Low-Lying States, Climate Change-Induced Relocation, and the Collective Right to Self-Determination

PhD Thesis, released 2020 [PDF]

International Legal Personality

Chapter 3 in Alberto Costi (ed) Public International Law: A New Zealand Perspective (LexisNexis, Wellington, 2020), co-authored with Alberto Costi.

Peaceful Settlement of Disputes

Chapter 19 in Alberto Costi (ed) Public International Law: A New Zealand Perspective (LexisNexis, Wellington, 2020), co-authored with Scott Davidson.

Beyond Skills and Doctrine: The Reform Enterprise’s Need for Interdisciplinarity

This manuscript won the 2016 Oxford University Press and Australasian Law Teachers Association Best Paper on Legal Education.

There is debate about the ratio of doctrine to skills in undergraduate law programmes arising from a purported lack of practice-ready capability. This article looks at this discussion relative to an assumed objective of universities, which is to develop graduates with a rounded understanding of the world, and with skills for objective fact-finding and analysis. Rather than the two dimensions of doctrine and skill, this article employs a framework of four dimensions, basic and deep skills, and basic and deep knowledge. It is used to assess a four-year law programme taught largely through case-method against that assumed objective of universities. It concludes that two substantive elements were not addressed sufficiently, policy skills (as an element of deep skills) and deep knowledge. The importance of those elements is described and recommendations are offered for how to incorporate them with minimal impact on the teaching of legal skills and doctrine.

Enhancing the UN Free & Equal Campaign by Targeting the Wellbeing of Bisexual People

UN F&E Strategy for Enhancing the Wellbeing of Bisexual People [PDF, 710 KB]

Co-authored with Sandra Dickson, this was a proposal for the United Nations’ Free & Equal campaign, which was later accepted. The document sets out the context for the programme, including bisexuality itself, along with the pressing issues of biphobia. It proposes a targeted campaign that uses tools and methods that Free & Equal has already employed, so that it can build on that expertise and experience.

[Postscript: The proposal was adopted and, as at November 2017, the staff at Free & Equal are currently developing a campaign.]

The Ongoing Legal Status of Low-Lying States in the Climate Changed Future

Small States in a Legal World [publisher’s website]

  • Co-authored with Alberto Costi.
  • Chapter 6 in Petra Butler and Caroline Morris (eds) Small States in a Legal World (Springer, 2017).

Low-lying States that may become uninhabitable because of climate change are confronted by many unique challenges, including whether their statehood status should continue if entire populations are forced to relocate to other States’ territories. Since the criteria for establishing new States include a defined territory and a permanent population, it is sometimes assumed that these criteria are also essential for the continuity of statehood. This chapter examines the traditional Montevideo statehood criteria with respect to continuity of low-lying States, and highlights cases where States have relied on unorthodox means of meeting those criteria. It surveys alternative types of international legal personality. The analysis finds no authority to support extinguishing the legal personality of these States because of factual changes to the Montevideo criteria. It argues there is potential for either innovative solutions for maintaining statehood, or for converting to an alternative legal personality.

Climate Change and the RMA: A Critique of West Coast ENT v Buller Coal Ltd (2015)

West Coast ENT v Buller Coal – Case Comment [PDF, 448 KB]

In West Coast ENT v Buller Coal Ltd [2013] NZSC 87, the majority of the New Zealand Supreme Court concluded that the effect of the Resource Management (Energy and Climate Change) Amendment Act 2004 was to remove all considerations of the effects of greenhouse gases on climate change in resource consent decisions.

In this critique, I argue that this conclusion was not inevitable. Instead, the Legislature’s intention was for a discrete removal of such considerations only for polluters that would be regulated via the Emissions Trading Scheme, so they would not be double-regulated.

Climate Change Risks to Representative Government in Kiribati (2015)

Climate Change Risks to Representative Government in Kiribati [PDF, 253 KB]

There is a real risk that the effects of climate change will make the low-lying, small island State of Kiribati uninhabitable, making relocation a necessary evil. In this paper, I examine the risks to the people of Kiribati through a legal lens.

I use a hypothetical scenario in which all I-Kiribati move to New Zealand. Even with such en masse movement into a country with direct proportional representation, I-Kiribati would be subject to, what John Adams called, the tyranny of the majority. Consequently, there is a very real risk that the values, aspirations, culture and traditions of Kiribati would be lost to accidental assimilation. This risk is far greater, too, if the population is fragmented between countries.

Carbon Emissions and Electric Cars: Introducing the Potential of Electric Vehicles in New Zealand’s Climate Change Response (2015)

Carbon Emissions and Electric Cars [PDF, 234 KB]

Regardless of the efficacy of New Zealand’s emissions trading scheme, a suite of complementary measures will remain necessary if we are to avoid free-riding on others States’ efforts to mitigate climate change. A key growth sector in our emissions profile has been transport. Demand-side measures, such as cycling and public transport, are one side of the coin, and supply-side measures are the other.

In particular, New Zealand is extremely well-placed to extract the maximum mitigation potential from electric vehicles (EVs) because of our very high and growing use of renewable electricity. This essay assesses the potential role of light EVs in our climate change response, surveying functionality, environmental performance, economics, and market and regulatory barriers. It concludes that targeted government intervention to hasten the uptake of EVs is justifiable. A number of general policy options are then identified for further investigation.

The Health of the Hutt River: Some Observations and Suggestions (2013)

Health of the Hutt River [PDF, 597 KB]

This report was produced for the Community Law Wellington and Lower Hutt, in response to media coverage and public concerns regarding toxic cyanobacteria in the Hutt River. The aim of the report is to give the community accessible information about the River’s health and ecology, and options for community action.