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.

The Limits of the Natural State Doctrine: Rocks, Islands and Artificial Intervention in a Changing World

The Limits of the Natural State Doctrine: Rocks, Islands and Artificial Intervention in a Changing World

Author(s): Imogen Saunders

The natural state doctrine suggests that under UNCLOS, maritime features must be assessed in their ‘natural state’, before any artificial intervention. While this has been applied in the context of artificial island building, it could also apply to cases of artificial augmentation of features (such as, for example, desalination activities). This article examines the appropriateness of this doctrine in the context of islands, arguing an expansive application of the doctrine is both textually unsupported and practically infeasible in light of changes brought by climate change.

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Centre: CIPL

Research theme: Environmental 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

The Future of Australia's Federal Renewable Energy Law

Author(s): James Prest

This article presents a critical analysis of Australia's federal renewable energy law. Its operation as a system of tradeable renewable energy certificates is briefly explained, before an analysis of the future of the Renewable Energy Target beyond 2020 is undertaken. The implications of the Federal Government's recently abandoned National Energy Guarantee and the subsequent decision no to expand or extend the Renewable Energy Target are discussed. The article presents an international comparison which demonstrates that Australia's national support for renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy law must be extended to address important issues that are presently receiving little legislative or political attention.

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Centre: CIPL

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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Australian Renewable Energy Law: Carbon Lock-In or Clean Energy Transition? The Pursuit of Policy Stability and Energy Security at Higher Levels of Renewable Generation

Author(s): James Prest

This article critically analyses recent developments in Australia’s renewable energy law and policy. It identifies seven retrograde steps taken in energy and climate law in Australia in the last five years. Barriers to clean energy law - in the form of recurring narratives employed against the rise of renewable energy across Australia - are examined. Increased levels of renewable energy are portrayed by opponents as a threat to the security and reliability of electricity supply. Yet, the nation is currently experiencing a major renewable energy investment boom, supported by regional policy initiatives that are driving innovation, most recently in energy storage.

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Centre: CIPL

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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National Human Rights Institutions (NHRIs) and the Hazards of Being the Nexus between Global and Local: A Case Study of the Myanmar National Human Rights Commission (MNHRC) in the Maelstrom of Public Controversy

Author(s): Jonathan Liljeblad

National Human Rights Institutions (NHRIs), as set forth in the 1993 Paris Principles, are expected to be independent bodies that promote and monitor state implementation of international human rights standards. In such a role, an individual NHRI bridges the gap between “international human rights obligations and actual enjoyment of human rights on the ground” and thereby operates as a nexus between a global human rights system and local conditions. A location at the nexus has the potential to offer opportunities to exercise powers as an intermediary on behalf of human rights in terms of enabling engagement between global and local levels. The analysis, however, draws upon the experiences of the Myanmar National Human Rights Commission (MNHRC) to assert that there are limits for institutions at the nexus between global and local. Using a public controversy from 2016 that questioned the legitimacy of the MNHRC and threatened its existence as an NHRI, the analysis seeks to improve understanding of the risks facing NHRIs and add insight into the ways contextual politics challenge expectations for NHRIs to operate as human rights intermediaries.

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Centre: CIPL

Research theme: Environmental Law, Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development

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Beyond Transnational Advocacy: Lessons from Engagement of Myanmar Indigenous Peoples with the UN Human Rights Council Universal Periodic Review

Author(s): Jonathan Liljeblad

On July 21, 2015, the Coalition of Indigenous Peoples in Myanmar/Burma (CIPM), a group representing 24 indigenous rights organizations in Myanmar, announced they were submitting a report to the Universal Periodic Review (UPR) session on Myanmar. The use of the UPR represents an attempt by Myanmar’s indigenous groups to address a variety of issues not traditionally associated with human rights, among them: environmental grievances associated with alleged government seizure of land, deforestation, pollution, and suppression of land-use rights.

The use of the UPR also illustrates an indigenous strategy of reaching up to an international level in order to address problems at a local one: the CIPM resorted to the UPR in hopes of mobilizing pressure to change the behavior of the Myanmar government. This article explores the experiences of the CIPM with the UPR to draw lessons for other groups that seek to use the UPR to advance their interests.

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Centre: CIPL

Research theme: Environmental Law, Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development

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Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber

Author(s): Donald Anton

On 1 February 2011, the Seabed Disputes Chamber (“the Chamber”) delivered its first Advisory Opinion. The Opinion provides useful guidance to the international community concerned with the deep seabed. First and foremost, the Chamber accomplished its task to assist the ISA with independent and impartial judicial interpretation of the Convention and related instruments. States that intend to extract valuable resources now know that they must evaluate their legal codes, administrative capacity, and their judicial enforcement mechanisms to determine where they fall short of the standards that the Chamber has identified. For most states it will be necessary to introduce new laws to provide the requisite rules, regulations and procedures. Entities seeking sponsorship will likely wish to work with these governments to develop a workable regime. Other entities, such as those interested in scientific research, other economic uses, and protection of the ocean and seabed resources, will want to assist with this process to ensure that their interests are respected and that developing states are given assistance to develop appropriate laws and enforcement capacity. Finally, the limitations and gaps in the Convention’s liability scheme have now been identified and await the international legal community’s attention.

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Centre: CIPL, CLAH

Research theme: Environmental Law

Tolley's International Taxation of Upstream Oil and Gas

Tolley's International Taxation of Upstream Oil and Gas

Author(s):

The scope of this title is to introduce and review significant international tax issues for upstream oil and gas operations. The book introduces and explains practical upstream tax issues, with an emphasis on tax risk management and related tax planning. Readers will develop skills in identifying tax exposures and opportunities, managing tax negotiations, and applying tax planning solutions and is intended to benefit accountants, lawyers, economists, financial managers and government officials. The book aims to be the first choice for the new starter in upstream oil and gas taxation. It also aims to be the best introduction of international tax issues relating to upstream oil and gas, enabling the reader to analyse and understand new situations and circumstances, rather than an encyclopaedic reference of tax issues.

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Centre: CIPL

Research theme: Administrative Law, Environmental Law, International Law

International Law: Cases and Materials with Australian Perspectives

International Law: Cases and Materials with Australian Perspectives - Second Edition

Author(s): Donald Rothwell, Stuart B Kaye, Afshin Akhtarkhavari, Ruth Davis

International Law: Cases and Materials with Australian Perspectives is the authoritative textbook for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students.

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Centre: CIPL

Research theme: Environmental Law, International Law

Environmental Protection and Human Rights

Environmental Protection and Human Rights

Author(s): Donald Anton

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

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Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

The 'Thirty Percent Solution'

The 'Thirty Percent Solution' and the Future of International Environmental Law

Author(s): Donald Anton

This is a contribution to a symposium volume on Dan Bodansky's "Art and Craft of International Environmental Law". It takes as its starting point, Bondansky's accurate claim that "International environmental law is neither a panacea nor a sham. It can play a constructive role, but that is all. It might be called a 'thirty-percent” solution.'" While it might be more than that some day, the contribution argues that outcome is not likely so long as the international community retains the concept of sustainable development, as it is currently understood, as its organizing principle.

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Centre: CIPL

Research theme: Environmental Law, International Law

Climate Change and Indigenous Peoples

Book Review: Climate Change and Indigenous Peoples: The Search for Legal Remedies, Randall S. Abate & Elizabeth Ann Kronk, Editors (Edward Elgar: Cheltenham, UK & Northampton, MA, USA, 2013) pp. i-xxvii; 1-590

Author(s): Donald Anton

The excellent book that Professors Abate and Kronk have brought together as an edited collection is an important addition to an ongoing search for legal remedies for indigenous peoples facing existential threats on account of climate change harms. It picks up on a 2009 report by the Office of the UN High Commissioner for Human Rights that examined the linkages between climate change and indigenous peoples for the first time, at least by an international human rights body. Abate and Kronk write in the opening chapter, their book “recognizes that indigenous peoples are particularly vulnerable to climate change, both physically and legally” and the book specifically “addresses the challenges that these communities face in responding to climate change impacts.”

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Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Artificial Photosynthesis

Artificial Photosynthesis as a Frontier Technology for Energy Sustainability

Author(s):

Humanity is on the threshold of a technological revolution that will allow all human structures across the earth to undertake photosynthesis more efficiently than plants; making zero carbon fuels by using solar energy to split water (as a cheap and abundant source of hydrogen) or other products from reduced atmospheric carbon dioxide. The development and global deployment of such artificial photosynthesis (AP) technology addresses three of humanity’s most urgent public policy challenges: to reduce anthropogenic carbon dioxide (CO2) emissions, to increase fuel security and to provide a sustainable global economy and ecosystem. Yet, despite the considerable research being undertaken in this field and the incipient thrust to commercialization, AP remains largely unknown in energy and climate change public policy debates. Here we explore mechanisms for enhancing the policy and governance profile of this frontier technology for energy sustainability, even in the absence of a global project on artificial photosynthesis.

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Centre: CIPL

Research theme: Environmental Law

Energy and Environment Policy Case

Energy and Environment Policy Case for a Global Project on Artificial Photosynthesis

Author(s):

A policy case is made for a global project on artificial photosynthesis including its scientific justification, potential governance structure and funding mechanisms.

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Centre: CIPL

Research theme: Environmental Law, Health, Law and Bioethics

Rothwell, The Law of the Sea

The law of the sea and the polar regions: Interactions between global and regional regimes

Editor(s): Donald Rothwell, Erik J. Molenaar, Alex G Oude Elferink

The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes analyzes the contemporary Law of the Sea and related areas of international law in Antarctica and the Arctic, with a particular focus upon the interaction of global and regional regimes. The global component of the international law of the sea - principally the United Nations Convention on the Law of the Sea - applies to the entire marine domain in both polar regions but explicitly requires regional implementation or acknowledges its usefulness. This volume  examines regional regimes for the Arctic and Antarctic on science, maritime security, fisheries and shipping by means of common research questions; thus enabling an overall synthesis and identification of trends, differences and similarities.

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Centre: CIPL

Research theme: Environmental Law, International Law

Chisholm, Understanding Law

Understanding law: an introduction to Australia's legal system (8th ed)

Author(s): Richard Chisholm, Garth Nettheim

Written by highly qualified authors, the direct, clear and often humorous style of this book will help readers understand how the law relates to real issues and controversies. The institutions and sources of law in our legal system are clearly explained, including the roles of lawyers, the courts and the legislature. Illustrative examples and a discussion of actual cases enable students and other citizens to engage with topics such as historical basis of Australian law, Australian law and international law, human rights, procedural fairness and the notions of law and morality. New stimulus questions and activities included in this 8th edition invite the reader to consider the interrelationship of law, tradition and social values. Understanding Law is a perfect introduction to the law for students engaging with legal studies and for other academic disciplines at tertiary and senior secondary levels. It is an ideal starting point for any Australian interested in learning more about their legal system.

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Centre:

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Environmental Law, Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice

Dan Bodansky's 'Art and Craft of International Environmental Law'

Author(s): Donald Anton

This is a review of Daniel Bodansky's "The Art and Craft of International Environmental Law." The piece considers Bodansky's idea of International Environmental Law as a 30% solution to international environmental problems in the context of: 1) norm proliferation and continuing environmental decline, and 2) the concept of sustainable development as an obstacle to environmental improvement.

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Centre: CIPL

Research theme: Environmental Law

Treaty Congestion

'Treaty Congestion' in International Environmental Law

Author(s): Donald Anton

This is an extended version of a contribution to the forthcoming Routledge Handbook of International Environmental Law. It focuses on the phenomenon of "treaty congestion," which commentators have tied to the rapid expansion of international environmental law in recent decades. Arguably the number of international instruments has hampered implementation. In particular, the lack of coordination in the face of proliferation and the lack of capacity challenge the operationalizing international environmental obligation by necessary and sufficient laws, policies, programs and plans. This contribution considers the issue of treaty congestion, and makes suggestions for how it might be overcome.

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Centre: CIPL

Research theme: Environmental Law, International Law

Still this Endangered Planet

Still this Endangered Planet

Author(s): Donald Anton

This paper was presented at the 106th Annual Meeting of the American Society of International Law on a panel considering the 2012 U.N. Conference on Sustainable Development. The paper provides a critical and provocative analysis of how the concept of sustainable development has become beholden to economic growth and, on this account, why it is unfit to continue to serve as the major organizing principle for global environmental protection.

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Centre: CIPL

Research theme: Environmental Law

Future Perspectives on Solar Fuels

Future Perspectives on Solar Fuels

Author(s):

Central to the future perspective presented here is nanotechnological construction with enhanced efficiency of each aspect of the natural photosynthetic process into units capable of inexpensive mass production for domestic use. This involves a vision of artificial photosynthesis research that incorporates the utilization of genetically-engineered (or even wholly synthetic) organisms undertaking photosynthesis, but emphasizes worldwide household utilization of structures that are chiefly a matter of engineered nanochemistry.

The challenge of how to promptly develop nanotechnologically-based artificial photosynthesis is explored through a future perspective on the scientific challenges involved in three key areas covered: Light Capture (including light-harvesting complexes, synthetic pigment arrays and dye-sensitive solar cells), Photochemical Conversion (including structure of the photosynthetic reaction centres, optimizing photochemical quantum yield) and Energy Storage (including optimization of photosynthetic water oxidation and catalysis). As the world’s human population rises, global artificial photosynthesis (GAP) (global solar fuels (GSF)) may take the pressure off natural photosynthesis as our primary (and water-intensive) source of food and fuel.

The paper concludes by considering how inequalities and injustices in the use of solar fuel technology can best be avoided or minimized. It extends the analysis to scope the governance, legal and regulatory obstacles likely to confront the future research and development of solar fuels. In particular, it presents the case for a macro-science GAP or GSF Project designed not only to accelerate the pace of such research to meet the urgency of climate change and human energy and food needs, but to do so in a manner coherent with equity and environmental sustainability.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team