Best of: Recognising Rights (Volume 1, Issue 5, forthcoming)
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One of the central components of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is its victim assistance and environmental remediation provisions (known collectively as the Treaty's 'positive obligations'). While there is much to celebrate about efforts to remedy the damage caused by nuclear weapons, the way the TPNW distributes responsibility for this work is troubling. Under the Treaty, the primary responsibility for fulfilling the positive obligations is placed on the states parties that have individuals under their jurisdiction who are affected by the use or testing of nuclear weapons and areas under their jurisdiction or control that have been contaminated by the use or testing of nuclear weapons ('the affected states') despite the fact that, often, these were not the states responsible for detonating the nuclear weapons. This article examines and critiques the reasons the Treaty's drafters placed the main responsibility for victim assistance and environmental remediation on affected states. It argues that the rationales underpinning these provisions rest on shaky grounds, and that the Treaty's approach has potential negative ramifications for nuclear disarmament and understanding the history of the use and testing of nuclear weapons. Further, it explores how the Treaty may play into worrying broader dynamics in public international law whereby the Global North is frequently absolved of responsibility for the harms it causes while the Global South is saddled with obligations to redress an array of harms.
Consistent: The Convention on the Protection of the Underwater Cultural Heritage and the United Nations Convention on the Law of the Sea
Vincent Coglianti-Bantz
The Convention on the Protection of the Underwater Cultural Heritage, adopted in 2001, addresses rights, jurisdiction and duties of States in the various maritime zones set out in the United Nations Convention on the Law of the Sea. This article argues that the manner in which the Convention on the Protection of the Underwater Cultural Heritage does so is compatible and consistent with the United Nations Convention on the Law of the Sea and that there exists, in this respect, no international barrier hindering broad state participation in this important protective regime.
Use It or Lose It: The Value of Using the Declaration on the Rights of Indigenous Peoples in Maori Political and Legal Claims
Clair Charters
In this paper I argue that Maori should cite and rely on the Declaration on the Rights of Indigenous Peoples in their legal and political claims as this process can lead to the internalisation of these norms even when states reject them. The paper draws heavily on the case study of the use of the Declaration in a Waitangi Tribunal claim relating to Maori self-determination.
Mandatory Binding Dispute Resolution in the Base Erosion and Profit Shifting (BEPS) Two Pillar Solution
Chris Noonan
Binding taxpayer-initiated international dispute resolution has traditionally played a minor role in the international tax system. Despite being long pursued by corporate interests and increasingly accepted by developed countries, international tax arbitration has remained less developed and less respectful of private interests than investor–State arbitration. The binding multilateral dispute settlement endorsed by over 130 countries as part of the Organisation for Economic Co-operation and Development's Two Pillar Solution to issues raised under Action 1 of the Base Erosion and Profit Shifting (BEPS) project marks a change and is noteworthy at a time when some States are reconsidering their consent to the international adjudication of trade and investment disputes. The design of international dispute settlement in the Two Pillar Solution, and the focus on the protection of multinationals from juridical double taxation, displays little appreciation of the experience with dispute settlement in international trade and investment over the past two decades.
'You Say You Want a Revolution': Bills of Rights in the Age of Human Rights
Grant Huscroft & Paul Rishworth
Written constitutions and bills of rights have, in many countries, emerged from revolutions, or otherwise at the birth of nations. In contrast, New Zealand's unwritten constitution has developed peacefully, without a grand plan. It has something of an 'accidental' character. It is susceptible to changes wrought by law and practice, and some of these might be said to have the character of a 'quiet revolution'.
Something like this has been happening in the field of human rights. The New Zealand Bill of Rights Act was born in unpropitious circumstances - largely unloved by the profession, the citizenry, and even within the Labour Party that promoted it - yet its stature has risen with the tide of international human rights consciousness. This tide has brought human rights into the New Zealand legal system through other pathways as well - as international treaty rights, as fundamental common law rights, and in a renaissance of Maori rights in the Treaty of Waitangi. All of these things have tugged at Parliament's supremacy, mediated through doctrines surrounding judicial review and statutory interpretation.
Many assume that the adoption of a supreme law bill of rights, with judicial power to invalidate legislation, is a natural development in the evolution of New Zealand's constitution. In this paper we argue that the decision to reject a supreme law bill of rights was the right one for New Zealand in 1990 and that it would be a mistake to adopt a supreme law bill of rights now.
The adoption of a statutory bill of rights has allowed New Zealand's human rights culture to continue to develop from the ground up, rather than be imposed by judges from the top-down. New Zealand's human rights record stacks up well against that of any democratic country in the world - even countries that have supreme law bills of rights such as Canada and the United States - and there is no compelling reason to alter the balance of power between Parliament and the judiciary by empowering judges to invalidate legislation. On the contrary, there is a significant risk that the adoption of a supreme law bill of rights would undermine New Zealand's successful human rights culture by diminishing the likelihood of political engagement with important moral issues.
Beyond Accountability? Human Rights, Global Governance, and the World Bank Inspection Panel
Guy Sinclair
This paper seeks to move beyond the usual accountability framework of human rights law, focusing on one case of the World Bank Inspection Panel (WBIP) to consider other aspects of the relationship between human rights and international organisations in global governance. In particular, the paper makes two novel analytical moves. First, it conceptualises international organisations such as the WBIP as complex assemblages comprising diverse elements, thereby drawing attention to the manifold practices that connect the innumerable actors involved in constructing, processing, and contesting a WBIP complaint. Second, the paper widens the frame to examine the dynamics of authority at play between the various actors in a WBIP case. In this perspective, human rights appear not so much as a fixed set of standards against which WBIP seeks to hold the World Bank accountable for its actions, but rather as one among a number of vocabularies of authority deployed by the sundry entities in a range of complex interactions. As such, human rights are continually constructed, defined, and distinguished from other modes of discourse and practice in the making (and unmaking) of global governance.
Discretion to Exclude Improperly Obtained Evidence in Civil Proceedings in England and Wales
Alex Allen-Franks
Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct concern from exclusion of evidence of little probative value) prior to the enactment of the Civil Procedure Rules 1998. This paper seeks to demonstrate that this is wrong, arguing that a number of sources of power to exclude evidence on the basis of how that evidence was obtained have arisen in England and Wales, and that these are not attributable to the Civil Procedure Rules. There is a discretion which enables exclusion of evidence where this is 'in the interests of justice', and a discretion to do with the administration of justice. It may be possible to break these down further, to concerns over abuse of the court's own procedures, and executive illegality. Analyzing the decisions leading to these developments reveals the importance of human rights concerns to recognition of exclusionary discretion in civil proceedings, and for informing the content of the discretions.
The United Nations Declaration on the Rights of Indigenous Peoples and Te Tiriti Relationships
Claire Charters, Tracey Whare & Fleur Te Aho
In this chapter we consider how the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) affects te Tiriti o Waitangi relationships. 1 We argue that the Declaration can be leveraged to support Māori claim-making grounded in te Tiriti. 2 In this way the Declaration is helping to both inform and implement te Tiriti in Aotearoa and, thus, enhance Tiriti relationships. Our discussion is presented in three substantive parts. First, we provide a brief background on the Declaration, emphasising its importance as a widely supported international articulation of Indigenous peoples' rights. Secondly, we introduce the core alignments between the Declaration and te Tiriti. Put simply, both protect Māori rights. Thirdly, we examine how the Declaration and te Tiriti have been, or could be, utilised alongside each other in state law and policy in Aotearoa, focusing on four key sites. These are: the executive, legislature, courts.
Facing Up to the Original Breach of the Treaty
Hanna Wilberg
The grant of representative and responsible government to British colonies such as New Zealand in the nineteenth century is generally seen as a natural and desirable historical development. This article invites the reader to step back and consider the matter from the point of view of consistency with the Treaty of Waitangi.
Governing the Already Privatised Internet?
Joshua Yuvaraj
This Chapter investigates how the Internet has been, and is currently, governed. It examines multistakeholderism as one of the dominant approaches to Internet governance: the concept of multilateral collaboration and decision-making as to the content and infrastructure of the Internet. It identifies pitfalls with this model, including the hegemonic impulses of participants and the creep of private sector power caused by large technology companies. It then interrogates whether the emerging concept of digital constitutionalism can remedy multistakeholderism's pitfalls in the age of the large technology company. The Chapter sets out areas of tension that proponents of digital constitutionalism will need to resolve if it is indeed to push back against the twin threats of private sector power and the emerging sovereigntist impulses of authoritarian states.