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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Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber

Author(s): Donald Anton

On 1 February 2011, the Seabed Disputes Chamber (“the Chamber”) delivered its first Advisory Opinion. The Opinion provides useful guidance to the international community concerned with the deep seabed. First and foremost, the Chamber accomplished its task to assist the ISA with independent and impartial judicial interpretation of the Convention and related instruments. States that intend to extract valuable resources now know that they must evaluate their legal codes, administrative capacity, and their judicial enforcement mechanisms to determine where they fall short of the standards that the Chamber has identified. For most states it will be necessary to introduce new laws to provide the requisite rules, regulations and procedures. Entities seeking sponsorship will likely wish to work with these governments to develop a workable regime. Other entities, such as those interested in scientific research, other economic uses, and protection of the ocean and seabed resources, will want to assist with this process to ensure that their interests are respected and that developing states are given assistance to develop appropriate laws and enforcement capacity. Finally, the limitations and gaps in the Convention’s liability scheme have now been identified and await the international legal community’s attention.

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Introductory Note: 2014 Protocol to the Forced Labour Convention, 1930

Author(s): Donald Anton

Two major ILO Conventions prohibit forced or compulsory labor in all its forms – Conventions 29 and 105. Convention 29 was adopted in 1930. Forced labor at the time was mostly seen as related to the dictates of colonial administrations, along with a few states. Despite this perceived limited context, the ILO adopted an open-ended definition of prohibited forced labor without listing specific prohibitions. The definition continues to apply to every possible form of forced labor and to all workers no matter whether in the public or private sector. Convention 105 was adopted in 1957. It advances Convention 29 by requiring the immediate abolition of forced labor in five specific cases related to forced labor by the State for economic purposes or as a means of political coercion.

Yet, for some time, it has been felt that gaps existed and additional measures were needed to strengthen international cooperation to combat modern forms of forced labor. In 2013, an ILO tripartite meeting of experts concluded that “[d]espite the broad reach of Convention No. 29…significant implementation gaps remain in the effective eradication of forced labour and need to be urgently addressed in terms of prevention, victim protection, compensation, enforcement, policy coherence and international cooperation…” The experts also concluded “that there was added value in the adoption of supplementary measure to address the significant implementation gaps remaining in order to effectively eradicate forced labour in all its forms.” Acting on these conclusions, the 103rd Session of the International Labour Conference (ILC) voted on its third major instrument designed to strengthen international efforts to end all forms of forced labor. With 437 votes for, 8 against, and 27 abstentions, the General Conference of the ILO adopted the Protocol of 2014 to the Forced Labour Convention, 1930.

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Brief of Amici Curiae International Law Professors in Chevron Corp. V. Donziger

Author(s): Donald Anton

On July 8, 2014 a group of international law professors filed their second amicus curiae brief in the epic 20 years litigation between indigenous Ecuadorians and Texaco/Chevron over environmental destruction and human rights breaches. This case is collateral to the main action, in that Chevron took preemptive action in U.S. Federal Court in order to try to block the recognition or enforcement of a multi-billion dollar Ecuadorian judgement against Chevron. This is the second time it has been on appeal to the Second Circuit. The first appeal resulted in a reversal of the District Court and its purported worldwide preliminary injunctions was vacated.

In this brief, the amici address important international legal issues associated with the imposition of a worldwide constructive trust by the District Court in it final judgment. In imposing this radical trust for which there is no precedent, the District Court failed to correctly apply principles of international comity and to consider applicable international legal obligations binding on the United States. The amici believe that these failures have resulted in reversible error for the following four reasons.

First, the District Court’s worldwide equitable constructive trust is inconsistent with the Court’s decision in Chevron v. Naranjo, 667 F.3d 232 (2d Cir. 2011) because the impermissible extraterritorial impact of the constructive trust is identical to the impact of the preliminary injunction previously vacated by this Court. Second, the District Court erred in ordering relief that offends international comity. The District Court impermissibly attempts to impose its own terms of exclusive relief in the form of a constructive trust on every other court in the world. It seeks to dictate to the courts of the world what will happen if they recognize and enforce the underlying Ecuadorian judgment. This is an affront to: i) foreign courts that order the Ecuadorian judgment to be recognized and enforced; ii) foreign courts that cannot or would not pronounce on the systemic fitness of a foreign judiciary; and iii) foreign courts that must or might prefer to order different relief. Third, the District Court’s constructive trust cannot be enforced outside of the United States and is therefore an exercise in futility. Because equity will not do a vain or useless thing, the District Court should be reversed. Fourth, the District Court’s extraterritorial constructive trust breaches the international legal obligation of the United States not to intervene in the domestic and external affairs of other states. The extraterritorial application of the constructive trust directly intrudes in to the administration of Ecuadorian justice both internally and externally in places where its judgment might be recognized and enforced.

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Substance and Procedure in Private International Law

Book Review: Richard Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford 2012, lxvii 384 pp. ISBN 978-0-19-953279-7.

Author(s): Donald Anton

Garnett's book provides a fresh, detailed look at the significantly understudied issue of whether rules governing the application of procedure in transnational litigation should be found in private international law or the law of the forum. It does so from a number of different angles which demonstrate the highly practical importance of the distinction between substance and procedure. More significantly, the book has the potential to play a central role in taking an historic universally accepted rule in choice of law – the law of the forum always controls matters of procedure – and further unsettling this certainty by offering compelling reasons why the contemporary application of the rule needs to be more nuanced based on something like Kahn-Freund’s concept of ‘enlightened lex fori.’

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Climate Change and Indigenous Peoples

Book Review: Climate Change and Indigenous Peoples: The Search for Legal Remedies, Randall S. Abate & Elizabeth Ann Kronk, Editors (Edward Elgar: Cheltenham, UK & Northampton, MA, USA, 2013) pp. i-xxvii; 1-590

Author(s): Donald Anton

The excellent book that Professors Abate and Kronk have brought together as an edited collection is an important addition to an ongoing search for legal remedies for indigenous peoples facing existential threats on account of climate change harms. It picks up on a 2009 report by the Office of the UN High Commissioner for Human Rights that examined the linkages between climate change and indigenous peoples for the first time, at least by an international human rights body. Abate and Kronk write in the opening chapter, their book “recognizes that indigenous peoples are particularly vulnerable to climate change, both physically and legally” and the book specifically “addresses the challenges that these communities face in responding to climate change impacts.”

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The 'Thirty Percent Solution'

The 'Thirty Percent Solution' and the Future of International Environmental Law

Author(s): Donald Anton

This is a contribution to a symposium volume on Dan Bodansky's "Art and Craft of International Environmental Law". It takes as its starting point, Bondansky's accurate claim that "International environmental law is neither a panacea nor a sham. It can play a constructive role, but that is all. It might be called a 'thirty-percent” solution.'" While it might be more than that some day, the contribution argues that outcome is not likely so long as the international community retains the concept of sustainable development, as it is currently understood, as its organizing principle.

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Australia Before the World Court

Australia Before the World Court: A Look Back and a Look Forward

Author(s): Donald Anton

This piece was a contribution to a Symposium held on June 7, 2013 in anticipation of the commencement of the oral proceedings in the Whaling in the Southern Ocean Case between Australian and Japan, before the International Court of Justice on June 26, 2013.

The paper traces the Australian experience before the World Court in order to place the Whaling in the Southern Ocean Case in context and to try to draw some lessons. It starts by considering the nature international adjudication and the limitations of an agency whose principal function is to apply legal techniques in the peaceful resolution of international disputes. It spends the most time, however, excavating around Australia’s first relationship with an international tribunal – the PCIJ – and then building on Henry Burmester’s masterful contribution on ‘Australia and the International Court of Justice’ in the 1996 Australian Yearbook of International Law. It also spends considerable time telling two early stories about Australia's relationship with the World Court, that are little remembered today.

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The Dark Days of NSA Indiscriminate Data Surveillance

The Dark Days of NSA Indiscriminate Data Surveillance

Author(s): Donald Anton

This is an op/ed published in the Canberra Times on June 14, 2013. It highlights that the mass surveillance of metadata of hundreds of millions online users by the U.S. National Security Administration is a crisis for both privacy and freedom. It calls for action to establish transparent constitutional limitations under US law and international human rights law on privacy. If we do not take action, if we are like sheep and easily scared into relinquishing our privacy and personal liberties in exchange for the false promise of certain security, then liberty has started to die in our hearts and if that is so, as Learned Hand once remarked, no law can save it or us.

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International Law and the 2003 Invasion of Iraq Revisited

Author(s): Donald Anton

This paper was presented on April 30, 2013, at a Canadian-Australian seminar on the 2003 invasion of Iraq ten years later. It canvasses and reconsiders the two major justifications put forward by the US, UK, and Australia for military intervention in Iraq -- revived Security Council authorization and self-defense. It concludes by highlighting that states who had opposed military action in Iraq have been keen to ensure that it would not be legitimize with the passage of time, as some claim has happened with Kosovo. Many states are still critical given the uncertain future of Iraq and continue to assert the illegality of the invasion. Certainly states in the Security Council and elsewhere have become much more careful with the language, especially the language of consequential Resolutions. Indeed, they appear to exhibit and cautious unwillingness to approve seemingly necessary measures. The way in which the US, UK and Australia mounted their revival argument has, no doubt, hampered the ability to reach agreement in the Security Council on urgent humanitarian disasters like Syria and elsewhere. One hopes that in the future the long work on cooperative action in the Security Council will be preferred to plausible, but unpersuasive, legal interpretation.

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Environmental Protection and Human Rights

Environmental Protection and Human Rights

Author(s): Donald Anton

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

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Arbitrating the Treaty on Certain Maritime Arrangements in the Timor Sea: Espionage Between Neighbours in the Latest Round

Author(s): Donald Anton

This brief article details the latest in a long-running dispute between Timor-Leste and Australia over rights to resources in the seabed and subsoil below the sea between their coastlines. Having been closed out of the International Court of Justice and the International Tribunal for the Law of the Sea, Timor-Leste is now seeking to arbitrate its dissatisfaction with current arrangements under a provision in the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). Potential claims of fraud, breach of good faith, and unlawful intervention mean that it is possible; perhaps likely, that CMATS will be declared invalid or void. Much will depend on the evidence, however. Australia now finds itself in a difficult situation and the dispute is likely to continue and fester absent good will on the part of both parties. The most just course of action at this point could be to allow an independent third party to finally make a judicial determination of the seabed boundaries of between Timor-Leste and Australia in order to achieve and equitable solution, create certainty about rights, and bring an end to this continuing saga.

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Still this Endangered Planet

Still this Endangered Planet

Author(s): Donald Anton

This paper was presented at the 106th Annual Meeting of the American Society of International Law on a panel considering the 2012 U.N. Conference on Sustainable Development. The paper provides a critical and provocative analysis of how the concept of sustainable development has become beholden to economic growth and, on this account, why it is unfit to continue to serve as the major organizing principle for global environmental protection.

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Treaty Congestion

'Treaty Congestion' in International Environmental Law

Author(s): Donald Anton

This is an extended version of a contribution to the forthcoming Routledge Handbook of International Environmental Law. It focuses on the phenomenon of "treaty congestion," which commentators have tied to the rapid expansion of international environmental law in recent decades. Arguably the number of international instruments has hampered implementation. In particular, the lack of coordination in the face of proliferation and the lack of capacity challenge the operationalizing international environmental obligation by necessary and sufficient laws, policies, programs and plans. This contribution considers the issue of treaty congestion, and makes suggestions for how it might be overcome.

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Dan Bodansky's 'Art and Craft of International Environmental Law'

Author(s): Donald Anton

This is a review of Daniel Bodansky's "The Art and Craft of International Environmental Law." The piece considers Bodansky's idea of International Environmental Law as a 30% solution to international environmental problems in the context of: 1) norm proliferation and continuing environmental decline, and 2) the concept of sustainable development as an obstacle to environmental improvement.

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Problems in Climate Change and Human Rights

Problems in Climate Change and Human Rights

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The link between adverse impacts of climate change and human rights was pushed to the fore recently by a 2005 petition by Sheila Watt-Cloutier on behalf of the Inuit people of the Artic regions to the Inter-American Commission on Human Rights. Human Rights challenges to harmful climate change activities and impacts have also been launched in a number of national courts. In Nigeria and Australia substantive and procedural rights have been put forward to challenge greenhouse gas emitting activites and development. This case study examines the international and national claims.

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Problems in Environmental Protection and Human Rights

Problems in Environmental Protection and Human Rights: A Human Right to the Environment

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The assertion of a human right to a healthy environment has persisted over the last 40 years. Here we examine the international guarantees and national guarantees that have developed. We also look at moves toward a Declaration on Human Rights and the Environment.

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Problems in Human Rights and Large Dams

Problems in Human Rights and Large Dams

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Among large infrastructure projects, damming rivers to provide hydroelectric power have been the source of considerable conflict between governments and the people who are affected by such projects, especially those forced to relocate. In many instances dams are built in pristine natural areas, destroying or degrading nature reserves, indigenous lands and/or archaeological sites. Increasing opposition to large dams has resulted in national and international litigation, as well as substantial changes in the practices of international financial institutions. This case study looks at the case of the Narmada dam in India, as it has evolved over time in response to public action, national litigation, and challenges to World Bank financing. In reading these materials, consider the following issues: (1) In developing countries, do the benefits of flood control and the provision of renewable energy outweigh the environmental and human rights impacts of large dams? (2) Can equal or greater benefits be achieved by alternative development projects that have fewer negative impacts on the environment and human rights? (3) By what procedures and substantive measures can the negative impacts be avoided or mitigated? (4) Even if there are considerable benefits to hydroelectric projects, should certain locations be off-limits to the construction of large dams? If so, what are the relevant criteria by which to decide? (5) How should the rights of local communities and indigenous populations be safeguarded?

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Problems in Human Rights and Transboundary Pollution

Problems in Human Rights and Transboundary Pollution

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Using the Application Instituting Proceedings in the International Court of Justice case involving Arial Herbicide Spraying (Ecuador v. Columbia) [2008] ICJ 4-28 General List No. 138 (March 31, 2008)(footnote omitted), this case study raises questions associated with human rights and international environmental law.

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Brief of International Law Professors

Brief of International Law Professors as Amici Curiae in Support of Defendants in Chevron versus Donziger

Author(s): Donald Anton

Between 1964 and 1990, Texaco dumped about 16 billion gallons of toxic substances into the surface water of the Amazon, relied upon by indigenous Amazon and remote farmers. Texaco also created hundreds of unlined pits in the jungle floor and filled them with toxic sludge. In 1993, the Amazon indigenous communities and remote farmers sued Texaco in the United States, its home jurisdiction, seeking redress for damages caused by Texaco’s operations. From 1993 to 2002 Texaco and later Chevron, when it acquired Texaco, fought to have the case dismissed and moved to Ecuador as the more appropriate forum to try the case. Ultimately, the U.S. action was dismissed in exchange for promises by Chevron to accept jurisdiction in Ecuador and satisfy any judgment rendered by an Ecuadorian court. The case was re-filed and tried in Ecuador. On February 14, 2011 the Provincial Court of Sucumbios awarded the Ecuadorian plaintiffs $8.6 billion in damages, with $5.6 billion going toward environmental remediation.

Anticipating the worst, Chevron took preemptive action back in the United States. With the judgment not final and no attempt by the Ecuadorian plaintiffs to enforce in the U.S., Chevron filed a complaint against the Ecuadorians seeking declaratory relief for non-recognition of the Ecuadorian judgment and a preliminary injunction enjoining the Ecuadorians from seeking to have the Ecuadorian judgment recognized or enforced anywhere in the world. On March 7, 2011, the U.S. Federal District Court in the Southern District of New York granted the preliminary injunction in this Opinion. The Ecuadorian's have appealed and this amicus brief was filed on June 9, 2001 in support of the Ecuadorians. The brief seeks to show that the District Court erred in granting the injunction and that international legal obligations of the United States requires that the injunction be dissolved and the case dismissed.

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Trying to Discipline the 'Green Economy' of Rio

Trying to Discipline the 'Green Economy' of Rio plus 20

Author(s): Donald Anton

In this brief conference presentation I consider two aspects of the paper I am writing for the Symposium proceedings. With the first I act as provocateur. I argue that the time has come to replace sustainable development with good old fashion concern for the environmental health of the planet as the centrepiece of the international community’s environmental agenda. The second matter involves very briefly suggesting that new ambitions for international environmental law-making might assist in putting the environment front and centre again.

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