Publications
This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

Correcting the Record: Response to Professor Chubb’s Statement on Carbon Farming
Author(s): Andrew Macintosh, Donald Butler, Marie Waschka, Megan C Evans, Dean Ansell, Pablo Larraondo
On 17 March 2023, the Department of Climate Change, Energy, Environment and Water’s (DCCEEW) published a paper by Professor Ian Chubb, the former Chair of the Independent Review of Australian Carbon Credit Units (ACCUs), titled, Carbon Farming: let’s get real and let’s get on with it.1 The paper focuses on the ACCU scheme and the recommendations the Review made to improve it. The essence of the argument put forward in the paper is that the ACCU scheme is robust and that the Review’s recommendations, and the scheme’s compliance and enforcement processes, will address any issues that exist with the integrity of projects and credits. Consistent with this, Professor Chubb argues ‘[w]e have to work at it, get real and get on with it’.
Centre: CIPL
Research theme: Administrative Law, Environmental Law

The green investment principles: from a nodal governance perspective
Author(s): Wenting Cheng
China’s Belt and Road Initiative is now the world’s largest infrastructure initiative, with long-term climate change effects, and the Green Investment Principles for Belt and Road (GIPs) have been promoted as a key instrument to green the Belt and Road. This article focuses on the question: What role do the GIPs play in building a green Belt and Road and addressing relevant regulatory challenges? Based on the theory of nodal governance, it is argued that the GIPs’ two-layered networks facilitate China to influence investment decisions over many countries along the Belt and Road indirectly through fund providers as key nodes to transition toward green investment. China also avoided direct interference with the domestic policies of host countries through the GIP network. As a framework agreement, the GIPs also provide opportunities for signatories to contribute to the design and negotiation of specific implementation standards, enhanced capacity building, and the prospect of more stringent and prescriptive environmental standards in the future.
Centre: CIPL
Research theme: Environmental Law, International Law

Tortured recommendations, incomplete and unsubstantiated findings: an analysis of the report of the Independent Review of Australian Carbon Credit Units
Author(s): Andrew Macintosh, Donald Butler, Megan C. Evans, Marie Washcka, Dean Ansell
Carbon offsets can play a critical role in climate policy by reducing the economy-wide costs of mitigating greenhouse gas emissions and generating important social and environmental cobenefits. However, the benefits of offsets are contingent on integrity – the offsets must represent real and additional greenhouse gas abatement. There are serious integrity issues with Australia’s carbon offset scheme. Weak governance structures have resulted in deficiencies in the design and administration of the scheme. The problems with the scheme have been detailed in a series of papers published by the Australian National University (ANU) and University of New South Wales, Canberra (UNSW) Emissions Reduction Fund (ERF) research team and other groups.
Centre: CIPL
Research theme: Administrative Law, Environmental Law

Implications of the Independent Review of Australian Carbon Credit Units (ACCUs) and low integrity ACCUs for Australia’s Safeguard Mechanism
Author(s): Andrew Macintosh, Donald Butler, Megan C. Evans, Marie Waschka, Dean Ansell
Under the Albanese Government’s climate policy, the Safeguard Mechanism is intended to be the primary mechanism for reducing Australia’s emissions and achieving its climate change mitigation targets (43% reduction by 2030 and net zero by 2050). To do this, the Government is making changes to the Safeguard Mechanism to convert it from a regulatory instrument that was originally designed to constrain emission increases into an emissions trading scheme that drives down emissions. Under the enhanced Safeguard Mechanisms, covered facilities will be subject to emission caps based on the emissions-intensity of their operations that will decline over time. These facilities will be able to meet their emission caps (called baselines) by cutting onsite emissions or buying and surrendering either ‘Safeguard Mechanism Credits’ (a form of emission permit issued to covered facilities if their emissions are below their caps) or Australian carbon credit units (ACCUs).
Centre: CIPL
Research theme: Administrative Law, Environmental Law

Public health approaches to youth involvement in violence: Examining stakeholders’ perspectives in Australia and the United Kingdom
Author(s): Faith Gordon, Hannah Klose
Australia and the United Kingdom (UK) have each witnessed a ‘punitive turn’ in relation to youth justice responses. A lack of contextualisation, such as the impact of trauma and adverse childhood experiences on young people, is often overlooked by media outlets, governments and policymakers, in favour of individual pathologisation of young people. In direct contrast to these punitive responses, the public health approach (PHA) has emerged particularly in the UK; and it identifies experiences of trauma as one of the leading causes of violence within communities. Drawing on the perspectives of those working with children and young people, we critically explore whether the implementation of a PHA could be an effective approach to addressing the underlying causes of young people's involvement in violence. The paper focuses specifically on a case study of the youth justice system in Victoria, Australia and draws on domestic and global perspectives of key stakeholders, to consider whether the introduction of a PHA in Victoria, Australia, would position young people's diverse needs at the centre of policy change in youth justice and better outcomes for young people and communities.
Centre: CIPL
Research theme: International Law

Public health approaches to youth involvement in violence: Examining stakeholders’ perspectives in Australia and the United Kingdom
Author(s): Faith Gordon, Hannah Klose
Australia and the United Kingdom (UK) have each witnessed a ‘punitive turn’ in relation to youth justice responses. A lack of contextualisation, such as the impact of trauma and adverse childhood experiences on young people, is often overlooked by media outlets, governments and policymakers, in favour of individual pathologisation of young people. In direct contrast to these punitive responses, the public health approach (PHA) has emerged particularly in the UK; and it identifies experiences of trauma as one of the leading causes of violence within communities. Drawing on the perspectives of those working with children and young people, we critically explore whether the implementation of a PHA could be an effective approach to addressing the underlying causes of young people's involvement in violence. The paper focuses specifically on a case study of the youth justice system in Victoria, Australia and draws on domestic and global perspectives of key stakeholders, to consider whether the introduction of a PHA in Victoria, Australia, would position young people's diverse needs at the centre of policy change in youth justice and better outcomes for young people and communities.
Centre: CIPL
Research theme: International Law

The Invalidity of the Philippines’ Withdrawal from the Rome Statute
Editor(s): Gemmo Fernandez
This article submits that the Philippines’ withdrawal from the ICC is invalid under municipal law and ineffective under international law. Notwithstanding the silence of the Philippine Constitution, the principles embodied under it do not allow for a unilateral executive withdrawal from the Statute. Nothing under the president’s plenary executive or foreign affairs power allows him to perform such an act. Moreover, the doctrines of transformation, separation of powers, and the principle of checks and balances require a concurrent legislative act in denouncing a treaty. The withdrawal being invalid under municipal law, it arguably produces no effect under international law. While the regime governing the law of treaties is silent as to the effect of domestic law concerning the competence of a state organ to withdraw, there exists ample authority to suggest that fundamental violations under the latter invalidate the competence to denounce treaties under the former.
https://brill.com/display/book/9789004518216/BP000004.xml?mc_cid=a9eeb20580&mc_eid=0f7c5e0311
Centre: CIPL
Research theme: International Law

The Invalidity of the Philippines’ Withdrawal from the Rome Statute
Editor(s): Gemmo Fernandez
This article submits that the Philippines’ withdrawal from the ICC is invalid under municipal law and ineffective under international law. Notwithstanding the silence of the Philippine Constitution, the principles embodied under it do not allow for a unilateral executive withdrawal from the Statute. Nothing under the president’s plenary executive or foreign affairs power allows him to perform such an act. Moreover, the doctrines of transformation, separation of powers, and the principle of checks and balances require a concurrent legislative act in denouncing a treaty. The withdrawal being invalid under municipal law, it arguably produces no effect under international law. While the regime governing the law of treaties is silent as to the effect of domestic law concerning the competence of a state organ to withdraw, there exists ample authority to suggest that fundamental violations under the latter invalidate the competence to denounce treaties under the former.
https://brill.com/display/book/9789004518216/BP000004.xml?mc_cid=a9eeb20580&mc_eid=0f7c5e0311
Centre: CIPL
Research theme: International Law

Regulation of Corporate Activity in the Space Sector
Author(s): Akshaya Kamalnath, Hitoishi Sarkar
This Article argues that commercialisation of space coupled with technological innovation calls for a regulatory approach beyond (and complementary to) the treaty regime offered by international law. The rapid technological advances in the financial sector and corresponding regulatory innovations make financial technology (fintech) regulation a likely candidate to draw lessons from for the nascent space sector. The Article draws from the fintech sector and proposes that some lessons about initial regulation via regulatory sandboxes and sandbox bridges are useful in the space sector. At the domestic level, the Article proposes regulatory sandboxes to enable innovation while ensuring the necessary safeguards; and at the multi-national level, it proposes cooperation between regulators in various spacefaring nations along the lines of sandbox bridges used in the fintech sector. Since different states have varying levels of space sector activity, this Article makes broad recommendations with pointers that identify aspects that are more suitable to certain types of jurisdictions than others.
Centre: CIPL
Research theme: International Law

Does international law prohibit the facilitation of money laundering?
Author(s): Anton Moiseienko
There is a broad political consensus that states must not facilitate money laundering, especially as relates to the proceeds of foreign grand corruption. Over the past 30 years, an elaborate regulatory regime has been put in place in most countries to ensure that proceeds of crime are interdicted and confiscated. It rests on the technically non-binding recommendations of the Financial Action Task Force, an influential intergovernmental grouping. Despite this progress and the adoption of international treaties against corruption and organized crime, international law contains no express treaty rule that enjoins states from facilitating money laundering. Furthermore, there are formidable legal and practical obstacles to invoking international legal responsibility of states that do choose to benefit from enabling money laundering. This article explores the disconnect between international law as it stands and the widely accepted political imperative that states must not facilitate money laundering. It argues in favour of recognizing a self-standing customary rule to that effect, and outlines the content and likely impact of such a rule.
Centre: CIPL
Research theme: International Law

Secret Ministries and the Constitution: an implied requirement of publication?
Author(s): Fiona Roughley, Megan Caristo
Whilst he was Prime Minister, the Hon Scott Morrison MP was appointed by the Governor-General to administer five additional departments of State unbeknownst to the other institutions of Australia’s constitutional government and the public. This article considers whether the Constitution contains an implied requirement that any appointment of a person to administer a department of State be made public within a reasonable period , and whether that requirement limits the executive power in s 64 to appoint a person to administer a department of State. Such an implication arguably arises from the text and structure of the Constitution, and in particular, the form of representative and responsible government prescribed by ss 1, 6, 7, 8, 13, 23, 24, 28, 30, 49, 50, 62, 64, 75(v), 83 and 128. If the implication be accepted, and if it gives rise to a limitation on the power to appoint in s 64, absence of publication of an appointment within a reasonable period results in invalidity of the appointment. The implication may also have other consequences for the exercise of other executive (and legislative) powers.
Centre: CIPL
Research theme: International Law

The Law of the Sea and PRC Gray-Zone Operations in the South China Sea
Author(s): Robert McLaughlin
A growing number of incidents—particularly since 2009—highlight the South China Sea (SCS) as the preeminent venue for the People's Republic of China (PRC) maritime gray zone operations. “Gray zone operations” are, in essence, operations that are designed to exploit or create legal (and other) uncertainties for a military or strategic advantage. A prominent example is the way that China has used the so-called nine(ten)-dash line without fully explaining the legal basis for it. There are other examples, as well. China has deliberately cultivated uncertainty about the sovereign status of maritime militia vessels—and thus about whether and how the conduct of these vessels might be directly attributable to the PRC. It has harassed U.S. survey vessels seventy-five nautical miles (nm) south of Hainan Island in an effort to disrupt military survey operations that it claims are impermissible and has sunk a Philippine fishing vessel at Reed Bank in an effort to enforce Chinese claims to exclusive fisheries rights in this area. It has also asserted claims and enforcement rights in zones that clearly belong to other states—including actions against Indonesian fishing vessels in seas in the vicinity of the Natuna Islands, which are part of the Indonesian Exclusive Economic Zone (EEZ) (and Continental Shelf). And it has conducted operations on the basis of inapplicable maritime zone rights, such as by asserting a territorial sea and thus the right to control innocent passage around low-tide elevations with artificial installations built upon them—such as with Mischief Reef. The list goes on.
Centre: CIPL
Research theme: International Law

In Defense of Comparisons: Russia and the Transmutations of Imperialism in International Law
Author(s): Ntina Tzouvala, Anastasiya Kotova
While Western imperialism played a crucial role in the creation of modern international law, it is ever more important to analyze the engagements of non-Western imperialist powers with the field so as to comprehend the changing global patterns of legalized violence and expansionism. In this Essay, we analyze Russia's international legal arguments in support of its use of force against Ukraine through the lens of inter-imperial rivalry. In so doing, we call for strict scrutiny of the deployments of jus ad bellum equally by all imperial powers.
Centre: CIPL
Research theme: International Law

Trading with a Friend's Enemy
Author(s): Anton Moiseienko
Economic sanctions have been the West's response of choice to Russia's full-scale aggression in Ukraine. Predictably, speculation abounds as to what these sanctions portend for future responses to acts of interstate aggression. The principles underpinning the “trading with the enemy” laws of a seemingly bygone era have resurfaced but applied not to the sanctioning powers’ own enemies but in solidarity with another state, at least insofar as the breaches of erga omnes obligations through armed aggression are concerned. The contemporary expansion in sanctions practice may have far-reaching repercussions.
Centre: CIPL
Research theme: International Law

Trends in forest and sparse woody cover inside ERF HIR project areas relative to those in surrounding areas
Author(s): Andrew Macintosh, Donald Butler, Pablo R Larraondo, Dean Ansell, Marie Waschka, Megan Evans
The Emissions Reduction Fund’s (ERF) Human-induced Regeneration (HIR) method provides landholders with Australian carbon credit units (ACCUs) for regenerating native forests by changing land management practices. When it was originally made, the method was intended to incentivise the regeneration of native forests by allowing juvenile trees and shrubs to regrow in areas that were previously cleared. Offset projects involving the regeneration of native forests that would not have regenerated in the absence of the project, such as in previously cleared areas, are both legitimate and desirable. However, the vast majority of HIR projects are not in areas that have previously been cleared. Almost all of the current HIR projects are located in semi-arid and arid areas (less than 350 mm average annual rainfall) that have never been comprehensively cleared (Figure 1), meaning most proponents are trying to regenerate native forests in remnant native vegetation solely by reducing grazing pressure from livestock and feral animals
Centre: CIPL
Research theme: Administrative Law, Environmental Law

Legal personality as licence
Author(s): Michelle Worthington
This article extends discussion of the recently introduced licence theory of legal personality to the two remaining categories of legal personality available under Australian law, namely, Natural Legal Personality and Bodies Politic. The licence theory conceives of legal personality as designated legal functions, grouped together for nominated purposes. More particularly, it conceives of legal personality as a licensing system, whereby legal personality is granted by the State subject to various nominated conditions. These conditions reflect the overarching purpose behind the grant of legal personality, and may be organised into three general categories: Capability Conditions; Public Interest Conditions; and Use Conditions. According to the licence theory, in forming an understanding of legal personality it is necessary to consider the following design factors: i) the means by which a particular legal person is activated; ii) the purpose underwriting the grant of legal personality by the State; iii) legal capacities and obligations; and iv) the various different conditions operative in relation to the grant of a particular class of legal personality. In this article, these four factors are applied and considered in relation to both Natural Legal Personality and the Commonwealth of Australia (being the pre-eminent manifestation of the Body Politic).
Centre: CLAH
Research theme: Legal Theory

Legal personality as licence
Author(s): Michelle Worthington
This article extends discussion of the recently introduced licence theory of legal personality to the two remaining categories of legal personality available under Australian law, namely, Natural Legal Personality and Bodies Politic. The licence theory conceives of legal personality as designated legal functions, grouped together for nominated purposes. More particularly, it conceives of legal personality as a licensing system, whereby legal personality is granted by the State subject to various nominated conditions. These conditions reflect the overarching purpose behind the grant of legal personality, and may be organised into three general categories: Capability Conditions; Public Interest Conditions; and Use Conditions. According to the licence theory, in forming an understanding of legal personality it is necessary to consider the following design factors: i) the means by which a particular legal person is activated; ii) the purpose underwriting the grant of legal personality by the State; iii) legal capacities and obligations; and iv) the various different conditions operative in relation to the grant of a particular class of legal personality. In this article, these four factors are applied and considered in relation to both Natural Legal Personality and the Commonwealth of Australia (being the pre-eminent manifestation of the Body Politic).
Centre: CLAH
Research theme: Legal Theory

The Vienna Convention on the Law of Treaties in Investor-State Disputes: History, Evolution and Future
Author(s): Esme Shirlow, Kiran Nasir Gore
The Vienna Convention on the Law of Treaties in Investor-State Disputes: History, Evolution and Future is the first consolidated analysis of how the Vienna Convention on the Law of Treaties (VCLT) has informed the interpretation, application and development of international investment law and the resolution of investor-State disputes. Over the past several decades, the VCLT – the ‘treaty on treaties’ – has achieved a rich and nuanced track record of influence in international investment law, including in the context of investment treaty arbitration. This book demonstrates how approaches to key issues of treaty law in investment treaty arbitration diverge or converge from the VCLT and approaches of other international courts, as well as the lessons that investment treaty arbitration could derive from – or even offer for – the interpretation and application of the VCLT rules in other settings.
Centre: CIPL
Research theme: International Law

Integrity Problems with the ERF’s 2022 Plantation Forestry Method
Author(s): Andrew Macintosh, Donald Butler, Dean Ansell, Marie Waschka
Since 2014, the centrepiece of Australia’s climate policy has been the Emissions Reduction Fund (ERF), a $4.5 billion fund that incentivises emissions reduction activities across the economy and forms the basis of Australia’s carbon market. Under the ERF, projects that reduce emissions receive Australian carbon credit units (ACCUs)—a type of financial product—that can be sold to the Australian Government and private entities that are required to, or that voluntarily choose to, offset their emissions.
Centre: CIPL
Research theme: Administrative Law, Environmental Law

Invested in Whiteness: Zimbabwe, thevon PezoldArbitration, and the Question of Race in International Law
Author(s): Ntina Tzouvala
Using the 2015 arbitral award in von Pezold v. Zimbabwe as its starting point, thispiece reflects on the relationship between racial capitalism and international law. Stressingthe particularities both of this specific case and of the field of investment arbitration, I nevertheless argue that the tribunal’s finding that Zimbabwe’s land redistribution programhad been racially discriminatory against white commercial farmers is symptomatic of broader argumentative structures in international law. In particular, I suggest that it wasthree argumentative moves that led to this perverse outcome: a temporal fencing of racism,a spatial containment of racism and, finally, a strict conceptualization of racism as prejudicepertaining to “skin color.” The combination of these three moves allowed the arbitratorsto artificially separate the question of race/ism from questions of property and wealthdistribution, capitalist accumulation, and exploitation. Far from being aberrational, thesethree moves are commonplace in (neo)liberal domestic and international legal systems and contribute to the invisibilization of racial capitalism as a structure of dispossession,exploitation, and abandonment.
Centre: CIPL
Research theme: International Law