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The Proliferation of Article 63 Intervention in International Court of Justice Proceedings: Is South Africa v Israel a Turning Point?
No full textHas intervention become an over-politicised instrument which risks undermining the legitimacy of the International Court of Justice, or is the proliferation of intervention indicative of growing internationalism and essential to the very legitimacy of the Court? This paper critically examines the process of intervention under article 63 of the Statute of the International Court of Justice; this includes examination of the historical development of intervention, along with its present role, status, purpose and prospective future. This paper specifically focuses upon intervention in the ongoing case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), which comes in the wake of the recent cases of Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar). These three cases have culminated in influx in interventions pursuant to article 63 which rely on obligations erga omnes in relation to the Convention on the Prevention and Punishment of the Crime of Genocide. This unprecedented volume of third-state engagement with International Court of Justice proceedings presents unique challenges for the Court to address. Furthermore, in comparing third-state intervention in Ukraine v Russia with South Africa v Israel, one may draw plausible inferences that states are driven by double standards across a Global North-South divide which risks threatening the very basis of the rules-based order of international law
Fake Images, Real Harm: A Case for Criminalising Non-consensual Intimate Deepfakes
No full textAdvancements in artificial intelligence technologies have led to the perpetration of sexual violence in novel ways. Non-consensual intimate deepfakes (NCIDs) are a pernicious and pervasive form of sexual violence involving the creation, distribution, or threatened distribution of digitally manipulated intimate images without consent. The law must be updated to effectively tackle harmful behaviours as they arise. This paper aims to identify the most appropriate and effective way for New Zealand lawmakers to address the growing problem of NCIDs, in light of their significant individual and social harms. First, a positive case for criminalisation is made out through an examination of the individual and collective harms caused by NCIDs. Second, an analysis of the different available regulatory establishes a negative case in support of criminalisation. Finally, this paper offers specific recommendations for enacting distinct criminal provisions targeting NCIDs, as part of a broader integrated approach that is both proactive and reactive to the emerging NCID phenomenon
He Tai Whatiwhati Rua : The Incorporation of Rāhui in the State Law of Aotearoa New Zealand
No full textRāhui is a customary legal practice in te ao Māori which prohibits certain activities from occurring or continuing in accordance with the nature or circumstance in which it is applied.
While a well-established legal tenet in te ao Māori, the incorporation of rāhui in the state law of Aotearoa New Zealand is uncertain and untested. At present, rāhui largely exists as an expression of Māori autonomy outside the state legal system. Its legitimacy and enforceability outside of tikanga is dependent on voluntary compliance rather than state sanctions.
A recent petition by the Iwi Chairs Forum for greater legal recognition of rāhui, alongside rampant debate in media as to the enforceability of the rāhui placed on Whakaari White Island, illustrate the shortcomings of the current legislative regime in regards to rāhui. These events prompt questions as to whether state mechanisms, such as legislation, are required to ensure compliance with rāhui, or whether the practice should remain within the realm of tikanga.
This paper adopts a three limb inquiry into rāhui and its relationship with state law. First, this paper attempts to define the many faces of rāhui. Second, this paper examines the extent to which rāhui is incorporated into New Zealand’s state law, including its prevalence in legislation and the common law. Lastly, this paper assesses the risks, challenges, and tensions which may arise if rāhui receives increased recognition through state mechanisms.
This paper concludes that state recognition of rāhui, either through legislation or the common law, may risk the tino rangatiratanga of Māori to implement rāhui in accordance with tikanga-ā-iwi. It draws parallels with the Fisheries Act and Waitākere Ranges Heritage Area Act, and highlights the risk of rāhui becoming divorced from its spiritual roots and parameters
Cleaning Up Greenwashing: an Argument for Pre-Market Verification of Environmental Claims to Empower Aotearoa New Zealand Consumers
No full textThis paper argues that Aotearoa New Zealand should implement a voluntary accreditation regime for environmental claims as well as require mandatory certification for biodegradable and compostable claims. An official ‘Eco Tick’ can signal to consumers which claims are verified, ensuring consumers are provided with adequate and accurate information to shop sustainably. These measures are needed as current consumer law, comprising of general prohibitions of misleading and unsubstantiated representations, will continue to be insufficient at combating greenwashing. Traditionally consumer legislation has been rationalised from an individual welfare paradigm; the need to provide statutory rights to relatively weak consumers, as well as maximise consumer choice. However, to reflect the evolving marketplace, consumer law should aim to empower consumers by enabling them to purchase products which genuinely reflect their preferences of more sustainable consumption. Pre-market verification best ensures this outcome
Arbitrating Fossil Fuel Phase-Outs: An Analysis of International Arbitral Tribunals’ Treatment of Environmental and Climate Policy in Investor-State Disputes
No full textComplete decarbonisation of the global economy is required to avoid irreversible climate change. This will no doubt cause fossil fuel assets to be stranded, many of which are protected by international investment agreements that give investors access to Investor-State Dispute-Settlement to claim compensation for alleged harm to their investments. Accordingly, there is tension between international investment law and global climate change goals. This paper analyses recent decisions of investment arbitral tribunals to consider their treatment of environmental and climate policies in Investor-State disputes. In particular, it examines the recent arbitral decisions of Canada v Lone Pine, Eco Oro v Colombia and Rockhopper v Italy all of which involved the enactment of a policy to prohibit fossil fuel operations in environmentally sensitive areas. The central argument of this paper is that while environmental considerations have been mainstreamed in the reasoning of investment arbitral tribunals, tribunals have been reluctant to fully integrate or prioritise environmental or climate policies when assessing a State’s conduct, particularly in relation to fair and equitable treatment clauses and the State’s right to regulate under the police powers doctrine. Ultimately, these decisions suggest that a State cannot reasonably rely on its right to regulate in the public interest based on environmental or climate policy. The paper suggests that climate change, as a unique and complex issue, creates challenges for States in defending claims from foreign investors in ISDS disputes
Swimming in Others' Suffering: Do adequate legal protections exist for female lawyers working with sexual violence trauma?
No full textCriminal lawyers work in an undeniably trauma-permeated environment. However, due to the legal profession’s cultural occupational barriers such as stigma and an adversarial environment, the legal profession, unlike other professions, has until recently worn blinkers regarding the risks of vicarious trauma (VT) to lawyers. In particular, female criminal lawyers working with sexual violence trauma are at heightened risk of VT. This paper will discuss what law employers must do to discharge their responsibilities to employees under the Health and Safety Act 2015 (HSWA), as well as the statutory framework’s inadequacies for ensuring female lawyers mental wellbeing. With the legislation found wanting, there is a need for legal and extra-legal change to help facilitate and support policies and practices to better safeguard female lawyers working with sexual violence trauma, from experiencing psychological injury. Beyond legislative amendments, Zagi Kozarov v State of Victoria (Kozarov) can also provide law employers with guidance as to their responsibilities in respect of VT. These responsibilities may include professional supervision, work rotations, changes to gendered work allocation, mental health leave, and workplace screenings
