ADDRESSING MÄORI CONCERNS
193 Mäori concerns the lack of consultation by their treaty partner over various international agreements and lack of control over the creation of international obligations have been noted earlier. Steps to consult with Mäori could be included in the above proposals, as part of a Treaty Committee process. As suggested above, the effect of a proposed international agreement upon iwi Treaty of Waitangi partners could be included as a necessary part of any treaty impact statement.
194 Further, broader, suggestions have been made, some specifically using the concept of intellectual property to provide protection against the possible creation of inappropriate international obligations.179 Much consideration beyond the scope of this report is required before policy can be formed.
195 The Law Commission recommends that, so far as practicable, legislation implementing treaties or other international instruments give direct effect to the texts, that is, use the original wording of the treaties, and that when that is not possible, the legislation indicate in some convenient way its treaty or other international origins.
196 The governing principle is that national law must give full effect to relevant treaty provisions as it must give full effect to other rules of international law. States cannot excuse non-compliance with their international obligations by reference to inadequate national law (see article 27 of the Vienna Convention on the Law of Treaties). Governments need to have practical arrangements to ensure that happens. As noted earlier, the Cabinet Office Manual requires Ministers, when proposing new legislation to report on the proposal’s compliance with New Zealand’s international treaty obligations and the New Zealand Bill of Rights Act 1990 (the latter closely follows the International Covenant on Civil and Political Rights). The Human Rights Committee, set up under the Covenant, has recently called attention to that linkage.
197 In many cases the best means of giving full effect to the treaty is that the treaty text itself is given the force of law.180 Whether, in the case of each particular treaty, this “force of law” implementation method is practicable depends upon the specificity and precision of the language used in the treaty text. The “force of law” legislative technique is then to be supplemented by a judicial approach which, according to Lord Wilberforce (quoting Lord Macmillan), is to be appropriate for the interpretation of an international convention, unconstrained by technical rules of English law or English legal precedent, and on broad principles of general acceptation.181 That international approach to the interpretation of treaties is now facilitated by the provisions of articles 31 to 33 of the Vienna Convention on the Law of Treaties. It is also facilitated by directions in particular treaties, such as article 7 of the United Nations Convention on Contracts for the International Sale of Goods, which requires that regard be had to its international character, the need to promote uniformity in its application, and the observance of good faith in international trade.182
198 Such an approach to interpretation can also be adopted when treaties, although not directly implemented or not even mentioned in the text, are recognised as relevant to the legislation.183 It is, however, easier to justify such an international approach where the relationship to the treaty is explicit. The lack of reference might also mean that the treaty connection is neglected, not only when the relevant legislation is being interpreted, but also when it is being reviewed. As mentioned already, such neglect increases the danger of inadvertent breach.
199 If the implementing legislation cannot give the treaty text the direct force of law, practice also indicates that the significance of the treaty can often be indicated in other ways. For example, an indication can be included in the title, preamble, a purpose provision, as a limit on or in the definition of delegated legislative powers or administrative powers (as in extradition provisions), or in a simple note in the text of the legislation. Such notation is relevant to new legislation, amending acts, and to acts which are unchanged but have been subsequently recognised as implementing a new treaty obligation.
200 Indeed, one of the 11 recommendations made by the Clerk of the House184 is that “any legislation to implement a treaty should, in its title, its preamble or in a purpose clause, make it explicit that it is being promoted for the purpose of permitting New Zealand to ratify the treaty”.
201 The changes necessary to enforce this recommendation and to standardise preferred forms of implementing legislation may, to be effective, require a direction of the Attorney-General to Parliamentary Counsel. There is legal power to give such directions under the Statutes Drafting and Compilations Act 1920, s 2(2) (and see also s 5(a)).185
202 It is worth mentioning the work of the International Law Commission (ILC).186 The ILC has a real interest in the question of acceptance and implementation of treaties in connection with the need for a body (in the Commonwealth and elsewhere) to undertake an important technical role of providing advice and assistance for states on how best to implement international treaty obligations in domestic legislation. This is in the hope that standard practice may then develop. The ILC may be able to give “a general push in that direction” although is not set up to give such assistance itself.187
recent experience . . . suggests two relevant concrete developments to which the ILC [International Law Commission] and its secretariat might be able to contribute. One is to examine again facilitating access to the sources of international law, a matter emphasised in article 24 of the Statute. . . . The second matter, to be related to the work on the greater acceptance of multilateral treaties and the multilateral lawmaking process, concerns the methods of implementation of multilateral treaties through national legal systems. While there are important differences between constitutional systems, many common threads exist. A great deal can be learnt by studying different methods of implementation.188