Young researchers on winning streak

By Alicia Patterson

Melbourne Law School scholars are demonstrating the important role of law in everyday life all over the globe with award winning research.

Dr Luis Eslava 

Dr Luis Eslava (PhD Law 2013) is the latest Melbourne Law School researcher to be awarded the prestigious Chancellor's Prize for Excellence in the PhD Thesis. He was one of six to be awarded the prize from among the University of Melbourne's 591 PhD graduates in 2013.

It is the fourth consecutive year that a Melbourne Law School scholar has received the award in the Humanities, Creative Arts and Social Sciences division. The researchers pursued a range of very different topics that spanned the globe, including a comparative copyright project drawing on Australian, Canadian and US experiences (Dr Emily Hudson, 2013), water rights in Africa (Dr Takele Bulto, 2012) and 'illiberal legitimacy' in Singapore (Dr Jothi Saunthararajah, 2011) (hereafter 'Dr Jothie Rajah').

Dr Eslava, currently based at Kent Law School in the UK but also a Senior Fellow with Melbourne Law School, conducted research into the impact of the international legal and economic order on local communities and infrastructure. His thesis, 'Local space, global life: the everyday operation of international law and development', draws together international law and development, urban planning and social and political theory to analyse the current focus of international institutions, including the United Nations and the World Bank, on transforming cities such as Bogotá into development success stories.

"I found that it is in the poorest parts of our planet that the pressure to internationalise is being felt most acutely, as a result of the call to 'develop', to become competitive or to become connected with global financial trade," he explained.

Dr Eslava lived in Colombia's capital Bogotá for a number of years during which time he not only studied for his undergraduate degree, but also closely witnessed the transformation of the city. He experienced the city as a resident, a student and finally as a practising lawyer. He moved to Australia to study community development and then came to Melbourne Law School to complete his Master of Laws.

The changes to Bogotá wrought by development stuck with him, and his research over time has now come to include examinations of Rio de Janeiro and Istanbul, their processes of urban development and what they can tell us about the nature of international law.

On receiving the award, Dr Eslava said: "I felt extremely humbled. Because for me this award is a recognition of just how many people are involved in the production of meaningful critical legal scholarship. …This award speaks clearly about this collective effort."

Last year's recipient, Dr Emily Hudson, is now a Fellow in Intellectual Property Law at the University of Oxford, where she continues to teach and research  in IP, and is also Chair of the annual Oxford IP Moot. Her thesis was a continuation of her interest in how cultural institutions were responding to demands to digitise their collections. She became interested in this question during her time as a researcher with academics at Melbourne Law School.

Her thesis, 'Copyright exceptions: the experiences of cultural institutions in the United States, Canada and Australia', examined the practical operation of copyright exceptions for libraries, archives, museums and galleries.

"Thousands and thousands, if not millions, of items are in the collections of museums and libraries everywhere, and there is increasing pressure – from government, researchers, patrons, and so on – to have those collections accessible online. That raises copyright issues as it is often the case that the institutions do not own copyright," Dr Hudson explained.

Dr Hudson said that while there were broad similarities between the law of the countries studied, there was some divergence in the language of specific rules, and their practical applications varied a great deal. "I was interested in the industry practice, the 'lessons of the battle weary' of applying the laws, not just the textbook version." She interviewed staff from numerous cultural institutions for her research. "I think it's important for any law reform process to take into account the reality of the laws and not just the doctrinal or theoretical framework."

Dr Hudson's thesis was cited, along with a submission to which she contributed, in a recent Australian Law Reform Commission Discussion Paper, Copyright and the Digital Economy. One of the aims of this review was to consider whether existing copyright exceptions are appropriate and whether new exceptions ought to be added to the Australian Copyright Act. Currently, Australia has a 'fair dealing' provision and other detailed exceptions but, she says, these provisions are often prescriptive, limited or incomprehensible, and that something closer to the US model of fair use would be more practical. The ALRC recommended that Australia adopt fair use in its Final Report.

"In all my research for my thesis, it was rare to come across any 'cowboys' who were deliberately pushing the envelope with their practices. If anything, I observed a degree of conservatism and risk aversion, even for activities that many people would believe institutions ought to be able to do. That said, a lot of institutions are eager to rethink their copyright practices and to contribute to policy debates, and the challenge for a country like Australia is to design reforms that are not only balanced and principled but which resonate with, and can be understood and applied by, everyday users," she said.

Dr Takele Bulto's thesis, 'Rights, wrongs and the river between: extraterritorial application of the human right to water in Africa', was focussed on laws exploring the sharing of natural resources.  His thesis examined the difficult problem of water-sharing and access to water between African states and the human right to water. He brought together international environmental law and human rights law in an innovative way to examine the legal obligations states owe to other states with which they share water (particularly rivers). This analysis is critical for countries in regions such as Africa where vital human water needs cannot be met solely from domestic water sources.

Dr Jothie Rajah, who won the Chancellor's Prize in 2011 for her PhD thesis, 'Legislating illiberalism: law, discourse and legitimacy in Singapore', analysed a wide range of Singaporean statutes in order to show how law and a narrative of territorial and economic vulnerability has muted critique and augmented state power while strategically sustaining state legitimacy. She presented a template for such 'illiberal legitimacy', warning that this new legality risks becoming entrenched in Singapore and adopted by other states.

In essence, Dr Rajah found that "…everything in everyday life relates to law: media, politics, histories, nation-building projects, education systems and more; law cannot be segregated from other aspects of life." She has now produced a monograph which draws on her thesis, entitled Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (Cambridge University Press 2012). Currently working as Research Professor at the distinguished sociolegal research institute, the American Bar Foundation, she is scrutinising the ways in which the meaning of the 'rule of law' is shifting in the context of a post-9/11 world.

Dr Rajah is drawn to analysing the changing 'meaning' attached to the rule of law – as a concept and an ideal: "The rule of law is such a powerful idea and ideal but at the same time, so many meanings attach to it that attention to specific contexts, histories, and politics are vital to understanding the role played by constructions of rule of law in nation-making, legitimacy building, and the exercise of power".

"My hope is that critical awareness of how the present has come to be lays the foundation for a better future," Dr Rajah explains.

The practical implications of research in current contexts interests Dr Eslava, who has invested time speaking about his work to policy makers and planners and presenting his findings to officials of public utility companies in Bogotá, to leaders of illegal neighbourhoods and to urban lawyers and planners in the area ? as well as sharing his work with his students.

Dr Eslava has been encouraged by the response to his work: "I have found it really interesting how for people it has been very important and useful to see how my research conceptualises the relationship between local transformations and international norms. This is a relationship that all of them experience in their daily work, but my research has offered to them a framework and a language to discuss and to make their own assessments."

He hopes his research makes a difference in the way planners and policy makers think about the current balance between local empowerment, national government objectives and international pushes for development.  The balance, he says, must include local dissenters.

"I think my research also demonstrates the importance of paying attention to forms of political action and resistance that take place at the peripheries of Third World cities. These forms of resistance are often read as localised expressions of dissatisfaction that should be resolved in order to continue the process of internationalisation of cities."

"[But] listening more carefully to the messages conveyed in these forms of local action can reveal alternatives and signs of other modes of conceptualising the future of our cities and the world order."

Banner image: Dr Luis Eslava
Photographer: Black Note Photography

This article originally appeared in MLS News, Issue 12, October 2014.