Author: Megan Caristo

Research theme: International Law

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.

Research theme: International Law

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.

Author: Anastasiya Kotova

Research theme: International Law

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.

Research theme: International Law

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.

Author: Pablo R Larraondo, Dean Ansell, Marie Waschka, Megan Evans

Research theme: Administrative Law, Environmental Law

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

Research theme: Legal Theory

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).

Research theme: Legal Theory

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).

Author: Kiran Nasir Gore

Research theme: International Law

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.

Author: Dean Ansell, Marie Waschka

Research theme: Administrative Law, Environmental Law

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.

Research theme: International Law

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.

Research theme: International Human Rights Law

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 ).

Author: Et al.

Research theme: International Human Rights Law

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.

Author: Kabir Duggal

Research theme: International Law

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.

Author: Megan C. Evans, Pablo R. Larraondo, Dean Ansell, Marie Waschka

Research theme: Administrative Law, Environmental Law

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.

Author: Megan C. Evans, Pablo R. Larraondo, Dean Ansell, Marie Waschka

Research theme: Administrative Law, Environmental Law

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.

Author: Megan C. Evans, Dean Ansell, Marie Waschka

Research theme: Administrative Law, Environmental Law

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.

Author: Catherine Flynn, Bianca Johnston

Research theme: Gender, Sexuality & The Law

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.

Author: Paul Reilly

Research theme: Law & Technology

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.

Author: Paul Reilly

Research theme: Law & Technology

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.

Author: Dean Ansell

Research theme: Environmental Law

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.