Welcome to the Institutional Repository at Te Herenga Waka—Victoria University of Wellington, New Zealand
This repository contains theses, research outputs and digital collections created by staff and students.
The aim of this repository is to collect and preserve research outputs and digitised content from Te Herenga Waka—Victoria University of Wellington. For publicly accessible research outputs please see Open Access Victoria University of Wellington—Te Herenga Waka. To deposit your thesis consult the library website and use the self-deposit service.
Communities in DSpace
Select a community to browse its collections.
- Past exam papers accessible to staff and students.
- Research papers authored by University staff and students.
- Restricted papers and theses from University staff and students.
- Audio recordings from the Stout Literary Archive.
Recent Submissions
The Place For Injunctions Contra Mundum In New Zealand: Insights From The United Kingdom
(Te Herenga Waka—Victoria University of Wellington, 2024-11-08) Nisbett, Charlotte
There has been a growth of the use of a particular remedy known as injunctions contra mundum, particularly in the United Kingdom. The granting of this kind of remedy goes against the fundamental principles that a defendant must be named and only parties to the proceedings may be bound by an order of the court. As the award of an injunction is an equitable remedy, it is up to the courts to use their discretion. This paper will look at the ways in which human rights have impacted the ability to award such an injunction. The development of the injunction has found traction overseas, in particular New Zealand. The paper will explore the relevant case law and provide a commentary on how the situation in the UK may affect the development in New Zealand
The Admissibility of Secondary Evidence – Is the US-American Fruit of the Poisonous Tree Doctrine Being Replaced by the Balancing Exercise?
(Te Herenga Waka—Victoria University of Wellington, 2024-06-07) Reidt, Annalisa
Defendants must only be convicted in criminal proceedings if the court is convinced of their guilt. In functioning states with proper legal systems, this will only be the case when evidence sufficiently confirms the defendants commission or participation in an act or omission which is classified as a crime under the state’s law. Consequently, if there is no such evidence or a court is in doubt, defendants must be acquitted on trial.
Usually, the evidence which courts base their criminal judgements on will have been uncovered through prior investigations by the police or prosecutors. During these investigations, finding a piece of evidence through the first investigative measure (“primary evidence”) often will lead to the discovery of further evidence elsewhere through another investigative measure (“secondary evidence”). Both primary and secondary evidence are then presented to the court and, of course, both can be used to support the court’s decision about the defendant’s guilt or innocence.
State to State Aid and Intervention: Permission to Help Yourself?
(Te Herenga Waka—Victoria University of Wellington, 2024-09-03) Young, Hugo
This paper examines how some donor states use aid to influence and intervene in the affairs of receiving states. It starts from the assumption that aid is generally good and altruistic. The analysis of state behaviour in this paper leads to a conclusion that this is not always the case because aid can be used by donors as a tool for intervention. The paper begins by examining international agreements and instruments which demonstrate that obligations to aid can be vague, providing little practical guidance on how assistance should be rendered and what may be taken in return. It follows by providing examples of “aid for policy” agreements, under which states give aid but receive significant benefits themselves.
These examples illustrate how such agreements can erode a receiving state’s ability to self- determine and how donors use aid to further their own interests. The paper then considers whether this behaviour is lawful under the principle of non-intervention. It ultimately concludes that it is lawful to provide aid to influence policy, unless the consent to that aid is found to be invalid. It may, however, be arguable in particularly serious circumstances that it is unlawful to withdraw aid for the purposes of intervening with another state’s affairs. The paper finishes by outlining some potential solutions which could address the problem it has highlighted but acknowledges that it is a complex issue which will be hard, if not impossible, to solve entirely.
Arbitrating Fossil Fuel Phase-Outs: An Analysis of International Arbitral Tribunals’ Treatment of Environmental and Climate Policy in Investor-State Disputes
(Te Herenga Waka—Victoria University of Wellington, 2024-10-28) Thorton, Olivia
Complete 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.
A coal phase-out treaty: the normative and legal impetus
(Te Herenga Waka—Victoria University of Wellington, 2024-10-24) Singh, Tanmeet
International environmental law is failing to address contemporary challenges. In particular, within the climate change regime there is a stagnation in addressing fossil fuel phase-out. The state of international environmental law reflects the shortcomings within the normative and legal environment which prevent meaningful environmental action. This paper addresses the prospects for a coal phase-out treaty through challenging the normative and legal environment. First, the paper proposes building a strong normative basis for a coal phase-out treaty rather than focusing on consensus-based decision-making. A stringent phase-out target, by 2031 (for OECD countries, Eastern Europe and the former Soviet Union with staggered phase-outs for the rest of the world’s regions), led by the most vulnerable states allows for a change in the national interest focused environment. Second, the no-harm rule is proposed as the legal basis. Shaping the no-harm rule to apply to GHG emissions gives the treaty a basis in something more concrete than subjective political and moral considerations. At the same time, the no-harm rule itself can develop as the treaty changes state practice. Finally, the paper assesses how a coal phase-out may be implemented, and how a coal phase-out treaty can overcome normative barriers and the foster political will required to take the legal measures necessary for phase-out.