The Power of Process: The Value of Due Process in Security
Council Sanctions Decision-Making (Oxford University Press,
The UN Security Council's
transition to 'targeted sanctions' in the 1990s marked a
revolutionary shift in the locus of the Council's decision-making
from states to individuals. The establishment of the targeted
sanctions regime, should be regarded as more than a shift in policy
and invites attention to an emerging tier of international
This book examines the need to develop a due process framework
having regard to the uniquely political and crisis-based context in
which the Security Council operates. Drawing on Anglo-American
jurisprudence, this book develops procedural principles for the
international institutional context using a value-based approach as
an alternative to the formalistic approach taken in the literature
to date. In doing so, it is recognized that due process is more than
a set of discrete legal standards, but is a touchstone for the way
the international legal order conceives of far larger questions
about community, law and values.
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No Country is an Island: Australia and International Law
(UNSW Press: Sydney, 2006) (with Professor Hilary Charlesworth,
Madelaine Chiam and Professor George Williams). [Highly Commended,
Australian Human Rights Awards 2006]
International law does not seem immediately relevant to domestic
Australian politics and law, let alone to our everyday lives. Yet,
as this essential book shows, international law has a growing
significance for trade, human rights, crime, terrorism and climate
change. This is a highly readable, timely and important book that
shows that while international law can seem remote, there is an
urgent need to understand it and for its processes to be as
transparent as possible.
The Fluid State: International Law and National Legal Systems
(Federation Press: Sydney, 2005) (edited with Professor Hilary
Charlesworth, Madelaine Chiam and Professor George Williams).
Described as ‘a valuable contribution to contemporary scholarship in the
strongly comparative approach it performs and develops’ providing ‘a rich sense
of the range of effects produced by the choice to refer to law in the
administration of international matters when that choice is made in the fact of
the “war on terror”, human rights violations and economic globalisation’.
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'Due Process in the United Nations'
LSE Law Society and Economy Working Paper Series, 02-2016
The legitimacy of the United Nations is essential to its
effectiveness in carrying out its mandate. As UN organs exercise an increasing
array of 'governmental' powers, it should come as no surprise that repeated
failures by the UN to provide adequate due process to those affected by its
decision-making has had a detrimental effect on the Organization and its
activities. Yet UN organs continue to resist procedural reform, seemingly
unpersuaded by reform proposals insisting that due process is unquestionably 'a
good thing'. The aim of this article is to develop procedural principles for the
UN context using a normatively rich rather than formalistic approach. The
problem in relying on traditional international law source methodology – drawing
on 'universally-recognized' procedural standards from customary international
human rights law or 'general principles' of domestic public law – is that it
ignores the contextual nature of due process. The article lays the foundations
of a 'value-based' approach to the development of due process principles for the
UN context, with a focus on two sites in which the choice of procedural
framework is both problematic and unresolved: the targeted sanctions context and
the Haiti cholera controversy.
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‘Kadi: King-Slayer or King-Maker? The Shifting Allocation of Decision-making
Power between the UN Security Council and Courts’ (2016) 79 (1) Modern Law
This note analyses the twelve-year span of the Kadi litigation
in the European courts. The litigation raises the textbook question of the
relationship between international and municipal legal orders, yet demonstrates
that it is high time to move the description of this relationship beyond the
orthodox yet outdated monist/dualist dichotomy that was seen to provide the
answer in less complicated times. The note examines the different approaches
taken at the three key phases of the litigation: the ‘supremacy’ position
adopted by the Court of First Instance in 2005, the ‘subversive’ approach of the
European Court of Justice in 2008 and the ‘subsidiarity’ position of the Court
of Justice of the European Union in 2013. Ultimately, the note invites attention
to the ‘Solange equivalence’ approach taken by the Advocates-General and argues
that this strikes the best balance in normative terms for an enduring approach
to power-sharing between legal orders.
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'A Dialogue Model: The Role of the Domestic Judge in Security Council
Decision-Making' Leiden Journal of International Law (2013) 25 (3)
This article proposes a different theoretical account of the
role of domestic courts when engaged in judicial review of decision-making by
international institutions. Many domestic courts in democratic societies operate
in accordance with a ‘public-law model’ when adjudicating questions related to
international decision-making, underwritten by respect for doctrines such as the
rule of law and separation of powers. Drawing on a case study of domestic-court
decisions in the Security Council sanctions context, this article seeks to
demonstrate how the public law model’s focus on concepts of ‘bindingness’ and
hierarchy between judicial and political organs can lead to distorted outcomes
when applied to decision-making by international institutions. As an
alternative, the author proposes a different theoretical account of the judicial
role, described as the 'dialogue model', of courts when engaging in the review
of Security Council decision-making. The idea is that domestic courts should
confine themselves to tools of 'interpretation' and 'declaration' in their
approach to international decision-making, so as to position their judgments in
amore theoretically supportable way in the broader legal context.
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The Gulf Between Tortious and Torturous: UK Responsibility for Mistreatment of
the Mau Mau in Colonial Kenya' Journal of International Criminal
Justice (2013) 11 (1) p.223-245
Analyses the Queen's Bench Division judgment in Mutua v
Foreign and Commonwealth Office on whether the UK Government was liable for
the abuse of Kenyan Mau Mau detainees by the colonial administration in the
1950s and 1960s on the basis of: (1) primary liability; (2) vicarious liability;
(3) its alleged succession to the colonial government's primary liability on
Kenya's independence; or (4) negligence. Discusses the significance of the fact
that UK law does not recognise a tort of torture for each liability decision.
Outlines the court's later ruling on whether the action was time-barred.
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'The Deliberative Deficit: Transparency, Access to Information
and UN Sanctions' in Jeremy Farrall and Kim Rubenstein, Sanctions
Accountability and Governance in a Globalized World (Cambridge University
Press, 2009), pp 92-122.
'A Tale of Two Systems: The Use of International Law in Constitutional
Interpretation in Australia and South Africa' (2005) 29 Melbourne University
Law Review 95 (with George Williams), pp 95-130.
'Advice to the Hon Simon Crean MP on the use of force against
Iraq' (2003) 4(1) Melbourne Journal of International Law 183 (with George
Williams), pp 183-189.
'Deep Anxieties: Australia and the International Legal Order'
(2003) 25 Sydney Law Review 423 (with Hilary Charlesworth, Madelaine
Chiam and George Williams), pp 423-465.