Prosecutions and human rights – are they mutually exclusive?

Despite intense national opposition to the Foreshore Seabed Bill, legislation was enacted vesting the foreshore and seabed in the Crown. Though international bodies have found this legislation to be discriminatory, in the absence of an amendment to the law, Maori (indigenous people of New Zealand) have no recourse other than to satisfy the provisions of the legislation for recognition of customary rights within the foreshore and seabed area. This article considers in detail the doctrine of aboriginal title. This doctrine is relatively undeveloped in New Zealand and a comparative analysis with comparable jurisdictions is undertaken in order to ascertain whether this doctrine could assist a claim for Maori.     

Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand

This article provides a glimpse into how historical and currentlegislation has attempted to grapple with the practice of customaryfamily law by the indigenous peoples of Aotearoa/New Zealand.It focuses on examining family law in two contexts: marriageand property ownership; and children and legal parenthood. Theanalysis provides an interesting insight into the interplaybetween customary law and statute law. The impact of colonizationupon indigenous peoples and the practice of their law, and howgovernments today choose to recognize and provide for indigenouspeoples is a policy issue prevalent in many of the British colonizedlands. This article concludes that a comprehensive review ofthe nature and extent to which legislation should provide forMaori customary law is required in Aotearoa/New Zealand. Thehaphazard approach of current years is insufficient.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Indigenous self-determination in an age of genetic patenting: recognizing an emerging human rights norm

This Note explores how the law can help indigenous people obtain meaningful control of their genetic material. Part I will briefly discuss the background of genetics, life patents, and indigenous groups. Part II sets out the domestic common law and international human rights law and demonstrates that neither currently provide adequate protection for indigenous peoples. Part III considers the human right of self-determination in the context of indigenous research and patenting, and illustrates that an emerging international norm recognizes an indigenous people's right to control their genetic material. Part IV argues that Congress should pass legislation to adequately meet the human rights needs of indigenous peoples generated by the rapid advancement of biotechnology. This Note concludes that congressional action to protect indigenous peoples is consistent with domestic and international law, and is a natural advancement of human rights and responsible state action.     

III ‐ International agreements

Constitutions guarantee certain rights and freedoms. The formulation of these rights and freedoms are predicated on society. Prior to colonisation, Maori (the indigenous peoples of Aotearoa/New Zealand) had effective legal, social and political structures, premised on Tikanga Maori (Maori custom), which determined their ‘constitution’. Upon colonisation the existing ‘constitution’, determined by Tikanga Maori, was not recognised and, arguably, colonisation contributed to the break down of the Maori social fabric. Critics advocate that the disproportionate social statistics, indicating that Maori are over represented in the criminal justice system, are a manifestation of colonisation. The National-led government is engaging in a review of New Zealand’s constitutional arrangements. In light of New Zealand’s recent endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, it is timely to consider whether the implementation of, and return to, Tikanga Maori is a constitutional right.     

试论WTO和人权的可协调性

WTO与国际人权规则的关系愈来愈受到国际社会的关注。许多人权规则将直接或者间接影响WTO的运作 ,并为WTO和其规则发展提供指南。这些规则对WTO成员应当有一定的约束力。事实上 ,许多涉及人权 ,特别是经济权的规则已经被WTO规则接受和承认。WTO和人权关系的焦点在于两者之间是否存在着等级或者从属关系 ,即国际人权法是否有高于WTO规则效力的问题。从国际立法角度讲 ,WTO规则和国际人权法均为独立的国际法体系 ,但已经成为国际习惯法的某些人权规则有高于WTO规则的地位。从WTO的宗旨看 ,至少人权中的经济权是WTO追求的最主要目标之一。WTO和人权的关系应当在这些因素的基础上达成协调和统一。     

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

International norms on execution of the insane and the mentally retarded

Conclusion Victor Hugo considered the death penalty to be the hallmark of barbarity. 104 International human rights law clearly contemplates abolition of the death penalty. To some extent, it has succeeded in promoting universal and imperative norms, as in the case of the prohibitions on torture and slavery. 105 With respect to the death penalty, results have been more gradual and the effort has met with more opposition. Although international norms now exist prohibiting the death penalty, 106 they are not yet widely ratified. This is why international organizations dedicated to the promotion of human rights have insisted upon strict limitation of the death penalty, including its total exclusion for certain categories, such as juveniles, pregnant women, the elderly, and the insane.No treaty provision exists to exclude the insane from the death penalty. The conclusion that this prohibition represents a customary norm is an important one, with consequences not only in international law but also in domestic law since many states consider customary international law to be a part of their domestic law. Wherever a court concludes that in the absence of any domestic statutory provision to the contrary, customary international human rights law prohibits execution of an insane prisoner, a small step will be taken away from the barbarism lamented by Hugo.B.A., University of Toronto 1972; M.A., University of Toronto 1973; LL.B., University of Montreal 1983; LL.M., University of Montreal 1990; LL.D., University of Montreal 1993.     

The retention of personal information online: A call for international regulation of privacy law

New technologies permit online businesses to reduce expenses and increase efficiency by, for example, storing information in “the cloud”, engaging in online tracking and targeted advertising, location and tracking technologies, and biometrics. However, the potential for technology to facilitate long term retention of customers' personal information raises concerns about the competing right of individuals to the privacy of their personal information. Although the European Commission has recently released a proposal for regulation to “provide a data subject with the right to be forgotten and to erasure”, neither the OECD Privacy Guidelines nor the APEC Privacy Framework includes any requirement to delete personal information. While New Zealand includes a “limited retention principle” in the Privacy Act 1993, apart from one limited exception the privacy principles cannot be enforced in court. Taking New Zealand privacy law as an example, this paper examines the issue of retention of customer data, explains why this is a serious problem and argues that although it could be addressed by appropriate amendments to domestic laws, domestic privacy legislation may not be sufficient in an online environment. In the same way as other areas of law, such as the intellectual property regime, have turned to global regulatory standards which reflect the international nature of their subject matter, international privacy regulation should be the next stage for the information privacy regime.     

Modest Expectations: Gender and Property Rights in Urban Mexico

This article examines gender and property in Guadalajara, Mexico, in the light of debates that oppose formal title to the social embeddedness of rights in customary law and assert that titling is bad for women. The article focuses on urban homes, private property, and civil law but finds that qualities regarded as characterizing customary property relations also shape popular understandings of property in urban Mexico. Discussion groups and social surveys in four low-income neighborhoods addressed two aspects of family law and property: whose name should appear on titles, and who should inherit the home. The results show that women, as wives, sisters, and daughters, have a secondary relationship to property. They also suggest that the opposition of individual title to socially embedded rights is a false dichotomy and that generalizing arguments about formalization and especially the negative gender implications of titling risks replicating the universalizing tendencies of Western property models.     

Legal Typologies and Topologies: The Construction of Indigenous Alterity and Its Spatialization Within the Colombian Constitutional Court

This article examines the different legal articulations between indigenous typologies and topologies, that is, the relationship between someone classified as an indigenous subject, a grantee of minority rights, and the spatial arrangements such as reservations or ancestral territories considered necessary for indigenous “cultural survival.” I analyze how the jurisprudence of the Colombian Constitutional Court manifests and rests on the diverse combinations of these two factors. The typology/topology binary characterizes the manner in which these legal discourses portray indigeneity and culture. This binary also offers insight into a broad range of issues, including the access that indigenous peoples have to minority rights, the use of customary law, and the spatial delimitations that frame indigenous legal jurisdictions. Some of the complexities that arise from this binary are: the conceptualization of indigenous places as habitats, the idea of culture as a list of traits, and the concept of “degrees” of indigeneity that determine these peoples' access to minority rights.     

论当代物权冲突法之趋同化走势

当代物权冲突法在不动产物权、物为动产或不动产的识别、交通运输工具、物权变动、运输中物品的物权、因时效届满而取得物权、有价证券等物权法律适用方面均呈现出趋同化走势,当代物权冲突法的趋同化走势有着深刻的政治、经济及法律等各种原因,中国涉外物权法律适用规则应适应当代物权冲突法的趋同化走势,与国际社会的立法实践保持一致。     

Nomadic Territories: A Human Rights Approach to Nomadic Peoples' Land Rights

In most societies nomadic peoples face discrimination. At theheart of this discrimination frequently lies the crucial issueof property in land. The sharing of lands between nomads andsettled agriculturalist societies has often led to violent confrontation.Access to land is a determining factor for many nomadic peoplesas whether or not nomads have access to land will determinethe survival of their mobile lifestyle. Historically nomadicpeoples have not been regarded as having any rights to landbecause their nomadic lifestyle was not considered to fulfilthe criterion of ‘effective occupation’ of the land.By exploring the evolution of international law regarding nomadicpeoples’ land rights, this article analyses how humanrights law could provide nomadic peoples with rights to usetheir lands. Ultimately, this article argues that under thebanner of international human rights law, nomadic peoples aregaining the right to live on their land in their traditionalways through the gradual establishment of a specific corpusof law dedicated to the rights of nomads.     

The Evolution of International Indigenous Rights in the Inter-American Human Rights System

Indigenous communities in the Western hemisphere are increasinglyrelying on international law and international fora for enforcementof their human rights. When there are no domestic laws thatrecognise indigenous rights, or such laws exist but there isno political will to enforce them, indigenous peoples in theAmericas may turn to the Inter-American human rights system.Consequently, the Inter-American Court of Human Rights and theInter-American Commission on Human Rights have developed a progressivecase law in this area. In 2005 and 2006, the Inter-AmericanCourt decided seminal indigenous ancestral land rights casesand a political rights case. This article analyses these casesand the previous jurisprudence and decisions on indigenous rightsin the Inter-American system.     

德国国际私法渊源的新发展

在传统上,德国国际私法的渊源包括制定法、德国缔结或者参加的各种国际私法条约、习惯法和判例法,但是随着欧盟国际私法统一化的深入发展,尤其是欧洲共同体在公司法、合同法、物权法、知识产权法、破产法和国际民事诉讼程序法等领域的立法不断加强,欧盟法中的国际私法规范逐渐渗入德国国际私法,从而使德国国际私法的渊源突破了传统的范围,越来越多地打上了欧盟法的烙印,呈现出“欧盟化”倾向。     

Chinese Practice in Public International Law: 2006 (I)

This part of the Survey covers materials reflecting Chinesepractice in 2006 relating to: I. Subjects under discussion atthe ILC (Shared natural resources; responsibility of internationalorganizations; reservation to treaties; unilateral acts of states;effects of armed conflicts on treaties; obligation to extraditionor prosecution; fragmentation of international law); II. Internationalhuman rights law (general commitment on human rights; collectivehuman rights, including right of self-determination, right todevelopment; civil and political rights, including freedom ofreligion, freedom of expression, issue of organ transplants;economic, social and cultural rights, including right to food,right to health; human rights of aliens, including freedom ofpress of foreign correspondents, rights of refugees; human rightsof special groups, including rights of ethnic minorities, rightsof indigenous peoples, rights of women, rights of children,rights of immigrants, rights of persons with disabilities, rightsof older persons; implementation of international human rightslaw, including the establishment of UN Human Rights Council,review of mandates and mechanisms of UN Human Rights Council,the implementation of human rights instruments, human rightsdialogue and corporation; human rights situation in foreigncountries, including Myanmar, Middle East; human rights andinternational trade); III. International humanitarian law.     

公法上不当得利研究

公法上不当得利是指在公法范围内,欠缺法律上的原因而发生的财产变动,致一方受有利益,他方受有损害,受损的一方有请求返还所受利益的权利,其判别标准为:公法关系、财产变动与欠缺法律上原因。在我国,宪法上的财产权、行政法上的依法行政原理与财产法上的衡平原理均为公法上不当得利存在的法学基础。公法上不当得利按不同标准可分为多类,但按请求权分类已成为习惯,可将其分为相对人向国家或其他行政主体请求、国家或其他行政主体向相对人请求与机关间相互请求等,这些在我国现存的公法规范中均有所体现。     

论海洋法中的剩余权利

《联合国海洋法公约》的许多规则和原则已经成为习惯国际法,为世界各国所遵守。但是,该公约在扩大沿海国的管辖权和缩小公海自由的调整过程中留下了余地和空间,也就是海洋法中的剩余权利问题。尤其是在专属经济区这一新的区域内,沿海国的主权权利和专属管辖权与公海自由及其他国家的权利划分不是十分确定。如,剩余捕鱼权,"自由权利"的行使与"适当顾及"的关系,"用于和平目的"和军事用途等解释问题,都已引起多方的关注。这些问题值得我们认真研究和探讨,以期维护国家海洋权益,促进海洋法的发展。     

Detention and treatment down under: human rights and mental health laws in Australia and New Zealand

Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention.     

从国际法角度看我国物权法草案中的征收补偿标准

征收及补偿问题不仅是物权法中的一个重要问题,也是一个国际法问题。我国物权法在规定征收及补偿问题时,须考虑国际社会的通常做法和我国政府对其他国家已做出的承诺。在征收补偿方面存在着国际法规则。投资协定的约束是确定的,而国际习惯法的约束则取决于各国的取舍。我国现行法律实质上未能明确征收补偿标准,而我国对外签署的投资协定则接受了“充分补偿”标准。物权法(草案)中的“合理补偿”标准并不合理。建议物权法在规定征收补偿标准时,以“充分补偿”为原则,以“另依特别规定”为补充。