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New Zealand Yearbook of International Law

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Willyams, K --- "Bibliography" [2006] NZYbkIntLaw 14; (2006) 3 New Zealand Yearbook of International Law 281


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, and/or Antarctica. Each listing is accompanied by a short abstract.

I. General Issues in International Law

A. Sources of International Law, and State Practice

Alex Conte, ‘New Zealand Defence Force Operations’ [2005] NZYbkIntLaw 15; (2005) 2 New Zealand Yearbook of International Law 407.

Provides an overview of military operations conducted by the New Zealand armed forces during the 2005 Yearbook period.

Caroline E Foster ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: The Advisory Jurisdiction of the International Court of Justice, Human Security and Necessity’ [2005] NZYbkIntLaw 3; (2005) 2 New Zealand Yearbook of International Law 51.

Discusses the July 2004 Advisory Opinion of the World Court on the legal consequences of the construction of a wall in the occupied Palestinian Territory - Court’s jurisdiction and decision not to decline to give an opinion - Court’s views on the substance of the General Assembly’s request for an Advisory Opinion.

Mark Gobbi ‘Treaty Action and Implementation’ [2005] NZYbkIntLaw 14; (2005) 2 New Zealand Yearbook of International Law 357.

Provides an overview of governmental activity undertaken during the 2005 Yearbook period to implement New Zealand’s international obligations - includes lists of Executive Treaty Action, Bilateral Treaties, Reports on Treaties Tabled, legislation relating to international obligations, judicial decisions relating to international obligations – concludes level of activity in current interval greater than in previous interval – summarises this activity and compares it with activity undertaken during the previous interval.

Miron Mushkat and Roda Mushkat ‘International Law and Game Theory : A Marriage of Convenience or Strange Bedfellows?’ [2005] NZYbkIntLaw 4; (2005) 2 New Zealand Yearbook of International Law 101.

Outlines a game-theory shift in the study of international legal compliance – illustrated by featuring Hong Kong in the context of China – discusses limitations of game theory as a tool of international legal analysis.

B. International Human Rights

Ian Brownlie ‘Remedies in the Sphere of Human Rights’ [2005] NZYbkIntLaw 6; (2005) 2 New Zealand Yearbook of International Law 169.

Provides an overview of the general principles of human rights law and how these are applied in New Zealand – provides a comparison to the UK Human Rights Act.

Claudia Geiringer ‘Case Note: Rameka v New Zealand’ [2005] NZYbkIntLaw 7; (2005) 2 New Zealand Yearbook of International Law 185.

As the first case in which New Zealand has been found in breach of the International Covenant on Civil and Political Rights, Rameka v New Zealand is examined for the insights it has to offer the ICCPR Human Rights Committee’s methodology, reasoning process, and relationship with States parties – concludes that New Zealand exhibits a “somewhat lukewarm commitment to full engagement with the treaty body process”.

Susan Glazebrook, ‘Looking Outwards’ [2005] OtaLawRw 7; (2005) 11 Otago Law Review 131.

The 8th Annual Ethel Benjamin Commemorative Address, Dunedin, 5 April 2004 – considers aspects of New Zealand’s place in the Asia-Pacific region, particularly its role in regard to human rights – the role of the Advisory Council of Jurists for the Asia-Pacific Forum of National Human Rights Institutions – the problem of human trafficking, with women and children being the main victims – terrorism and human rights – why it is important for New Zealand to be involved in groups like the Forum.

Paul Oertly ‘Fifteen Years of Individual Human Rights Complaints to the United Nations: The New Zealand Experience’ [2005] NZYbkIntLaw 2; (2005) 2 New Zealand Yearbook of International Law 1.

Commentary on the complaints mechanisms of international human rights treaties from a New Zealand perspective – surveys New Zealand cases – concludes that the flood of complaints feared fifteen years ago has not eventuated – proposes that it is timely for New Zealand to expand the available complaint options before UN human rights treaty monitoring bodies and demonstrate further commitment to human rights internationally and domestically.

C. International Criminal Law

Brian Myers ‘The Right to Kill or the Obligation to Die: The Status of the Defence of Duress Following New Zealand's Implementation of the Rome Statute of the International Criminal Court’ [2005] NZYbkIntLaw 5; (2005) 2 New Zealand Yearbook of International Law 127.

Focuses on the availability of the defence of duress to an accused facing prosecution for an international crime in a New Zealand court – identifies a potential conflict between domestic law and the Rome Statute – argues that this conflict is untenable and Parliament should amend the International Crimes and Criminal Court Act 2000 to clarify the availability and elements of the defence.

D. International Trade

Jane Kelsey, ‘World Trade and Small Nations in the South Pacific Region’ (2005) 14 Kansas Journal of Law and Public Policy 247.

The World Trade Organization (WTO) aims to provide a rules-based regime that promotes economic development and alleviates poverty – suggests that this is not true for small, vulnerable economies whose limited negotiating capital and small size limit their ability to cope with complex multilateral rules – argues that this does not allow for effective bargaining to secure specific measures which address development needs – small economies are prevented from participating effectively in the negotiation of WTO provisions that are more suited to enhancing their welfare – identifies the development impacts of tariff cuts on net food importers as especially severe for a country like Tonga, whose accession package already requires it to bind its tariffs at low levels.

Anna Kingsbury, ‘Should United States Antitrust Law be Applied to State Trading Enterprises in Agricultural Trade?’ (2004) 9 Drake Journal of Agricultural Law 185.

Considers potential liability of State Trading Enterprises (STEs) in United States (US) antitrust law – has particular reference to the New Zealand Dairy Board and successor Fonterra – questions whether New Zealand is subject to US antitrust jurisdiction under the effects test and jurisdiction under the doctrine of international comity – examines whether the licensing system in the US creates markets for New Zealand dairy products – argues that the New Zealand government allowed creation of a monopoly in US markets, contrary to US merger law.

E. International Environmental Law

Angela Brewer, ‘Regional Cooperation in the South Pacific and Climate Change (2004) 8 Asia Pacific Journal of Environmental Law 153.

The South Pacific region is one of the most vulnerable regions of the world to impacts of climate change – increases in sea level and extreme weather events have the potential to dramatically affect the social, economic and ecological environments of the peoples of the Pacific Islands – considers the impacts of climate change on the Pacific Islands countries – examines the approach of these countries at regional and domestic levels to address these impacts – looks at the development and implementation of strategies to ensure that widespread social dislocation and economic devastation do not eventuate.

Caroline E Foster ‘The ILC draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising Out of Hazardous Activities: Privatising Risk’ (2005) 14 Review of European Community and International Environmental Law 265.

In 2004, the International Law Commission (ILC) produced a set of draft Principles on the Allocation of Loss in the Case of Transboundary Harm arising out of Hazardous Activities – the ILC has encountered ongoing difficulties during three decades of work towards developing an acceptable compensation scheme for transboundary harm – the 2004 draft Principles now identify a way forward through the impasse faced by the ILC in its efforts to develop a compensation regime under the rubric of the liability topic – this is not intended as the basis of a possible convention on the subject – instead prepared with the intention of providing guidance to States in relation to compensation for the transboundary consequences of hazardous activities.

Caroline E Foster ‘The Shipment of Nuclear Material through the Pacific Ocean: Seeking Advance Assurances of Support in a Non-release Incident’ in Alberto Costi and Yves-Louis Sage (ed) Droit de l'Environnement dans le Pacifique: Problématiques et Perspectives Croisées/Environmental Law in the Pacific: International and Comparative Perspectives (2005) New Zealand Association for Comparative Law/Association de Législation Comparée des Pays du Pacifique, 205.

The economic effects of an incident in the course of the shipment of radioactive material through the Pacific are of serious concern to Pacific Island countries – if a shipping State had not in fact breached international legal obligations of due diligence in respect of shipments there might be little possibility of recovery under general international law, nor would the nuclear civil liability conventions assist – argues that appropriate assurances that Pacific Island States will not be left unsupported in a non-release situation are most likely to be achieved through a process of direct discussions between Pacific Island Forum countries, source States and operators.

Rebecca Elizabeth Jacobs, ‘Treading Deep Waters: Substantive Law Issues in Tuvalu's Threat to Sue the United States in the International Court of Justice’ (2005) 14 Pacific Rim Law & Policy Journal 103.

In response to the United States’ refusal to ratify the Kyoto Protocol, the Pacific island nation of Tuvalu, vulnerable to submersion due to the rising sea level, threatened to bring a lawsuit against the United States in the International Court of Justice for damages to its island – concludes that Tuvalu must show not only that the United States is unlawfully causing the island damage, but also that Tuvalu has a right to compensation for damage that has yet to occur – posits that Tuvalu may succeed by arguing principles of intergenerational rights and the precautionary principle – considers that this case presents a unique opportunity to address international environmental law issues that will likely arise in future cases brought by victims of global warming.

Anne M. Creason, ‘Culture Clash: The Influence of Indigenous Cultures on the International Whaling Regime’ (2004) 35 California Western International Law Journal 83.

Examines whether the cultural whaling practices and beliefs of indigenous peoples influence current whaling practices and legislation in New Zealand and Japan – posits that modern societies develop from practices and beliefs of indigenous cultures – concludes that Japan and New Zealand’s whaling laws are products of cultural beliefs and practices.

Gregory D Pendleton, ‘State Responsibility and the High Seas Marine Environment: A Legal Theory for the Protection of Seamounts in the Global Commons’ (2005) 14 Pacific Rim Law & Policy Journal 485.

The United Nations General Assembly urged States to consider a temporary ban on bottom trawling on the high seas to reduce damage both to the habitat of deep sea living marine resources (“LMRs”) and to the LMRs themselves – argues that while a positive step, this is another example of short-sighted fisheries management: instead of creating a legitimate protection regime, such as a moratorium or a system of High Seas Marine Protected Areas (“HSMPA”), and that this therefore leaves the door open for the continued degradation of the global commons – assumes a system of HSMPAs can lawfully be established, before turning to the question of enforcement – presents a legal theory upon which a case against high seas trawling nations could be built, demonstrating that States have notice of the ecological consequences of trawling seamounts, a duty to prevent such consequences by enacting and enforcing municipal legislation, and have breached that duty – argues that flag-State malfeasance amounts to an internationally wrongful act, thus providing the possibility for responses by concerned States, including the invocation of responsibility by non-injured States and potential countermeasures.

Ivana Zovko, ‘The International Liability and Compensation Regimes Relating to Vessel-Sourced Pollution of the Marine Environment: Case Study of the Southern Ocean’ [2005] NZYbkIntLaw 11; (2005) 2 New Zealand Yearbook of International Law 281.

Outlines and reviews the current international and regional regimes dealing with liability and compensation in relation to vessel-sourced pollution damage in Southern Ocean – examines the relationship between international instruments regulating marine pollution – probes the causes for slowness in international treaty making, treaty implementation and enforcement processes – emphasises a lack of an international regime for reparation of marine pollution damage on the high seas.

II. The South Pacific

Alexander Gillespie, ‘The Dugong Action Plan for the South Pacific: an evaluation based on the need for international and regional conservation of Sirenians’ (2005) 36 Ocean Development and International Law 135.

Considers the essential requirements for a successful regional agreement for Sirenians (manatees, dugongs, sea cows) in the South Pacific – current Dugong Action Plan will be juxtaposed against the ‘best practice’ in this area – considers the relevant international environmental law and policy relating to Sirenians.

Bob Hughes ‘Report on the South Pacific Countries’ [2005] NZYbkIntLaw 10; (2005) 2 New Zealand Yearbook of International Law 271.

Overview of the legal state of South Pacific countries for the 2005 Yearbook period – discusses instabilities, economic and resource constraints, culture, law reform, land issues, and the effects of globalisation and international relations.

Ruth Nicholls, ‘Corruption in the South Pacific: The Potential Impact of the UN Convention Against Corruption on Pacific Island States’ [2005] NZYbkIntLaw 8; (2005) 2 New Zealand Yearbook of International Law 207.

Briefly examines the anti-corruption movement before focusing on the UN Convention Against Corruption 2003 – considers the potential impact of the Convention upon Pacific Island countries – argues that these countries should not adopt the Convention without careful consideration – concludes that the impact of the Convention would be significant with regard to bribery, money laundering and good governance provisions.

III. Antarctica

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 – examines whether the contracting parties have adequately incorporated the key provisions of the Protocol into their domestic legal systems – further examines whether the mix of the domestic legal systems of contracting parties will adequately ensure a ‘comprehensive protection’ of the ‘natural reserve’ of Antarctica, as specified by Article 2 of the Protocol.

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

Considers the 1991 Protocol on Environmental Protection to the Antarctic Treaty and the protection of the “Antarctic environment and associated and dependent ecosystems” – examines how the contracting parties can ensure supervision of Antarctic activities to assess whether the Antarctic domestic implementing law is respected – sets out recommendations on how the contracting parties should strengthen cooperation in the field of the supervision of Antarctic activities.

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

Examines 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 – considers its introduction to the Antarctic Treaty system and the protection of the Antarctic environment – looks at the development of tourism in Antarctica since 1991 - gauges the legitimacy of tourism under the Protocol – considers whether tourism activities in the Antarctic are governed by domestic legislation.

Kees Bastmeijer and Ricardo Roura, ‘Regulating Antarctic Tourism and the Precautionary Principle’ (2004) 98 The American Journal of International Law 763.

In the Antarctic context, cumulative impact has been defined as the impact of combined past, present, and reasonably foreseeable future activities - Antarctic Treaty and Environmental Protocol prohibits damaging any historic site or monument - should any uncertainty about the environmental impacts of tourist activities in Antarctica automatically lead to the prohibition of Antarctic tourism? - argues this interpretation would transform the precautionary principle into an absolute norm - not its purpose as developed in international and domestic environmental law - precautionary principle may be applied as a practical instrument to the management of tourism, which may result in imposing certain restrictions on tourist activities, without having to limit its application to extreme measures such as the banning of Antarctic tourism altogether.

Denzil G M Miller, Eugene N Sabourenkov and David C Ramm, ‘Managing Antarctic Marine Living Resources: the CCAMLR Approach’ (2004) 19 International Journal of Marine and Coastal Law 317-363.

Documents experiences of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in developing, and implementing, fisheries conservation and management measures. – provides examples to show how the provisions of Article II of the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) have been applied in practice – posits that, generally, these provisions strive for an ecosystem-based and precautionary approach to the management of harvested and non-harvested species - emphasises the development of management measures to deal with: (a) uncertainty associated with new and exploratory fisheries; (b) reduction and elimination (i.e. minimisation) of seabird bycatch in longline fisheries; (c) trade-related measures to combat illegal, unreported and unregulated fishing of CCAMLR species; and (d) general environmental protection – identifies and evaluates CCAMLR's achievements and potential threats to its future effectiveness, with some possible counteractions offered.

IV. Southern Ocean

Adrienne J Oppenheim, ‘The Plight of the Patagonian Toothfish: Lessons from the Volga Case’ (2004) 30 Brooklyn Journal of International Law 293.

Contends that oceans once thought to contain limitless, renewable bounties of fish are in a state of crisis – argues that the tribunal established under United Nations Convention on the Law of the Sea (UNCLOS) to hear fishing disputes gives insufficient consideration to fundamental conservationist objectives – posits that a restrictive interpretation instead creates an additional obstacle for coastal States seeking to deter and punish illegal, unreported, and unregulated fishing – argues that the Volga line of cases undermines the Conservation of Antarctic Marine Living Resources toothfish conservation measures – proposes amendments to Article 73(2).

Erik Jaap Molenaar, ‘Multilateral hot pursuit and illegal fishing in the Southern Ocean: the pursuits of the Viarsa 1 and the South Tomi’ (2004) International Journal of Marine and Coastal Law 19.

Considers that the enforcement of fisheries regulation around sub-Antarctic islands in the Southern Ocean is problematic due to remoteness and logistic and financial implications – proposes that pursuit involving vessels, aircraft or officials assisted by different nationalities can contribute to making enforcement, and thereby regulation, more effective – discusses the hot pursuits of the South Tomi and the Viarsa 1 in the context of applicable international law and State practice – concludes that these types of hot pursuits are not inconsistent with Article 111 of the United Nations Law of the Sea Convention (UNCLOS), do not erode the freedom of the high seas or affect the UNCLOS’ jurisdictional balance – argues that they are fully consistent with the objectives of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.

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

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