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.

Who Has the Power? A Critical Perspective on Space Governance and New Entrants to the Space Sector

Author(s): Cassandra Steer

Space law and space politics are determined by the same big players as terrestrial geopolitics, and therefore in asking how to govern space, we have to take the current realities of international relations and international law into account. How are new entrants interacting with the international space law regime inherited from the Cold War, and what kinds of new governance structures might we need to deal with the increasing number and kinds of participants emerging in the space sector? I take a critical perspective, drawing on feminist legal theory and Third World Perspectives on International Law (TWAIL) to pose further questions: who is exercising power over the development of new legal and governance norms in space and who is excluded from this? I argue that, because we are all so dependent on space for our contemporary existence, 21st century space governance needs to take into account more than the interests of the biggest players.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

Why Outer Space Matters for National and International Security

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.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

The Antarctic Treaty at Sixty Years: Past, Present and Future

Author(s): Donald Rothwell

The Antarctic Treaty, which celebrates its 60th anniversary in 2019, remains as a unique example of an international law instrument that seeks to provide a governance mechanism for a single continent. Both Japan and Australia were original parties to the Antarctic Treaty and have been strong supporters of the Treaty throughout its lifetime. However, in 2019 questions are starting to be raised as to whether a treaty negotiated in 1959 is capable of continuing to provide an appropriate governance framework for Antarctica. These questions relate to the role of the seven Antarctic claimant States, the role of historically prominent non-claimant States such as the United States and the Russian Federation, and the interests of powerful ‘new’ States that are beginning to express a strong interest in polar affairs such as China. This paper assesses whether the Antarctic Treaty is sufficiently robust to address the challenges that confront Antarctic governance in 2019 and into the future. Particular attention will be given to whether it remains possible for Treaty parties to request an Article XII ‘Review Conference’, and also the 1991 Madrid Protocol Article 25 review mechanisms.

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Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Elected Member Influence in the United Nations Security Council

Author(s): Jeremy Farrall

This article reassesses how members of the UN Security Council exercise influence over the Council’s decision-making process, with particular focus on the ten elected members (the ‘E10’). A common understanding of Security Council dynamics accords predominance to the five permanent members (the ‘P5’), suggesting bleak prospects for the Council as a forum that promotes the voices and representation of the 188 non-permanent members. The assumption is that real power rests with the P5, while the E10 are there to make up the numbers. By articulating a richer account of Council dynamics, this article contests the conventional wisdom that P5 centrality crowds out space for the E10 to influence Council decision-making. It also shows that opportunities for influencing Council decision-making go beyond stints of elected membership. It argues that the assumed centrality of the P5 on the Council thus needs to be qualified and re-evaluated.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law, Law and Social Justice, Law, Governance and Development, Military & Security Law, Regulatory Law and Policy

Blockade? A Legal Assessment of the Maritime Interdiction of Yemen’s Ports

Author(s): Phillip Drew

In January 2015, the government of Abdrabbuh Mansour Hadi was ousted from power by Houthi rebels based in the northern highlands of Yemen. Initially forced to flee the country, Hadi soon returned, establishing a new government in the southern city of Aden. His return marked the commencement of the latest phase of Yemen’s perpetual civil war.

In what has often been referred to as the ‘Saudi-led blockade’, a coalition naval force, made up primarily of vessels from Gulf Cooperation Council states, has been enforcing a closure of Yemen’s waters and most of its ports. Yemen requires food imports to feed its population, and fuel imports to generate the electricity that it needs to keep its water plants operating. As a result of the naval interdiction operations, the civilian population of Yemen is in crisis. Approximately 20 million people require humanitarian assistance, and the country continues to struggle under the largest cholera epidemic in history.

This paper examines the legal bases for the current interdiction operations, both from the perspective of the law of naval warfare and the law of the sea. Finally it assesses the role that Security Council resolutions have played in the continuation of the ongoing humanitarian crisis and the role that the Security Council can play in supporting the delivery of humanitarian assistance to those in need.

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Centre: CMSL

Research theme: International Law, Legal Education, Military & Security Law

An Introduction to Maritime Crime in West Africa

Author(s): Phillip Drew

This paper examines the issue of maritime crime in the context of West Africa. Acknowledging that maritime crime is a growing threat to commercial shipping in the region, and to the economic health of West African countries, Dr. Drew assess the various factors that have thus far permitted maritime criminals in the region to operate with relative impunity. Recognising that a number of countries and international organisations have engaged in capacity building with the states of the GoG, Drew notes that lasting solutions to maritime crime require a broad approach that provides resources not only for the region’s military and law enforcement challenges, but also the underlying social problems that affect much of the continent.

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Centre: CMSL

Research theme: International Law, Legal Education, Military & Security Law

Crown and Sword

Crown and Sword: Executive power and the use of force by the Australian Defence Force

Author(s):

The Australian Defence Force, together with military forces from a number of western democracies, have for some years been seeking out and killing Islamic militants in Iraq, Syria and Afghanistan, detaining asylum seekers for periods at sea or running the judicial systems of failed states. It has also been ready to conduct internal security operations at home. The domestic legal authority cited for this is often the poorly understood concept of executive power, which is power that derives from executive and not parliamentary authority. In an age of legality where parliamentary statutes govern action by public officials in the finest detail, it is striking that these extreme exercises of the use of force often rely upon an elusive legal basis. This book seeks to find the limits to the exercise of this extraordinary power.

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Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Military & Security Law, Regulatory Law and Policy

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

Author(s): David Letts

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.

Read on SSRN

Centre: CIPL, CMSL

Research theme: Military & Security Law

Legal perspectives on Security Institutions

Legal Perspectives on Security Institutions

Editor(s): Kim Rubenstein

Due to the continuing expansion of the notion of security, various national, regional and international institutions now find themselves addressing contemporary security issues. While institutions may evolve by adjusting themselves to new challenges, they can also fundamentally alter the intricate balance between security and current legal frameworks. This volume explores the tensions that occur when institutions address contemporary security threats, in both public and international law contexts. As part of the Connecting International with Public Law series, it provides important and valuable insights into the legal issues and perspectives which surround the institutional responses to contemporary security challenges. It is essential reading for scholars, practitioners and policy makers seeking to understand the legal significance of security institutions and the implications of their evolution on the rule of law and legitimacy.

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Centre: CIPL, CMSL

Research theme: Human Rights Law and Policy, Military & Security Law

New Technologies and the Law of Armed Conflich

New technologies and the law of armed conflict

Editor(s):

Modern technological development has been both rapid and fundamentally transformative of the means and methods of warfare, and of the broader environment in which warfare is conducted. In many cases, technological development has been stimulated by, and dedicated to, addressing military requirements. On other occasions, technological developments outside the military sphere affect or inform the conduct of warfare and military expectations. The introduction of new technologies such as information technology, space technologies, nanotechnology and robotic technologies into our civil life, and into warfare, is expected to influence the application and interpretation of the existing rules of the law of armed conflict. In this book, scholars and practitioners working in the fields critically examine the potential legal challenges arising from the use of new technologies and future directions of legal development in light of the specific characteristics and challenges each technology presents with regard to foreseeable humanitarian impacts upon the battlespace.

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Centre: CMSL

Research theme: Military & Security Law

Rehabilitiation and Compensation Act 1988

Annotated Safety, Rehabilitation and Compensation Act 1988 (10th ed)

Author(s): , John Oman Ballard, Allan Anforth

The 10th edition of this well known reference book provides the full text of the Safety, Rehabilitation and Compensation Act as at 1 April 2014, together with comprehensive annotations, organised on a section-by-section basis, covering all significant decisions of the High Court, the Federal Court and the Administrative Appeals Tribunal on the Act. The book has up-to-date discussion of recent litigation concerning the Safety, Rehabilitation and Compensation Act, including "reasonable administrative action taken in a reasonable manner", liability for injuries in the course of employment, and construction of the approved Guide. It also includes a list of all legislative instruments published in the Gazette or entered in the Register of Legislative Instruments, and consideration of military compensation arrangements under the Act where the date of injury was before 1 July 2004. Canberra barrister Allan Anforth has contributed an expanded Practitioner's Guide aimed at claimants under the Act and their advocates.

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Centre:

Research theme: Administrative Law, Military & Security Law, Regulatory Law and Policy

Arctic Sovereignty and its Legal Significance for Canada

Author(s): Donald Rothwell

Throughout much of the Twentieth Century there was an ongoing debate within Canada as to the status of its territorial claims in the Arctic. Following the voyage of the SS Manhattan in 1969 that debate was joined to also encompass consideration of Canadian Arctic maritime sovereignty. With the exception of the disputed Hans Island, over which Canada and Denmark have agreed to disagree, there is no direct challenge to Canadian Arctic sovereignty in 2013. Nevertheless, it has been a persistent theme in Canadian academic and political discourse for much of the past decade that Canada’s Arctic sovereignty is threatened. Canada, along with all of the Arctic states, is also beginning to face the reality that the Arctic is facing rapid globalization partly as a result of climate change and the melting of the Arctic ice but also because of the growing interest of non-Arctic states in accessing the Arctic. This paper seeks to challenge some of the perceptions that have developed with respect to Canadian Arctic sovereignty from the perspective of international law. Consideration will be given to the status of Canada’s territorial and maritime claims in the Arctic, and the rights and obligations that Canada has in the Arctic as a party to the 1982 UN Convention on the Law of the Sea (LOSC). Particular attention will be given to Canada’s claims to an Arctic outer continental shelf, the regulation and management of the Northwest Passage, and the freedoms of navigation enjoyed by non-Arctic states within Canada’s exclusive economic zone.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Compulsory Pilotage and the Law of the Sea: Lessons Learned from the Torres Strait

Author(s): Donald Rothwell

The regulation of navigation by shipping has been one of the longest standing issues confronting the law of the sea. Once states began to assert various forms of control and regulation over their adjacent waters, the issue of regulating the passage of foreign-flagged ships needed to be addressed. While the navigational rights and freedoms of shipping is now relatively settled under both the LOSC and contemporary state practice, a counterpoint to this has gradually emerged over the past 30 years due to a growing environmental awareness by coastal states of the need for enhanced environmental protection and management of not only their waters, but also their marine environmental resources and adjacent coastal areas. One response by coastal states has been to adopt compulsory pilotage regimes under which certain ships are required to take on board pilots, or avail themselves of pilotage services, as they pass through certain waters. Pilotage has a long maritime history, and is closely connected with efforts to secure the safety of shipping and the safety of a port from wayward ships. Once pilotage is required beyond internal waters in the territorial sea of a coastal state including an international strait the LOSC imposes constraints on the coastal state regulation of foreign shipping within those waters. Those rights of the coastal state are not unilateral and must be understood in the context of not only the LOSC but also related mechanisms and frameworks, especially those dealing with ship safety and the regulation of navigation overseen by the International Maritime Organisation (IMO). This essay looks at these issues in the context of a compulsory pilotage regime that has been adopted by Australia and Papua New Guinea (PNG) for the Torres Strait, and then considers what options may be available for equivalent measures to be adopted for the Straits of Malacca and Singapore.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Polar Opposites: Environmental Discourses and Management in Antarctica and the Arctic

Author(s): Donald Rothwell

In 2009 the 1959 Antarctic Treaty celebrated its fiftieth anniversary. Its resilience in managing the Antarctic continent and parts of the adjacent Southern Ocean is generally seen as one of the great ‘success stories’ of contemporary international law. This is especially the case when it is considered that the treaty was negotiated during the height of the Cold War at a time when the USSR and US had significant interests in Antarctica, and that the treaty never sought to resolve simmering sovereignty tensions over parts of the continent especially those between Argentina, Chile and the United Kingdom over their competing claims to parts of the Antarctic Peninsula. Now, in the early part of the Twenty First century and notwithstanding the lack of recognition which has been granted to the seven territorial claims to the Antarctic continent, the Antarctic Treaty now includes not only the original 12 states parties, but an additional 36 states parties from varied parts of the globe, and retains its capacity to effectively manage Antarctic affairs.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Mitigating Wildfire Devastation in Policy and in Practice: Lessons from the Australian Experience

Author(s): Michael Eburn

Disaster law is a nascent field of study in Australia. Research on legal issues that impact upon hazard resilience has been pursued by scholars in individual areas of study; planning law, environmental law, tort law, constitutional law etc. The risk of climate change and developing scholarship in the area of climate change adaptation has seen an increasing realisation that if we are to build resilient communities these areas of law must be considered as a whole.

In Australia, the Bushfire Cooperative Research Centre (CRC) has taken the initiative in this regard. The CRC is funding a joint research project on Mainstreaming Fire and Emergency Management across Legal and Policy Sectors: Joint Research and Policy Learning. This research is a collaborative project between the Australian National University (law and policy); the University of Canberra (urban and regional planning) and the RMIT (Royal Melbourne Institute of Technology) University (sharing responsibility).

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Centre: CMSL

Research theme: Criminal Law, Environmental Law, Health, Law and Bioethics, Law, Governance and Development, Military & Security Law

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.

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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

Polar Opposites: Environmental Discourses and Management in Antarctica and the Arctic

Author(s): Donald Rothwell

In 2009 the 1959 Antarctic Treaty celebrated its fiftieth anniversary. Its resilience in managing the Antarctic continent and parts of the adjacent Southern Ocean is generally seen as one of the great ‘success stories’ of contemporary international law. This is especially the case when it is considered that the treaty was negotiated during the height of the Cold War at a time when the USSR and US had significant interests in Antarctica, and that the treaty never sought to resolve simmering sovereignty tensions over parts of the continent especially those between Argentina, Chile and the United Kingdom over their competing claims to parts of the Antarctic Peninsula. Now, in the early part of the Twenty First century and notwithstanding the lack of recognition which has been granted to the seven territorial claims to the Antarctic continent, the Antarctic Treaty now includes not only the original 12 states parties, but an additional 36 states parties from varied parts of the globe, and retains its capacity to effectively manage Antarctic affairs.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

The International Law of the Sea

Author(s): Donald Rothwell

The law of the sea provides for the regulation, management and governance of the ocean spaces that cover over two-thirds of the Earth's surface. This book provides a fresh explanation of the foundational principles of the law of the sea, a critical overview of the 1982 United Nations Convention on the Law of the Sea, and an analysis of subsequent developments including the many bilateral, regional and global agreements that supplement the Convention.

The book takes as its focus the rules and institutions established by the Convention on the Law of the Sea and places the achievements of the Convention in both historical and contemporary context. All of the main areas of the law of the sea are addressed including the foundations and sources of the law, the nature and extent of the maritime zones, the delimitation of overlapping maritime boundaries, the place of archipelagic and other special states in the law of the sea, navigational rights and freedoms, military activities at sea, and marine resource and conservation issues including fisheries, marine environmental protection, and dispute settlement.

As the Convention is now over a quarter of a century old the book takes stock of contemporary oceans issues that are not adequately addressed by the convention. Overarching challenges facing the law of the sea are considered, including how new maritime security initiatives can be reconciled with traditional navigational rights and freedoms, how declines in the health of marine ecosystems can be halted through strengthened legal regimes, and how the law of the sea can regulate ocean space in the Polar regions as global warming opens up new possibilities for resource exploitation.

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Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Arctic Ocean Choke Points and the Law of the Sea

Author(s): Donald Rothwell

As the international law of the sea has developed throughout the centuries, and there has been a growing acceptance of the legitimacy of a range of maritime zones, there has been a need to provide certainty with respect to the freedom of navigation through certain waters. The initial focus was to assure freedom of navigation in the territorial sea, and this saw the gradual recognition of innocent passage which guaranteed rights of navigation by foreign-flagged vessels. The innocent passage regime developed alongside expanding claims by coastal states to a broader territorial sea, and as long as expansive claims to a territorial sea were kept under check significant disruption to maritime traffic through straits used by international navigation was minimised. However, as the territorial sea regime became more accepted as a part of customary international law, and then was recognised in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, it was evident that the particular issues that arose concerning navigation through straits would have to be addressed.

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Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Book cover

Maritime Security: International Law and Policy Perspectives from Australia and New Zealand

Editor(s): Donald Rothwell, Natalie Klein, Joanna Mossop

Maritime security is of vital importance to Australia and New Zealand as both countries depend on maritime transport for their economic survival. Since the events of September 11th 2001, significant questions have been raised as to whether Australia and New Zealand are adequately prepared for the consequences of a major disruption to global shipping following a terrorist attack on a leading regional port such as Hong Kong or Singapore. Considerable efforts have also been undertaken to improve responses to an array of maritime security threats, such as transnational crime, environmental pollution, and piracy and armed robbery. This volume identifies those issues that particularly affect Australia and New Zealand’s maritime security, evaluating the issues from legal and political perspectives, and proposes methods for improving maritime security in the two countries. While the focus is primarily on Australia and New Zealand, the scope extends to regional considerations, addressing matters related to Pacific Island states, Southeast Asia and the Antarctic and sub-Antarctic region. The book also addresses strategic partnerships examining the influence of the United States, and analyses issues within the broad framework of international law and politics.

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Centre: CMSL

Research theme: Military & Security Law

Pages

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