table of high politics.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

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Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia

Author(s): Jolyon Ford

Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

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Empty Rituals or Workable Models? Towards a Business and Human Rights Treaty

Author(s): Jolyon Ford

In this article, we do not seek to engage directly with ongoing discussions regarding the potential merits, and conversely the risks, of seeking to conclude a Business and Human Rights (BHR) treaty at all. Instead, our aim is to promote a greater focus, in the context of the BHR treaty debate, on regulatory effectiveness. That is, we believe that proposals for a BHR treaty should be assessed in terms of their likely efficacy, relative to other available forms of regulatory intervention, in advancing effective enjoyment of human rights in the business context. Whereas many contributions to the BHR treaty debate so far have explicitly or implicitly advocated one or other treaty model they have side-stepped the difficult question of how practically effective these models might be in influencing the conduct of duty bearers.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Author(s):

This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Administrative Law, Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

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Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights

Author(s):

This paper examines the growth of transnational governance, and what it means for business lawyers advising multinational corporate clients. The term “governance” incorporates the network of actors, instruments and mechanisms that now govern transnational corporations, separate from the nation state. It is reasonable to expect that lawyers play an important role in advising business clients on how to effectively operate within this system. Indeed, many transnational legal instruments are intended to enhance clients’ business goals by enabling them to engage more efficiently in cross-border commerce. Other forms of regulation, such as human rights regulation, purports to impose requirements on companies that go beyond what is necessary to enhance cross-border commerce.

In this paper we discuss the transnational governance regime that has arisen to address the adverse human rights impacts of business activities. We focus in particular on the United Nations (UN) Guiding Principles on Business and Human Rights, which were adopted by the UN Human Rights Council in 2011. We ask what if any role is there for lawyers in fostering acknowledgment and fulfilment of these responsibilities among clients? Is the duty to respect human rights a “legal” obligation in any sense? If a lawyer does provide advice, should it encompass only legal risks to the company that fall within the lawyer’s traditionally defined specialized expertise? Or should it go beyond that to include other concerns?

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan

Author(s): Moeen Cheema

The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

The Politics of the Rule of Law

Author(s): Moeen Cheema

In March 2009, Chief Justice Iftikhar Chaudhry and several other deposed judges were restored to the Supreme Court of Pakistan as a result of a populist movement for the restoration of an independent judiciary. The Supreme Court of Pakistan has since engaged in judicial activism that has resulted in a clash between the judiciary and the elected executive and has brought the distinction between the Rule of Law and the judicialization of politics into contestation. This Paper deconstructs the philosophical debates over the meaning and relevance of the Rule of Law in order to show that the claims to universal applicability, neutrality and inherent value implicit in the dominant modes of theorizing about the Rule of Law are hollow. The deeper concern animating these debates is not the desire to draw hard lines between “law” and “politics.” However, abstract Rule of Law contestations have limited value and relevance, when divorced from the political, constitutional, and sociological context. Only a sharper understanding of the nature of the special politics of law and the specific contexts (of constitutional law, state structure, social, and economic life- forms) shall enable a better understanding of the ever-increasing resonance of the Rule of Law, especially in the Global South.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan

Author(s): Moeen Cheema

The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

Regulating Business for Peace

Regulating Business for Peace: The United Nations, the Private Sector, and Post-Conflict Recovery

Author(s): Jolyon Ford

This book addresses gaps in thinking and practice on how the private sector can both help and hinder the process of building peace after armed conflict. It argues that weak governance in fragile and conflict-affected societies creates a need for international authorities to regulate the social impact of business activity in these places as a special interim duty. Policymaking should seek appropriate opportunities to engage with business while harnessing its positive contributions to sustainable peace. However, scholars have not offered frameworks for what is considered 'appropriate' engagement or properly theorised techniques for how best to influence responsible business conduct. United Nations peace operations are peak symbols of international regulatory responsibilities in conflict settings, and debate continues to grow around the private sector's role in development generally. This book is the first to study how peace operations have engaged with business to influence its peace-building impact.

Order your copy online

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, Law, Governance and Development

Legal Psychology in Australia

Legal Psychology in Australia

Author(s): Mark Nolan, Jane Goodman-Delahunty

Legal Psychology in Australia is an introductory book aimed at enabling the teaching of legal psychology to law students, (forensic) psychology students, criminology students, and a range of students from diverse professions (eg. social work, psychiatric nursing, mediation, policy-makers, and investigative journalism) relevant to the legal system. Authored by experienced empirical legal psychological researchers and teachers Mark Nolan and Jane Goodman-Delahunty, Legal Psychology in Australia will encourage law students to learn more about the psychological evidence base that can and should be used as the basis for law reform and the analysis of Australian law in action.

Order your copy online

Centre: CMSL, LGDI

Research theme: Law and Psychology

Tough Love

Tough Love: Professional Regulation of Lawyer Dishonesty

Author(s):

Regulating lawyer dishonesty is a key focus of professional misconduct cases in most jurisdictions. And rightly so. In any legal system aimed at the just resolution of disputes between citizens, it is essential that lawyers’ words and behaviour can be relied upon by the courts, clients, other lawyers and the public. Yet research into seven years of disciplinary cases in New South Wales (NSW), Australia suggests that only a narrow range of dishonest conduct is actioned, often with harsh results for the practitioners involved. Research outlined in this article shows that 65% of the cases decided in this jurisdiction between 2004-2010 involved findings of practitioner dishonesty, 80% of the practitioners involved in those cases were disbarred and 89% of the total number of lawyers disciplined worked as solo and small firm practitioners.

The Australian research reported in this article may be emblematic of similar issues that occur in the regulation of lawyer dishonesty in both the United States and Canada. It is therefore argued that, for disciplinary cases to be seen as legitimate and just, it is important for the profession and regulators to consider the way dishonesty is being characterized and the harshness of the penalties imposed. When these questions are asked in the Australian context, the research suggests there is a tendency to treat small and sole firm practitioners particularly harshly even where small instances of dishonesty are involved. In addition, the dominant regulatory approach is still to link dishonesty with poor character, a connection that is unsupported by empirical research in psychology. Finally, there appears to be limited appreciation by regulatory authorities of the links between dishonesty, stress and psychological conditions.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Strategic Privatisation

Strategic Privatisation of Transnational Anti-Corruption Regulation

Author(s):

This article discusses the privatisation of transnational anti-corruption regulation. Increasing global non-state rules, guidelines and standards have become a visible and legitimate form of corruption regulation and a key influence on the development and implementation of state-based anti-corruption laws. These private regulatory instruments are created by multilateral development banks, bi-lateral and multi-lateral development agencies, NGOs, industry groups, private corporations and technical experts. The result is that state-based transnational anti-corruption regulation is now increasingly privatised, harmonised and globalised. This not only affects developments in national anti-corruption regulation, but also the direction of corporate governance more generally. Whilst the interaction between public national and private global regulation is clearly of strategic benefit to governments, it is also creating a multi-level framework of incentives and pressures on global corporations to improve the integrity of their activities and reduce the incidence of corruption.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

The Expansion of Global Law Firms in Australia and Asia

The Expansion of Global Law Firms in Australia and Asia

Author(s):

Over the last 18 months the legal profession has seen unprecedented growth in the operations of global law firms in Australia. Recent mergers between top-tier and leading Australian law firms demonstrate the importance of Asian markets and the shifts in economic power from the West to the East. For such firms there are clear market and competitive drivers for expansion into Australia including proximity to rapidly developing Asian economies and increased opportunity to expand the firm’s global brand. Yet understanding the role played by Australian law firms in these developments can be tricky. For some newly merged global firms, the Australian operations are central to the firm’s regional and global expansion, allowing the firm to draw upon the strong performance and reputational capital of the Australian offices. For other global firms their alliances with Australia firms provide a strategic foundation for their expansion into Asia. And for third group of firms Australia remains a destination in its own right, sitting within the firm’s overall global network of international offices.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Beyond Beliefs

Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan's Law

Author(s): Moeen Cheema

The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and archaic laws embodied in discriminatory statutes. In contrast, the dominant narrative of political Islam deems it as the cure-all for a range of social, political and economic ills afflicting that particular Muslim state. This Paper presents a deeper insight into the Islamization of Pakistan's law. Pakistan has three decades of experience with incorporating shari'a law into its Common Law system, an experience which has been characterized by a constant struggle between the dominant Western and Islamist narratives. Pakistan's experience helps us deconstruct the narratives and discourses surrounding Islamization and understand that the project of incorporating Islamic laws in a modern Muslim society must be based upon indigenous demands and undertaken in accordance with the organically evolving norms of recognition, interpretation, modification and enforcement in that society. Furthermore, substantive law cannot be understood or enforced outside of a legal system, its legal culture(s) and professional discourse(s), and of the broader socio-political dialectics that give context and relevance to it. Therefore, we need to shift focus to the systemic problems deeply ingrained in Pakistan's legal system that allow law and legal processes to be used to prolong disputes and cause harassment. Islamic legality can, in fact, play a significant role in breaking down the resistance that vested interests may offer to such a restructuring of the legal system along more egalitarian lines.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

Review Essay: The Constitutional System of Thailand: A Contextual Analysis

Author(s): Mark Nolan

Review of: Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Series: Constitutional Systems of the World). Oxford and Portland, Oregon: Hart Publishing, 2011. Pages: i-xxxv, 1-273; ISBN-10: 1841139726: ISBN-13: 978-1841139722.

Read on SSRN

Centre: CIPL, CMSL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Law, Governance and Development, Migration and Movement of Peoples, Military & Security Law

Fitzpatrick, Property and Social Resilience

Property and Social Resilience in Times of Conflict: Land, Custom and Law in East Timor

Author(s): , Andrew McWilliam, Susana Barnes

Peace-building in a number of contemporary contexts involves fragile states, influential customary systems and histories of land conflict arising from mass population displacement. This book is a timely response to the increased international focus on peace-building problems arising from population displacement and post-conflict state fragility. It considers the relationship between property and resilient customary systems in conflict-affected East Timor. The chapters include micro-studies of customary land and population displacement during the periods of Portuguese colonization and Indonesian military occupation. There is also analysis of the development of laws relating to customary land in independent East Timor (Timor Leste). The book fills a gap in socio-legal literature on property, custom and peace-building and is of interest to property scholars, anthropologists, and academics and practitioners in the emerging field of peace and conflict studies.

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Centre: LGDI

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development, Migration and Movement of Peoples

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