Browsing by Author "Li, Hanxiao"

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Closed material procedure in civil proceedings
(Te Herenga Waka—Victoria University of Wellington, 2013-01-01) Li, Hanxiao; Thwaites, Rayner
"Items of historical significance of two wars Iraq and Afghanistan Significant Activity, Sigacts, between 0001 January 2004 and 2359 31 December 2009 extracts from CSV documents from Department of Defence and CDNE database…This is one of the most significant documents of our time removing the fog of war and revealing the true nature of 21st century asymmetric warfare…" ¹ This was part of the message sent along with the documents later known as Iraq and Afghanistan war logs from Chelsea Manning, a United States solider, to the website of WikiLeaks - an international, online, non-profit organisation which publishes secret and sensitive information. The release of the war logs was referred as “the largest leak of classified documents in its history” and the release of diplomatic cables exposed numerous unguarded comments and revelations regarding critiques and praises about the host countries of various United States embassies; United States intelligence and counterintelligence efforts and other diplomatic actions. These leaks put the United States in great controversy considering its actions in the Iraq and Afghanistan wars and caused quite an embarrassment due to its comments regarding diplomatic actions. Chelsea Manning was convicted and Julian Assange, the founder of WikiLeaks, is facing potential criminal prosecution, despite being granted political asylum. While WikiLeaks still works as an important role of exposing the “truth” to the public, it imposed great concerns to many of the governments around the world towards their government policies, national security and general reputation. The consequence of WikiLeaks releasing sensitive information about United States government rang the alarm of the importance of governments safeguarding secret information. The motivation of the United Kingdom government issuing the Justice and Security Act arguably comes from the concern of exposing sensitive information. The Introduction of the Act reads that the JSA is “to provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to make provision about closed material procedure in relation to certain civil proceedings; to prevent the making of certain court orders for the disclosure of sensitive information; and for connected purposes”. This Act, based on the objectives mentioned above, introduced closed material procedure to the civil proceedings, which is regarded as a response to the judgment of Al Rawi, undoubtedly generated huge discussions across boundaries as to the matter of security and liberty; security and due process; security and justice; the Act’s in relation to the common law as well as its relationship with Article 6 of the European Convention on Human Rights. While many of the scholars accused JSA of “turning off the light”, this paper would like to direct attention to the Wikileaks incidents and consider the views of both the British government and the promoters of human rights and common law. This paper will first introduce the effect of CMP in the criminal proceedings, and then look at Al Rawi and Tariq. It will conclude the conflicts when adopting CMP and by interpreting JSA to draw some concerns and the certain “light”, as well as some suggestions towards CMP in JSA. 1. Denver Nicks. 'Private: Bradley Manning, WikiLeaks, and the Biggest Exposure of Official Secrets in American History' (Chicago Review Press, Chicago, 2012) at 137-138.
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Non-refoulement and national security: A comparative study of UK, Canada and New Zealand
(Te Herenga Waka—Victoria University of Wellington, 2014-01-01) Li, Hanxiao; Sawyer, Caroline
“International law generally rejects deportation to torture, even where national security interests are at stake.” ¹ There had been a fierce debate when Hassan Ahmed Shaqlane, a Somalian refugee who was sentenced to an 8-year prison term for rape and kidnapping, won his appeal against deportation, upheld by the Deportation Review Tribunal.² Controversy arose again when Al Baiiaty, an Iraqi resettlement refugee was convicted of sexual violation by rape for the fourth time. With the Court of Appeal’s noting that Mr Al Baiiaty poses a serious risk to the community³, the then Minister of Immigration called for a report on the deportation issues raised by the case.⁴ Deportation to torture may deprive a refugee of the right to liberty, security and perhaps life⁵, which is against many states’ domestic laws and international instruments such as the International Conant on Civil and Political Rights⁶ and the Convention against Torture⁷. It has been said that even if Article 33 of the Convention relating to the Status of Refugees does not categorically reject deportation to torture on its face, it should not be used to deny rights that other legal interments make available to everyone.⁸ It is highly questionable, however, under this broad obligation, if a refugee poses a significant threat to the protecting country’s national security, what action can a state take to protect its own national security and its own people. Are provision in the Refugee Convention, the ICCPR and the CAT absolute, binding and non derogable? If so, can a state derogate from its international obligation to refoule a refugee to potential torture to protect its national security? On what grounds then, can a state derogate from it? This paper will consider these questions. By doing so, this paper will first outline the international obligations, provided by the Refugee Convention, the ICCPR and the CAT, what is an international norm and states’ derogation rights in these provisions. The paper then looks at the courts in Canada, the United Kingdom and New Zealand’s approach in Suresh, EN⁹ and Zaoui¹⁰ when deporting a person who poses threat to national security can lead to torture and arbitrarily deprivation of life and the deportation potentially violates an international obligation or a state’s constitution. The paper will explain their approaches in relation to the different positions of their international obligations. The paper submits its concerns for some specific provisions in the Refugee Convention and the issues in exercising the absolute rights provided by the ICCPR and the CAT, as well as the ECHR. The paper finally submits its preferable approach after observing states’ practice and comparative study of the three approaches.
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Performance requirements in investment treaty law
(Te Herenga Waka—Victoria University of Wellington, 2013) Li, Hanxiao
Host states permit foreign investors to access their economies generally because they believe that foreign investment can contribute to their economic development and prosperity. Foreign investments are therefore expected to increase employment, bring new technology and enterprise into the economy, and develop trade linkages, particular for exports, which will generate foreign exchange and improve the balance of payment. However, some countries are sceptical about the benefits that foreign investment may bring to the host states in these and other ways. To ensure the host states interests can be satisfied by foreign investment, the states usually impose certain requirements on foreign investors as conditions of starting the investment or, also likely, as conditions of continuing the investment. These requirements are known as performance requirements and are described by the UNCTAD: “performance requirements are stipulations, imposed on investors, requiring them to meet certain specified goals with respect to their operations on the host country”.