title: The right to life and law enforcement activities: The approrpriateness of a military response ot the problem of terrorism

authors: Chevalier-Watts, Juliet

abstract: This paper considers the issue of the right to life in several lethal force cases heard in the European Court of Human Rights as a result of State activity in response to terrorist and armed activity. In light of extensive judicial scrutiny, and the recent erroneous shooting dead of Brazilian electrician, Jean Charles de Menezes on the London Underground by police, this paper submits that a military response may balance the dichotomy of terrorism and the right to life. Article 2, the right to life, is the most fundamental of all the provisions of the European Convention on Human Rights; without it, all other provisions are redundant. However, this very right, in the context of lethal force and terrorism, was brought sharply into focus when Strasbourg heard the ground breaking Death on the Rock case, where terrorist suspects were shot dead by Special Forces soldiers in Gibraltar. Since this case, a number of lethal force cases have been heard by the European Court in relation to military and police terrorist operations. These cases have been subject to detailed scrutiny as to the application of the provisions of Article 2 of the Convention, and have produced divergent results. As a result, this paper submits that, in Europe at least, a military response acknowledges a State's authority to protect its populous and its agents, whilst at the same time entrenching the fundamental principle of the right to life, thus balancing two theoretically opposing concepts: the authority of the State and the right to life.

text: The right to life and law enforcement activities: The approrpriateness of a military response ot the problem of terrorism This paper considers the issue of the right to life in several lethal force cases heard in the European Court of Human Rights as a result of State activity in response to terrorist and armed activity. In light of extensive judicial scrutiny, and the recent erroneous shooting dead of Brazilian electrician, Jean Charles de Menezes on the London Underground by police, this paper submits that a military response may balance the dichotomy of terrorism and the right to life. Article 2, the right to life, is the most fundamental of all the provisions of the European Convention on Human Rights; without it, all other provisions are redundant. However, this very right, in the context of lethal force and terrorism, was brought sharply into focus when Strasbourg heard the ground breaking Death on the Rock case, where terrorist suspects were shot dead by Special Forces soldiers in Gibraltar. Since this case, a number of lethal force cases have been heard by the European Court in relation to military and police terrorist operations. These cases have been subject to detailed scrutiny as to the application of the provisions of Article 2 of the Convention, and have produced divergent results. As a result, this paper submits that, in Europe at least, a military response acknowledges a State's authority to protect its populous and its agents, whilst at the same time entrenching the fundamental principle of the right to life, thus balancing two theoretically opposing concepts: the authority of the State and the right to life.

year: 2013

title: Where the earthly meets the ethereal

authors: Chevalier-Watts, Juliet

subjects: Mudharabas

abstract: 2020 has been a year of challenges and surprises in so many regards, and in keeping with this, Fa’agutu v Derhamy [2019] NZHC 406 represented a surprise for the New Zealand High Court, at least in terms of its subject-matter, as it was the first time a Mudharaba agreement has come before the courts. While this type of agreement is well known in Islamic law, or Sharia law, it is likely not so well known in New Zealand and certainly has not made its presence known in court before.  

A Mudharaba agreement is a type of partnership that aims to make a profit.  The lender, or investor (the rab al maal), provides money or capital to the borrower, or investment manager, or entrepreneur (mudareb or al-mudharib). The mudareb provides the knowledge and labour in the investment and management of the funds.  One of the key aspects of a Mudharaba contract is that any losses that may arise from the agreement will not be shared.  If there are losses, the lender will lose that money and the only losses suffered by the mudareb will be their time and future profits, as well potentially their reputation.  However, the profits of the agreement may be shared between the parties, as agreed prior to signing the contract (Fa’agatu at [5] and [6]; “Mudarabah” Institute of Islamic Banking and Insurance <www.islamic-banking.com/explore/islamic-finance/shariah-rulings/question-answers-shariah-rulings/mudarabah>; and “Mudaraba” ThomsonReuters Practical Law <uk.practicallaw.thomsonreuters.com/>).

In this comment, and mostly following the approach of the Court, I will be reflecting on the issue of religion and its place in the New Zealand legal landscape in this specific context, and then I will turn to the matters of undue influence, and of breach of fiduciary obligation.

text: Where the earthly meets the ethereal 2020 has been a year of challenges and surprises in so many regards, and in keeping with this, Fa’agutu v Derhamy [2019] NZHC 406 represented a surprise for the New Zealand High Court, at least in terms of its subject-matter, as it was the first time a Mudharaba agreement has come before the courts. While this type of agreement is well known in Islamic law, or Sharia law, it is likely not so well known in New Zealand and certainly has not made its presence known in court before.  

A Mudharaba agreement is a type of partnership that aims to make a profit.  The lender, or investor (the rab al maal), provides money or capital to the borrower, or investment manager, or entrepreneur (mudareb or al-mudharib). The mudareb provides the knowledge and labour in the investment and management of the funds.  One of the key aspects of a Mudharaba contract is that any losses that may arise from the agreement will not be shared.  If there are losses, the lender will lose that money and the only losses suffered by the mudareb will be their time and future profits, as well potentially their reputation.  However, the profits of the agreement may be shared between the parties, as agreed prior to signing the contract (Fa’agatu at [5] and [6]; “Mudarabah” Institute of Islamic Banking and Insurance <www.islamic-banking.com/explore/islamic-finance/shariah-rulings/question-answers-shariah-rulings/mudarabah>; and “Mudaraba” ThomsonReuters Practical Law <uk.practicallaw.thomsonreuters.com/>).

In this comment, and mostly following the approach of the Court, I will be reflecting on the issue of religion and its place in the New Zealand legal landscape in this specific context, and then I will turn to the matters of undue influence, and of breach of fiduciary obligation.

year: 2020

title: Kaupapa Maori research: An indigenous approach to creating knowledge

authors: Bishop, Russell

subjects: Maori

abstract: This paper seeks to identify how issues of epistemological racism are addressed in practice
within an indigenous Kaupapa (philosophy) Maori approach to research, and how such
considerations may impact on the Western trained and positioned researcher. One fundamental
understanding to a Kaupapa Maori approach to research is that it is the discursive practice
that is Kaupapa Maori that positions researchers in such a way as to operationalise selfdetermination
(agentic positioning and behaviour) for research participants. This is because the
cultural aspirations, understandings and practices of Maori people implement and organise the
research process. Further, the research issues of power; initiation, benefits, representation,
legitimation, and accountability are addressed and understood in practice by practitioners of
Kaupapa Maori research through the development of a participatory mode of consciousness.

text: Kaupapa Maori research: An indigenous approach to creating knowledge This paper seeks to identify how issues of epistemological racism are addressed in practice
within an indigenous Kaupapa (philosophy) Maori approach to research, and how such
considerations may impact on the Western trained and positioned researcher. One fundamental
understanding to a Kaupapa Maori approach to research is that it is the discursive practice
that is Kaupapa Maori that positions researchers in such a way as to operationalise selfdetermination
(agentic positioning and behaviour) for research participants. This is because the
cultural aspirations, understandings and practices of Maori people implement and organise the
research process. Further, the research issues of power; initiation, benefits, representation,
legitimation, and accountability are addressed and understood in practice by practitioners of
Kaupapa Maori research through the development of a participatory mode of consciousness.

year: 1999