Research theme: International Law

This article examines the potential impact of the populist challenge to International Law on the United Nations Security Council. The Security Council is often criticized as ineffective, unprincipled, and an anachronistic mechanism that reflects a power balance from the past, rather than the realities of today. The article argues that the rise of populism is likely to further erode the Security Council’s legitimacy and efficacy. At the same time, however, it emphasizes the need for greater nuance in the way that both the phenomenon of populism, as well as the relationship between national and international concerns, are understood and framed. Taking these complexities into account, the Article explores three scenarios that could result from an escalating crisis of Security Council legitimacy. The first involves reform and renewal. The second comprises retreat and realignment. The third encompasses reimagining the international peace and security architecture and creating something new.

Research theme: Constitutional Law and Theory

Peace referendums', which seek to manage conflict between warring groups, are increasingly common. Yet they remain erratic forces—liable as often to aggravate as to resolve tensions. This book argues that, despite their risks, referendums can play useful roles amid armed conflict. Drawing on a distinctive combination of the fields of deliberative democracy, constitutional theory and conflict studies, and relying on comparative examples (eg, from Algeria, Colombia, New Caledonia, Northern Ireland, Papua New Guinea, and South Africa), the book shows how peace referendums can fulfil their promise as genuine tools of conflict management.

Co-authors: Ron Levy, Ian O'Flynn, and Hoi L. Kong

Centre: LRSJ

Research theme: Human Rights Law and Policy, Law and Gender

The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.

Co-authors: Madeleine Castles, Tom Hvala, Kieran Pender

Research theme: International Law

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.

Research theme: International Law

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.

Research theme: Regulatory Law and Policy

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.

Research theme: Law and Gender

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."

Research theme: International Law

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.

Research theme: Constitutional Law and Theory

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. 

Research theme: Legal Education

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.

Research theme: Private Law

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.

Research theme: Environmental Law, International Law

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.

Research theme: Human Rights Law and Policy, International Law

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.

Centre: LRSJ

Research theme: Human Rights Law and Policy, Law and Social Justice

There is ongoing concern that Britain’s courts are places that are overwhelming, disorientating and confusing for court users. Asylum seekers are some of the most marginalised people in society and existing research highlights the difficulties they face in disclosing evidence throughout the legal process. Without an accessible process, appellants may be unable or unwilling to speak and participate in their appeal, and therefore important pieces of evidence may not be considered and justice may not be served. Although a lot of attention has been paid to asylum law by academics and policy makers alike, its day to day implementation often escapes critical academic scrutiny. This is arguably because relatively few non-legal scholars study the law, meaning that most analysis is focussed on substantive and doctrinal legal issues rather than questions of process, implementation and experience. It is also extremely time consuming to observe a sufficient number of hearings to be able to draw general conclusions about day to day issues.

Our project adopts an inter-disciplinary perspective on the day to day workings of asylum law within the UK’s asylum appeal hearings. In the following sections we report on a project which examined what happens during asylum appeals by closely observing them from the public areas of hearing rooms. Our observations ran from 2013 to 2019. We complement the perspective our observations offer with interview evidence from appellants as well as others involved in the process.

Co-authors: Nick Gill, Jennifer Allsopp, Andrew Burridge, Daniel Fisher, Melanie Griffiths, Jessica Hambly, Jo Hynes, Natalia Paszkiewicz, Rebecca Rotter and Amanda Schmid-Scott.

Author: Sarah Lim, Nathalie Ng

Research theme: Administrative Law

Providing redress where loss has been suffered is not the sole preserve of the judiciary. At least in part, this is because loss can be suffered by individuals in the absence of legal liability. While this is not the exclusive province of public entities, it is more commonly the case that ‘moral liability’ justifying the payment of compensation is borne by public entities. For one thing, public entities generally have a much greater capacity to cause individuals — even relatively sophisticated or commercially adept parties — to act in a way that they otherwise might not. Government and other public figures come cloaked in authority, with the consequence that people are more likely to comply with requests or instructions. Such compliance will frequently not create a legal obligation if the individual suffers loss. Compensation schemes are premised on the belief that the action might nonetheless create moral obligations and that these can be a sufficient basis for compensation to issue.

This article considers the provision of compensation outside the legal system, usually paid on the basis of ‘moral liability’ rather than a claim founded in law. There are a number of different schemes in place which may achieve this end, across every Australian jurisdiction and they are both statutory and executive.

Centre: LRSJ

Research theme: Law and Social Justice, Law and Technology

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.