Melbourne Law School - Research Publications

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    Access to justice in Vietnam: State supply – private distrust
    Nicholson, P ; Gillespie, J ; Chen, A (Routledge, 2016-01-01)
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    Tribal Constitutionalism: States, Tribes, and the Governance of Membership
    Gover, K (Oxford University Press, 2011-01-01)

    In settler societies, tribal self-governance creates a legal distinction between indigeneity (defined by settler governments) and tribal membership (defined by tribes). Many legally indigenous persons are not tribal members, and some tribal members are not legally indigenous. This book considers the membership rules included in the constitutions and membership codes of nearly 750 recognized tribes in Canada, New Zealand, Australia, and the United States. It addresses the first-order question of tribal constitutionalism: who are the members of tribes, and how are they chosen? The question is of practical and theoretical import. A large proportion of indigenous peoples in each state are not enrolled in a recognized tribe, and the majority of indigenous peoples do not live near their tribal territories. The book's empirical study challenges many of the assumptions used to model tribalism in theories of cultural pluralism, especially those that depict tribes as distinctively insular, ascriptive, and territorially-confined. The book shows that while they are descent-based groups, tribes also self-constitute relationally, by enrolling non-descendants in accordance with cultural and social criteria, and by recruiting from other indigenous communities. The book draws on tribal law and practice, political theory, legal doctrine, policy, and demographic data to critically assess the strategies used by tribes and states to manage the jurisdictional and ideological challenges of tribal membership governance.

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    Introduction: A Sustainable Future for Communal Lands, Resources and Communities
    Godden, L ; Tehan, M ; Godden, L ; Tehan, M (Routledge, 2010)
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    The Security Council’s alliance of gender legitimacy: The symbolic capital of Resolution 1325
    OTTO, D ; Charlesworth, H ; Coicaud, J (Cambridge University Press, 2010)
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    The Curious Case of the Australian Military Court
    Duxbury, A (Taylor & Francis Ltd, 2010)
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    Death in Gaza
    Simpson, G ; Gaita, R (University of Western Australia Press, 2010)
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    ADJUDGING THE EXCEPTIONAL AT INTERNATIONAL INVESTMENT LAW: SECURITY, PUBLIC ORDER AND FINANCIAL CRISIS
    Kurtz, J (CAMBRIDGE UNIV PRESS, 2010-04-01)
    Abstract This article examines the impact of international law on the ability of States to mitigate the effects of financial crises. It focuses on the invocation of investment treaty disciplines in the aftermath of the 2001–2002 Argentine financial crisis, and the adjudication of Argentina's defence of a state of necessity under both subject treaties and at customary international law. The article uncovers three interpretative methods in the jurisprudence on the relationship between the treaty exception and customary plea of necessity: methodologies I (confluence), II (lex specialis) and III (primary-secondary applications). Method I is the dominant approach in the jurisprudence and the most restrictive of the three readings. The article argues that method I is mistaken both on a careful interpretation of the two legal standards and on a broader historical analysis of the emergence of investment treaty norms. Given these substantive flaws, the article isolates the motivations to account for the popularity of this method through a close reading of the awards. These reveal continuing tensions in the field, not least the problematic suggestion that a single value of protection should exclusively inform our understanding of the purpose of investment treaties. These sociological features of investor–State arbitration should, it is suggested, inform our choice on other interpretative methods. This comes down to an election between methods II (lex specialis) and III (primary–secondary applications). Method III is the most convincing and coherent reading of the relationship between the two legal standards. The article concludes by offering a framework to address the key interpretative questions implicated in that method: (a) the identification and scope of the notion of ‘public order’ and a State's ‘essential security interests’; and (b) the appropriate test of ‘necessity’ or means–end scrutiny.