Anthea Roberts
Australian Capital Territory, Australia
4K followers
500+ connections
About
Anthea is a Professor at the School of Regulation and Global Governance (RegNet), where…
Articles by Anthea
Activity
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Machine intelligence is inexpensive and valuable. Right now. I had an inside-the-shop-conversation about different ways to think about how…
Machine intelligence is inexpensive and valuable. Right now. I had an inside-the-shop-conversation about different ways to think about how…
Liked by Anthea Roberts
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The first hour of my day is 3x more productive than the last hour of the day. An experienced developer is reduced to turtle-speed when wading…
The first hour of my day is 3x more productive than the last hour of the day. An experienced developer is reduced to turtle-speed when wading…
Liked by Anthea Roberts
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A great shot to represent the Australian influence at NeurIPS 2024 this week! One of the world’s most prestigious technical AI conferences, more…
A great shot to represent the Australian influence at NeurIPS 2024 this week! One of the world’s most prestigious technical AI conferences, more…
Liked by Anthea Roberts
Experience
Education
Publications
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UNCITRAL and ISDS Reform: Lifelong Learning
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reform: Moving to the Delivery Phase
Blog of the European Journal of International Law
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Risk, Reward, and Resilience Framework: Integrative Policy Making in a Complex World
Journal of International Economic Law, Volume 26, Issue 2, June 2023, Pages 233–265
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Navigating complexity: globalization narratives in China and the West
Springer, Volume 4, pages 351–366, (2022)
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The Originality of Outsiders: Innovation in the Investment Treaty System
European Journal of International Law, Volume 33, Issue 4, November 2022, Pages 1153–1181
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UNCITRAL and ISDS Reform: What to Expect When You’re Expecting
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reform (Hybrid): Islands of Persuasion
Blog of the European Journal of International Law
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How perceptions of ‘Made in China’ reflect debates about globalisation
Asia & The Pacific Policy Society
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UNCITRAL and ISDS Reform (Hybrid): Season 5 – Watching the Grass Grow
Blog of the European Journal of International Law
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Six Faces of Globalization - Who Wins, Who Loses, and Why It Matters
Harvard Universtiy Press
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Complex Designers and Emergent Design: Reforming the Investment Treaty System
American Journal of International Law , Volume 116 , Issue 1 , January 2022 , pp. 96 - 149
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UNCITRAL and ISDS Reform (Online): Crossing the Chasm
Blog of the European Journal of International Law
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Introduction to the Symposium on Global Labs of International Commercial Dispute Resolution
American Journal of International Law Unbound
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UNCITRAL and ISDS Reform (Online): Can You Hear Me Now?
Blog of the European Journal of International Law
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Challenges and Opportunities in the Post-COVID-19 World - Geopolitics: Resilient and Sustainable Globalization
World Economic Forum
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UNCITRAL and ISDS Reform: Plausible Folk Theories
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: What Makes Something Fly?
Blog of the European Journal of International Law
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Toward a Geoeconomic Order in International Trade and Investment
Journal of International Economic Law, Volume 22, Issue 4, December 2019, Pages 655–676
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UNCITRAL and ISDS Reform: Visualising a Flexible Framework
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reform: In Sickness and In Health
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: Agenda-Widening and Paradigm-Shifting
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reform: China’s Proposal
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: Battles over Naming and Framing
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: The Divided West and the Battle by and for the Rest
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: Hastening slowly
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: Moving to Reform Options … the Process
Blog of the European Journal of International Law
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Introduction to the Symposium on the BRICS Approach to the Investment Treaty System
American Journal of International Law Unbound
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Investment Treaties: The Reform Matrix
American Journal of International Law Unbound
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Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration
American Journal of International Law
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UNCITRAL and ISDS Reforms: Concerns about Arbitral Appointments, Incentives and Legitimacy
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: Concerns about Costs, Transparency, Third Party Funding and Counterclaims
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: Concerns about Consistency, Predictability and Correctness
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: What are States’ Concerns?
Blog of the European Journal of International Law
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Comparative Internatioanl Law: Conceptualizing comparative international law
Oxford University Press
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Is International Law International? Continuing the Conversation
Blog of the European Journal of International Law
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The Parochialism of Western Cosmopolitanism in a Competitive World Order
Blog of the European Journal of International Law
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The Theory and Reality of the Sources of International Law
Oxford University Press
The Theory and Reality of the Sources of International Law (in Malcolm Evans, ed., International Law, 5th ed. 2018)
Other authorsSee publication -
Cross-Border Student Flows and the Construction of International Law as a Transnational Legal Field
UC Irvine Journal of International, Transnational, and Comparative Law, Volume 3, Issue 1, 2018
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Restatement of The Law Fourth, The Foreign Relations Law of the United States
American Law Institute
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UNCITRAL and ISDS Reform: Pluralism and the Plurilateral Investment Court
Blog of the European Journal of International Law
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UNCITRAL and ISDS Reforms: Not Business as Usual
Blog of the European Journal of International Law
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China's Strategic Use of Research Funding on International Law
The Lawfare Institute
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Is International Law International?
Oxford University Press
Winner of the ASIL 2018 Certificate of Merit for a preeminent contribution to creative scholarship
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A Possible Approach to Transitional Double Hatting in Investor-State Arbitration
Blog of the European Journal of International Law
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The Shifting Landscape of Investor-State Arbitration: Loyalists, Reformists, Revolutionaries and Undecideds
Blog of the European Journal of International Law
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A Turning of the Tide against ISDS?
Blog of the European Journal of International Law
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Being Charged by an Elephant: A story of globalization and inequality
Blog of the European Journal of International Law
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Syrian Strikes: A Singular Exception or a Pattern and a Precedent?
Blog of the European Journal of International Law
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Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis
Blog of the European Journal of International Law
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Protecting public welfare regulation through joint treaty party control: a ChAFTA innovation
Columbia FDI Perspectives, No. 113
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Comparative international law: Framing the field
American Journal of International Law, Volume 109, Issue 3, Pages 467 - 474
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Comparative International Law: Symposium
109 American Journal of International Law 467
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Triangular Treaties: the Nature and Limits of Investment Treaty Rights
(2015) 56 Harvard International Law Journal 353
Investment treaties expressly protect investors against certain unilateral actions by host states, such as expropriation without compensation (first-order questions). It is unclear, however, whether they also protect investors against unilateral actions by home states (second-order questions) and/or collective actions by the treaty parties (third-order questions). These questions are becoming important in a range of existing and emerging controversies, including: whether a home state can settle…
Investment treaties expressly protect investors against certain unilateral actions by host states, such as expropriation without compensation (first-order questions). It is unclear, however, whether they also protect investors against unilateral actions by home states (second-order questions) and/or collective actions by the treaty parties (third-order questions). These questions are becoming important in a range of existing and emerging controversies, including: whether a home state can settle an investor’s claim without the investor’s consent; whether a host state can rely on inter-state countermeasures against a home state as a defense in an investor-state dispute; and whether the treaty parties can jointly terminate an investment treaty with immediate effect?
To answer these questions, I propose a new triangular framework that draws on principles from public international law, third-party beneficiary doctrines, and public law in a way that captures the unique, hybrid nature of investment treaties. Investment treaties are international agreements between states (hence the need for a public international law premise), but they depart from typical treaties by granting investors enforceable rights instead of simply regulating state-to-state rights and obligations (hence the need for a third-party beneficiary paradigm). Unlike traditional contract law models, however, they involve an agreement by sovereign parties to bestow rights on a non-sovereign entity (hence the need for a public law qualification). -
BG Group v. Argentina: The US Supreme Court and Judicial Review of Investment Treaty Awards
108 American Journal of International Law 750
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State-to-State Investment Treaty Arbitration: A Theory of Interdependent Rights and Shared Interpretive Authority
(2014) 55 Harvard International Law Journal 1
Most investment treaties contain two dispute resolution clauses: one permitting investor-state arbitration for investment disputes and the other permitting state-to-state arbitration for disputes concerning the treaty’s interpretation and/or application. Despite this duality, the potential role of state-to-state arbitration, and its proper relationship with investor-state arbitration, have largely been ignored. However, recent cases, including Peru v. Chile, Italy v. Cuba, and Ecuador v. United…
Most investment treaties contain two dispute resolution clauses: one permitting investor-state arbitration for investment disputes and the other permitting state-to-state arbitration for disputes concerning the treaty’s interpretation and/or application. Despite this duality, the potential role of state-to-state arbitration, and its proper relationship with investor-state arbitration, have largely been ignored. However, recent cases, including Peru v. Chile, Italy v. Cuba, and Ecuador v. United States, demonstrate the need to examine the potential and limits of this form of dispute resolution and to consider its implications for the hybridity of the investment treaty system as a whole.
The re-emergence of state-to-state arbitration represents an important step toward a new third era of the investment treaty system in which the rights and claims of both investors and treaty parties are recognized and valued, rather than one being reflexively privileged over the other. The investment treaty system has evolved from its first era, which focused exclusively on states’ rights and state-to-state arbitration, to its second era, which focused primarily on investors’ rights and investor-state arbitration. Instead of being an illegitimate or regressive development, the re-emergence of state-to-state arbitration represents a permissible and potentially progressive mechanism by which treaty parties can re-engage with the system in order to correct existing imbalances and help shape its development from within. -
Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System
(2013) 107 American Journal of International Law 45
Attempts to analyze controversial issues in the investment treaty system often result in participants drawing comparisons with and analogies from other legal disciplines, most notably public international law, international commercial arbitration, public law, trade law and human rights law. But how do these comparisons shape our thinking about the investment treaty system, why do different comparisons often support different answers to concrete problems, and which participants tend to support…
Attempts to analyze controversial issues in the investment treaty system often result in participants drawing comparisons with and analogies from other legal disciplines, most notably public international law, international commercial arbitration, public law, trade law and human rights law. But how do these comparisons shape our thinking about the investment treaty system, why do different comparisons often support different answers to concrete problems, and which participants tend to support which paradigms and why?
This Article critiques the role that the five most common interpretive paradigms are playing in attempts to understand the nature of the investment treaty system. It provides a schema for analyzing what these approaches reveal and obscure about the system and why they often support conflicting outcomes on controversial issues. It also explores why different actors - including states, investors, NGOs, arbitrators and academics - are likely to argue for, or default to, different paradigms based on their divergent interests and/or backgrounds. -
Subsequent Agreements and Practice: The Battle over Interpretative Power
Treaties and Subsequent Practice (Oxford University Press, 2013)
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Divergence and Convergence in International Arbitration
106 ASIL Proceedings 297
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Divergence Between Investment And Commercial Arbitration
Proceedings of the Annual Meeting ( American Society of International Law ), Vol.106, Confronting Complexity (2012), pp. 297-300
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Comparative International Law? The Role of National Courts in International Law
60 International & Comparative Law Quarterly 57
Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law,’ loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play…
Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law,’ loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play under the international law doctrine of sources, pursuant to which they provide evidence of the practice of the forum state as well as being a subsidiary means for determining international law. This article analyzes these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.
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Law-Making by Non-State Actors: Engaging Armed Groups in the Creation of International Humanitarian Law
37 Yale Journal of International Law 107
This article considers a novel and potentially controversial issue: whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts.
International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states. Yet any…This article considers a novel and potentially controversial issue: whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts.
International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states. Yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. In analyzing the potential role that such actors could play in law creation, we reject the traditional state/non-state distinction underlying the doctrine of sources in favor of a tripartite framework of states, state empowered bodies (such as international courts and international governmental organizations), and non-state actors (such as individuals, businesses, NGOs and armed groups).
Focusing on the last category, we assess the merits of giving armed groups a role in the creation of international humanitarian law applicable in non-international armed conflicts. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states. Accordingly, we put forward a theory of hybrid sources under which armed groups could be permitted to recognize existing international obligations or undertake new ones, without raising concerns about placing armed groups and states on a par or downgrading international legal standards. -
The Next Battleground: Standards of Review in Investment Treaty Arbitration
ICCA Congress Series 170
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Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States
(2010) 104 American Journal of International Law 179
A key problem in the investment treaty field is that the balance of interpretive power between treaty parties and tribunals is askew. Treaties that create rights for non-state actors, like human rights and investment treaties, establish dual roles for states as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties…
A key problem in the investment treaty field is that the balance of interpretive power between treaty parties and tribunals is askew. Treaties that create rights for non-state actors, like human rights and investment treaties, establish dual roles for states as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, tribunals often overlook or undervalue the importance of subsequent agreements and practices to interpretation. This article seeks to recalibrate that balance by proposing a constructive dialogue between treaty parties and tribunals based, in part, on a revaluation of such evidence.
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Who Killed Article 38(1)(b)? A Reply to Bradley and Gulati
21 Duke Journal of Comparative & International Law 173
Curtis Bradley and Mitu Gulati’s provocative article on “Withdrawing from International Custom,” 120 Yale Law Journal (2010) (forthcoming), shines light onto a central yet under-analyzed issue of customary international law and brings to bear thought-provoking research and analysis. Ultimately, however, the proposal that states should be able to individually withdraw from international custom as they often can from treaties is unconvincing and concerning because (1) it is based on questionable…
Curtis Bradley and Mitu Gulati’s provocative article on “Withdrawing from International Custom,” 120 Yale Law Journal (2010) (forthcoming), shines light onto a central yet under-analyzed issue of customary international law and brings to bear thought-provoking research and analysis. Ultimately, however, the proposal that states should be able to individually withdraw from international custom as they often can from treaties is unconvincing and concerning because (1) it is based on questionable analogies between custom, on the one hand, and treaties and contract law, on the other, and (2) when understood in its real world context, rather than in the academic laboratory, it has the potential to facilitate opportunistic and abusive claims that undermine the interests of the international community.
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Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified?
Human Rights, Intervention and the Use of Force 179 (Oxford University Press, 2008)
To many commentators, unilateral humanitarian intervention poses the dilemma of what states should do when there is a great divide between what international law requires and what morality dictates. Thiis issue was brought into sharp relief by NATO’s bombing campaign in Kosovo in 1999. Most western international lawyers concluded that NATO’s use of force was both morally justified and incompatible with international law. In short, NATO’s actions were ‘illegal but justified’. The ‘illegal but…
To many commentators, unilateral humanitarian intervention poses the dilemma of what states should do when there is a great divide between what international law requires and what morality dictates. Thiis issue was brought into sharp relief by NATO’s bombing campaign in Kosovo in 1999. Most western international lawyers concluded that NATO’s use of force was both morally justified and incompatible with international law. In short, NATO’s actions were ‘illegal but justified’. The ‘illegal but justified’ approach provides an intuitively attractive way of maintaining the prohibition on unilateral uses of force while permitting justice in individual cases. However, it is ultimately not a sustainable position given the role of state practice in developing international law. This approach also shifts the focus away from questions of legality and towards questions of legitimacy, which can undermine the law and risk manipulation.
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The Emerging Recognition of Universal Civil Jurisdiction
100 American Journal of International Law 142
This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise…
This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise of such jurisdiction.
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Righting Wrongs or Wronging Rights? The United States and Human Rights Post-September 11
15 European Journal of International Law 721
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Traditional and Modern Approaches to Customary International Law: A Reconciliation
95 American Journal of International Law 757
There are two contemporary approaches to the determination of customary international law: the "traditional," which emphasizes state practice, and the "modern," which emphasizes opinio juris. This article proposes a theory of custom that incorporates both approaches. It rejects analyzing custom on a "sliding scale" in favor of a reflective interpretive approach that reconciles the descriptive and normative justifications for traditional and modern custom.
Honors & Awards
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Winner of AI Sprint for Australia
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Ranked as Australia’s leading scholar in international law, League of Scholars
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Winner of ICON Award by CBRIN and ACT Government
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Ranked as Australia’s leading scholar in international law, League of Scholars
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Honourable Mention for the International Book Award for Is International Law International? (OUP, 2017), International Studies Association
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J G Crawford Award (ANU) for best social science PhD thesis
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Ranked as Australia’s leading scholar in law and international law scholar, League of Scholars
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Ranked as the world’s leading scholar in international law, League of Scholars
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Certificate of Merit for Preeminent Contribution to Creative Scholarship for Is International Law International? (OUP, 2017), American Society of International Law
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ANU Futures Scheme Award for attracting and retaining mid-career scholars to the ANU
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2012 Francis Deák Prize
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Awarded by the American Society of International Law for the best article published in the American Journal of International Law by a scholar under 40 years of age for ‘Power and Persuasion in Investment Treaty Interpretation, 2011
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UK Leverhulme Prize
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Across all disciplines to ‘recognise the achievement of outstanding researchers whose work has already attracted international recognition and whose future career is exceptionally promising.’
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LSE Major Review Teaching Prize
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LSE university-wide teaching prize
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LSE Law Department Teaching Prize
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Jerome Lipper Award
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Best Student to graduate in the NYU LLM in International Legal Studies
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Australian Fulbright WG Walker Award
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Awarded for the highest ranked Australian postgraduate Fulbright scholar across all disciplines
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NYU Hauser Scholarship
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NYU School of Law full academic and living scholarship
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2002 Francis Deák Prize
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Awarded by the American Society of International Law for the best article published in the American Journal of International Law by a scholar under 40 years of age for ‘Traditional and Modern Approaches to Customary International Law,’ 2002
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Australian Fulbright Scholarship
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ANU University Medal in Law
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Blackburn Medal for Best Honours Thesis in Law, ANU
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More activity by Anthea
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Deeply inspired by the work of Anthea Roberts who is building Dragonfly Thinking to help us discover and integrate multiple perspectives for holistic…
Deeply inspired by the work of Anthea Roberts who is building Dragonfly Thinking to help us discover and integrate multiple perspectives for holistic…
Liked by Anthea Roberts
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Thank you Luke Cavanaugh and interweave.gov for syndicating my latest article about the need for stronger collective intelligence for climate…
Thank you Luke Cavanaugh and interweave.gov for syndicating my latest article about the need for stronger collective intelligence for climate…
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The question that is often asked is why individuals & communities have declining trust in government. However, the reverse question – whether…
The question that is often asked is why individuals & communities have declining trust in government. However, the reverse question – whether…
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Something of which we should not be proud.
Something of which we should not be proud.
Shared by Anthea Roberts
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Thank you for the write-up, Global Arbitration Review. I’m honored to join the partnership at Curtis, Mallet-Prevost, Colt & Mosle LLP along with…
Thank you for the write-up, Global Arbitration Review. I’m honored to join the partnership at Curtis, Mallet-Prevost, Colt & Mosle LLP along with…
Liked by Anthea Roberts
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At the launch of the Complexity Leadership Lab at ANU. Loving the new perspectives and thought provoking ideas from thinkers in the field of…
At the launch of the Complexity Leadership Lab at ANU. Loving the new perspectives and thought provoking ideas from thinkers in the field of…
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Congratulations to Fivecast, on being recognised as the Australian Exporter of the Year in Advanced Technologies—for the second time! 🎉 Since…
Congratulations to Fivecast, on being recognised as the Australian Exporter of the Year in Advanced Technologies—for the second time! 🎉 Since…
Liked by Anthea Roberts
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The good guys dress in black, remember that? I promised a photo from #GovHack2024 and here it is. Great to work with Sam Bide as well as…
The good guys dress in black, remember that? I promised a photo from #GovHack2024 and here it is. Great to work with Sam Bide as well as…
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