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.

A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties

A Sliding Scale Approach to Travaux in Treaty Interpretation: The Case of Investment Treaties

Author(s): Esme Shirlow

Materials produced during the negotiation of treaties, commonly called travaux préparatoires (‘travaux’), are given formal significance as a ‘supplementary means’ of treaty interpretation under article 32 of the Vienna Convention on the Law of Treaties (VCLT). Travaux present both risks and opportunities for treaty interpretation, and international adjudicators have differed in how they define the rationale for referring to travaux, how they use these materials, and even more fundamentally, what materials they classify as travaux.

This article proposes a methodology to guide the more structured identification and use of travaux. Under the proposed sliding scale approach, treaty interpreters assess the utility of material to the interpretive exercise by reference to its precise qualitative features and the context of interpretation, rather than by categorizing materials as ‘travaux’ or not. The article uses the interpretation of investment treaties in investor-state arbitration as a case study to illustrate the proposed approach and its utility. The discussion, including the proposed sliding scale approach, is nonetheless equally relevant for interpreting all manner of treaties.

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Centre: CIPL

Research theme: International Law

The Specter of Eurocentrism in International Legal History

The Specter of Eurocentrism in International Legal History

Author(s): Ntina Tzouvala

The honeymoon period of the “turn to history” in international law did not last long. On the surface everyone agreed that the past of the discipline remained under-examined and under-theorized. Additionally, few (if any) international legal scholars still believed in the most extreme versions of linear, progressivist narratives that imagined (international) law to be part and parcel of “the long march of mankind from the cave to the computer.” Nevertheless, important methodological differences persisted. These disagreements include the nature of historical time and, correspondingly, the relationship between the present and the past, the appropriate and permissible sources, the relationship between contingency and necessity, agency and structure, and aesthetic and theoretical choices between “thick description” and explanation. These deep theoretical divisions and the increasingly sour tone of the debate make the apparent consensus over the question of Eurocentrism worthy of closer examination. Simply put, scholars who agree on little else nonetheless acknowledge that the history of international law has been profoundly Eurocentric and that correcting this bias should be one of the main preoccupations of contemporary historical efforts. In fact, it is not uncommon that battles over other methodological questions are fought on the terrain of Eurocentrism, a point to which I will return shortly.

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Centre: CIPL

Research theme: International Law

Judging at the Interface Deference to State Decision-Making Authority in International Adjudication

Judging at the Interface Deference to State Decision-Making Authority in International Adjudication

Author(s): Esme Shirlow

This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.

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Centre: CIPL

Research theme: Regulatory Law and Policy

The Province of all Humankind: A Feminist Analysis of Space Law

The Province of all Humankind: A Feminist Analysis of Space Law

Author(s): Cassandra Steer

This chapter argues that greater diversity is needed in the space sector, and this will only be achieved when women feel they are truly part of the structures and institutions that govern space. International space law today contains many powerful remnants of the Cold War era, including gender-specific language in the OST which states that space shall be "the province of all mankind."

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Centre: CIPL

Research theme: Law and Gender

General Principles as a Source of International Law

General Principles as a Source of International Law

Author(s): Imogen Saunders

This book provides a comprehensive analysis of an often neglected, misunderstood and maligned source of international law. Article 38(1)(c) of the Statute of the International Court of Justice sets out that the Court will apply the 'general principles of law recognized by civilized nations'. This source is variously lauded and criticised: held up as a panacea to all international law woes or denied even normative validity. The contrasting views and treatments of General Principles stem from a lack of a model of the source itself. This book provides that model, offering a new and rigorous understanding of Article 38(1)(c) that will be of immense value to scholars and practitioners of international law alike.

At the heart of the book is a new tetrahedral framework of analysis - looking to function, type, methodology and jurisprudential legitimacy. Adopting an historical approach, the book traces the development of the source from 1875 to 2019, encompassing jurisprudence of the Permanent Court of International Justice and the International Court of Justice as well as cases from international criminal tribunals, the International Criminal Court and the World Trade Organisation. The book argues for precision in identifying cases that actually apply General Principles, and builds upon these 'proper use' cases to advance a comprehensive model of General Principles, advocating for a global approach to the methodology of the source.

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Centre: CIPL

Research theme: International Law

SETTLER COLONIALISM, RACE, AND THE LAW: WHY STRUCTURAL RACISM PERSISTS

Review essay: Settler Colonialism, Race, and The Law: Why Structural Racism Persists By Natsu Taylor Saito

Author(s): Ntina Tzouvala

As concerns over COVID-19 grew, an increasing number of Asian Americans as well as migrants of East Asian descent became the targets of violent racist attacks in the United States. This stands in apparent tension with the narrative of the ‘model minority’ that has accompanied Asian Americans for the last few decades. Despite having been the victims of racial discrimination in the past, the story goes, Asian Americans overcame adversity and are now equally or more successful than their white fellow citizens in terms of income, educational achievement and family stability. It is perhaps telling that the opponents of affirmative action programs have recently supported Asian-American claimants in cases against ‘race sensitive’ admissions in higher education, claiming that they unfairly benefit African Americans or Latinx individuals to the detriment of Americans of Chinese, Japanese or Korean descent. 

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Centre: CIPL

Research theme: Constitutional Law and Theory

Contract Law: Text and Cases

Contract Law: Text and Cases (3rd edition)

Author(s): Dilan Thampapillai, Alex Bruce

Contract Law: Text and Cases combines comprehensive academic commentary with extracts from key cases in a single volume. It provides students with the essential knowledge and skills in contract law to succeed in a law degree and in professional practice. The text is supplemented with review questions, problem-solving practice, and key points for revision.

The third edition has been revised and updated to include recent developments in case law and legislation.

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Centre: CCL

Research theme: Legal Education

Yearbook on international investment law policy

The Promises and Pitfalls of Investor-State Mediation

Author(s): Esme Shirlow

This chapter analyses how mediation interacts with investment treaty arbitration, and explores the benefits and risks associated with this form of dispute settlement. It begins by introducing mediation as a non-arbitral means of settling investor-state disputes at the international level, examining uses of investor-state mediation, and references to its use, under investment treaties to date. The chapter then considers the relative strengths of mediation vis-à-vis arbitration. This includes the potential for the mediation of investment disputes to produce a quicker, more cost-effective, flexible, and holistic dispute settlement procedure with different outcomes than are available through investor-state arbitration.

The chapter also looks at three key disadvantages potentially associated with investor-state mediation: issues of confidentiality, issues of authority, and issues of enforcement. It argues that these disadvantages may weaken the efficacy and legitimacy of mediation as a dispute settlement option for investor-state disputes, while also undermining the improvements to investor-state arbitration procedures secured through recent reform efforts. Finally, the chapter looks at how mediation could be leveraged alongside arbitration to improve both procedures for the settlement of investment disputes.

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Centre: CIPL

Research theme: Private Law

Oil, Gas and Energy Law

Comparing the Hydrogen Strategies of the EU, Germany, and Australia: Legal and Policy Issues

Author(s): James Prest

For hydrogen to assist in meeting ambitious decarbonisation goals, national law and policy has a central role. This article presents a critical analysis of Australian law and policy for hydrogen energy, by comparison with selected European jurisdictions. Existing energy policy literature describes divergent paradigms and pathways to hydrogen futures. Australia is a case study of policy conflict over competing methods of hydrogen production and their differing climate change implications.

Co-authors: J. Prest; J. Woodyatt; J.P.J. Pettit.

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Centre: CIPL

Research theme: Environmental Law, International Law

Embracing Difference: Governance of Critical Technologies in the Indo-Pacific

Embracing Difference: Governance of Critical Technologies in the Indo-Pacific

Author(s): Jolyon Ford, Damian Clifford

This paper considers what an approach to human rights and the ethical governance of critical technologies could entail for Quad members. Its focus is data-driven technologies, like artificial intelligence.

The key insight of the paper is that policymaking and diplomacy on critical technologies should proceed from a recognition that the uses and impacts of technology are heavily affected by social factors, including local culture, context and legal traditions. Quad membership is often defined by distinguishing from autocratic/non-democratic powers. However, there are also considerable divergences within and between Quad members, and other partners, on what the responsible development, use and governance of technology (and related data) comprises. There are also differences between and within like-minded countries about how technologies are perceived to either pose a risk to, or enhance, security, economic and social interests and values.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Committing to human rights in Australia’s corporate sector

Committing to human rights in Australia’s corporate sector

Author(s): Sally Wheeler

This paper draws on data collected from ASX 50 listed corporations. As the UNGP makes clear a visible and accessible policy commitment is the most basic form of recognition that corporations can afford to human rights under the schema it offers. The paper takes the position that this policy commitment gives corporations a chance to declare a positive relationship with human rights. The presence or not of a policy statement, and the form that the statement takes, tells us much about the relationship between the corporate sector in Australia and human rights. The data reveals a low prevalence of policy commitment across the largest publically listed corporations in Australia. The paper selects a range of variables against which to examine whether commitment occurs or not.

The most significant factor that supports policy commitment is membership of human rights engaged global Business and Industry Non-Governmental Organisations (BINGOs). We might expect a rather stronger public commitment to human rights reflecting the position apparently taken by Australian corporations on other ESG standards. However this expectation has to be set against the absence of human rights discourse as a political and cultural artefact at the domestic level.

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Centre: CCL

Research theme: Human Rights Law and Policy

Youth (in)justice and the COVID-19 pandemic: rethinking incarceration through a public health lens

Youth (in)justice and the COVID-19 pandemic: rethinking incarceration through a public health lens

Author(s): Faith Gordon

Serious concerns for the safety and well-being of children and young people are multiplying due to the COVID-19 pandemic. The United Nations Committee on the Rights of the Child has called for children’s urgent release from prison. Evidence demonstrates that incarceration can aggravate existing health conditions and result in new health issues, such as depression, suicidal thoughts and post-traumatic stress disorder. This paper draws on findings from a larger study involving 25 qualitative interviews with policy makers, practitioners and researchers working in youth justice and utilises Victoria in South East Australia as a case study. Victoria represents the Australian state worst affected by COVID-19 and has one of the highest levels of children and young people incarcerated. This paper recommends decarceration of children and young people, with alternatives built around principles of a public health model. It argues that this holistic approach can promote children’s rights and crucially attend to the physical and emotional well-being of children and young people, compared with the current arrangements.

Co-authors: Faith Gordon, Hannah Klose and Michelle Lyttle Storrod. 

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Centre: LRSJ

Research theme: Law and Social Justice, Law and Technology

Capitalism as Civilisation

Capitalism As Civilisation: A History of International Law

Author(s): Ntina Tzouvala

Methodologically and theoretically innovative, this monograph draws from Marxism and deconstruction bringing together the textual and the material in our understanding of international law. Approaching 'civilisation' as an argumentative pattern related to the distribution of rights and duties amongst different communities, Tzouvala illustrates both its contradictory nature and its pro-capitalist bias. 'Civilisation' is shown to oscillate between two poles. On the one hand, a pervasive 'logic of improvement' anchors legal equality to demands that non-Western polities undertake extensive domestic reforms and embrace capitalist modernity. On the other, an insistent 'logic of biology' constantly postpones and engages such a prospect based on ideas of immutable difference. By detailing the tension and synergies between these two logics, Tzouvala argues that international law incorporates and attempts to mediate the contradictions of capitalism as a global system of production and exchange that both homogenises and stratifies societies, populations and space.

> Offers a fresh perspective to disciplinary debates about legal indeterminacy by showing that the contradictions of 'civilisation' are the way the pro-capitalist bias of international law manifests itself

> Combines methodological tools drawn from Marxism and deconstruction, enabling the reader to take the textuality of the law seriously while also situating these texts within the structures of global capitalism

> Elucidates the role and continuing purchase of racialised and gendered tropes for international legal argumentation and helps its audience decipher the racist and sexist presuppositions of supposedly neutral legal doctrines

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Centre: CIPL

Research theme: International Law

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The Essendon Football Club Supplements Saga: Exploring Natural Justice for Team Sanctions within Anti-Doping Regulations

Author(s):

10 October 2016, the Essendon Football Club (EFC) performance enhancing drugs regulatory saga concluded with the Swiss Federal Tribunal (SFT) deciding not to ‘entertain’ Essendon’s appeal of the Court of Arbitration of Sport (CAS)’s guilty finding, thus supporting the World Anti-Doping Authority (WADA). The EFC CAS appeal is a unique case as it is the first time a team (34 players from the one team) have been subject to CAS’s jurisdiction for allegations of doping contrary to the World Anti-Doping Code. One significant concern throughout this regulatory sage was that the team-based nature of the infraction denied individual players natural justice. Central to these concerns is the fact that the players were advised by EFC to take part in the program and that its chief architect, sports scientist Stephen Dank, never gave sworn evidence that was tested in cross-examination. This column investigates whether there are important lessons for team-based anti-doping infractions from the EFC saga.

Read on SSRN

Centre: CLAH

Research theme: Criminal Law

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Data Protection and Consumer Protection: The Empowerment of the Citizen Consumer

Author(s): Damian Clifford

This chapter explores the alignment of the EU data protection and consumer protection policy agendas through a discussion of the reference to the Unfair Contract Terms Directive in Recital 42 of the General Data Protection Regulation. This non-binding provision refers to the need to assess the (un)fairness of pre-formulated declarations of data subject consent to personal data processing. Through this lens the introduction of the Directive on Contracts for the Supply of Digital Content and its relationship to the data protection and privacy framework is also explored. The protections provided by both the data protection and privacy and consumer protection frameworks aim to bolster the decision-making capacity of individuals. However, as this chapter outlines, there are potential conflicts when the respective frameworks are assessed together.

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Centre: CCL

Research theme: Law and Technology

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Getting Out of Debt: The Road to Recovery for Victim/Survivors of Family Violence

Author(s): Elizabeth Curran

This research and evaluation report undertaken by Dr Liz Curran of the Australian National University (pro bono) looks at research over the two years of the life of a family violence project (with base line data collected in a First Phase Report in November 217) examining a Secondary Consultation (SC) service integrated with Training and Outreach program as well as capacity for strategic advocacy.

The Consumer Action Law Centre project (with part funding from the Victorian Department of Justice & Regulation) aims to overcome barriers for people experiencing family violence identified in previous studies. The research findings (detailed in this report) are that legal assistance services, such as this one of the Consumer Action Law Centre, working with trusted community professionals (to whom people experiencing family violence are likely to turn) if done in a holistic, integrated and seamless, respectful way can enable credit & debt legal issues to be addressed in a timely, creative and effective way. It does this by breaking down barriers that exist to those needing legal help. The report provides some universal insights into the plight and impacts of family violence and ways for effective service delivery without ignoring the challenges for both individuals and a variety of services in providing critical support for victim/survivors of family violence and their family.

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Centre: CIPL

Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

Law Teachers Speak Out

Law Teachers Speak Out: What do Law Schools Need to Change

Author(s): Colin James

This Chapter presents the results of national surveys of UK and Australian legal academics conducted in 2017 and explores law teachers’ perceptions of their well-being and of their experience of stress at work. First, we consider the neo-liberal landscape of higher education in the 21st Century, a landscape that provides the context and framework for how law teachers experience law school as a work environment. Second, we explain the methodology and results of the studies conducted in the UK and Australia in 2017. Third, we discuss the themes presenting from the law teachers’ responses to the open question: please explain what you think your university could do to improve staff quality of working life? The Chapter concludes with a suggested to-do list for law school leaders to provide a work environment that better supports the well-being of their academics and in turn enhances their capacity to support law student well-being.

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Centre: PEARL

Research theme: Legal Education

Living with Myanmar

Living with Myanmar

Author(s): Jonathan Liljeblad

Since 2011 Myanmar has experienced many changes to its social, political and economic landscape. The formation of a new government in 2016, led by the National League for Democracy, was a crucially important milestone in the country’s transition to a more inclusive form of governance. And yet, for many people everyday struggles remain unchanged, and have often worsened in recent years. Key economic, social and political reforms are stalled, conflict persists and longstanding issues of citizenship and belonging remain.  

The wide-ranging, myriad and multiple challenges of Living with Myanmar is the subject of this volume. Following the Myanmar Update series tradition, each of the authors offers a different perspective on the sociopolitical and economic mutations occurring in the country and the challenges that still remain. The book is divided into six sections and covers critical issues ranging from gender equality and identity politics, to agrarian reform and the representative role of parliament. Collectively, these voices raise key questions concerning the institutional legacies of military rule and their ongoing role in subverting the country’s reform process. However, they also offer insights into the creative and productive ways that Myanmar’s activists, civil society, parliamentarians, bureaucrats and everyday people attempt to engage with and reform those legacies.

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Centre: CIPL

Research theme: Law, Governance and Development

Cybercrime Legislation

Cybercrime Legislation, Cases and Commentary, 2nd edition

Author(s): Gregor Urbas

Cybercrime: Legislation, Cases and Commentary provides a comprehensive analysis of cybercrime legislation and case law in Australian jurisdictions. Since the publication of the first edition, there have been significant developments in legislation, cases and policies directed at cybercrime. More generally, there have been new developments in the regimes governing law enforcement access to data, telecommunications and internet service provider obligations, and key institutions dealing with cyber security and data protection.

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Centre: CIPL

Research theme: Law and Technology

Friends and Foes

Friends and Foes: Human Rights, the Philippine Left and Duterte, 2016-2017

Author(s): Jayson Lamchek

The Philippine left’s short-lived association with the government of Rodrigo Duterte from 2016 vexed political observers, whether sympathetic to or critical of the left. Against the charge that the left was simply subordinated as a political force to Duterte’s multi-class populist-cum-fascist project, this article argues that the left was both friend and foe of Duterte, who promised an aggressive War on Drugs as well as socioeconomic reforms. It situates the left–Duterte relationship within the history of engagement by new political actors with elite democracy in the Philippines since 1987. The friend-and-foe or dual strategy analysis uncovers some of the richness of the left’s progressive engagement with Duterte. This contributes to an understanding of Philippine political history by providing a profile of progressive engagement involving a set of actors different from those who have previously been analysed – viz. national democrats rather than social democrats – and an increasingly authoritarian administration explicitly espousing anti-human rights rhetoric. We specify the conditions for the emergence of the left–Duterte relationship, how it unfolded, and the tipping points that led to its collapse. The findings underscore the complexities and extreme difficulty of transforming Philippine politics through progressive engagement.

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Centre: CIPL

Research theme: Human Rights Law and Policy

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