Welcome to the electronic edition of Imagining Law: Essays in Conversation with Judith Gardam. The book opens with the bookmark panel and you will see the contents page. Click on this anytime to return to the contents. You can also add your own bookmarks. Each chapter heading in the contents table is clickable and will take you direct to the chapter. Return using the contents link in the bookmarks. The whole document is fully searchable. Enjoy. Imagining Law The high-quality paperback edition of this book is available for purchase online: https://shop.adelaide.edu.au/ Imagining Law: Essays in Conversation with Judith Gardam Edited by Dale Stephens and Paul Babie Published in Adelaide by University of Adelaide Press Barr Smith Library The University of Adelaide South Australia 5005 press@adelaide.edu.au www.adelaide.edu.au/press The University of Adelaide Press publishes peer reviewed scholarly books. It aims to maximise access to the best research by publishing works through the internet as free downloads and for sale as high quality printed volumes. © 2016 The Contributors This work is licenced under the Creative Commons Attribution-NonCommercial- NoDerivatives 4.0 International (CC BY-NC-ND 4.0) License. To view a copy of this licence, visit http://creativecommons.org/licenses/by-nc-nd/4.0 or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA. This licence allows for the copying, distribution, display and performance of this work for non-commercial purposes providing the work is clearly attributed to the copyright holders. Address all inquiries to the Director at the above address. For the full Cataloguing-in-Publication data please contact the National Library of Australia: cip@nla.gov.au ISBN (paperback) 978-1-925261-30-1 ISBN (ebook: pdf ) 978-1-925261-31-8 ISBN (ebook: epub) 978-1-925261-32-5 ISBN (ebook: kindle) 978-1-925261-33-2 DOI: http://dx.doi.org/10.20851/essays-gardam Editor: Rebecca Burton Editorial support: Julia Keller Book design: Zoë Stokes Cover design: Emma Spoehr Cover image: © iStockphoto Paperback printed by Griffin Press, South Australia EmEritus P rofEssor J udith Gardam fassa faaL PhD LLM (Melbourne) LLB (Monash) LLB (UWA) Fellow of the Academy of Social Sciences in Australia. Fellow of the Australian Academy of Law. Emeritus Professor of Law in The University of Adelaide 2011-present Professor of Law in The University of Adelaide 2006-10 Reader in Law in The University of Adelaide 1996-2005 Senior Lecturer in Law in The University of Adelaide 1989-95 Lecturer in Law in The University of Melbourne 1987-88 Senior Tutor in Law in Monash University 1985-86 Research Fellow in Law in The University of Melbourne 1976-81 Senior Tutor in Law in The University of Western Australia 1970. Sometime Visiting Professor of Law in McGill University. Sometime Visiting Fellow of the Lauterpacht Centre for International Law of Girton College in the University of Cambridge. Sometime Researcher in Law in the University of Calgary, in der Universität Mannheim, at the Graduate Institute of International and Development Studies. Sometime Rapporteur to the International Law Association Committee on the Use of Force. Barrister and Solicitor of the Supreme Court of Victoria, Barrister and Solicitor of the High Court of Australia. Member of the Australian and New Zealand Society of International Law. Member of the American Society of International Law. Sometime Assistant Editor of the University of Western Australia Law Review. Sometime Joint Editor of the Australian Mining and Petroleum Law Journal. Sometime Editor and Co-Editor of the Adelaide Law Review Sometime Book Review Editor of the Australian Yearbook of International Law Member of the Editorial Board of the Australian Yearbook of International Law Judith Gardam ix C ontEnts List of Contributors xi Acknowledgements xv 1 Introduction: Seeing Further over the Horizon — A World of Limitless Possibilities Dale Stephens and Paul Babie 1 Part I 2 Energy and Law — Searching for New Directions Adrian Bradbrook 13 Part II 3 The Limited Necessity of Resort to Force Mary Ellen O'Connell 37 4 Human Rights Obligations as a Collateral Limit on the Powers of the Security Council Matthew Stubbs 61 Part III Gender and Armed Conflict 5 Prosecuting Conflict-Related Sexual Violence Crimes: How Far Have We Progressed and Where Do We Go from Here? Michelle Jarvis 105 6 The Construction of Knowledge about Women, War and Access to Justice Ustinia Dolgopol 133 x 7 Laws, UFOs and UAVs: Feminist Encounters with the Law of Armed Conflict Gina Heathcote 153 8 An Alien's Review of Women and Armed Conflict Hilary Charlesworth and Christine Chinkin 171 9 The Law of Armed Conflict and the Operational Relevance of Gender: The Australian Defence Force's Implementation of the Australian National Action Plan Jody Prescott 195 Gender and Feminist Concepts 10 Women's Role in Reconstituting the Post-Conflict State Laura Grenfell 219 11 Law under the Influence of Religion: The Limiting of Birth and Death Decisions Ngaire Naffine 243 Theoretical Issues 12 Given the Freedom to Ask Anything, What Questions Ought the International Legal Scholar Explore? Using Gardam's 'Alien' to Examine this Question Rebecca LaForgia 263 13 The Alien Within Margaret Davies 279 A Selected Bibliography 299 Table of Cases and Materials 303 Selected Index 313 xi List of C ontributors Paul Babie holds a Chair of Law in the Adelaide Law School of The University of Adelaide. He is currently Associate Dean of Law (Research) of the Adelaide Law School, Associate Dean (Research) of the Faculty of the Professions, and Director of the Research Unit for the Study of Society, Law and Religion. His primary research interests are legal theory (especially the nature and concept of property and the relationship between law and theology), and law and religion (especially the relationship between constitutions and religious freedom). He has published widely in both fields. He teaches property law, property theory, law and religion, and Roman law. Adrian Bradbrook is Emeritus Professor of Law at The University of Adelaide. Until his retirement in 2011 he was the Bonython Professor of Law (since 1988) and served as Head of the School of Law (1989-91) as well as Dean of the Faculty of Law (1991-95). He held earlier academic appointments at the law schools of the University of Melbourne (1972-88) and Dalhousie University, Canada (1970-72). His major teaching and research specialties are sustainable energy law and real property law. He is author/co-author of eighteen books, including Australian Real Property Law (Thomson Reuters, 6 th ed, 2015), Easements and Restrictive Covenants (LexisNexis Butterworths, 3 rd ed, 2010), Commercial Tenancy Law (LexisNexis Butterworths, 3 rd ed, 2009), Energy Law and the Environment (Cambridge University Press, 2006), and Solar Energy and the Law (Law Book Co., 1984). He has worked on a range of sustainable energy legal projects as a United Nations consultant and served for eighteen years as a part-time member of the South Australian Residential Tenancies Tribunal. Hilary Charlesworth is a Melbourne Laureate Professor at Melbourne Law School and a Distinguished Professor at the Australian National University. She is an associate member of the Institut de Droit International and served as judge ad hoc in the International Court of Justice in the Whaling in the Antarctic Case (2011-14). Christine Chinkin , FBA, is Emerita Professor of International Law and Director of the Centre for Women, Peace and Security at the London School of Economics. She is a barrister, a member of Matrix Chambers. She is a William W Cook Global Law xii IMAGINING LAW Professor at the University of Michigan Law School. She is a member of the Kosovo Human Rights Advisory Panel and was Scientific Advisor to the Council of Europe's Committee for the drafting of the Convention on Preventing and Combating Violence against Women and Domestic Violence. Hilary and Christine received the American Society of International Law's book award for creative legal scholarship for their book, The Boundaries of International Law (Manchester University Press, 2000). They were also awarded the American Society of International Law's Goler T Butcher award in 2006 for 'outstanding contributions to the development or effective realization of international human rights law'. Margaret Davies is Matthew Flinders Distinguished Professor in the School of Law at Flinders University, South Australia. Margaret is the author of several books on legal theory, including Asking the Law Question (Thomson Reuters, 3 rd ed, 2008), Delimiting the Law (Pluto Press, 1996), Are Persons Property? (Ashgate/Dartmouth, 2001) with Ngaire Naffine, and Property: Meanings, Histories, Theories (Routledge-Cavendish, 2007). Her new book, Law Unlimited: Materialism and Pluralism in Legal Theory will be published in 2017. Ustinia Dolgopol is an Associate Professor of Law at Flinders University. She has published in the fields of human rights, children's rights and women in armed conflict. Her research interests include women's rights and the international protection of human rights, gender and the International Criminal Court, and the search for redress by the 'Comfort Women'. During December 2000 she was one of the Chief Prosecutors for the Women's International War Crimes Tribunal held in Tokyo. She has served on a number of domestic and international boards including the Voices of Women Board of the Department of Education and Children's Services and the Advisory Board of the Women's Initiatives for Gender Justice. Her publications have covered topics in the fields of children's rights, women's rights and the interplay between human rights law and international criminal law. Laura Grenfell is an Associate Professor at the Adelaide Law School. She researches public law and human rights law. Laura has been lucky to be both a student and colleague of Professor Gardam. Gina Heathcote is a Senior Lecturer in Gender Studies and International Law at SOAS, University of London. She is the author of The Law on the Use of Force: A Feminist Analysis (Routledge, 2011) and co-editor (with Professor Dianne Otto) of Rethinking Peacekeeping, Gender Equality and Collective Security (Palgrave, 2014). Gina's research focuses on feminist methodologies, collective security and international law. Michelle Jarvis is an Australian lawyer with extensive international experience covering litigation, rule of law, women's access to justice and senior management roles. She has worked at the International Criminal Tribunal for the Former xiii IMAGINING LAW Yugoslavia (ICTY) for over fifteen years and is presently the Deputy to the Prosecutor with oversight of legal issues across the Office of the Prosecutor for the ICTY and the Mechanism for International Criminal Tribunals. Michelle directed an extensive legacy project on prosecuting conflict-related sexual violence, culminating in the publication of 'Prosecuting Conflict-Related Sexual Violence at the ICTY' (2016). Previously, Michelle worked as a consultant for the United Nations Division for the Advancement of Women and as a solicitor for a community legal service focusing on women's legal justice issues in Australia. Michelle is the Co-ordinator of the Prosecuting Conflict-Related Sexual Violence (PSV) Network of the International Association of Prosecutors. Rebecca LaForgia , LLB (Hons) The University of Adelaide, LLM Cambridge University, and PhD Flinders University, is a Senior Lecturer at Adelaide University School of Law. She is co-convener of international law. Rebecca was also part of an inaugural team at Adelaide Law School to offer a Massive Online Course on Cyberwar, Surveillance and Security, which has been offered in 2015 and 2016. Rebecca's research explores law and narratives. She has completed a number of submissions and oral testimony on trade agreements and the need for these agreements to contain ongoing, open and meaningful information flow. The most recent submission was to the Australian Joint Standing Committee on Treaties on the China Australia Free Trade Agreement. In her research, Rebecca has adopted elements from the Participatory Action Research tradition, and she observes how governments respond to requests for calls for transparency in a trade treaty context. The approach is influenced by sociological and legal approaches. Ngaire Naffine is Bonython Professor of Law at The University of Adelaide and Fellow of the Australian Academy of Social Sciences. Her enduring research interest has been the moral and legal philosophy of the person — who and what can and should bear rights and duties. This topic first took shape in Law and the Sexes: Explorations in Feminist Jurisprudence (Allen and Unwin, 1990), where she examined the gender of the legal person. The topic received its fullest development in Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009). Ngaire has been Genest Visiting Professor at Osgoode Hall Law School (2012) and Baker-Hostetler Professor of Law at Cleveland-Marshall College of Law, Cleveland State University (2004). From 2007-09 she was a member of the Australian Research Council, College of Experts. She is currently writing about the central character of criminal law, the responsible subject, as seen through the eyes of the leading male scholars and jurists of the nineteenth and twentieth century. Mary Ellen O'Connell is the Robert and Marion Short Professor of Law, University of Notre Dame, USA. Her work is in the areas of international law on the use of force, international dispute resolution, and international legal theory. She is the author or xiv IMAGINING LAW editor of numerous books and articles on these subjects. From 2005-10, she chaired the ILA Committee on the Use of Force, which produced the report, The Meaning of Armed Conflict in International Law . Judith Gardam served as rapporteur. From 1993-98, Mary Ellen was a professional military educator for the US Department of Defense at the George C Marshall European Center for Security Studies in Garmisch-Partenkirchen, Germany. Mary Ellen earned an MSc in international relations at the LSE, an LLB with first class honors, and a PhD from Cambridge University. She also holds a JD from Columbia University School of Law. As an active duty US Army attorney for nearly twenty-five years, Jody Prescott served as an appellate attorney and then clerk of court for the Army Court of Criminal Appeals; Senior Defense Counsel and later Chief of International and Operational Claims in Germany; Claims Chief in Bosnia-Herzegovina with the NATO Implementation Force Headquarters; Deputy General Counsel and later as the General Counsel for US Army Alaska; and as a staff attorney and legal observer/ trainer at Allied Command Transformation in the US, and the Joint Warfare Centre in Norway. His final operational assignment was as Chief Legal Advisor, NATO International Security Assistance Force, in Afghanistan, 2008-09. He was an Assistant Professor at the US Army Command and General Staff College, 2000-03, and at West Point, 2009-11. Prescott is now an Adjunct Instructor at the University of Vermont, teaching Environmental Law, Environmental Politics, and Cyber Policy and Conflict. Dale Stephens is a Captain in the Royal Australian Navy Reserve, who spent over twenty years as a permanent officer in the Navy before taking up his appointment at Adelaide Law School. He has occupied numerous staff officer appointments throughout his career in the Australian Defence Force, including Fleet Legal Officer, Command Legal Officer (Naval Training Command), Chief Legal Officer Strategic Operations Command, Director of Operational and International Law, Deputy Director of the Asia-Pacific Centre for Military Law (a joint venture with Melbourne University Law School), Director Navy Legal and Director of the Military Law Centre. He has deployed twice to East Timor (INTERFET & UNTAET) and twice to Iraq (Baghdad) in senior legal officer positions and has provided extensive advice to government at the strategic level. Matthew Stubbs is an Associate Professor in the Law School at The University of Adelaide, where he serves as Associate Dean (Learning and Teaching) and Editor in Chief of the Adelaide Law Review . Matthew's research and teaching is focused in the areas of international law, constitutional law and human rights. He is Chair of the Human Rights Committee of the Law Society of South Australia and a member of the Law Council of Australia's National Human Rights Committee. xv a CknowLEdGEmEnts A project such as this one requires enormous teamwork. The Editors wish to thank all those who have participated to bringing this book to life. Most significantly, we wish to thank Professor Judith Gardam, who was so generous with her time and so gracious in her dealings with us. Her scholarship and international standing made our work with the contributors so much easier. It is clear that all contributors feel a deep respect for Judith and working with them was a joy; we all felt inspired by Judith and this translated into tremendous engagements and conversations along the way. We thank the several anonymous reviewers that were involved. The University of Adelaide Press sets a very high standard in such reviews and, not surprisingly, with the array of talent we have in this volume, this process proved to be very constructive and straightforward. We are particularly indebted to our numerous University of Adelaide Law School student researchers, who gave up their time willingly and often with little notice to contribute to the project. These students were India Short, Claudia Boccaccio, George Robertson and Tyson Bateman. We also thank the following students, who undertook a deeper oversight role in the development of this publication: Thomas Wooden (LLB 2016), Caitlyn Georgeson and Loise Wells (LLB 2015). We also thank researcher Richard Sletvold (LLB 2013) for his excellent bibliographic work. Finally, we thank our publisher, the University of Adelaide Press and its Director, Dr John Emerson and its editors Rebecca Burton and Julia Keller. Dale Stephens and Paul Babie 8 August 2016 Adelaide, Australia 1 1 INTRODUCTION: SEEING FURTHER OVER THE HORIZON — A WORLD OF LIMITLESS POSSIBILITIES daLE stEPhEns and PauL b abiE 1 i Judith Gardam was born in Perth, Western Australia, growing up there with her parents and sister and brother. Then, as now, Perth was a relatively isolated city and perhaps because of this, one of Judith's enduring memories as a young woman was the first space flight and orbit of the Earth by Soviet astronaut Yuri Gagarin on 12 April 1961. Asked later about the flight and his view of the Earth, Gagarin recalled: What beauty. I saw clouds and their light shadows on the distant dear earth ... The water looked like darkish, slightly gleaming spots ... When I watched the horizon, I saw the abrupt, contrasting transition from the earth's light-colored surface to the absolutely black sky. I enjoyed the rich color spectrum of the earth. It is surrounded by a light blue aureole that gradually darkens, becoming turquoise, dark blue, violet, and finally coal black. 2 1 Adelaide Law School, The University of Adelaide. This chapter is based upon an interview of Emeritus Professor Judith Gardam conducted by Dale Stephens on 5 November 2015. 2 Yuri Gagarin ( ЮЬий Алексеевич ГагаЬин ) Space Quotations, Eyes Turned Skyward <http://www. spacequotations.com/earth.html>.