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THE UNIVERSITY OF WAIKATO U Whorl' Wtmanga 0 Uf1ikato WAIKATO LAW SCHOOL Te Wahanga Turt: Yearbook of New Zealand Jurisprudence Special Issue Law and Security After September 11 th DR. W. JOHN HOPKINS Editor Editor: Dr. W. John Hopkins, Senior Lecturer in Law The Yearbook ofNew Zealand Jurisprudence is published annually bythe University ofWaikato School ofLaw. Subscription to the Yearbook costs $NZ25 per year in New Zealand and $US30 (including postage) overseas. Advertising space is available at a cost of $NZ200 for a full page and $NZI00 for a half page. Back numbers are available. Communications should be addressed to: The Editor Yearbook of New Zealand Jurisprudence School of Law University of Waikato Private Bag 3105 Hamilton New Zealand North American readers should obtain subscriptions directly from the North American agents: Gaunt Inc Gaunt Building 3011 Gulf Drive Holmes Beach, Florida 34217-2199 Telephone: 941-778-5211 FAX: 941-778-5252 Email: [email protected] This issue may be cited as (2005) 8.1 Yearbook of New Zealand Jurisprudence. All rights reserved ©. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1994, no part may be reproduced by any process without permission of the publisher. ISSN No. 1174-4243 Yearbook of New Zealand Jurisprudence Special Issue TH LAW AND SECURITY AFTER SEPTEMBER 11 VOLUME 8 - ISSUE 1 2005 CONTENTS Introduction W. John Hopkins PART I: INTERNATIONAL PERSPECTIVES Reappraising the Resort to Force? Jus ad Lindsay Moir 1 Bellum and the War on Terror The Right ofSelf-Defence: Against Whom? James Summers 33 Policing the Oceans: The Proliferation Richard A. Barnes 51 Security Initiative Unilateral Acts in International Relations Betina Kuzmarov 77 When does an Emergency Threaten the Life of Richard Burchill 99 the Nation? PART II: DOMESTIC PERSPECTIVES The Human Rights ofAsylum-Seekers in New Claire Breen 119 Zealand Fundamental Freedoms and the uWar Rodney Harrison QC 141 on Terrorism" The New Zealand Bill ofRights Act 1990 and Chris Gallavin 163 a Post September 11 Morality War Stories: A Reflection on Defending an Rick Wilson 193 Alleged Enemy Combatant Detained in Guantanamo Bay, Cuba Charter-Proofing in Canada Michael Plaxton 217 Piercing the Veil: Executive Detention and W. John Hopkins 239 Judicial Deference EDITOR'S INTRODUCTION This Special Issue of the Yearbook of New Zealand Jurisprudence has had a long gestation period. It comprises a series of themed articles on the controversial topic of Law and Security after September 11 th that have been written over the past 18 months. The project was focused around two symposiums hosted by the University of Waikato Law School and the University of Hull in August 2004 and February 2005, respectively where a number of the papers were presented and discussed. The theme was by the Ahmed Zaoui case, which has become something of a cause celebre in New Zealand, and the realization that this case was symptomatic of global changes towards law and security. The project was undertaken in collaboration with the McCoubrey Centre for International Law without whose input the project would not have been possible. It is a measure of the late Professor McCoubrey's impact that several of the authors were either fonner colleagues or students of his and it is appropriate that the centre set up in his honour should have been involved in this work. Particular thanks must go to its current Director, Dr. Richard Burchill for his efforts. The nature of this project and the discussions at the various seminars has led to a long process of publication and thanks must go to the authors for their efforts and constant attempts to keep their articles up to date. I must also thank the international panel of reviewers who gave up their time to provide valuable comments and feedback, particularly Dr. James Sweeney at the University of Newcastle for stepping into the breach at extremely short notice. The result of all these efforts is a tmly international collection of articles from leading scholars and practitioners that assess the impact of September 11 th and its aftermath from both international and domestic angles. There are two themes that run through this collection. Firstly, the growing connection between domestic Public Law and Public International Law, which makes it increasingly difficult to study one without the other. Domestic public law is increasingly driven by intemationallegal requirements (or perceived requirements) while domestic politics now, more than ever, are impacting upon the international legal order. This can be most clearly seen in the articles by Dr. Breen in relation to New Zealand and Professor Wilson on the United States. For this reason this collection presents both international and domestic responses as a first step to exploring the linkages between them. The second theme that emerges is that although September 11 th is often seen as a crucial watershed in recent political and legal history, it is far from clear that this is actually the case. For example, Professor Moir cogently argues that the Jus ad Bellum, despite impressions to the contrary, has not shifted since the response to the events of200l. Equally, much of the domestic legislation under which the 'war on terror' is being waged pre-dates 2001 while the use of executive detention is far from a novel phenomenon. What has changed is the way such legislation has been used and role of the judiciary in policing it. Whether global security has been enhanced by the responses to the events of 2001 is an open question raised by a number of the authors. Such a question is beyond the scope of this collection but it nevertheless hovers n the background. As I write this, the news reports yet another bombing in Baghdad the security of the globe certainly does not appear to have improved in the years since 2001. The rights of individuals and rule of law certainly appear much less secure than they did on September 10th 2001. It will be a long time before the events that we are living through are properly understood. This collection marks a small step on the road towards such enlightenment. It is customary in these introductions to give the reader a short resume of the papers that are to follow, but given the quality of the papers presented in this special edition and the common theme this seems an unnecessary repetition. Instead I recommend the articles contained in this edition of the yearbook to you. It's been a long time coming but I am confident that you will agree it is worth the wait. Dr. John Hopkins Editor Special Edition: Law and Security after September 11 th Yearbook of New Zealand Jurisprudence Reappraising the Resort to Force? Jus ad Bellum and the War on Terror LINnSAY MOIR* INTRODUCTION Many commentators claim that the military response to the terrorist attacks launched on 11 September 2001, encompassing action against Afghanistan and Iraq, and commonly referred to as the 'war on terror', has significantly impacted upon the international law regulating resort to armed force (jus ad bellum). Some even suggest that the operations in Afghanistan and, more especially, haq could herald a sea-change in terms of when states may - or will use force, risking the very future of the UN system as we know it. I A detailed examination of the impact of these operations on the future of the UN and Security Council is beyond the scope of this article. Instead, the legality of the military action taken against Afghanistan in 2001 and Iraq in 2003 will be assessed in the context of the existing legal framework, the justifications advanced and the reaction of the international community. In light of the conclusions reached, the article can then address the question of whether the right to use force in intemationallaw is truly undergoing a radical transformation. Professor Lindsay Moir, McCoubrey Centre for International Law, Law School, University ofHull, UK See, for example, Richard A. Falk, 'What Future for the UN Charter System of War Prevention?' 97 American Journal of International Law (2003) 590; Thomas M. Franck, 'What Happens Now? The United Nations After Iraq' 97 American Journal of International Law (2003) 607; Tom J. Farer. 'The Prospect for International Law and Order in the Wake of Iraq' 97 American Journal ofInternational Law (2003) 621; and Jane E. Stromseth, 'Law and Force After Iraq: A Transitional Moment' 97 American Journal ofInternational Law (2003) 628. 2 New Zealand Yearbook ofJurisprudence Vol 8.1 MILITARY ACTION AGAINST AFGHANISTAN On 7 October 2001, the US and UK launched Operation Enduring Freedom, a series of military attacks on Taliban and Al-Qaeda targets in Afghanistan.2 Despite suggestions that several alternative legal justifications could have been advanced for the strikes,3 both states relied exclusively on the right of self-defence.4 The validity of this claim depends firstly on whether the terrorist attacks of 11 September could be characterised as an armed attack for the purposes of Article 51 of the UN Charter. Article 51, however, does not entirely codify the international law of self-defence. In order to be lawful, any such action must also satisfy the requirements imposed by customary international law - Le., the use of force must also be necessary and proportionate in the circumstances.5 Was there an Armed Attack? Article 51 of the UN Charter pennits individual or collective self-defence 'if an armed attack occurs against a Member of the United Nations'. Exactly what type of activity constitutes an armed attack is not, however, free from controversy. For an exposition of the military response and events leading up to it, see Sean D.