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New Zealand Journal of Public and International Law
Number of Followers: 15

Full-text available via subscription

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ISSN (Print) 1176-3930
Published by RMIT Publishing

[387 journals]

Volume 17 Issue 2 - A Kimberley process for conflict antiquities:
Determining the viability of a cultural property certification scheme
- Abstract: Meagher, Ruby
  The trade in conflict antiquities - excavated and looted artefacts from conflict zones - is increasing due to the rising number of conflicts between states and rebel groups. Rebel groups loot conflict antiquities and sell them for profit to fund their movements. Current legal and non-legal regulations fail to deter participants in the conflict antiquities market, namely looters, smugglers, dealers and auction houses. This is because regulations are reactive, localised to single states and unable to be easily applied during a conflict. The Kimberley Process Certification Scheme has been successfully used to regulate a similar illicit market - conflict diamonds. It does so through a system of warranties certifying that each parcel of diamonds is free from conflict. To date, legal scholarship has recognised the similarities between conflict diamonds and conflict antiquities but has stopped short of analysing whether a certification scheme could similarly reduce the conflict antiquities market. This paper seeks to extend existing literature by undertaking this often absent analysis. It finds that a certification scheme is likely a workable solution for reducing the conflict antiquities market. Dealers and consumers may find such a database easy to use, incentivising participation. It may be an inexpensive solution for states and may help eliminate a form of rebel income. Finally, a certification scheme may better regulate the conflict antiquities market than alternative solutions.
  
  PubDate: Mon, 30 Nov 2020 23:06:00 GMT
Volume 17 Issue 2 - The 2014 Gaza conflict and the prohibition against
spreading terror among the civilian population
- Abstract: Lee, Darius
  In the summer of 2014, the State of Israel engaged in intensive hostilities against Hamas and other Palestinian armed groups in the Gaza Strip, referred to as "Operation Protective Edge" or the "2014 Gaza Conflict". This article examines the prohibition under international humanitarian law against spreading terror among the civilian population, and its associated war crime. It compares and distinguishes the prohibition against spreading terror from the different definitions of "terrorism" under international law. Finally, the article analyses whether, on the basis of the available evidence to date, there are grounds to believe that the prohibition against spreading terror among the civilian population had been violated in the 2014 Gaza Conflict.
  
  PubDate: Mon, 30 Nov 2020 23:06:00 GMT
Volume 17 Issue 2 - Expansive application of self-defence: Protecting
security at the expense of legality
- Abstract: Buckman, Rachel
  By 2016, the United States of America, Canada, the United Kingdom, Turkey and France had all engaged in airstrikes targeting the terrorist group ISIS in Syrian territory. In setting out the legal justifications for military action, these five states invoked their right to individual self-defence. However, the international law doctrine of self-defence was codified with the intention of applying to states - it was never envisaged as extending to the non-state actor context. This article assesses how the law has struggled to develop at the same pace as state action against terrorist groups. The current situation lacks firm grounding in legality, and yet no condemnation occurs in response. The divide between what is law and what is accepted in practice appears to grow. Given the centrality and significance of the law on the use of force in international law, this poses a serious threat to the ongoing stability of the international system.
  
  PubDate: Mon, 30 Nov 2020 23:06:00 GMT
Volume 17 Issue 2 - Equality jurisprudence in Canada
- Abstract: Martin, Sheilah L
  It is a great honour to be invited to give the 2018 Robin Cooke Lecture. I thank you all for your spectacular welcome. I am very happy to be with you today in this vibrant law school and stunning city to pay homage to Sir Robin Cooke and the vast intellectual tradition he represents.
  
  PubDate: Mon, 30 Nov 2020 23:06:00 GMT
Volume 17 Issue 1 - The 'jus ad bellum' in cyberspace: Where are we now
and what next'
- Abstract: Dong, Yao
  Allegations of "cyber attacks" have become a common occurrence in the media and public discourse. Examples include the 2007 cyber operations against Estonia which caused massive social and economic disruption, similar cyber operations against Georgia in 2008, the Stuxnet operation which damaged Iranian nuclear facilities, and the alleged Russian hacking into the United States Democratic National Committee computer network among numerous other targets. Such incidents have led to analyses of whether and how existing international law principles apply to cyber warfare. The most notable works are the Tallinn Manual on the International Law Applicable to Cyber Warfare and the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations. This article provides an updated discussion and critique on the jus ad bellum (the international law governing the use of force) in the cyber context, and goes on to make recommendations for the jus ad bellum to better adapt to the new effects and capacities of cyber operations.
  
  PubDate: Wed, 3 Jun 2020 16:43:26 GMT
Volume 17 Issue 1 - Public and private spaces: Dispute resolution in
international trade and commerce
- Abstract: French, Robert
  Sir Kenneth Keith stands high in the pantheon of great New Zealanders as scholar, teacher, public intellectual, advisor, advocate, law reformer and judge. He is a serial achiever and his achievements are too numerous and too well-known to this audience to bear detailed repetition. In his judicial capacities, he has served as a judge of the Court of Appeal of New Zealand, the Supreme Court of New Zealand and was the first New Zealander to be elected to the International Court of Justice. He also served as a sessional member of the Supreme Court of Fiji and it was my privilege as an Australian sessional member to sit with him in that role.
  
  PubDate: Wed, 3 Jun 2020 16:43:26 GMT
Volume 17 Issue 1 - From the local to the global ... and back
- Abstract: Costi, Alberto
  PubDate: Wed, 3 Jun 2020 16:43:26 GMT
Volume 17 Issue 1 - Judicial review and constitutional balance
- Abstract: Elias, Dame Sian
  I have always hated the end game in chess. The end game as Chief Justice is almost as tedious and it is time-consuming. So it was very foolish of me to be tempted into this address at such a time.
  
  PubDate: Wed, 3 Jun 2020 16:43:26 GMT
Volume 17 Issue 1 - Lessons from Cambodia: Towards a victims-oriented
approach to contextual transitional justice
- Abstract: Fowler, Rosie; Smith, Stephen Eliot
  The Extraordinary Chambers in the Courts of Cambodia (ECCC) is the primary mechanism of transitional justice for the Khmer Rouge regime. The ECCC is, truly, extraordinary; however, the tribunal and the outside world are somewhat disjointed. There is little correlation between the rigidity of the tribunal structure, working to high evidentiary civil standards, to the vibrant, messy, communal and often impoverished life outside. Victims who participated as civil parties before the ECCC would not understand when sometimes - despite their indisputably real injury - there was insufficient evidence for the crime site, or responsibility could not be attributed to the accused and they received no recognition or compensation for their suffering. What justice, reconciliation or peace is there in a mechanism that is not understood, or connected in anything more than a remote sense to the millions of victims themselves' Does "justice" have to come from the authority of a United Nations-endorsed, internationally reputable tribunal in order to be legitimate' Or, could there be an approach that takes its form and meaning directly from the injury of the victims, and through this deliver a sense of justice perhaps more tangibly than through an imported solution' In this article, we examine these questions and advocate for a victims-oriented, context-specific approach to transitional justice, through the lens of the post-conflict experience of Cambodia.
  
  PubDate: Wed, 3 Jun 2020 16:43:26 GMT
Volume 17 Issue 1 - Complementarity and the implementation of
international criminal law in the Philippines
- Abstract: Palmer, Emma
  The International Criminal Court (ICC) Prosecutor's preliminary examination of alleged international crimes committed in the "war on drugs" in the Philippines highlights frictions between the ICC's universalist aspirations and the diversity of domestic approaches toward prosecuting international crimes. These remain prominent following the withdrawal of the Philippines from the Rome Statute of the ICC. This article argues that whether the ICC still commences a full investigation, or actors within the Philippines pursue investigations or prosecutions concerning the "war on drugs", legislation within the Philippines will play an important role. First, the legal framework for prosecuting international crimes in the Philippines affects ICC action by virtue of the complementarity principle. Secondly, in the absence or continued delay of any ICC investigation, any prosecutions of the alleged international crimes are more likely to occur within the Philippines under its laws, in which case those laws' connections to international criminal law are of interest. Thirdly, the content of the laws that allow domestic courts to prosecute international crimes reveals information about how international criminal law is influenced and implemented in different contexts, including the Philippines. This article argues that examining domestic international crimes laws in the Philippines, and their enforcement, demonstrates how the ICC's approach to international criminal law can affect, and be adapted by, politicians, civil society and other actors, institutions and procedures. Apart from establishing legislative ability, this information might contribute to assessments of whether a state is unwilling genuinely to prosecute or investigate cases, as well as broader information about the implementation of international criminal law.
  
  PubDate: Wed, 3 Jun 2020 16:43:26 GMT