New zealand law commission



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Endnotes


1 See Heath, "A Legal Infrastructure for Electronic Commerce?", Paper for the Asia Pacific Economic Law Forum, Christchurch, 6 December 1997. As that paper indicates the Law Commission has in 1997 started a project on electronic commerce and international trade.

2 1990-1999.

3 See Ministry of Foreign Affairs and Trade, Report of the Ministry of Foreign Affairs and Trade for the year ended 30 June 1997, 1997 AJHR A.1, 10-13.

4 The outstanding example is New Zealand's founding document, the Treaty of Waitangi. See also the Ministry of Foreign Affairs and Trade recent publications, as part of the New Zealand Treaty Series: New Zealand Consolidated Treaty List as at 31 December 1996: Part One (Multilateral Treaties) 1997 AJHR A.263, and New Zealand Consolidated Treaty List as at 31 December 1996: Part Two (Bilateral Treaties) 1997 AJHR A.265.

5 The focus of the report upon the treaty making process requires discussion of both international and domestic law. It is therefore useful to distinguish the two. International law is created outside New Zealand and governs the relations between international persons such as states and international organisations. Domestic law on the other hand (which may also be referred to as national or municipal law) is created within a state and regulates the relations of its citizens with each other and with the executive. It may apply to foreign states acting in a non-governmental capacity. Many domestic statutes give effect to treaty provisions or empower the government to give effect to them. This might be through the adoption of standard setting instruments such as United Nations resolutions or declarations, or through the adoption of legally binding instruments. Treaties are the primary medium for the creation of rights and the assumption of obligations by states: Brownlie, Principles of Public International Law (4th ed, Clarendon Press, Oxford, 1990), 33. (See the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), appendix C, "Statutes with possible implications for New Zealand treaty obligations".) This expression of two legal systems, international and domestic, is the dualist theory of law. The monist theory of law, that contends there is just one system of law containing international and domestic elements and in which the international law is supreme even within the domestic sphere, is not recognised by New Zealand courts. See also Higgins, Problems & Process: International Law and How We Use it (Clarendon Press, Oxford, 1994), chapter 12.

6 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347-348 (a Canadian case often referred to as the Labour Conventions case).

7 See Perry, "At the intersection - Australian and International Law" (November 1997) 71 ALJ 841. See also the International Law Commission's "Draft Articles on State Responsibility with Commentaries Attached" (1997).

8 See detail in chapter 7. See also A New Zealand Guide to International Law and its Sources, and the Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (Report 6, Wellington, 1991) appendix E, "Treaties: what are they, what do they do, how are they made and how are they given effect?".

9 The formalisation of the role of the Sovereign and of the separation of powers in New Zealand can be seen in the provisions of the Constitution Act 1986 ss 6-24.

10 Joseph, Constitutional and Administrative Law in New Zealand (Law Book Company Limited, Sydney, 1993), 5. See para 11 of this report for detail of who may have treaty making powers.

11 Joseph, 5. The debate over how far these functions of Parliament should extend can be seen in paras 79-98. The Constitution Act 1986 reaffirms constitutional principles about parliamentary control of public finance, in that the Crown may not levy taxes, raise loans, or spend public money except by or under an Act of Parliament.

12 Parliament is very rarely involved in the second, acceptance, stage of treaty making - see paras 25-32.

13 Joseph, 5; the role of the courts is considered further in paras 37-42 of this report.

14 For an historical perspective on New Zealand's treaty making ability and process see appendix 2 "Treaties, Conventions and Trade Agreements" in Ringer, An Introduction to New Zealand Government (Hazard Press, Christchurch, 1991), 320. Much of the material in this and the following paragraphs has already been published in the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), paras 27-33, and in the Legislation Advisory Committee's Legislative Change: Guidelines on Process and Content, Report 6, Wellington, 1991, appendix E, "Treaties: What are they, What do they do, How are they made, and How are they Given Effect?" (Law Commission 1991).

15 The Vienna Convention on the Law of Treaties 1969 is reproduced in appendix A in A New Zealand Guide to International Law and its Sources. It is also available on several Internet websites - see appendix B of this report. New Zealand is a party to the Vienna Convention and is therefore bound by the rules it established.

16 This latter authority is usually conferred under a formal written authority called an instrument of "full powers" - which may also be issued on occasion to persons who have the intrinsic authority mentioned above: Small, correspondence, 20 October 1997. Article 2(1)(c) of the Vienna Convention defines full powers as "a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty". Further, article 7(1) (Full powers) states that a person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if he produces appropriate full powers, or it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes. Article 7(2) lists those considered as representing their State without having to produce such full powers. It should be noted that "in international practice these days full powers really refers only to the instrument that states issue authorising a named representative to sign a treaty. It does not have anything to do with the negotiation or authentication of treaty texts": Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

17 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347-348. The case concerned the limitation of the federal power to implement international obligations in areas of provincial jurisdiction without provincial co-operation. It is considered further in paras 81-86.

18 J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 476. See also Maclaine Watson & Co Ltd v International Tin Council [1988] 1 Ch 1; Maclaine Watson & Co Ltd v International Tin Council (No 2) [1989] 1 Ch 72, 253, 286; Re International Tin Council [1989] 1 Ch 309; Keith, "The Treaty of Waitangi in the Courts" (1990) 14 NZULR 37, 44.

19 McNair, The Law of Treaties (Clarendon Press, Oxford, 1961), see in particular part 1, "The Conclusion of Treaties".

20 New Zealand Consolidated Treaty List as at 31 December 1996: Part Two (Bilateral Treaties) 1997 AJHR A.265, 10.

21 Report of the Ministry of Foreign Affairs and Trade for the year ended 30 June 1997, 1997 AJHR A.1, 36-41.

22 Comment from meeting between the Law Commission and the Deputy Secretary, Ministry of Foreign Affairs and Trade, Don MacKay. The Ministry of Foreign Affairs and Trade does not have a formal manual on treaty making processes (eg, negotiation processes). The Legal Division has, however, set out various `general instructions' on treaty making for staff. (The Law Commission was not able to obtain copies of these general instructions as MFAT advised that the instructions were in the process of being rewritten, September 1997).

23 Attaching the text of the treaty to the Cabinet paper is a recent requirement of the Cabinet Office rather than a practice of long standing, and is apparently not, for practical reasons, followed in the case of large treaties: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

24 See further Chinkin, "Global Summits: Democratising International Law-Making?" (1996) 7(4) Public LR 208.

25 "Signature has as one of its functions that of text authentication, but a text may be authenticated in other ways, for example . . . by initialling": Brownlie, Principles of Public International Law (4th ed, Clarendon Press, Oxford, 1990), 606.

26 Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

27 See article 18 of the Vienna Convention on the Law of Treaties detailed in para 24.

28 Legislative Change: Guidelines on Process and Content, appendix E; MFAT, New Zealand Consolidated Treaty List as at 31 December 1996: Part One (Multilateral Treaties) 1997 AJHR A.263, 17.

29 New Zealand Consolidated Treaty List: Part One (Multilateral Treaties).

30 One exception is customary international law derived from a treaty which is binding on all nations: North Sea Continental Shelf Cases (Denmark and The Netherlands v Germany) [1969] ICJ Rep.1; Paramilitary Activities Case (Nicaragua v USA) [1986] ICJ Rep.14. International practice may have initially developed under the auspices of a (multilateral) treaty but as the custom develops the obligation eventually applies to non-signatory parties as well. Article 38 (1)(a) and (b) of the Statute of the International Court of Justice states that the court shall, in determining disputes in accordance with international law, apply international conventions, and international custom as evidence of a general practice accepted as law. A further exception is that a state may have an actual right arising from a treaty to which it is not a party - see Articles 36-38 of the Vienna Convention; for example, New Zealand was not a party to but enjoyed third party benefits under the 1972 `Protocol 18' (EEC and butter imports to the UK). Brownlie, Principles of Public International Law (4th ed, Clarendon Press, Oxford, 1990), 3; Higgins, Problems & Process: International Law and How We Use it (Clarendon Press, Oxford 1994), 210; Davidson, correspondence, 16 October 1997; Small, correspondence, 20 October 1997.

31 Legislative Change: Guidelines on Process and Content, 79-80.

32 See article 19 of the Vienna Convention on the Law of Treaties.

33 MacKay (Deputy Secretary, MFAT), "Treaties - A Greater Role For Parliament?" (1997) 20(1) Public Sector 6. The Ministry of Justice has noted in relation to this practice, however, that Parliament rarely takes legislative action contrary to Cabinet's expectations and that the practice is not always followed: Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997), 25; see also paras 94-98 on related issues.

34 This presumes that it is clear that the legislation implements a treaty and the precise nature of the treaty obligations involved.

35 In effect, such treaties may be described as self-executing, although not in the strict legal sense. See further paras 130-131 and material in appendix A.

36 Except that is for legislative amendments focused on two specific issues.

37 MacKay, 6.

38 Gobbi and Barsi, 30-31.

39 But the assumption is increasingly challenged - see discussion of issues concerned with the role of the courts in paras 87-93.

40 See description of this term in paras 129-131.

41 See detail on implementation in chapter 6.

42 Higgins, 210.

43 Hoani Te Heuheu Tukino v Aotea District Mäori Land Board [1941] AC 308; [1941] NZLR 590. See also Keith, "The Treaty of Waitangi in the Courts" (1990) 14 NZULR, 37, 44-45, which notes that the New Zealand courts have adopted this position specifically in respect of the Treaty of Waitangi with Myers CJ in the Court of Appeal in Tukino ([1939] NZLR 107, 120) stating "[a] treaty only becomes enforceable as part of the municipal law if and when it is made so by Legislative authority". The article further notes that on appeal in that case the Privy Council (AC 308, 324; NZLR 590, 596-597) was persuaded by Mr AT Denning KC that "[i]t is well settled that any rights purporting to be conferred by such a treaty of session cannot be enforced in the Courts, except in so far as they have been incorporated in the municipal law". This statement is cited in later cases, notably New Zealand Mäori Council v A-G [1987] 1 NZLR 641, 655, 667-668, 691, 715.

44 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418.

45 See Perry, "At the intersection - Australian and International Law" (1997) 71 ALJ 841. Teoh has been cited in the following New Zealand cases: Attorney-General v Transport Accident Investigation Commission (unreported, HC, Wellington, 18 December 1996 CP 164/96 CP 180/96); Lawson v Housing NZ [1997] 2 NZLR 474; Patel v Chief Executive of Department of Labour [1997] 1 NZLR 102 (see also unreported, 5 March 1997, CA 220/96); Puli'uvea v Removal Review Authority [1996] 3 NZLR 538; New Zealand Mäori Council v Attorney-General [1996] 3 NZLR 140; and Elika v Minister of Immigration [1996] 1 NZLR 741.

46 See Mortensen v Peters 1906 SLT 227. See also Bennion, Statutory Interpretation (2nd ed, Butterworths, London, 1992), 564. It should be noted that liability for failure to comply with or give effect to New Zealand's international obligations is at the international level in relation to the other parties to the treaties: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

47 The full text of which appears in 67 ALJ 67. It has since been reaffirmed in the Bloemfontein Statement of 1993 (in turn followed and reaffirmed by the Georgetown Statement).

48 Tavita considered the import of the UN Convention on the Rights of the Child. This Convention was also considered in the United Kingdom case R v Sec of State, ex p Venables [1997] 3 All ER 97 where Lord Browne-Wilkinson stated that

the United Kingdom (together with 186 other countries) is a party to the UN Convention on the Rights of the Child. . . . The Convention has not been incorporated into English law. . . . But it is legitimate in considering the nature of detention during Her Majesty's pleasure . . . to assume that Parliament has not maintained on the statute book a power capable of being exercised in a manner inconsistent with the treaty obligations of this country. Article 3.1 requires that in the exercise of administrative as well as court powers the best interests of the child are a "primary consideration".



See also Puli'uvea v Removal Review Authority [1996] 3 NZLR 538; Rajan v Minister of Immigration [1996] 3 NZLR 543, 551; Wellington District Legal Services Committee v Tangiora (unreported, 10 September 1997, CA 33/97).

49 Unreported, 16 June 1997, CA 300/96; 301/96; see also Butler v Attorney-General & Refugee Status Appeals Authority (unreported, 13 October 1997, CA 181/97).

50 See A New Zealand Guide to International Law and its Sources, paras 65-73. See further Bennion, 564-569. Issues related to the role of the courts are discussed in paras 87-93.

51 Small, correspondence, 20 October 1997. Note, however, that in one day of 1938 the Government ratified 22 conventions of the International Labour Organisation which was "an intervention on the co-operative treaty front which we have never subsequently equaled".

52 Keith, "Governance, Sovereignty and Globalisation" paper presented at the 1997 5th Biennial Conference of the New Zealand Council of Trade Unions, 3.

53 "Open covenants of peace openly arrived at", Address to Congress, 8 January 1918. First of Fourteen Points.

54 Palmer and Palmer, Bridled Power: New Zealand Government Under MMP, (3rd ed, Oxford University Press, Auckland, 1997), 301. The obligation to register treaties with the United Nations is contained in article 102 of the United Nation's Charter and article 80 of the Vienna Convention on the Law of Treaties; Davidson, correspondence, 16 October 1997. The Parliamentary Library in Wellington, as an official repository of international documents, holds copies of all treaties registered with the UN; see further detail on finding treaties in the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), paras 74-107.

55 The emphasis in this report on formal treaty making should not obscure the other ways in which international rules and practices get established.

56 Cabinet Office Manual, (Cabinet Office, Wellington, 1996), 7.

57 Boutros-Ghali, An Agenda for Peace (United Nations, 1992), paras 17, 19 - a report of the Secretary-General pursuant to the statement adopted by the summit meeting of the Security Council on 31 January 1992. There is a 1995 2nd edition.

58 Bolger, address to the Institute of International Affairs Annual Dinner, Wellington, 6 June 1997, 3 and 7.

59 Held and McGrew, "Globalisation and the Liberal Democratic State" in Sakamoto (ed), Global Transformation: Challenges to the State System (United Nations University Press, Tokyo, 1994), 58-59; Alston, "Reform of Treaty-Making Processes: Form Over Substance", Alston and Chiam (eds), Treaty-Making and Australia, (Federation Press, Sydney, 1995), 3.

60 See appendix B for a list of some of the internet websites relevant to treaties and treaty making.

61 Cited in Keith, "Governance, Sovereignty and Globalisation", 3.

62 Burmester, "National Sovereignty, Independence and the Impact of Treaties and International Standards" (1995) 17 Sydney LR, 127, 132. "Traditional" in this context would refer to a period only up to mid 19th-century: Small, correspondence, 20 October 1997. It should also be realised that this statement reflects Western preoccupations, as developing states are still very much concerned with territory and state building: Davidson, correspondence, 16 October 1997. See also Sunday Star Times "Trade puts Nigeria in the background" 26 October 1997 which reports the Malaysian Prime Minister at CHOGM, Edinburgh, October 1997, accepting globalisation but calling for a properly legislated code of behaviour to protect the weak from the strong. In relation to freeing up world trade he stated "[m]any of us have struggled hard and even shed blood in order to be independent. When borders are down and the world becomes a single entity, independence can become meaningless".

63 Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, 1997), 3. It can be noted, however, that the old practices were superior in one respect (the Parliamentary role) than the present ones: Keith, correspondence, 14 October 1997.

64 Small, correspondence, 20 October 1997.

65 Stephen, "The Expansion of International Law - Sovereignty and External Affairs", Sir Earl Page Memorial Trust Lecture, 15 September 1994, 3, noted in Australian Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (AGPS, Canberra, 1995), 240.

66 Keith, "Sovereignty? A Legal Perspective", Wood and Leland (eds), in State and Sovereignty: Is the State in Retreat? (University of Otago Press, Dunedin, 1997).

67 Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

68 Gobbi and Barsi, 14.

69 Burmester, 131.

70 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 178-179.

71 The term "democratic deficit" was reportedly coined in the context of European Community institutions, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 229.

72 Gobbi, "Participating in the Treaty-Making Process", paper presented to the United Nations Association of New Zealand, 29 July 1997, 1.

73 Stephen, "Making rules for the world", (1995) 30(2) Australian Lawyer 14. This statement highlights the connection of "democratic deficit" issues to those concerning consultation.

74 In New Zealand Mäori Council v Attorney-General [1994] 1 NZLR 513, 517 the Privy Council notes the Crown's obligation under the Treaty of Waitangi to protect täonga such as the Mäori language by "taking such action as is reasonable in the prevailing circumstances". The preamble to the Mäori Language Act 1987 recognises Mäori language as täonga guaranteed by the Treaty of Waitangi.

75 Law Commission, Intellectual Property: The Context For Reform, (nzlc r13, 1990), 3.

76 On the 12-18 June 1993 in Whakatane, Aotearoa New Zealand, the 9 tribes of Mataatua in the Bay of Plenty convened the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples. Over 150 delegates from 14 countries attended and on the final day the Declaration was passed by the Plenary. The Declaration is reproduced as appendix E in Mana Tangata: Draft Declaration on the Rights of Indigenous Peoples (Te Puni Kokiri, Wellington, 1994).

77 Mead, "Misappropriation of Indigenous Knowledge: The Next Wave of Colonialisation", (1994) 3(1), Otago Bioethics Report 4-7; Lenihan, (Ngai Tuahuriri, Ngai Tahu Whanui) "A Time For Change: Intellectual Property Law and Mäori", (1996) 8(1) AULR 212.

78 Thrush, Indigenous Flora and Fauna of New Zealand, Waitangi Tribunal Research Series 1995/1 (WAI 262, Wellington, 1995). This Tribunal report includes discussion of intellectual property law and indigenous peoples issues, relevant legislation and possible responses. Further, the Waitangi Tribunal began in September 1997 hearing the Intellectual Property Claim proper (WAI 262), otherwise known as the Flora and Fauna Claim lodged by six iwi in 1991. The claim seeks Mäori guardianship of native flora and fauna and intellectual property rights over their culture. It is also supported by GATT Watchdog groups who focus upon foreign control of domestic resources under GATT and APEC trade agreements. See also Mana News, Morning Report, National Radio, 15 September 1997; Morning Report, National Radio, 16 September 1997; Dominion, 16 September 1997, 2.
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