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.

Fresh Perspectives on the 'War on Terror'

Author(s): Miriam Gani

On 20 September 2001, in an address to a Joint Session of Congress and the American people, President George W Bush declared a 'war on terror'. The concept of the 'war on terror' has proven to be both an attractive and a potent rhetorical device. It has been adopted and elaborated upon by political leaders around the world, particularly in the context of military action in Afghanistan and Iraq. But use of the rhetoric has not been confined to the military context. The 'war on terror' is a domestic one, also, and the phrase has been used to account for broad criminal legislation, sweeping agency powers and potential human rights abuses throughout much of the world. This collection seeks both to draw on and to engage critically with the metaphor of war in the context of terrorism. It brings together a group of experts from Australia, Canada, the United Kingdom, France and Germany who write about terrorism from a variety of disciplinary perspectives including international law and international relations, public and constitutional law, criminal law and criminology, legal theory, and psychology and law.

Read on SSRN

Centre: CIPL

Research theme: International Law

The United Nations Human Rights System and the Protection of the Environment

Author(s): Donald Anton

The following another draft Chapter in a forthcoming text on Human Rights and the Environment by Anton and Shelton, to be published by Cambridge Univ. Press in 2009. The chapter walks students through possible avenues for environmental protection within the U.N. human rights system.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Law for the Seas Biological Diversity

Law for the Sea's Biological Diversity

Author(s): Donald Anton

This article addresses some of the complex legal issues raised by the sustainable use of marine biological diversity in areas beyond national jurisdiction and the deficiencies in its existing legal protection. The importance ofsuch an undertaking was emphasised by the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) in its first meeting (COP I), through its selection of marine and coastal biological diversity as the first major ecosystem theme to be addressed as part of its medium-term programme of work. Realistically, effective conservation and sustainable use of marine biological diversity in areas solely or partially outside of national jurisdiction will require the further "cooperation" of all states. There are a number of alternative ways forward each with its advantages and disadvantages. Regardless of the alternative selected, a number of common and familiar legal issues will have to be faced and there are risks. Politically, it will be essentially to avoid the intractable problems that arose in connection with the negotiation of the normative regime intended to regulate the exploitation of mineral resources in the LOS Convention. Unworkable law is little better than no law.

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Centre: CIPL

Research theme: Environmental Law

False Sanctuary

False Sanctuary: The Australian Antarctic Whale Sanctuary and Long-Term Stability in Antarctica

Author(s): Donald Anton

The recent assertion of maritime jurisdiction by Australian courts over a Japanese whaling company for acts contrary to Australian law in the Antarctic Southern Ocean is alarming. Private litigation, based on an internationally disputed claim to sovereignty over Antarctic territory and a further contested claim to an EEZ appurtenant to that territory, ought not to serve as a proxy for cooperative (and hopefully effective) international management of the Antarctic environment. The big danger is that if other states follow Australia's lead in claiming sovereign rights and exercising attendant jurisdiction the chances of natural resource over-exploitation and environmental harm in the Antarctic is increased. It will, I believe, in the long run exacerbate the likelihood of a scramble for important, scarce and economically viable resources.

Read on SSRN

Centre: CIPL

Research theme: International Law

Introductory Note

Introductory Note to Intergovernmental Panel on Climate Change, Fourth Assessment Synopsis Report Summary for Policy Makers and the Bali Action Plan

Author(s):

This note sets out the background to the Bali Action Plan, including the IPCC Fourth Assessment Synopsis Report Summary for Policymakers. It outlines the key features of both documents. The Note appears in 47 International Legal Materials 94 (2008).

Read on SSRN

Centre: CIPL

Research theme: International Law

Is the Environment a Human Rights Issue

Is the Environment a Human Rights Issue?

Author(s): Donald Anton

The following is an introductory chapter from a forthcoming teaching text on Human Rights and the Environment by Donald K. Anton & Dinah Shelton. Feedback is welcome.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Nuclear Weapons - The Lawyer's Interest

Nuclear Weapons - The Lawyer's Interest

Author(s): Donald Anton

In the spirit of ICJ Justice Christy Weeramantry's look at Nuclear Weapons and Scientific Responsibility (1987), this short comment considers the interests of lawyers in the eventual elimination of nuclear weapons.

Read on SSRN

Centre: CIPL

Research theme: Military & Security Law

Observations About Expanding Public Participation

Observations About Expanding Public Participation in the International Environmental Law-Making Process

Author(s): Donald Anton

While so-called stakeholder groups (those with Consultative Status) are usually provided reasonable access in the norm development process in international institutions - at least right up until end when state representatives exclude all others - I argue that we have not really thought enough about other modalities to further open up participation, especially to individuals and groups that do not meet (or want to comply with) requirements for consultative status. I propose that one way to open up the public space in international lawmaking is to use the standard administrative law tool of notice and comment. Under this proposal international institutions would be required to publicize, at early junctures, when normative development is being contemplated and invite public comment from the global citizenry.

Read on SSRN

Centre: CIPL

Research theme: International Law

The United Nations Human Rights System and the Protection of the Environment

The United Nations Human Rights System and the Protection of the Environment

Author(s): Donald Anton

The following another draft Chapter in a forthcoming text on Human Rights and the Environment by Anton and Shelton, to be published by Cambridge Univ. Press in 2009. The chapter walks students through possible avenues for environmental protection within the U.N. human rights system.

Read on SSRN

Centre: CIPL

Research theme: International Law

German Law Journal

Contemporary Research and the Ambiguity of Critique

Author(s): Margaret Thornton

Within the marketised context of higher education, research is valued less for its contribution to scholarship than for its income-generating capacity and value to end users. Commodification has significant ramifications for academic freedom as can be seen by the example of research consultancies. Academic freedom is also being affected by the direct interference of neoliberal governments in research policy. While terror censorship is a dramatic manifestation of interference, critical research is also affected by the everyday practices of the contemporary academy. All these factors contribute to the production of de-politicised knowledge.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

German Law Journal

The Law School, the Market and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of "customer" and "service provider". Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

From this Time Forward

'From this Time Forward... I Pledge My Loyalty to Australia': Loyalty, Citizenship and Constitutional Law in Australia

Author(s): Kim Rubenstein

A major change in Australian citizenship law occurred on 4 April 2002. On that day, the governor-general of Australia assented to the passage of the Australian Citizenship Amendment Act 2002 (Cth). Before that date, Australian citizens who took up a new citizenship (like Rupert Murdoch taking up US citizenship) automatically lost their Australian citizenship. Central to the former provision, and the 2002 changes, is a view of loyalty and allegiance to the nation-state. This chapter examines how those concepts of loyalty and allegiance are central to discussions on citizenship, and how they are reflected in Australian citizenship law. Moreover, it argues that the change on dual citizenship in Australia has constitutional ramifications; for example, section 44 of the Constitution prevents dual citizens from running for parliament. The chapter concludes with the proposal that the Constitution needs amendment to reflect modern notions of commitment over outdated notions of sole allegiance to one country.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Australian Jurisdiction and Whales in Antarctica: Why the Australian Whale Sanctuary in Antarctic Waters Does Not Pass International Legal Muster and is Also a Bad Idea as Applied to Non-Nationals

Author(s): Donald Anton

This article examines the international legality of the projection of Australian adjudicative and enforcement jurisdiction against non-nationals in the Southern Ocean forming part the Antarctic Treaty Area. It sets out the Australian legal foundations on which Australian jurisdiction is currently being exercised for alleged breaches of Australian law applying to the Australian Antarctic Whale Sanctuary in the HSI v. Kyodo case. It then evaluates the exercise of Australian jurisdiction in light of the applicable international law. It accepts arguendo the factual basis of Australia's territorial claim in Antarctica, but nevertheless concludes that the extension of Australian jurisdiction over non-nationals in the purported Antarctic Australian Whale Sanctuary contravenes conventional and customary international law. In light of this conclusion, the article details the nature and importance of the ATS in order to highlight what is at stake by the challenged posed by the assertion of Australian jurisdiction. It then presents reasons why (in addition to illegality) the projection of Australian prescriptive, adjudicative and enforcement jurisdiction in what almost all other states consider the high seas off Antarctica is an unsound idea. The article concludes by arguing that the current Australian law conferring jurisdiction ought to be repealed.

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Memorandum of 6 August 1995 Addressed to President Jacques Chirac Regarding the Resumption of Nuclear Testing in the Pacific Ocean at Moruroa Atoll

Author(s): Donald Anton

Over 185 international law and environmental law academics and lawyers, from over 40 countries, joined together to challenge the legality of the decision by the French Government to resume nuclear testing at Mururoa atoll in French Polynesia in 1995. The academics and lawyers joined in a letter and legal memorandum that outline international environmental obligations requiring to an effective environmental impact assessment that will be violated if the testing resumes as currently planned. A copy of the letter is reproduced below.

The reasons behind the letter and memo were primarily three-fold. First, the lawyers believed it important that public attention be focused important international environmental obligations that France will be breaching if the tests are carried out as currently planned. No state likes to be known as an international outlaw and the lawyers hoped that the "shaming" effect of the publicity about law-breaking would have some influence on the decision to resume testing. Due to French claims that protests against the testing were being essentially orchestrated by Australia and New Zealand it was important that the challenge to legality come from an independent group of experts from as many countries as possible. Second, because President Chirac had repeatedly stated that the decision to reverse testing was "irrevocable" almost from the outset, the lawyers hoped to provide a "face-saving" and graceful way based on law for the President to reverse his decision. Finally, the lawyers hoped that the arguments raised in the letter and legal memo would influence Australia or New Zealand to reopen the 1973-74 World Court Nuclear Test Cases by providing legal support as to the substance of the matter.

The letter and memo were formally transmitted to French President Jacques Chirac by the Australian Government via formal diplomatic channels. While the Australian Government expressly stopped short of endorsing the totality of the contents of the documents, in a letter to the author Foreign Minister Senator Gareth Evans states that "the Government concurs generally with the legal opinion put forward in the memorandum concerning France's responsibilities". Foreign Minister Evans states that "France clearly has a duty under international law to prevent transboundary environmental harm, coupled with an obligation to conduct environmental impact assessments when planning to undertake activities which might cause significant environmental harm". The Foreign Minister states that "as yet insufficient research has been done to make a comprehensive assessment of the environmental impact of the proposed tests. It is by no means clear that France has fulfilled its international obligations in this regard. We cannot be satisfied on that point until further information is available concerning the environmental impact of the testing at the atoll". "This information would also improve our understanding of whether significant transboundary environmental harm may be caused and whether France would be in breach of its obligations to prevent such harm," Senator Evans emphasises.

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Research theme:

Letter of 6 August 1995 to President Jacques Chirac Regarding the Resumption of Nuclear Weapons Testing in the Pacific Ocean at Moruroa Atoll

Author(s): Donald Anton

Over 185 international law and environmental law academics and lawyers, from over 40 countries, joined together to challenge the legality of the decision by the French Government to resume nuclear testing at Mururoa atoll in French Polynesia in 1995. The academics and lawyers joined in a letter and legal memorandum that outline international environmental obligations requiring to an effective environmental impact assessment that will be violated if the testing resumes as currently planned. A copy of the letter is reproduced below.

The reasons behind the letter and memo were primarily three-fold. First, the lawyers believed it important that public attention be focused important international environmental obligations that France will be breaching if the tests are carried out as currently planned. No state likes to be known as an international outlaw and the lawyers hoped that the shaming effect of the publicity about law-breaking would have some influence on the decision to resume testing. Due to French claims that protests against the testing were being essentially orchestrated by Australia and New Zealand it was important that the challenge to legality come from an independent group of experts from as many countries as possible. Second, because President Chirac had repeatedly stated that the decision to reverse testing was irrevocable almost from the outset, the lawyers hoped to provide a face-saving and graceful way based on law for the President to reverse his decision. Finally, the lawyers hoped that the arguments raised in the letter and legal memo would influence Australia or New Zealand to reopen the 1973-74 World Court Nuclear Test Cases by providing legal support as to the substance of the matter.

The letter and memo were formally transmitted to French President Jacques Chirac by the Australian Government via formal diplomatic channels. While the Australian Government expressly stopped short of endorsing the totality of the contents of the documents, in a letter to the author Foreign Minister Senator Gareth Evans states that the Government concurs generally with the legal opinion put forward in the memorandum concerning France's responsibilities. Foreign Minister Evans states that France clearly has a duty under international law to prevent transboundary environmental harm, coupled with an obligation to conduct environmental impact assessments when planning to undertake activities which might cause significant environmental harm. The Foreign Minister states that as yet insufficient research has been done to make a comprehensive assessment of the environmental impact of the proposed tests. It is by no means clear that France has fulfilled its international obligations in this regard. We cannot be satisfied on that point until further information is available concerning the environmental impact of the testing at the atoll. This information would also improve our understanding of whether significant transboundary environmental harm may be caused and whether France would be in breach of its obligations to prevent such harm, Senator Evans emphasises.

Read on SSRN

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Research theme:

Nationalizing Environmental Protection in Australia: The International Dimensions

Author(s): Donald Anton

A national approach to environmental protection is the most effective way for Australia to protect its own environment and to contribute to the common cause of global environmental protection. The centerpiece of this approach should be a federal environmental protection authority (EPA), able to deal with the issues which arise on a transboundary basis, both nationally and internationally. However, the powers of a national agency will need to be tailored to avoid conflict within the system of cooperative federalism in Australia.

This article reviews constitutional tensions between federal and state government as they relate to several of the major international environmental conventions that bind Australia. The authors conclude that a federal authority, committed to enforcing Australia's international agreements to protect the environment, is the most effective means of addressing worldwide concern with the state of the natural world.

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Truth, Justice and the Australian Way About 'Open Standing': Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd

Author(s): Donald Anton

In 1998, the constitutionality of the 'open standing' provisions contained in the Trade Practices Act 1974 (Cth) was directly challenged in the High Court for the first time since their enactment.

This issue came to a head in 1998, when a community group, Truth About Motorways (TAM), brought suit under the TPA against Macquarie Infrastructure Investment Management Ltd (MIIM). TAM was concerned about the publication and distribution of a prospectus produced by MIIM in order to attract investor for units in an investment trust proposing to invest in the construction and private ownership of a toll road in Sydney. TAM alleged that claims made in the prospectus about anticipated volumes of traffic on the road constituted misleading conduct within the meaning of section 52 of the TPA. Significantly, TAM neither claimed a special interest in the subject matter of the dispute nor that it had suffered any loss or damage on account of MIIM's conduct. It relied instead exclusively on the open standing provisions contained in sections 80 and 163A of the TPA. MIIM filed a defence pleading that TAM had no standing to maintain an action against it. MIIM argued that so far as §§ 80 and 163A of the TPA purported to confer standing on TAM they were constitutionally invalid.

In March 2000, the Australian High Court considered MIIM's constitutional claim. The detail of MIIM's argument was succinctly summarized by Chief Justice Gleeson and Justice McHugh in a joint judgment.

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Australian Environmental Law: A Federal Overview

Author(s): Donald Anton

This piece provides a detailed snapshot of national environmental law in 2001. Much has moved on since, but the analysis here was written shortly after the enactment of the first major piece of reform legislation (the Environmental Protection Biodiversity Conservation Act 1999) since the inception of federal environmental legislation in Australia in the early 1970s and to that extent remains relevant.

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International Environmental Law: A Pre-1993 Bibliography

Author(s): Donald Anton

An organized collection of references to pre-1993 primary and secondary sources and authority of International Environmental Law. 20 Chapters, 790 pages.

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Reforming the Law of Environmental Standing and Third Party Appeal Rights in Victoria

Author(s): Donald Anton

This Occasional Paper considers the need to update Victorian environmental law in connection with the law of standing and the rights of third parties to appeal the decisions of environmental regulators. Two recent events have combined to make such a consideration timely and appropriate.

First, during the recent election strong commitments were made to give Victorians a better Government by revitalising Victoria's democracy, restoring the checks and balances that keep government honest and accountable, and returning proper standards of conduct to government. In the environmental context, it was emphasised that underpinning Labors approach to conservation and the environment is a fundamental commitment to greater accountability and public scrutiny. As discussed below, opening up the law of standing and expanding third party appeal rights would help to ensure that these important commitments are met.

Second, the impetus to consider reforming the law of standing in the environmental realm has also been prompted by the recent unanimous High Court of Australia ruling in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd. The High Court held that open standing provisions are beyond any doubt constitutional. More importantly, however, in Truth About Motorways the High Court emphasised that open standing provisions serve salutary public interest purposes in contemporary administrative circumstances.

It seems advisable in such circumstances to seriously the adequacy of the current standing and third party appeal arrangements in Victoria. The need for such a review becomes even more apparent when one discovers, as discussed below, that except in two important but limited circumstances, open standing and third party appeal rights in Victorian environmental law are lacking.

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