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.

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

Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era

Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era

Author(s): Kieran Pender

The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.

Co-authors: Madeleine Castles, Tom Hvala, Kieran Pender

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Centre: LRSJ

Research theme: Human Rights Law and Policy, Law and Gender

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

Contract Law: Text and Cases

Contract Law: Text and Cases (3rd edition)

Author(s): Alex Bruce

Contract Law: Text and Cases combines comprehensive academic commentary with extracts from key cases in a single volume. It provides students with the essential knowledge and skills in contract law to succeed in a law degree and in professional practice. The text is supplemented with review questions, problem-solving practice, and key points for revision.

The third edition has been revised and updated to include recent developments in case law and legislation.

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Centre: CCL

Research theme: Legal Education

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

Embracing Difference: Governance of Critical Technologies in the Indo-Pacific

Embracing Difference: Governance of Critical Technologies in the Indo-Pacific

Author(s): Jolyon Ford, Damian Clifford

This paper considers what an approach to human rights and the ethical governance of critical technologies could entail for Quad members. Its focus is data-driven technologies, like artificial intelligence.

The key insight of the paper is that policymaking and diplomacy on critical technologies should proceed from a recognition that the uses and impacts of technology are heavily affected by social factors, including local culture, context and legal traditions. Quad membership is often defined by distinguishing from autocratic/non-democratic powers. However, there are also considerable divergences within and between Quad members, and other partners, on what the responsible development, use and governance of technology (and related data) comprises. There are also differences between and within like-minded countries about how technologies are perceived to either pose a risk to, or enhance, security, economic and social interests and values.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Committing to human rights in Australia’s corporate sector

Committing to human rights in Australia’s corporate sector

Author(s): Sally Wheeler

This paper draws on data collected from ASX 50 listed corporations. As the UNGP makes clear a visible and accessible policy commitment is the most basic form of recognition that corporations can afford to human rights under the schema it offers. The paper takes the position that this policy commitment gives corporations a chance to declare a positive relationship with human rights. The presence or not of a policy statement, and the form that the statement takes, tells us much about the relationship between the corporate sector in Australia and human rights. The data reveals a low prevalence of policy commitment across the largest publically listed corporations in Australia. The paper selects a range of variables against which to examine whether commitment occurs or not.

The most significant factor that supports policy commitment is membership of human rights engaged global Business and Industry Non-Governmental Organisations (BINGOs). We might expect a rather stronger public commitment to human rights reflecting the position apparently taken by Australian corporations on other ESG standards. However this expectation has to be set against the absence of human rights discourse as a political and cultural artefact at the domestic level.

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Centre: CCL

Research theme: Human Rights Law and Policy

Youth (in)justice and the COVID-19 pandemic: rethinking incarceration through a public health lens

Youth (in)justice and the COVID-19 pandemic: rethinking incarceration through a public health lens

Author(s): Faith Gordon

Serious concerns for the safety and well-being of children and young people are multiplying due to the COVID-19 pandemic. The United Nations Committee on the Rights of the Child has called for children’s urgent release from prison. Evidence demonstrates that incarceration can aggravate existing health conditions and result in new health issues, such as depression, suicidal thoughts and post-traumatic stress disorder. This paper draws on findings from a larger study involving 25 qualitative interviews with policy makers, practitioners and researchers working in youth justice and utilises Victoria in South East Australia as a case study. Victoria represents the Australian state worst affected by COVID-19 and has one of the highest levels of children and young people incarcerated. This paper recommends decarceration of children and young people, with alternatives built around principles of a public health model. It argues that this holistic approach can promote children’s rights and crucially attend to the physical and emotional well-being of children and young people, compared with the current arrangements.

Co-authors: Faith Gordon, Hannah Klose and Michelle Lyttle Storrod. 

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Centre: LRSJ

Research theme: Law and Social Justice, Law and Technology

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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Centre: CIPL

Research theme: International Law

Nucoal Resources Ltd v NSW: the Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia

Author(s):

The Climate Council recently detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases, after proven corruption by disgraced New South Wales politicians was upheld by the High Court (NuCoal Resources Ltd v New South Wales [2015] HCA 13) was challenged using mechanisms in the Australia-US Free Trade Agreement and potentially the Trans-Pacific Partnership (TPP) Agreement. It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement (ISDS) clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.

Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘TA Faunce and S Parikh, NuCoal Resources Ltd v New South Wales: The Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia, 2016, 23, JLM, 801’.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.

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Centre: CCL

Research theme: Regulatory Law and Policy

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