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.

GLR

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).

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Centre: CLAH

Research theme: Legal Theory

GLR

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).

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Centre: CLAH

Research theme: Legal Theory

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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.

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Centre: CIPL

Research theme: International Law

Integrity Problems with the ERF’s 2022 Plantation Forestry Method

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.

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Centre: CIPL

Research theme: Administrative Law, Environmental Law

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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.

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Centre: CIPL

Research theme: International Law

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Social Movements, Diversity, and Corporate Short-Termism

Author(s): Akshaya Kamalnath

Social movements like #MeToo and #BlackLivesMatter, powered by social media, have given rise to heightened corporate activism on social issues. It has also drawn attention to the importance of addressing diversity issues for the workforce rather than simply at the board or even management level. This article argues that although the focus on such social issues is desirable and indeed necessary, myopic responses to social media pressures can be counter-productive. Instead, it proposes that corporate decisions and actions should be geared towards addressing issues that help the companies’ stakeholders in the long term. Further, it argues that long-term policies that improve corporate culture will ultimately bear results because employees cannot be won over by mere virtue-signalling or short-term policies. Besides, both negative and positive information about firm culture will ultimately make its way out, especially through employee output either on social media or on anonymous forums like Glassdoor surveys, thus affecting corporate reputation. Apart from proposing measures that companies might adopt to address issues of harassment and discrimination, this article also advocates the use of flexible work options and argues that Covid-19 lockdowns might have already shown that “working from home” is indeed possible.

The article contributes to the nascent strand of literature on the impact of social movements that use social media on corporate governance by flagging the issue of corporate short-termism on social justice issues as a concern. It also contributes to the literature on diversity in corporations by identifying solutions that will bring sustained improvement to diversity in the entire workforce (as against just the board of directors, which has been the subject of recent laws and shareholder activism ).

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Centre: CIPL

Research theme: Human Rights Law and Policy

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Rethinking commonality in refugee status determination in Europe: Legal geographies of asylum appeals

Author(s): Jessica Hambly, Et al.

The Common European Asylum System aims to establish common standards for refugee status determination among EU Member States. Combining insights from legal and political geography we bring the depth and scale of this challenge into sharp relief. Drawing on interviews and a detailed ethnography of asylum adjudication involving over 850 in-person asylum appeal observations, we point towards practical differences in the spatio-temporality, materiality and logistics of asylum appeal processes as they are operationalised in seven European countries. Our analysis achieves three things. Firstly, we identify a key zone of differences at the level of concrete, everyday implementation that has largely escaped academic attention, which allows us to critically assess the notion of harmonisation of asylum policies in new ways. Secondly, drawing on legal- and political-geographical concepts, we offer a way to conceptualise this zone by paying attention to the spatio-temporality, materiality and logistics it involves. Thirdly, we offer critical legal logistics as a new direction for scholarship in legal geography and beyond that promises to prise open the previously obscured mechanics of contemporary legal systems.

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Centre: CIPL

Research theme: Human Rights Law and Policy

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The ILC Articles on State Responsibility in Investment Treaty Arbitration

Author(s): Esme Shirlow, Kabir Duggal

The International Law Commission adopted the Articles on the Responsibility of States for Internationally Wrongful Acts in 2001, when there had been fewer than 100 recorded investment claims. Since then, there has been a significant rise in the number of investment treaty arbitration cases. This article considers how the ILC Articles have been used by investment treaty tribunals to analyse issues of State responsibility in investment treaty claims. The article summarises key trends concerning the use of the ILC Articles in investment treaty arbitration. It addresses the application of the ILC Articles in investment disputes, the role given to the ILC Articles in determining questions of attribution, the influence of the ILC Articles for the analysis of temporal issues, and the role of the ILC Articles in determining matters of reparation and contributory fault. The article is accompanied by a lengthy case appendix which summarises references by investment treaty tribunals to the ILC Articles from 2010–2020.

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Centre: CIPL

Research theme: International Law

ERF paper

Integrity and the ERF’s Human-Induced Regeneration Method: The Additionality Problem Explained

Author(s): Andrew Macintosh, Donald Butler, Megan C. Evans, Pablo R. Larraondo, Dean Ansell, Marie Waschka

Earlier this year, we went public with details of serious integrity issues in Australia’s carbon market, which forms part of the Emissions Reduction Fund (ERF). One of our main concerns is with a carbon offset method known as Human-Induced Regeneration of a Permanent Even-Aged Native Forest (HIR). Our analysis suggests most of the credits issued under this method are not backed by real and additional carbon storage.

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Centre: CIPL

Research theme: Administrative Law, Environmental Law

ERF paper title

Integrity and the ERF’s Human-Induced Regeneration Method: The Measurement Problem Explained

Author(s): Andrew Macintosh, Donald Butler, Megan C. Evans, Pablo R. Larraondo, Dean Ansell, Marie Waschka

The Emissions Reduction Fund (ERF) is a $4.5 billion program that forms the basis of Australia’s carbon market. Under the ERF, projects that reduce emissions receive carbon credits that can be sold to the Australian Government and private entities that are required or voluntarily choose to offset their emissions.

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Centre: CIPL

Research theme: Administrative Law, Environmental Law

Fixing the integrity problems with Australia's carbon market

Fixing the Integrity Problems with Australia’s Carbon Market

Author(s): Andrew Macintosh, Donald Butler, Megan C. Evans, 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 credits that can be sold to the Australian Government and private entities that are required to, or that voluntarily choose to, offset their emissions.

Earlier this year, we went public with details of serious integrity issues with the ERF, labelling it ‘environmental and taxpayer fraud’. While a number of long-held concerns with the scheme exist, we have initially focused on the ERF’s most popular carbon credit methods: human-induced regeneration (HIR); avoided deforestation; and landfill gas. Our analysis suggests up to 80% of the carbon credits issued to projects under these methods lack integrity. That is, they do not represent real (emissions have not been reduced) or additional (the reduction would have happened anyway) abatement.

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Research theme: Administrative Law, Environmental Law

Affila

Australia – A Land for Young Women? Exploring Young Women's Positioning in Contemporary Australian Family Violence Discourses

Author(s): Faith Gordon, Catherine Flynn, Bianca Johnston

Young women in Australia experience serious risks from intimate partner violence (IPV) as a form of family violence. However, there has been a lack of attention to the impact of this on young women and, as a result, these risks are not well understood. This article critically examines existing literature, policy and research and in doing so, specifically explores the ways in which young women aged between 10 and 20 years old are represented and positioned in contemporary family violence discourses. Framed by a review of socio-political and cultural history, the paper highlights the early colonial, patriarchal foundations of Australia, which have specific implications for the challenges that contemporary young women experience in situations of IPV. With a particular emphasis on the Australian context, this article employs both an intersectional and critical feminist lens, with a key focus on the dimensions of adolescent development and youth social geographies. Focusing specifically on these dimensions, including development, gender and age, highlights the important role that feminist social work perspectives and practices can contribute to uncovering, understanding and responding to young women's experiences of intimate partner violence through policy and advocacy.

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Centre: CIPL

Research theme: Law and Gender

Can social media help end the harm? Public information campaigns, online platforms, and paramilitary-style attacks in a deeply divided society

Can social media help end the harm? Public information campaigns, online platforms, and paramilitary-style attacks in a deeply divided society

Author(s): Faith Gordon, Paul Reilly

Online platforms can help public information campaigns reach target audiences who are unlikely to engage with content distributed via traditional media. This paper adds to this emergent literature, as the first study of the Ending the Harm campaign, which is designed to change public discourse about paramilitary-style attacks in Northern Ireland. Campaign effects were explored through interviews (N  =  7) conducted with key stakeholders, as well as the results of a quantitative survey of residents (N  =  805) in areas most affected by these attacks. Results indicate that exposure to the ETH advertisements correlated with a belief that PSAs were unjustified. Platforms like Snapchat helped the campaign reach younger demographics (16–34 years old). Nevertheless, it was unclear whether self-reported changes in attitude toward PSAs would lead to sustained behavioral changes.

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Centre: CIPL

Research theme: Law and Technology

Can social media help end the harm? Public information campaigns, online platforms, and paramilitary-style attacks in a deeply divided society

Can social media help end the harm? Public information campaigns, online platforms, and paramilitary-style attacks in a deeply divided society

Author(s): Faith Gordon, Paul Reilly

Online platforms can help public information campaigns reach target audiences who are unlikely to engage with content distributed via traditional media. This paper adds to this emergent literature, as the first study of the Ending the Harm campaign, which is designed to change public discourse about paramilitary-style attacks in Northern Ireland. Campaign effects were explored through interviews (N  =  7) conducted with key stakeholders, as well as the results of a quantitative survey of residents (N  =  805) in areas most affected by these attacks. Results indicate that exposure to the ETH advertisements correlated with a belief that PSAs were unjustified. Platforms like Snapchat helped the campaign reach younger demographics (16–34 years old). Nevertheless, it was unclear whether self-reported changes in attitude toward PSAs would lead to sustained behavioral changes.

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Centre: CIPL

Research theme: Law and Technology

ERF

The Emissions Reduction Fund (ERF): Problems and Solutions

Author(s): Andrew Macintosh, Donald Butler, Marie Waschka, Dean Ansell

The ERF’s carbon offset crediting scheme is an indispensable part of the policy framework required to ensure Australia achieves its net zero target in a cost-effective manner. Abandoning carbon offsets would substantially increase the cost of achieving the target and forego the many environmental and social co-benefits that can be generated from a well-functioning offset market. However, significant reform is needed to ensure the ERF generates real and additional abatement and performs its intended functions.

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Research theme: Environmental Law

International Law and (the Critique of) PInternational Law and (the Critique of) Political Economyolitical Economy

International Law and (the Critique of) Political Economy

Author(s): Ntina Tzouvala

The purpose of this paper is dual, and it has to do with specificity. First, it aims to show that a “law and political economy” approach to international law has been and will be distinct from its US counterpart. To do so, it offers an overview of both the prevailing approaches to and critical engagements with the field. Having shown that neoliberal hegemony is upheld within international law by an admixture of heterogeneous modes of reasoning, the author proceed to argue that this heterogeneity also permeates critical scholarship. This heterogeneity has enabled critical approaches to flourish, but often to the detriment of a consistent, coherent, and purposeful engagement with political economy. The second aim is to show that Marxism offers a distinct and distinctly useful set of analytical tools for international law. Having offered an overview of existing strands of Marxist thought, the author also reflects on the work that remains to be done.

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Centre: CIPL

Research theme: International Law

Property rights and climate migration: Adaptive governance in the South Pacific

Property rights and climate migration: Adaptive governance in the South Pacific

Author(s): Rebecca Monson

How would a polycentric property system react to mass movements of people caused by escalating climate change? Drawing on multidisciplinary perspectives, the article suggests an analytical frame for polycentric property system responses to climate migration. The case study is Solomon Islands, a South Pacific state with high levels of environmental vulnerability, where people draw on various governance mechanisms to secure proprietary relationships with land. These governance mechanisms not only encompass property rights derived from the state, but also proprietary relationships secured through social norms, informal agreements, and acts of mutual coordination. The key argument is that governance mechanisms to secure property rights for climate migrants have absorptive limits that affect broader processes of adaptation to climate change. The heuristic of absorptive capacity provides a basis to consider adaptive property law for a future of climate migration.

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Centre: CIPL

Research theme: International Law

Regulatory Insights on Artificial Intelligence

Regulatory Insights on Artificial Intelligence

Author(s): Jolyon Ford

This provocative book investigates the relationship between law and artificial intelligence (AI) governance, and the need for new and innovative approaches to regulating AI and big data in ways that go beyond market concerns alone and look to sustainability and social good.

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Centre: CIPL

Research theme: Law and Technology

Australian Journal of Administrative Law

Three giants of Australian administrative law honoured

Author(s): Greg Weeks, Matthew Groves

On 7 February 2022, The Australian National University awarded degrees of Doctor of Laws honoris causa to three of its Emeritus Professors: Robin Creyke, John McMillan and Dennis Pearce. Professors Creyke, McMillan and Pearce have been honoured for their immense contributions to Australian administrative law previously, having each been made Officers of the Order of Australia and Fellows of the Australian Academy of Law. Each has also been the subject of a festschrift, a “published collection of legal essays written by several authors to honour a distinguished jurist”. While Professors Creyke, McMillan and Pearce each have a distinguished record of public service (including as members of the Administrative Review Council and as long-serving executive members of the Australian Institute of Administrative Law), it was especially pleasing for them to be recognised as academics with connections to the ANU going back decades.

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Centre: CIPL

Research theme: Administrative Law

International Law and (the Critique of) Political Economy

International Law and (the Critique of) Political Economy

Author(s): Ntina Tzouvala

The purpose of this paper is dual, and it has to do with specificity. First, it aims to show that a “law and political economy” approach to international law has been and will be distinct from its US counterpart. To do so, it offers an overview of both the prevailing approaches to and critical engagements with the field. Having shown that neoliberal hegemony is upheld within international law by an admixture of heterogeneous modes of reasoning, the author proceed to argue that this heterogeneity also permeates critical scholarship. This heterogeneity has enabled critical approaches to flourish, but often to the detriment of a consistent, coherent, and purposeful engagement with political economy. The second aim is to show that Marxism offers a distinct and distinctly useful set of analytical tools for international law. Having offered an overview of existing strands of Marxist thought, the author also reflects on the work that remains to be done.

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Centre: CIPL

Research theme: International Law

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