123 It is insufficient to consider how the treaty making process may be improved, without considering the means of legislative treaty implementation – an area of prime parliamentary involvement. A treaty may, for instance, be developed and approved by an ideally democratic process but still fail to reach its potential if the relevant implementing legislation is inadequate. The four broad approaches to implementation in para 125 address that point.
124 At issue is that to date there is no one coherent scheme for noting that domestic legislation implements an international treaty obligation. Legislation may, for instance, have been created prior to, but later considered as sufficient implementation of, a treaty obligation; or the legislation may have been amended to implement part or all of a subsequent treaty obligation; or the legislation may have been created in its entirety to implement part or all of a new treaty obligation. Only in the latter case is there a developing practice of noting the relevant international instrument (eg, see the long title of the New Zealand Bill of Rights Act 1990). There is no indication that the other legislation implements treaty obligations.138
125 The four broad approaches to the legislation needed to implement treaties are:
A no legislation is required
B the statute gives direct effect to the treaty text by using a formula to the effect that the treaty provisions “have the force of law” in the country in question
C the statute uses some of the wording of the treaty, incorporated into the body of the relevant area of law, or indicates in some other way its treaty origins
D the substance of the treaty is incorporated into the body of the law, without any obvious sign that it has happened.
In addition, primary legislation might authorise
E the making of subordinate legislation (regulations or rules) which is to give effect to identified treaties or is not to be inconsistent with them. That subordinate legislation might take any of the forms B, C or D.
126 Treaty and legislative practice are now briefly discussed under these headings. The allocation among those headings turns on (1) the personal scope of the rights, interests and duties created by the treaty, (2) the nature of the rights, interests and duties stated in the treaty, and the specificity of the drafting, and (3) the importance in terms of policy and principle of the matters involved. The last is particularly relevant to the choice between primary and secondary legislation. Some legislation will not fall clearly within one of the categories: much legislation, for instance, combines elements of B and C, and statutes often implement major treaty provisions while delegating authority for detailed implementation.
127 Importantly, detail and examples of these categories of legislative practice in relation to treaties can be found in the Law Commission’s previous report in this area: A New Zealand Guide to International Law and its Sources (nzlc r34 1996). It is not intended to reproduce that material here – references to the relevant paragraphs from that report are given.
128 If the treaty essentially operates at the international level between states, creating rights and obligations only for them, then generally no question of national law arises. National law need not be changed; no rights and obligations under it are involved. In other cases no legislation will be judged necessary for a quite different reason – that the law is considered as already giving effect to the treaty (as in option D) or any difference can be handled by making reservations. (See A New Zealand Guide to International Law and its Sources, paras 47–48).
129 Many statutes enacted throughout the Commonwealth set out the treaty text and then provide that all or part of it are to “have the force of law” in the particular country. Although the legislation may, in addition, provide some support for the treaty (for instance, in naming the courts to exercise jurisdiction under the treaty), essentially in these cases the treaty is left to speak for itself. The treaty text, for example, may be placed in a schedule with the legislative provisions stating that the text has the force of law.
130 Although the distinction between self-executing and non self-executing treaties arose in different constitutional systems for a different purpose, it is useful here. Self-executing treaties become binding and effective domestically as a result of entering into the treaty at the completion of negotiation. Non self-executing treaties are not binding domestically until some further step is taken, usually the passing of domestic legislation. The distinction between the two is further explained as follows:
Only such provisions of a Convention are self-executing which may be applied by the organs of the State and which can be enforced by the Courts and which create rights for the individuals; they govern or affect directly relations of the internal life between the individual, and the individuals and the State or the public authorities. Provisions which do not create by themselves rights or obligations of persons or interests and which cannot be justiciable or do not refer to acts or omissions of State organs are not self-executing.139
131 If a treaty provision falls within the second “non-self-executing” category, the United States’ jurisprudence and extensive national practice emphasise that further action must be taken by national authorities and especially legislative authorities before the treaty provisions can be given effect by national courts. (See A New Zealand Guide to International Law and its Sources, paras 49–52, in particular for characteristics of treaties which indicate the need for that further action.)
C Some treaty wording is incorporated into the body of the law
132 As already indicated there will often be good reason for incorporating the substance of the treaty provision into the body of the law rather than leaving it to speak for itself. Sometimes this will be done relatively conspicuously – the case considered under this heading; sometimes the treaty origin or connection will be obscured – the case considered in option D.
133 The indication of the treaty origin may appear by the use of treaty wording, or by express reference to the treaty, or both. Major instances concern criminal offences and regulatory matters. (See A New Zealand Guide to International Law and its Sources, paras 53–54.)
D The substance of the treaty is incorporated into the body of the law without any obvious sign that it has happened
134 If the government decides that existing domestic legislation already implements the treaty, then no sign will be added to the relevant legislation to indicate that, for the future, that legislation also serves the purpose of implementation. The legislation is not, for example, amended to note that it is now considered as implementing New Zealand’s obligations under a certain treaty. Treaties falling into two groups, human rights treaties and international crime conventions, provide instances. (See A New Zealand Guide to International Law and its Sources paras 55–61 and appendix C.)
135 A danger with this approach to implementation (raised in A New Zealand Guide to International Law and its Sources and sufficiently important to be mentioned again here) is that those responsible for administering, applying and interpreting the legislation or for proposing and approving amendments to it, may be unaware of the treaty relationship if the legislation is silent about its international origins or context. That may unknowingly lead to breach of treaty obligations. It is likely, as well, to deprive the user of the statutes of relevant interpretative and other information. The danger can be avoided by appropriate notes to the legislation or, of course, by using one of the express reference devices mentioned in para 199 of this report.
E Authority is delegated to implement the treaty
136 Many statutes delegate authority to subordinate lawmakers to make regulations and rules to give effect to treaty obligations and international recommendations. The general approach to the appropriateness of delegating lawmaking power would appear to apply in this context. It has been stated in this way:
The line between the primary and the delegated lawmaker should in general be that between principle and detail, between policy and its implementation. Parliament with its representative composition and through its public processes should address and endorse (or not) the policies presented to it by the executive, while recognising that matters of less significance or of a technical character, or requiring rapid adaption or experimentation might be left to subordinate lawmaking. Another situation in which lawmaking powers might be and are delegated – and in broader terms – is to deal with emergencies.140
137 There is the further element that once Parliament has given effect to the initial treaty obligation, it might appropriately delegate authority to give effect to amendments and additions to the original treaty. Parliament has established the basic policy and has recognised the external source of the law and future changes might be technical and need to be made frequently. Much Commonwealth practice supports such delegation; the United Kingdom European Communities Act 1972 might be seen as a notable example.141 (See A New Zealand Guide to International Law and its Sources, paras 62–64.)
138 The empowering provisions vary considerably in their scope:
(1) Some appear to be unlimited, authorising the making of regulations to give effect to any international agreement, for example, Antarctic Marine Living Resources Act 1981 s 17(d) (cf (e) and (f)), Fisheries Act 1983 s 89(5), Marine Mammals Protection Act 1978 s 28(1)(g). Presumably those powers should be read in the context of the general subject area of the treaty in issue.
(2) Other empowering provisions usefully make that limit to the general subject area of the treaty explicit, for example, Civil Aviation Act 1990, Enemy Property Act 1951 s 3(1)(a), Geographical Indications Act 1994 s 20(m), International Energy Agreement Act 1976 s 4, Maritime Transport Act 1994, Mutual Assistance in Criminal Matters Act 1992 s 65, Resource Management Act 1991 s 360, Territorial Sea and Exclusive Economic Zone Act 1977 s 9, Tokelau (Territorial Sea and Exclusive Economic Zone) Act 1977 s 8(3), Transport (Vehicle and Driver Legislation and Licensing) Act 1986 s 48.
(3) Other empowering provisions are more specific about the particular matters that the regulations can cover, for example, Antarctica Act 1960 s 6A, Antarctica (Environmental Protection) Act 1994 s 55, Copyright Act 1994, Diplomatic Privileges and Immunities Act 1968, Geneva Conventions Act 1958 s 9(b), Layout Designs Act 1994 s 37, Patents Act 1953.
(4) Others may also give the regulation maker the power to override statutes, for example, United Nations Act 1946 s 2(2), Territorial Sea and Exclusive Economic Zone Act 1977 s 30, Social Welfare (Transitional Provisions) Act 1990 s 19, Extradition Act 1965, Child Support Act 1991 s 215.
139 As a further point on implementation through delegated authority and subordinate instrument, the areas in which the delegated powers can be exercised are also very varied and include:
international sanctions, for example, United Nations Act 1946;
international trade, for example, Tariff Act 1988, Dumping and Countervailing Duties Act 1991, Customs Act 1966;
international finance, for example, Income Tax Act 1994 (double taxation agreements);
international communications, for example, Civil Aviation Act 1990, Maritime Transport Act 1994, Transport (Vehicle and Driver Registration and Licensing) Act 1986, Radiocommunications Act 1989, Telecommunications Act 1987;
international spaces, for example, Antarctic Marine Living Resources Act 1981, Territorial Sea and Exclusive Economic Zone Act 1977, Fisheries Act 1983;
environment, for example, Ozone Layer Protection Act 1990, Trade in Endangered Species Act 1989, Resource Management Act 1991;
assistance in legal proceedings, for example, Mutual Assistance in Criminal Matters Act 1992, Judicature Act 1908, Reciprocal Enforcement of Judgments Act 1934, Extradition Act 1965.
140 There is one further and final point to be made in relation to implementation generally, and that is the matter of what may be termed the process of continuing implementation. This relates in particular to governmental reporting to United Nations treaty committees – our ongoing obligation to continue the implementation of our international obligations (particularly in relation to human rights treaties) and revisit the necessity for the reservations made previously.
141 An example is the regular reporting by the government to Parliament on its attitudes to recently adopted International Labour Organisation Conventions, as required by the Constitution of the International Labour Organisation (226 NZPD 822). It may be suggested that insufficient advantage is taken of that process.142 A further example, and one where the process of continuing implementation is of particular importance in New Zealand, is the Treaty of Waitangi, and the Government’s ongoing obligations under that treaty.