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New Zealand Yearbook of International Law

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Willyams, K --- "Bibliography" [2005] NZYbkIntLaw 16; (2005) 2 New Zealand Yearbook of International Law 415


Karen Willyams[*]

The following is a selected list of books and articles during the Yearbook period relating to international law issues relevant to New Zealand, the Pacific, the Southern Ocean or Antarctica. Each listing is accompanied by a short abstract.

I. General Issues in International Law

A. Sources of International Law

Treasa DunworthHidden Anxieties: Customary International Law in New Zealand’ (2004) 2(1) New Zealand Journal of Public and International Law 67

The appropriate role for customary international law in New Zealand - the way in which New Zealand courts treat customary international law - arguments surrounding the reception of customary international law in domestic law.

Treasa Dunworth ‘The Rising Tide of Customary International Law: Will New Zealand Sink or Swim?’ (2004) 15(1) Public Law Review 36

The extent to which, and the basis upon which, customary international law is received in the United Kingdom, Australia, Canada, and the United States, with a view to anticipating how the relationship between human rights treaties and administrative decisions might develop in New Zealand.

Treasa Dunworth ‘Review: Public International Law’ (2004) New Zealand Law Review 411

The inter-relationship between New Zealand domestic law and international law - the Singapore Agreement - existing procedures for international treaty examination - Zaoui v Attorney General, proceedings challenging the legality of the detention of claimants for refugee status by the New Zealand Immigration Service - New Zealand counter-terrorism legislation.

B. International Human Rights

Action for Children and Youth Aotearoa, Children and Youth in Aotearoa 2003: The second non-governmental organisations’ report from Aotearoa New Zealand to the United Nations Committee on the Rights of the Child (Wellington, 2003)

Report from non-governmental organisations in New Zealand to the UN Committee on the Rights of the Child, commenting on needs to be addressed to effectively implement all principles and provisions of the United Nations Convention on the Rights of the Child.

Tony Ellis ‘Complaints to International Committees’ (2004) New Zealand Law Journal 199

Examination of the right of an individual to allege breaches of civil or political rights contained in the International Covenant on Civil and Political Rights Protocol (ICCPR) or Committee Against Torture (CAT) - consequences of a finding of a breach of international obligations - relationship with the final right of appeal to the New Zealand Supreme Court - Communication 1090/2002 Rameka v New Zealand.

Charlotte Frater ‘Detention of Refugees in New Zealand law: Striking a Balance between Refugee Rights and National Security’ (2003) 34 Victoria University of Wellington Law Review 665

New Zealand’s international obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol regarding detention of refugees and how these obligations are implemented by the New Zealand Government - extent to which the aims of the Convention are incorporated into the Immigration Act 1987 - whether matters of national security are taking precedence over refugee claimants seeking rights under the Convention - whether the Immigration Amendment Act 2002 has been able to redress the imbalance between national security and refugee rights

Claudia Geiringer ‘Tavita and All That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law’ (2004) 21(1) New Zealand Universities Law Review 66

Impact of New Zealand’s unincorporated human rights treaty obligations on administrative decisions - two models, (mandatory relevant consideration and presumption of consistency) invoked by the Court of Appeal in recent jurisprudence to explain the impact of unincorporated treaty obligations on administrative power.

C. International Criminal Law

Kelly Buchanan, 'Freedom of Expression and International Criminal Law: an Analysis of the Decision to Create a Testimonial Privilege for Journalists' (2004) 35(3) Victoria University of Wellington Law Review 609

In a recent decision, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia recognised a qualified privilege for war correspondents in setting out a test that the party requesting its testimony must overcome in order for the Trial Chamber to issue a subpoena – compares decision to the approaches of other jurisdictions - considers whether the decision is consistent with internationally recognised rights of freedom of expression and to a fair trial - argues that the international tribunals should take all of these sources of law into account in formulating rules of procedure and evidence, but also give particular regard to the purposes of international criminal justice, which relate to furthering the establishment of peace - argues
that the interests of the international criminal justice system are best served by the creation of a distinct procedural framework that contains clear and principled rules - formulation of a journalistic privilege not only advances this goal, but also recognises that the ability of war correspondents to report on conflicts is vitally important to the international community, including the international courts themselves.

Juliet Hay ‘Implementing the ICC Statute in New Zealand’ (2004) 2(1) Journal of International Criminal Justice 191

New Zealand’s commitment to ending impunity for those who commit serious international crimes - role of the International Criminal Court as - issue in the implementation process of how to approach the crimes in light of the principle of complementarity.

D. International Trade

Malcolm McKinnon ‘UNCITRAL Receivables Convention: The Possibility for Trans-Tasman Harmonization’ (2003) 34(3) Victoria University of Wellington Law Review 521

The potential effect of the UNCITRAL Convention on the Assignment of Receivables in International Trade on New Zealand’s relationship with Australia - effect of the Convention on the process of harmonising trans-Tasman commercial law in the area of receivables financing - existence of a disparity in law with respect to trans-Tasman receivables financing - the Convention as a means of providing uniformity in this area of law - assessing the compatibility of the Convention with New Zealand’s Personal Property Securities Act.

Chris Noonan, ‘World Trade’ (2003) New Zealand Law Journal 233

Recent World Trade Organisation (WTO) dispute settlement proceedings have been concerned with challenges to antidumping and safeguard measures - the WTO Appellate Body decision with respect to alleged dumping of bed linen by India - formal approval given by the WTO General Council allowing WTO members to participate in an international scheme aimed at eliminating trade in ‘blood’ diamonds.

Chris Noonan ‘World Trade’ [2004] New Zealand Law Journal 53

Decisions of indirect importance to New Zealand in the area of world trade - the US has imposed definitive safeguard measures on imports of certain steel products - a finding that Japanese measures imposed to protect against spread of fire blight were inconsistent with the Agreement on the Application of Sanitary and Phytosanitary Measures - the Peace Clause of the Agricultural Agreement expired on 1 January 2004 - had prohibited most potential challenges to the legality of agricultural subsidies.

Raewyn Wakefield ‘New Zealand’s Treaty Process’ [2004] New Zealand Law Journal 381

International treaty-making processes must be transparent, accountable and consultative - discussion of the bi-lateral treaty with Australia for the establishment of a joint scheme for the regulation of therapeutic products to test the practical adequacy of the present process.

E. International Environmental Law

Alexander Gillespie ‘Implementation and Compliance Concerns in International Environmental Law: The State of the Art within Three Regimes’ (2003) 7 New Zealand Journal of Environmental Law 53

The achievements of three international regimes that deal with air pollution, ozone loss and climate change - implementation and compliance mechanisms that operate within the three international regimes - manner in which disputes and problems are dealt with by the international regimes.

Alexander Gillespie ‘The Search for a New Compliance Mechanism within the International Whaling Commission’ (2003) 34(3, 4) Ocean Development And International Law 349-367

Challenges facing the International Whaling Commission (IWC) in developing an adequate and effective compliance regime - previous attempts at compliance within the IWC - an overview of the new IWC compliance process and compliance process details - catch documentation and DNA databases.

Alexander Gillespie, ‘Small Island States in the Face of Climate Change: The End of the Line in International Environmental Responsibility’ (2004) 22 UCLA Journal of Environmental Law and Policy 107

Small island developing states (SIDS) are increasingly recognized as deserving of special consideration both in international law generally and in international environmental law in particular – recognition has grown since the 1992 Earth Summit and reflected in the 1994 Programme of Action for the Sustainable Development of Small Island Developing States (to be revisited in 2004) and within the 2002 Plan of Implementation from the World Summit on Sustainable Development - most SIDS face an uphill battle in meeting the challenges of sustainable development irrespective of climate change as they already need specific assistance to meet the economic, social, and environmental problems which affect them.

Joanna Mossop, ‘International Law of the Seabed’, (2003) New Zealand Law Journal 407

Whether Maori customary ownership of the seabed is consistent with the international regime established under the Third United Nations law of the Sea (UNCLOS) - issue of Maori claims to customary ownership in the seabed of the continental shelf beyond the territorial sea as well as within the territorial sea - need for a New Zealand court to consider international rules relating to the floor of the territorial sea and the continental shelf separately - international obligations under UNCLOS and its possible impact on Maori claims to the seabed of the territorial sea.

II. The South Pacific

Tony Angelo and Fran Wright, ‘Pitcairn: Sunset on the Empire’ (2004) New Zealand Law Journal 431

The trials of seven men accused of sexual offences in Pitcairn began in September 2004 - charges were laid under the Sexual Offences Act 1956 (UK) - the question of whether that statute is Pitcairn law, or why it is Pitcairn law, seems not to have been fully explored.

Tom Bennion ‘Treaty-making in the Pacific in the nineteenth century and the Treaty of Waitangi’ (2004) 35(1) Victoria University of Wellington Law Review 165

History of treaty-making between Pacific island nations and European powers during the nineteenth century in order to assess the validity of the Treaty of Waitangi at international law - exploring the colonial powers’ understandings as to the nature of the Treaty of Waitangi and whether it would be binding in international law.

Vina Ram-Bidesi and Martin Tsameny ‘Implications of the Tuna Management Regime for Domestic Industry Development in the Pacific Island States’ (2004) 28(5) Marine Policy 383

The successful negotiation of the Convention on Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention) in 2000 has resulted in new opportunities and challenges for the Pacific Islands States in their effort to develop their domestic tuna industries - key management issues arising from the WCPF Convention that are likely to have major impact on the domestic tuna industry development in the Pacific Islands region - options to develop rights-based fisheries management systems as a broader means of domestic industry development.

Lye Lin-Heng and Maria Socorro Z Manguiat, ‘Towards a “Second Generation” in Environmental Laws in the Asian and Pacific Region: Selected Trends’, in IUCN Environmental Policy and Law Paper 48 (IUCN Cambridge, 2003)

This new century calls for the reassessment of all laws in consideration of such looming environmental concerns as global warming, degradation of biodiversity and pollution - thoughts raised during a symposium on second generation environmental laws held in Japan in 2002 - promoting greater understanding of what has been achieved with the first generation of environmental laws, what is needed for the second generation, and how to bridge the two.

Emily E Larocque ‘The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean: Can Tuna Promote Development of Pacific Island Nations?’ (2003) 4 Asian-Pacific Law and Policy Journal 4

Small Pacific Island nations retain authority over the largest tuna fishery in the world under the United Nations Convention on the Law of the Sea - Forum Fisheries Agency goals required creation of an agreement available to both coastal and distant water fishing nations - evidence of this stronger duty is provided in article 8 of the Fish Stocks Agreement, where a sub-regional or regional fisheries management organisation or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks - States fishing for stocks on the high seas and relevant coastal States - giving effect to their duty to cooperate by becoming members of such an organisation or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organisation or arrangement.

Thao, Nguyen Hong ‘Conservation and Management of Marine Resources in the Asia-Pacific: Who is Responsible?’ (2004) 19(1) International Journal of Marine & Coastal Law 71

The measures taken by Asia Pacific nations have contributed to concrete and facilitate the implementation of the provisions of the Law of the Sea Convention, UN Fish Stocks Agreement and Food and Agriculture Organization instruments relating to the conservation and management of marine living resources - some experiences of the Asia Pacific nations could constitute a progressive development of the relevant provisions of the LOS Convention - the degree of success in addressing those challenges in the Asia Pacific depends largely on the role and political willing of coastal, flag and port states, and the role of Regional Fisheries Management Organizations.

III. Antarctica

Cornelis Johannes (Kees) Bastmeijer “The Antarctic Environmental Protocol and its Domestic Legal Implementation’, in International Environmental Law and Policy Series 65 (Kluwer Law International Hague, 2003)

The Protocol on Environmental Protection to the Antarctic Treaty addressing most types of activities in the region south of 60 degrees south latitude - have the Contracting Parties adequately incorporated the key provisions of the Protocol into their domestic legal systems? - will the complex of domestic legal systems of the Contracting Parties adequately ensure a ‘comprehensive protection’ of the ‘natural reserve’ of Antarctica, as specified by Article 2 of the Protocol?

Cornelis Johannes (Kees) Bastmeijer ‘Implementing the Antarctic Environmental Protocol: Supervision of Antarctic Activities’ (2003) 11(1) Tilburg Foreign Law Review 407

The Protocol on Environmental Protection to the Antarctic Treaty in 1991, the protection of the “Antarctic environment and associated and dependent ecosystems” – how Contracting Parties ensure supervision of Antarctic activities to assess whether the Antarctic domestic implementing law is respected - recommendations on how the Contracting Parties should strengthen the cooperation in the field of supervision of Antarctic activities.

Cornelis Johannes (Kees) Bastmeijer ‘Tourism in Antarctica: Increasing Diversity and the Legal Criteria for Authorisation’ (2003) 7 New Zealand Journal of Environmental Law 85

Whether the Protocol on Environmental Protection to the Antarctica Treaty and the domestic implementing legislation of the contracting parties provide a system of clear normative criteria for authorising human activities, such as tourism, in the Antarctic - introduction to the Antarctic Treaty system and the protection of the Antarctic environment - development of tourism in Antarctica since 1991 - gauging the legitimacy of tourism under the Protocol - whether tourism activities in the Antarctic are governed by domestic legislation.

Jennifer Frakes ‘The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise?’ (2003) 21(2) Wisconsin International Law Journal 409

Examines the common heritage principle, its application to the deep seabed, and the conflict that arose between developed and developing nations from its implementation in the Third United Nations Law of the Sea Convention - application of the 1994 Amendments to the LOS Convention - addresses the use of the common heritage principle in outer space and in Antarctica - maintains that international cooperation in managing these common heritage regions, though not necessarily pressing today, may be very important in the future as technology advances and our current resources deplete - developed and developing nations must reach a compromise that respects the individual autonomy of each nation, while encouraging investment and resource extraction.

Cheryle Hislop, Geoffrey New and Philip Bender ‘Protecting the Antarctic and Southern Ocean’ in Antarctic and Southern Ocean Law and Policy Occasional Paper 9 (Law School, University of Tasmania Hobart, 2004)

Two challenges to the creation of non-jurisdictional marine protected areas: freedom of the high seas doctrine and the common heritage of mankind principle - Australia’s protection of the Antarctic & Sub-Antarctic marine ecosystems: prohibiting ballast water discharges - an analysis of the local regime for krill protection and management in the Southern Ocean.

Sidney J Holt ‘Whales and Ice: Common Themes of Antarctica, Whaling and the Law of the Sea’ (2004) 18 Ocean Yearbook 364

Abstract not available.

Julia Jabour-Green and Dianne Nicol ‘Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the Southern Ocean’ [2003] MelbJlIntLaw 15; (2003) 4(1) Melbourne Journal of International Law 76

Legal and other issues concerning bioprospecting is addressed within the context of the Antarctica Treaty and the Southern Ocean - the international legal regime for the protection of intellectual property rights - whether commercialisation of publicly funded science has the potential to inappropriately limit scientific investigation - suggestions for regulating bioprospecting in areas outside national jurisdiction.

Patrick Vrancken ‘The Regulation of Tourism in Antarctica’ (2003) 28 South African Yearbook of International Law 210

Abstract not available.

Kevin R Wood ‘The Uncertain Fate of the Madrid Protocol to the Antarctic Treaty in the Maritime Area’ (2003) 34(2) Ocean Development and International Law 139

The objective of the Madrid Protocol on Environmental Protection to the Antarctic Treaty is to provide a comprehensive regime for the protection of the Antarctic environment and to preserve its value as an area for scientific research - some Treaty nations have interpreted the reach of the Protocol on to be limited with respect to the marine environment - important environmental safeguards have not been enacted in this area, casting the effectiveness of the Protocol into doubt - three artefacts of regime design leading to the Protocol’s uncertain fate in the Antarctic maritime area - recommendations for improved effectiveness.

IV. Southern Ocean

Barbara Kwiatkowska ‘The Southern Bluefin Tuna Arbitral Tribunal Did Get it Right: A Commentary and Reply to the Article by David A. Colson and Dr. Peggy Hoyle’ (2003) 34(3, 4) Ocean Development And International Law 369

A reply to and commentary on the article by Colson and Hoyle, "Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?" 34(1) Ocean Development & International Law 59-82 (2003) - Colson and Hoyle took the view that Southern Bluefin Tuna Tribunal did not reach the correct answer - author surveys Southern Bluefin Tuna and Mox Plant cases, in light of the doctrine of procedural and substantive parallelism between the LOS Convention and its implementing special treaties covered by Articles 281-282.

Donald R Rothwell and Tim Stephens ‘Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests’ (2004) 53(1) International & Comparative Law Quarterly 171

A feature of the United Nations Convention 1982 on the Law of the Sea (LOS Convention) was the capacity for coastal states to assert maritime claims over waters adjacent to their coastlines - a continental shelf could be claimed out to a minimum of 200 nautical miles, while the newly recognised Exclusive Economic Zone (EEZ) also extended out to 200 nautical miles - under contemporary international law the waters available for the exercise of the high seas ‘freedom’ of fishing have gradually been reduced - this new regime, in combination with parallel initiatives to regulate some aspects of high seas fishing activities, has meant that ‘legal’ fishing on the high seas is now subject to extensive regulation.

Harry N Scheiber ‘The 1953 International North Pacific Fisheries Convention: Half-Century Anniversary of a New Departure in Ocean Law’ (2004) 6 San Diego International Law Journal 5

The International North Pacific Fisheries Convention places a seaward limit in the Northeast Pacific beyond which Japan was committed to refrain from fishing salmon or halibut under specified conditions - no other such regime in effect anywhere in the Pacific Rim or Indian Ocean at the time - Japanese negotiators victorious in establishing the precedent on terms that placed them in a position to resist efforts by other governments - Convention remained in effect for two decades, maintaining the uneasy but steady balance of fishing powers in the Northeast Pacific Ocean area and as the protector of stocks in the salmon fishery.

Tim Stephens ‘The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ (2004) 19(2) International Journal of Marine And Coastal Law 177

The role of international adjudication in securing positive environmental outcomes in the Southern Bluefin Tuna case - the case illustrates the significance of provisional measures in responding to environmental threats - judicial settlement is subject to limitations it is reactive, can only involve a few parties and can only deal with a limited set of legal questions - effectiveness of international courts or arbitral panels may be constrained by the nature of the environmental instruments themselves which may lack precision in terms of objective rules - are often ambivalent in terms of their objects and purposes.

Jon M Van Dyke ‘Regionalism, Fisheries, and Environmental Challenges in the Pacific’ (2004) 6 San Diego International Law Journal 143

The Pacific contains many of the world’s smallest countries - the 566 nautical-mile-long equidistance all-purpose maritime boundary between American Samoa and the Cook Islands entered into force on September 8, 1983 - the “resource activity” in the Pacific has increased dramatically since then, and the fishing for tuna in the Western Pacific is now intense - no formal maritime boundary has been negotiated with Kiribati, and US maps show an equidistance line between Palmyra and the Kiribati Island of Teraina (Washington).

[*] Karen Willyams, BA Dip Libr, Law Library Assistant Manager, University of Canterbury.

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