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New Zealand Yearbook of International Law, The
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  Full-text available via subscription Subscription journal(Not entitled to full-text)
ISSN (Print) 1176-6417
Published by RMIT Publishing Homepage  [398 journals]
  • Volume 13 International law and security
    • Abstract: Hood, Anna
      In 2015 the Western world was consumed with a list of security concerns that have in recent years become a permanent feature of international relations: terrorism, weapons of mass destruction, foreign fighters and the Middle East. New Zealand - often with little critical debate - took up these concerns and poured energy and resources into fashioning responses to them. The report below sets out these responses. It begins with an examination of action New Zealand took at the tail end of 2014 to devise a legislative response to the United Nations Security Council's (Security Council or Council) call for states to take measures against foreign fighters. It then provides an overview of the work that New Zealand did on the Security Council in the first year of its role as an elected Council member, discusses the significance of New Zealand inviting the United States (US) to send a ship to our waters, provides information about the decision for New Zealand to send troops to Iraq, and discusses New Zealand's role in leading an exercise for the Proliferation Security Initiative.

      PubDate: Thu, 13 Sep 2018 10:51:38 GMT
  • Volume 13 International criminal law and international humanitarian law
    • Abstract: Dunworth, Treasa
      By the end of 2015 there was still no movement on New Zealand's ratification of the Kampala Amendments to the Rome Statute for the International Criminal Court - neither on the weapons amendments, nor on the crime of aggression. The New Zealand statement to the 14th Session of the Assembly of States Parties in November was conspicuously silent on the issue, which would indicate that there will not be any developments anytime soon.

      PubDate: Thu, 13 Sep 2018 10:51:32 GMT
  • Volume 13 The Antarctic Treaty System
    • Abstract: Hemmings, Alan D
      The key Antarctic Treaty System (ATS) events of 2015 were, as usual, the two annual diplomatic meetings, the Antarctic Treaty Consultative Meeting (ATCM) and the Meeting of the Commission for the Conservation of Antarctic Marine Living Resources. These diplomatic meetings include the main sessions of the advisory bodies, the Committee for Environmental Protection (CEP) and the Scientific Committee for the Conservation of Antarctic Marine Living Resources (SC-CAMLR), established under the relevant international instruments. Reports were received (as Working Papers - WPs) from a number of mandated and informal intersessional contact groups operating through electronic means between the 37th and 38th ATCMs. No Meeting of Experts was held between these ATCMs. Following normal practice, three intersessional meetings of Working Groups of SC-CAMLR (Ecosystem Monitoring and Management; Statistics, Assessments and Modelling; and Fish Stock Assessment) were held during 2015. New Zealand was an active and significant participant across all the major issues before the ATS institutions.

      PubDate: Thu, 13 Sep 2018 10:51:26 GMT
  • Volume 13 International environmental law
    • Abstract: Toop, Josephine
      Aotearoa/New Zealand submitted its Intended Nationally Determined Contributions (INDC) in 2015. It also participated in the twentieth Conference of the Parties (COP-21) to the United Nations Framework Convention on Climate Change (UNFCCC) and the tenth Meeting of the Parties (MOP-11) to the Kyoto Protocol, in Paris, France. During COP-21, New Zealand joined the Global Geothermal Alliance, ratified the Doha Amendment, boosted its funding to the Global Research Alliance on Agricultural Greenhouse Gases, and delivered a Communiqu to the UNFCCC Executive Secretary calling for the removal of fossil fuel subsidies. New Zealand also submitted its true-up report in 2015. New Zealand attended the 46th Pacific Islands Forum, and agreed on the Trans-Pacific Partnership Agreement, which includes controversial investor-state dispute settlement provisions, and has an environmental chapter containing a multilateral environmental agreement (MEA) section, among other things. The Scientific Committee of the International Whaling Commission (IWC SC) once again reiterated grave concerns about the survival of the Māui dolphin and considered that protection measures taken thus far by New Zealand fell short. Nationally, New Zealand's Greenhouse Gas Inventory 1990-2013 was released in 2015, as was a net position report tracking progress towards New Zealand's 2020 emissions reduction target. A review of the New Zealand Emissions Trading Scheme (NZETS) commenced, consultation on proposed changes to the Permanent Forest Sink Initiative (PFSI) began, and funding for a new Afforestation Grants Scheme (AGS) was announced. The New Zealand Parliamentary Commission for the Environment (PCE), an independent officer of Parliament, also released a report on how rising sea levels might affect New Zealand. Among other things, 2015 saw case law relating to refugee and/or protected person status due to sea level rise associated with climate change by a citizen of Kiribati, the emergence of new potential threats to the Maui dolphin, the Environmental Reporting Act 2015, and the introduction of an omnibus Bill proposing widespread changes to the current resource management regime. In addition, there were a number of national and international developments connected to fisheries, the marine environment and Antarctica. These are not addressed here because they are covered in the reviews of Joanna Mossop "Law of the Sea and Fisheries" and Alan Hemmings "The Antarctic Treaty System" (this issue). Reference to those reviews is necessary for a full account of New Zealand's activities relating to international environmental law in 2015.

      PubDate: Thu, 13 Sep 2018 10:51:19 GMT
  • Volume 13 Law of the sea and fisheries
    • Abstract: Mossop, Joanna
      In September 2015, while at the United Nations, the Prime Minister announced the creation of a 620,000 km marine sanctuary in New Zealand waters. The sanctuary will cover 15 per cent of New Zealand's exclusive economic zone in the northern region around the Kermadec Islands. The Kermadec region has the world's longest underwater volcano arc and the second deepest ocean trench. The region is rich in biodiversity. There is already a marine reserve in place in the territorial sea around the islands, and a fisheries benthic protection area in the exclusive economic zone (EEZ) which prohibits dredging and bottom trawling. Currently, there are no full marine reserves in New Zealand's EEZ, although 9.7% of the territorial sea is protected. The Kermadec Ocean Sanctuary is seen as consistent with New Zealand's environmental obligations under the United Nations Law of the Sea Convention and the Convention on Biological Diversity. New Zealand has subscribed to the Aichi Target 11 to establish 10 per cent of its marine zones as protected areas, and this initiative is intended to help meet that target.

      PubDate: Thu, 13 Sep 2018 10:51:12 GMT
  • Volume 13 International Economic Law
    • Abstract: Riffel, Christian
      Having an open economy, it is the stated aim of the New Zealand Government to open up markets overseas for New Zealand businesses, and in the year under review, it was very active in this regard. In particular, the negotiation of the Trans-Pacific Partnership (TPP), the biggest trade deal ever brokered by New Zealand, took centre stage in 2015.

      PubDate: Thu, 13 Sep 2018 10:51:06 GMT
  • Volume 13 Indigenous peoples' rights under international law
    • Abstract: Te Aho, Fleur
      This note reviews New Zealand's state practice regarding Indigenous peoples' rights under international law in 2015 and traces key international developments concerning those rights. In 2015 New Zealand demonstrated support for efforts to improve Indigenous participation in the United Nations (UN) and extend the mandate of the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) to advance implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). But it indicated that - domestically - the UNDRIP would be implemented within existing legal and constitutional arrangements. There were several noteworthy developments regarding Indigenous peoples' rights during the year. Indigenous peoples and their rights received limited reference in the 2030 Agenda for Sustainable Development agreed by the UN General Assembly (GA) and in the Paris Agreement negotiated under the auspices of the UN Framework Convention on Climate Change (UNFCCC). Nationally, draft bills proposing significant changes to the law governing Māori land and te reo Maori (the Maori language) were released, which will contribute to growing jurisprudence in these areas. In November the text of the Trans-Pacific Partnership (TPP) was made public, which includes an exception clause on the Treaty of Waitangi (Treaty). The UN Committee against Torture (CAT) and the UN Working Group on Arbitrary Detention (WGAD) commented on the human rights situation of Māori. The GA, the UN Human Rights Council (HRC), international human rights treaty monitoring bodies and others also devoted attention to Indigenous peoples' rights in the course of their work.

      PubDate: Thu, 13 Sep 2018 10:51:00 GMT
  • Volume 13 International Human Rights law
    • Abstract: Esterling, Shea Elizabeth
      2015 witnessed New Zealand's continued engagement with the United Nations human rights bodies. Beginning with the treaty-based bodies, it proved a busy year: New Zealand submitted its Sixth Periodic Report under the International Covenant on Civil and Politics Rights and its Fifth Periodic Report under the Convention on the Rights of the Child. In addition, the Committee against Torture offered its Concluding Observations on New Zealand's Sixth Periodic Report regarding the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, while New Zealand responded to the Committee on the Rights of Persons with Disabilities' Concluding Observations on its initial report regarding the Convention on the Rights of Persons with Disabilities. Turning to the Charter-based bodies, 2015 saw New Zealand be the subject of a number of decisions issued by the Human Rights Committee of the International Covenant on Civil and Political Rights, while the Human Rights Council Working Group on Arbitrary Detention released its report on the issue of arbitrary detention in New Zealand. Finally, at the domestic level the New Zealand Human Rights Commission continued its activities in relation to the promotion of international human rights law in New Zealand.

      PubDate: Thu, 13 Sep 2018 10:50:54 GMT
  • Volume 13 Customary law and human rights in the pacific - potential for
           convergence or inevitable conflict'
    • Abstract: Whare, Tracey
      Human development requires a commitment to human rights, with greater emphasis on social obligations or responsibilities. If I have a right to education, I also have a duty to educate others, if not directly, then indirectly. If I have a right to life, I also have a duty to make sure others do not starve or suffer out of want, which is beyond their ability to alleviate and which I am able to avert.

      PubDate: Thu, 13 Sep 2018 10:50:43 GMT
  • Volume 13 TPPA no ... wait: The scope of fair and equitable treatment
    • Abstract: Hulley, Charles
      New Zealand has just signed one of the most significant trade deals in history, with signatory nations contributing up to forty per cent of the world's GDP. Critics argue that New Zealand's signing of the Trans-Pacific Partnership (TPP) represents "the end of New Zealand as a sovereign nation". Whether the deal actually forebodes such disastrous results for New Zealand is highly contestable. Negotiations for some of the largest international agreements, including the North American Free Trade Agreement (NAFTA), the TPP, the EU-Canada Comprehensive Trade and Economic Agreement (CETA), have led to much international interest, debate and even outcry amongst states, scholars, non-governmental organisations and the general public. These trade agreements have become increasingly comprehensive in nature with provisions that have the potential to affect many areas of not only the economy, but also the welfare goals of the state. The conclusion of an investment agreement between states for the benefit of investors is not a new phenomenon as such agreements have existed since the 1960s. States have progressively widened the scope of what is included in free trade agreements, incorporating investment chapters instead of concluding separate bilateral investment treaties (BITs). What is also changing is the dynamics between states and investors as well as the state-dominated paradigm in which they operate.

      PubDate: Thu, 13 Sep 2018 10:50:37 GMT
  • Volume 13 The Pacific Islands forum 2015, Port Moresby
    • Abstract: Siekiera, Joanna
      The 46th Pacific Islands Forum (PIF) was held in Papua New Guinea from 7-11 September 2015. It was, among other things, notable for being the first PIF gathering at which civil society was able to directly speak to and deliver advice to the heads of governments and other officials attending.

      PubDate: Thu, 13 Sep 2018 10:50:31 GMT
  • Volume 13 Preface
    • Abstract: Burke, Roisin; Riffel, Christian
      PubDate: Thu, 13 Sep 2018 10:50:23 GMT
  • Volume 13 Treaty action and implementation
    • Abstract: Gobbi, Mark
      This article documents governmental activity undertaken to implement New Zealand's international obligations during the current interval. It concludes that the level of activity in the current interval, relative to the previous interval, has decreased for the parliamentary and executive branches but has increased for the judicial branch. This overview summarises that activity and compares it with the activity undertaken during the previous interval.

      PubDate: Thu, 13 Sep 2018 10:50:16 GMT
  • Volume 13 International arbitration and global governance, contending
           theories and evidence [Book Review]
    • Abstract: Hulley, Nicola
      Review(s) of: International arbitration and global governance, contending theories and evidence, by Walter Mattli and Thomas Dietz (eds), Oxford University Press, 2014, 272 pp, ISBN 9780198716723 (hardback).

      PubDate: Thu, 13 Sep 2018 10:50:09 GMT
  • Volume 13 Proportionality and deference in investor-state arbitration
           balancing investment protection and regulatory autonomy [Book Review]
    • Abstract: Foster, Caroline E
      Review(s) of: Proportionality and deference in investor-state arbitration balancing investment protection and regulatory autonomy, by Caroline Henckels, Cambridge University Press, 2015, 266 pp, ISBN 9781107458178(hardback), NZD 178.95.

      PubDate: Thu, 13 Sep 2018 10:50:03 GMT
  • Volume 13 Non-state actors in international law [Book Review]
    • Abstract: Baird, Natalie
      Review(s) of: Non-state actors in international law, by Math Noortmann, August Reinisch andCedric Ryngaert (eds), Hart Publishing, 2015, xiv + 406 pp, ISBN 978-1-84946-511-3(hardback), GBP 94.99.

      PubDate: Thu, 13 Sep 2018 10:49:58 GMT
  • Volume 13 Human rights across the Tasman: A widening gulf - hotung
           fellowship public lecture, 6 April 2016
    • Abstract: Triggs, Gillian
      I am honoured to have been invited to give this lecture at the Law School of the University of Canterbury, funded by the generosity of the Sir Eric Hotung Fellowship.

      PubDate: Thu, 13 Sep 2018 10:49:50 GMT
  • Volume 13 Whales and humans: How whaling went from being a major industry
           to a leading environmental issue then landed japan in the international
           court of justice for the first time
    • Abstract: Palmer, Geoffrey
      This is the Year of the Whale in the Pacific. In this lecture I aim to contextualise the human fascination with whales. Then I will outline the struggles that have taken place at the International Whaling Commission (IWC) since the 1980s about whether to kill or preserve whales. There will be an analysis of the efforts to reform the IWC. The successful case that Australia brought against Japan in the International Court of Justice (ICJ) - in which New Zealand intervened - will be discussed. Following the case, after the lapse of a year, Japan withdrew its acceptance of the jurisdiction of the ICJ from disputes involving research and exploitation of living resources of the the sea and resumed whaling in the Southern Ocean. As New Zealand's Commissioner to the IWC for eight years I participated in the diplomatic agony involved in many of the events discussed. Finally, I will reflect upon what the whaling saga can teach us about international governance and international law.

      PubDate: Thu, 13 Sep 2018 10:49:43 GMT
  • Volume 13 Iran's attitude to security in the strait of hormuz: An
           international law perspective
    • Abstract: Bagheri, Saeed
      Iran's location on the shores of the Persian Gulf has increased its strategic significance in the region. Despite being a coastal State, Iran is not a party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Innocent passage of warships through territorial waters and their transit passage through the international straits are the most important factors that have constituted obstacles to ratification of the UNCLOS by Iran owing to their importance in terms of Iran's security and national interests. The Strait of Hormuz in the territorial waters of Iran has been the focal point of many debates in international law of the sea so far. The theme of these debates can be considered to have two poles. On the one hand there are legal scholars who, similar to the Iranian government, associate passage through the Strait of Hormuz with Iran's national security, and thus find Iran righteous in applying the innocent passage regime on passages through the Strait. On the other hand there are scholars who find Iran's behavior in this regard unacceptable because of the abolition of the freedom of passage set by the transit passage regime. This issue constitutes one of the most critical discussion topics on the agenda of Iran because the Strait of Hormuz connects the oil-rich Persian Gulf with the Gulf of Oman and the Indian Ocean. Moreover, it is the world's most important chokepoint with an average oil flow of 17 million barrels per day, about 30% of all seaborne-traded oil. Therefore, the Strait is one of the vital areas for global energy security.

      PubDate: Thu, 13 Sep 2018 10:49:37 GMT
  • Volume 13 Investment in China's FTAs: How well has the FTA with New
           Zealand held up'
    • Abstract: Deere, Kate
      As a small country negotiating with one of the most significant economies in the world, the finalisation of a Free Trade Agreement (FTA) with China on the part of New Zealand has been described as a "considerable achievement". The FTA has been a major success for New Zealand, with significant increases in New Zealand's primary exports to China attributed to the phase out of tariffs under the FTA. However, less well considered, but perhaps just as significant, are some of the provisions on investment included in the China-New Zealand FTA. While there was disappointment that the levels of market access were not as ambitious as New Zealand had hoped, in a number of cases relating to protections for investment the approach adopted in the agreement with New Zealand appears to have marked a change in practice on the part of China. For example, the interpretative guidance in relation to the fair and equitable treatment and full protection and security standards in the China-New Zealand FTA was described at the time as "by far, the most elaborate [provision] on the subject that China has ever committed itself to." Other clarifications that appeared in the agreement with New Zealand have also gone on to be included in the majority of China's subsequent investment agreements. Examples include the exception of the application of the most favoured nation (MFN) standard from dispute resolution procedures and the confirmation that indirect expropriation is not constituted by reasonably justified measures in the protection of the public welfare. Also of significance is the agreement to provide MFN treatment, including any more favourable treatment negotiated in future FTAs concluded by China. This is significant in that many investment agreements exclude from the application of MFN clauses any favourable treatment afforded as a result of an FTA.

      PubDate: Thu, 13 Sep 2018 10:49:24 GMT
  • Volume 13 Multilateral treaties and the effects of the universality of
           customs on state consent
    • Abstract: Enabulele, Amos O
      Questions relating to sources and nature of international law are enduring questions that manifest in a variety of ways. In the vagaries of arguments and debates that accompany the sources and nature of international law, there are certain basic facts about them that cannot be gainsaid. For instance, it is indisputable that treaties and customary international law (CIL) are the two primary sources of international law. In the same way, it is incontrovertible that international law is constructed upon the notion of a consensual or voluntarist order. These statements lead to even more solid truths that "treaties, as such, obligate only those states that are parties to them", as "[a] treaty does not create either obligations or rights for a third State without its consent." Also, that "a state that does not object to a [CIL] norm when it is being established is bound by it".

      PubDate: Thu, 13 Sep 2018 10:49:18 GMT
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