Papers by Nathan Ross PhD
It is increasingly likely that, due to the impacts of climate change, entire populations of low-l... more It is increasingly likely that, due to the impacts of climate change, entire populations of low-lying States – Tuvalu, Kiribati, the Marshall Islands and the Maldives – will need to relocate to other States' territories. Such en masse relocations would jeopardise these peoples' national identities and manifestations of their ways of life: cultures, languages, customs, and social, political and economic systems. Legal writers analysing this topic focus mainly on maritime boundaries and statehood questions. This thesis examines the right to self-determination. The principal finding is that the peoples of low-lying States are entitled to enjoy self-determination in climate change-related relocation and that there are practical ways this can occur. After explaining the factual scenario and the approach to this research, the analysis has four key components. First, it defines the right to self-determination in context of the low-lying States, including entitlements flowing from...
In West Coast ENT v Buller Coal, the majority of the Supreme Court concluded that the effect of t... more In West Coast ENT v Buller Coal, the majority of the 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 gas emissions on climate change. The plain words of the amendment provisions only removed such considerations in relation to air discharge and coastal permits. However, a literal interpretation of those provisions permitted "back door" regulation via ancillary consents of other classes, such as land use consents. The Court concluded, therefore, that to avoid that outcome, the purpose of the Amendment Act must have been to remove all considerations of emissions and the drafters must have only envisaged that those considerations would be relative to air discharge permits. This article re-examines the effect of the 2004 Amendment Act in light of its purpose and legislative history, and in light of the Principal Act's purpose and scheme. It concludes that Parliament was seeking only to remove consideration of emissions that were anticipated to be regulated nationally. It identifies a nuanced method of using the scheme of the Act to allow that purpose to function whilst avoiding the risk of "back door" regulation. This article also critiques the extent to which the majority's interpretation expands and alters the meaning of the plain words of the Amendment Act's provisions.
Regardless of the efficacy of New Zealand's emissions trading scheme, a suite of complementary me... more Regardless of the efficacy of New Zealand's emissions trading scheme, a suite of complementary measures will remain necessary if New Zealand is to avoid free-riding on other States' efforts to mitigate climate change. A key growth sector in our emissions profile has been transport. Demandside 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 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.
There is a real risk that the effects of climate change will make the low-lying, small island Sta... more There is a real risk that the effects of climate change will make the low-lying, small island State of Kiribati uninhabitable. As a result of that risk, its government is undertaking programmes with other countries to relocate its people. The result of relocation, however, is that those emigrants go from being part of a total majority in their own country to being a small minority in another. This article compares the constitutional and electoral systems of Kiribati and New Zealand in order to develop some understanding of the risks to democratic representation that arise from relocation. It identifies key differences in how I-Kiribati people are represented in Kiribati and how they would be represented in New Zealand. The differences identified highlight the importance of developing relocation solutions within a legal framework that maintains those aspects of the sovereign State of Kiribati that I-Kiribati want to preserve.
Books by Nathan Ross PhD
Small States in a Legal World, 2017
In Petra Butler and Caroline Morris (eds) "Small States in a Legal World" (Springer, 2017) pp. 10... more In Petra Butler and Caroline Morris (eds) "Small States in a Legal World" (Springer, 2017) pp. 101-138.
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.
Full text available via http://www.springer.com/gp/book/9783319393650
Thesis Chapters by Nathan Ross PhD
PhD Thesis, 2020
It is increasingly likely that, due to the impacts of climate change, entire populations of low-l... more It is increasingly likely that, due to the impacts of climate change, entire populations of low-lying States – Tuvalu, Kiribati, the Marshall Islands and the Maldives – will need to relocate to other States' territories. Such en masse relocations would jeopardise these peoples' national identities and manifestations of their ways of life: cultures, languages, customs, and social, political and economic systems.
Legal writers analysing this topic focus mainly on maritime boundaries and statehood questions. This thesis examines the right to self determination. The principal finding is that the peoples of low-lying States are entitled to enjoy self determination in climate change-related relocation and that there are practical ways this can occur.
After explaining the factual scenario and the approach to this research, the analysis has four key components. First, it defines the right to self-determination in context of the low-lying States, including entitlements flowing from this collective right. The populations of low lying States' are "peoples" entitled to self-determination, including in relocation. Self determination comprises various elements, resembling a bundle of rights. A framework is devised for unpacking this bundle and understanding what self determination entails. The framework divides the right into strategic and operational elements. The strategic elements are the right's objectives of peace and human rights, as well as its classic expressions; external and internal self determination. The operational elements seek to secure the right's objectives through substantive and procedural entitlements. Substantive entitlements include the right of peoples to continuity of their States, to be different, to freely-determined political statuses, and to freely-pursued economic, social and cultural development. Procedural aspects include processes for determining the substantive elements, plus democratic governance, and some degree of autonomy from other political units.
The second major component of this thesis examines potential duty-bearers, and the nature of their duties. Low-lying States are the principal duty-bearers regarding their peoples' right to self-determination. Third-party States and the United Nations have relevant duties, but these are vague and do not anticipate proactive involvement in supporting low-lying peoples' endeavours to maintain self-determination ex situ. The duties become clearer for a third-party State that partners in a low-lying people's relocation, but there are no obligations to become such a partner.
The third part of the legal analysis re-examines the issue of whether statehood can be maintained without inhabitable territory, but in light of the self-determination analysis. There is a presumption of continuity of statehood in international law and it applies to low lying States. There is no legal basis to argue that statehood would be terminated in this relocation scenario. The presumption of continuity is bolstered by self determination, which gives the peoples of low lying States exclusive competence to determine their political statuses. Prior analyses of statehood have focused on the Montevideo Convention indicia. However, these indicia only apply to the creation of States, not termination. Consequently, there is far reaching flexibility for extant States to decide how, or whether, the indicia are satisfied.
Finally, options for enabling ex situ self determination are presented concerning key questions of legal personality (since statehood is only one option), land and international frameworks. The final section also proposes ways of incorporating self determination into the emerging human rights-based approach to climate change adaptation.
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Papers by Nathan Ross PhD
Books by Nathan Ross PhD
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.
Full text available via http://www.springer.com/gp/book/9783319393650
Thesis Chapters by Nathan Ross PhD
Legal writers analysing this topic focus mainly on maritime boundaries and statehood questions. This thesis examines the right to self determination. The principal finding is that the peoples of low-lying States are entitled to enjoy self determination in climate change-related relocation and that there are practical ways this can occur.
After explaining the factual scenario and the approach to this research, the analysis has four key components. First, it defines the right to self-determination in context of the low-lying States, including entitlements flowing from this collective right. The populations of low lying States' are "peoples" entitled to self-determination, including in relocation. Self determination comprises various elements, resembling a bundle of rights. A framework is devised for unpacking this bundle and understanding what self determination entails. The framework divides the right into strategic and operational elements. The strategic elements are the right's objectives of peace and human rights, as well as its classic expressions; external and internal self determination. The operational elements seek to secure the right's objectives through substantive and procedural entitlements. Substantive entitlements include the right of peoples to continuity of their States, to be different, to freely-determined political statuses, and to freely-pursued economic, social and cultural development. Procedural aspects include processes for determining the substantive elements, plus democratic governance, and some degree of autonomy from other political units.
The second major component of this thesis examines potential duty-bearers, and the nature of their duties. Low-lying States are the principal duty-bearers regarding their peoples' right to self-determination. Third-party States and the United Nations have relevant duties, but these are vague and do not anticipate proactive involvement in supporting low-lying peoples' endeavours to maintain self-determination ex situ. The duties become clearer for a third-party State that partners in a low-lying people's relocation, but there are no obligations to become such a partner.
The third part of the legal analysis re-examines the issue of whether statehood can be maintained without inhabitable territory, but in light of the self-determination analysis. There is a presumption of continuity of statehood in international law and it applies to low lying States. There is no legal basis to argue that statehood would be terminated in this relocation scenario. The presumption of continuity is bolstered by self determination, which gives the peoples of low lying States exclusive competence to determine their political statuses. Prior analyses of statehood have focused on the Montevideo Convention indicia. However, these indicia only apply to the creation of States, not termination. Consequently, there is far reaching flexibility for extant States to decide how, or whether, the indicia are satisfied.
Finally, options for enabling ex situ self determination are presented concerning key questions of legal personality (since statehood is only one option), land and international frameworks. The final section also proposes ways of incorporating self determination into the emerging human rights-based approach to climate change adaptation.
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.
Full text available via http://www.springer.com/gp/book/9783319393650
Legal writers analysing this topic focus mainly on maritime boundaries and statehood questions. This thesis examines the right to self determination. The principal finding is that the peoples of low-lying States are entitled to enjoy self determination in climate change-related relocation and that there are practical ways this can occur.
After explaining the factual scenario and the approach to this research, the analysis has four key components. First, it defines the right to self-determination in context of the low-lying States, including entitlements flowing from this collective right. The populations of low lying States' are "peoples" entitled to self-determination, including in relocation. Self determination comprises various elements, resembling a bundle of rights. A framework is devised for unpacking this bundle and understanding what self determination entails. The framework divides the right into strategic and operational elements. The strategic elements are the right's objectives of peace and human rights, as well as its classic expressions; external and internal self determination. The operational elements seek to secure the right's objectives through substantive and procedural entitlements. Substantive entitlements include the right of peoples to continuity of their States, to be different, to freely-determined political statuses, and to freely-pursued economic, social and cultural development. Procedural aspects include processes for determining the substantive elements, plus democratic governance, and some degree of autonomy from other political units.
The second major component of this thesis examines potential duty-bearers, and the nature of their duties. Low-lying States are the principal duty-bearers regarding their peoples' right to self-determination. Third-party States and the United Nations have relevant duties, but these are vague and do not anticipate proactive involvement in supporting low-lying peoples' endeavours to maintain self-determination ex situ. The duties become clearer for a third-party State that partners in a low-lying people's relocation, but there are no obligations to become such a partner.
The third part of the legal analysis re-examines the issue of whether statehood can be maintained without inhabitable territory, but in light of the self-determination analysis. There is a presumption of continuity of statehood in international law and it applies to low lying States. There is no legal basis to argue that statehood would be terminated in this relocation scenario. The presumption of continuity is bolstered by self determination, which gives the peoples of low lying States exclusive competence to determine their political statuses. Prior analyses of statehood have focused on the Montevideo Convention indicia. However, these indicia only apply to the creation of States, not termination. Consequently, there is far reaching flexibility for extant States to decide how, or whether, the indicia are satisfied.
Finally, options for enabling ex situ self determination are presented concerning key questions of legal personality (since statehood is only one option), land and international frameworks. The final section also proposes ways of incorporating self determination into the emerging human rights-based approach to climate change adaptation.