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.
Research theme: Law and Technology
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.
Research theme: International Law
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.
Research theme: Human Rights Law and Policy
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.
Research theme: Military & Security Law
Author(s): Jessica Hambly
There is ongoing concern that Britain’s courts are places that are overwhelming, disorientating and confusing for court users. Asylum seekers are some of the most marginalised people in society and existing research highlights the difficulties they face in disclosing evidence throughout the legal process. Without an accessible process, appellants may be unable or unwilling to speak and participate in their appeal, and therefore important pieces of evidence may not be considered and justice may not be served. Although a lot of attention has been paid to asylum law by academics and policy makers alike, its day to day implementation often escapes critical academic scrutiny. This is arguably because relatively few non-legal scholars study the law, meaning that most analysis is focussed on substantive and doctrinal legal issues rather than questions of process, implementation and experience. It is also extremely time consuming to observe a sufficient number of hearings to be able to draw general conclusions about day to day issues.
Our project adopts an inter-disciplinary perspective on the day to day workings of asylum law within the UK’s asylum appeal hearings. In the following sections we report on a project which examined what happens during asylum appeals by closely observing them from the public areas of hearing rooms. Our observations ran from 2013 to 2019. We complement the perspective our observations offer with interview evidence from appellants as well as others involved in the process.
Co-authors: Nick Gill, Jennifer Allsopp, Andrew Burridge, Daniel Fisher, Melanie Griffiths, Jessica Hambly, Jo Hynes, Natalia Paszkiewicz, Rebecca Rotter and Amanda Schmid-Scott.
Author(s): Greg Weeks, Sarah Lim, Nathalie Ng
Providing redress where loss has been suffered is not the sole preserve of the judiciary. At least in part, this is because loss can be suffered by individuals in the absence of legal liability. While this is not the exclusive province of public entities, it is more commonly the case that ‘moral liability’ justifying the payment of compensation is borne by public entities. For one thing, public entities generally have a much greater capacity to cause individuals — even relatively sophisticated or commercially adept parties — to act in a way that they otherwise might not. Government and other public figures come cloaked in authority, with the consequence that people are more likely to comply with requests or instructions. Such compliance will frequently not create a legal obligation if the individual suffers loss. Compensation schemes are premised on the belief that the action might nonetheless create moral obligations and that these can be a sufficient basis for compensation to issue.
This article considers the provision of compensation outside the legal system, usually paid on the basis of ‘moral liability’ rather than a claim founded in law. There are a number of different schemes in place which may achieve this end, across every Australian jurisdiction and they are both statutory and executive.
Research theme: Administrative Law
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.
Research theme: International 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.
Research theme: Private Law
Author(s): Greg Weeks
The office of the ombudsman is much misunderstood. Is it better viewed as part of the executive or the judiciary? Is it a fragile institution, unprotected with security of tenure? Is it a ‘toothless tiger’? The one constant in the face of such inquiries is that ombudsmen don’t seem to care, or at least carry on with great effectiveness as though they don’t. I would argue in any case that such queries are beside the point and that the one thing that must be understood about the ombudsman is that it is an office with a particular purpose.
Research theme: Administrative Law
Author(s): Cassandra Steer
Despite the fact that outer space may only be used for peaceful purposes under the 1967 Outer Space Treaty, most technologically advanced States today have a high military dependence on space. In other words, space is “militarized,” but not yet “weaponized.” At the same time, a space arms race has been underway for some time, and appears to be accelerating in recent years. In 2019, India joined what it proudly dubbed the “elite club” of States with the capability to launch direct ascent anti-satellite weapons, replicating earlier tests by China, Russia and the U.S., all of whom have also demonstrated more covert forms of anti-satellite or “counterspace” technologies. The establishment of the U.S. Space Force at the end of 2019 and the response of allies and adversaries alike is emblematic of the escalatory cycle that appears to be in place. Today nearly every country is dependent in some way on space-enabled capabilities, many of which are supplied not by States but by commercial entities. This report outlines the historical and legal context, and argues for increased cooperation and transparency to improve the stability and security of outer space for national and international security.
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.
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
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.
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.
Author(s): Ron Levy
If referendums are not carefully designed and conducted so as to promote moderation, they may undermine deliberation and hence undermine one of the necessary or principal conditions of their own success. Naturally, there is no suggestion here chat referendums can solve all the ills that deeply divided societies face or that democracy can be reduced to referendums. Yet, if skilfully and sensitively designed, they can play a crucial role, so long, that is, as ordinary people are made to feel that their views count for something in the process.
The relationship between corporate law and corporate practice is complex. So too is the relationship between the different types of corporate law rules — from primary and delegated legislation, through listing rules and ASIC orders to corporate constitutions. Corporate lawyers tend to respond to this complexity and diversity by implicit understanding than by conceptual framework. This article offers one way of conceptualising the complexity of corporate law rules and their relationship to corporate practice. Drawing on Boaventura de Sousa Santos’ influential 1987 article ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, the article looks to cartography as an unexpected source of ideas to assist in understanding the shape of modern corporate law rules.
This article examines a series of paradoxes that have rendered the international legal order’s mechanisms for collective action powerless precisely when they are most needed to fight COVID-19. The “patriotism paradox” is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding non-citizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The “equality paradox” is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.
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.
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.
Author(s): Imogen Saunders
The debate about the extent of the interaction between WTO law and public international law has existed for as long as the WTO itself. While WTO case law confirms a willingness of panels and the Appellate Body to embrace interpretative rules of general international law, engagement with non-trade obligations under non-WTO treaties has been more patchy. Nonetheless, the reality of competing international legal obligations on States will continue to grow. Could a deliberate shift to consider non-WTO obligations in WTO disputes help maintain the relevance of the institution?
Author(s): Will Bateman
Public Finance and Parliamentary Constitutionalism analyses constitutionalism and public finance (tax, expenditure, audit, sovereign borrowing and monetary finance) in Anglophone parliamentary systems of government. The book surveys the history of public finance law in the UK, its export throughout the British Empire, and its entrenchment in Commonwealth constitutions. It explains how modern constitutionalism was shaped by the financial impact of warfare, welfare-state programs and the growth of central banking. It then provides a case study analysis of the impact of economic condition on governments' financial behaviour, focusing on the UK's and Australia's responses to the financial crisis, and the judiciary's position vis-à-vis the state's financial powers. Throughout, it questions orthodox accounts of financial constitutionalism (particularly the views of A. V. Dicey) and the democratic legitimacy of public finance. Currently ignored aspects of government behaviour are analysed in-depth, particularly the constitutional role of central banks and sovereign debt markets.
> Provides the first constitutional analysis of public finance law and practice in UK and Commonwealth jurisdictions
> Provides an historical treatment of legal and constitutional dimensions of public finance in British and Commonwealth jurisdictions
> Accessibly explains how government, law and economic conditions interact before, during and after moments of economic crisis, using the UK and Australia as examples