New zealand law commission



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Teoh in appendix A, paras A25-A26. Contrast Perry, "At the intersection - Australian and International Law" (November 1997) 71 ALJ 841.

190 See appendix A, paras A65-A81, on the American practice.

191 Nottage, "New Zealand's foreign and trade policy: past and present" (1997) XXII(1) NZ Int Rev 18, 20.

192 Article 26 of the Vienna Convention requires New Zealand to fulfil a treaty in good faith once it has entered into force for this country: Small, correspondence, 29 October 1997. See also the International Law Commission's "Draft Articles on State Responsibility with Commentaries Attached" (1997).

193 Coll-Bassett, correspondence, 7 October 1997.

194 Palmer and Palmer, Bridled Power: New Zealand Government Under MMP (3rd ed, Oxford University Press, Auckland, 1997), 304.

195 Gobbi and Barsi, ii.

196 Jean-Marie Guehenno quoted in Keith, "Governance, Sovereignty and Globalisation", paper presented at the 1997 5th Biennial Conference of the New Zealand Council of Trade Unions, 15.

197 Only those countries considered to be politically, culturally and constitutionally comparable to New Zealand have been examined. A number of federal states are discussed, but it should be noted that issues which arise in the context of the distribution of power between the federal and state legislatures are not included since they are not relevant to New Zealand as a unitary state. The treaty law and practices of France, Germany, India, Switzerland, Thailand and the United Kingdom have recently been collected in a valuable American Society of International Law volume: Lee and Blakeslee (eds), National Treaty Law and Practice (1995). The Commission acknowledges the work of Kersti Hanson, a vacation researcher, who gathered much of the material presented in this appendix.

198 Australian Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (AGPS, Canberra, November 1995), 171-172. The table was prepared by the Australian Department of Foreign Affairs and Trade. The Department noted that amongst those countries classified as requiring some form of parliamentary approval, the types of treaties to which this applies vary markedly, and that the table does not cover European or Australian regional treaties.

199 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 106-117.

200 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 3.

201 Australian Federal Parliamentary Debates (Reps) 23rd Plt, 3rd session, vol 11 of R 31 1693; see similarly Senator Gorton in the Senate, vol S8, 857-858.

202 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 98-99.

203 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 101.

204 The Australian Department of Foreign Affairs and Trade has also contributed to the debate by publishing Australia and Treaty Making: Information Kit (AGPS, Canberra, 1994) which, among other things, shows a lower treaty acceptance rate by New Zealand compared with other OECD countries.

205 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 186-199.

206 Sir Ninian Stephen, a former member of the High Court of Australia and Governor-General, has also addressed the issues in a March 1995 public lecture, "Making Rules for the World" (30(2) Australian Lawyer 13 - extracts from his Sir Earle Page Memorial Trust Lecture).

207 For a more recent discussion of Teoh and the developing role of international law in the Australian judicial process see Perry, "At the intersection - Australian and International Law" (1997) 71 ALJ 841.

208 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 5.

209 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 92.

210 Australian Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee "Administrative Decisions (Effect of International Instruments) Bill 1997" (AGPS, Canberra, 1997).

211 House of Representatives, Hansard, 2 May 1996, 231-235; Joint Standing Committee on Treaties, The Parliament of the Commonwealth of Australia, First Report (AGPS, Canberra, 1996), 2.

212 Joint Standing Committee on Treaties, First Report, 2.

213 The Government Response to the Senate Legal Constitutional References Committee Report, 13 May 1996.

214 Joint Standing Committee on Treaties, First Report, 2; COAG Communique, 14 June 1996, 4, attachment C, 24-31.

215 The Government Response to the Senate Legal Constitutional References Committee Report, 13 May 1996.

216 Council of Australian Governments, Editor's Note, "Principles and Procedures for Commonwealth-State Consultation on Treaties" (1997) 8 Public LR 116.

217 The Joint Standing Committee on Treaties considers that the NIA should also include a discussion of the legal effects and potential areas of conflict with state and territory laws, and should identify the Commonwealth department or agency with primary carriage for a particular treaty along with relevant contact details: Joint Standing Committee on Treaties, First Report, 3.

218 By resolutions in both Houses in the 38th Parliament on 17 June 1996: Joint Standing Committee on Treaties, Treaties Tabled on 10 &11 September 1996, Second Report (AGPS, Canberra, 1996), v.

219 "Reform of the Treaty Making Process", statement delivered by the Hon Alexander Downer, Minister for Foreign Affairs, 2 May 1996; Council of Australian Governments, Editor's Note, "Principles and Procedures for Commonwealth-State Consultation on Treaties" (1997) 8 Public LR 116.

220 The Government Response to the Senate Legal Constitutional References Committee Report, 13 May 1996.

221 Joint Standing Committee on Treaties, First Report, 3-4. By June 1997, the Joint Standing Committee had published its eighth report.

222 "Reform of the Treaty Making Process", statement delivered by the Hon Alexander Downer, Minister for Foreign Affairs, 2 May 1996; Council of Australian Governments, Editor's Note "Principles and Procedures for Commonwealth-State Consultation on Treaties" (1997) 8 Public LR 117; COAG Communique, 14 June 1996, 4, attachment C, 26-27.

223 Piotrowicz, "Unincorporated treaties in Australian law: the official response to the Teoh decision" (1997) 71 ALJ 506.

224 The United Kingdom is a constitutional monarchy with a parliamentary system of government. The constitution is unwritten. The Parliament consists of the House of Commons, with 650 members, and the House of Lords, with 1200 members. The House of Commons is elected by universal suffrage. Most of the legislative power is vested in the House of Commons, while the House of Lords has limited power, but can review, amend, or temporarily delay any bill, except those relating to the budget. After referendums in 1997 limited Scottish and Welsh directly elected Parliaments are to be assembled.

225 Templeman, "Treaty Making and the British Parliament" (1991) 67 Chicago-Kent LR 459, 461.

226 Hudson, "Treaties and Parliament" (1996) 146 NLJ 341, 341.

227 Saunders, "Articles of Faith or Lucky Breaks?" (1995) 17 Sydney LR 150, 170.

228 Hudson, 341.

229 Hudson, 466.

230 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 103.

231 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 72-73.

232 The Parliament consists of delegates elected by each Member State and can be considered a democratic body. It is, however, the least powerful of the Union's institutions. The Council, which has no formal legislative powers, is made up of ministerial representatives of the governments of the Member States. Its actual composition varies according to the business under consideration. The Council does play an important advisory role and exercises influence over Union policy. The Commission is the executive institution of the Union, and is made up of appointed Commissioners who are bound to be completely independent in the performance of their duties. The Commission initiates policy proposals and puts legislative proposals before the Council.

233 Hudson, 472-480.

234 Downey, "Sovereignty, the Common Law, and the Treaty of Rome" (1992) NZLJ 185, 186.

235 Hudson, 341.

236 Clause 2 of the Treaties (Parliamentary Approval) Bill 1995/96.

237 Clause 3 of the Treaties (Parliamentary Approval) Bill 1995/96.

238 Clause 3 (2) of the Treaties (Parliamentary Approval) Bill 1995/96.

239 Clause 4 of the Treaties (Parliamentary Approval) Bill 1995/96.

240 Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey), Written Answers, Hansard, House of Lords, 16 December 1996.

241 An explanatory memorandum is not required for treaties which enter into force upon signature nor for Double Taxation Conventions. Guidelines for Explanatory Memoranda for Treaties Note by the Foreign and Commonwealth Office, December 1996.

242 France is a constitutional republic with a parliamentary system of government. The President is the head of state and the Prime Minister is the head of government. The executive branch consists of the President and the Council of Ministers, which is headed by the Prime Minister. The President is the dominant element in the French system of government, ensuring regular functioning of the public powers and the continuity of the state. The President appoints the Prime Minister and, on the advice of the Prime Minister, appoints the other members of the government (Council of Ministers). The Council of Ministers, presided over by the President, determines the policy of the nation and controls the agenda of Parliament. The Prime Minister is responsible for the operation of the government, the execution of laws and national defence. The legislative branch consists of a bicameral Parliament: the Senate and the National Assembly. Parliament's legislative power is restricted to specified questions which constitute the domain of law. Parliament has authority to establish fairly detailed rules in the following areas: civil rights, the determination of crimes and misdemeanours, taxes, electoral laws, and the nationalisation of industries. On other questions, such as the general organisation of national defence, the administration of local communities, education, property rights, and national economic planning, Parliament may only establish the "fundamental principles", leaving the details to be filled in by executive decrees.

243 Article 52 of the Constitution. Luchaire, "The Participation of Parliament in the Elaboration and Application of Treaties" (1991) 67 Chicago-Kent LR 341, 342.

244 Luchaire, 341.

245 Luchaire, 342-347.

246 Luchaire, 342-343.

247 Luchaire, 344.

248 Examples include the decision to participate in the military operations to liberate Kuwait in 1991 and the France-Germany Treaty of 1963.

249 Luchaire, 355-356.

250 The Constitutional Council decides jurisdictional disputes between Parliament and the government: Luchaire, 350-351.

251 The Kingdom of the Netherlands comprises two territories in the Caribbean, the Netherlands Antilles and Aruba as well as the territory in Europe. Only the kingdom has legal capacity in international law and therefore the power to conclude and become party to treaties. The Charter which unites and determines the relations between the separate parts of the kingdom is the highest national legal instrument in the kingdom, and the Constitution of the Netherlands is subordinate to it. Due to slight differences in constitutional arrangements, the discussion here is restricted to the treaty making practice of the European territory of the Kingdom of the Netherlands. The Netherlands Parliament or "States-General" (Staaten-Generaal) comprises two chambers: the Lower House with 150 members elected by universal suffrage, and the Upper House or Senate with 75 members elected by directly elected members of the Provincial Councils: van Dijk and Tahzib, "Parliamentary Participation in the Treaty Making Process of the Netherlands" (1991) 67 Chicago-Kent LR 413, 413 and 425.

252 Klabbers, "New Dutch Law on the Approval of Treaties" (1995) 44 International and Comparative LQ 629, 629.

253 Klabbers, 629.

254 van Dijk and Tahzib, 424-425.

255 Klabbers, 629.

256 Where a submission of this information would be against the interests of the kingdom, this requirement is relaxed, ie, where a prospective treaty partner is adamant that negotiations are to be kept secret: Klabbers, 631.

257 van Dijk and Tahzib, 425.

258 van Dijk and Tahzib, 424-425.

259 van Dijk and Tahzib, 426.

260 More than 75% of treaties to which the kingdom is a party have been approved under the tacit procedure: Klabbers, 634.

261 van Dijk and Tahzib, 428.

262 van Dijk and Tahzib, 428.

263 van Dijk and Tahzib, 424-425.

264 van Dijk and Tahzib, 425-426.

265 This exemption is contained in paragraph (a) of Article 7: Klabbers, 630.

266 Parliament still has the option of requiring a treaty to be subjected to parliamentary approval by virtue of Article 8 of the State Law: Klabbers, 631.

267 Klabbers, 632-633.

268 Klabbers, 632-633.

269 Klabbers, 635.

270 Schemers, "Netherlands" in Jacobs and Roberts (eds), The Effect of Treaties in Domestic Law (Sweet and Maxwell, London, 1987), 109.

271 van Dijk and Tahzib, 419.

272 Some commentators have noted that the State Law neglects to define exactly what a treaty is, and predict problems as a result. Whether clear distinctions can be drawn between treaties and policy and administrative agreements is yet to be established: van Dijk and Tahzib, 422.

273 The United States of America is a constitutional republic with a democratic system of government. Powers are divided between the federal and state governments. The President is the head of state and together with the Cabinet constitutes the federal executive branch. The federal legislature consists of a bicameral Congress: the Senate, with 100 members and the House of Representatives, with 435 members.

274 Fisher, "Congressional Participation in the Treaty Process" (1989) 137 Univ of Penn LR 1511, 1511-1512.

275 Although this has been a long standing practice, it was increasingly employed after the Second World War because among other reasons, the Senate's attachment of conditions to ratification unacceptable to President Wilson and the subsequent failure of the US to ratify the Treaty of Versailles were partially attributed to the absence of Senators on the American delegation: Reisenfeld and Abbott, "The Scope of the US Senate Control Over the Conclusion and Operation of Treaties" in Reisenfeld and Abbott (eds), Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (Martinus Nijhoff, Dordrecht, 1994), 266.

276 Reisenfeld and Abbott, 266.

277 (1972) 11 ILM, 1117 as noted in Jennings and Watts (eds), Oppenheim's International Law, vol 1, Parts 1-4 (9th ed, Longman, London, 1992), 77.

278 Reisenfeld and Abbott, 266.

279 Reisenfeld and Abbott, 267.

280 The Senate may also give its consent subject to an "understanding" or "declaration" as to the interpretation of certain treaty provisions, or subject to a proviso concerning the internal implementation of the treaty: Reisenfeld and Abbott, 268.

281 Glennon, "The Constitutional Power of the United States Senate to Condition its Consent to Treaties" (1991) 67 Chicago-Kent LR 533, 569-570.

282 Between 1932 and 1982 the United States entered into 608 treaties pursuant to the advice and consent of the Senate and 9548 executive agreements: Reisenfeld and Abbott, 302.

283 Reisenfeld and Abbott, 302.

284 Reisenfeld and Abbott, 302.

285 Fisher, 1511-1512.

286 Jackson, "United States", in Jacobs and Roberts (eds), The Effect of Treaties in Domestic Law, (Sweet and Maxwell, London, 1987).

287 This was done in the case of the International Covenant on Civil and Political Rights: Reisenfeld and Abbott, 205, 263.

288 Donaghue, "Balancing Sovereignty and International Law: the Domestic Impact of International Law in Australia" (1995) Adel LR, 213, 236.

289 Switzerland is a constitutional republic with a democratic system of government. Parliament consists of the Council of States, with 46 members, and a National Council, with 200 members. The two Houses have equal authority and can veto any legislation passed by the other House. All federal statutes are subject to a referendum vote, if initiated by 50 000 citizens. Also, 100 000 citizens have the right to initiate amendments to the Constitution on any subject matter as they see fit.

290 Wildhaber, "Parliamentary Participation in Treaty Making, Report on Swiss Law"(1991) 67 Chicago-Kent LR 438-442.

291 Wildhaber, 442-443.

292 Wildhaber, 443-444.

293 Wildhaber, 445-446.

294 Wildhaber, 445-446.

295 Canada is a federal parliamentary democracy, modelled on the Westminster system. The bicameral Parliament is formed under the Crown. The Constitution grants certain legislative powers to the Federal Parliament and certain legislative powers to the provincial parliaments. The Canadian Constitution Act of 1867 grants the provinces specific powers, with the balance of powers exercised by the Federal Parliament.

296 Hogg, Constitutional Law of Canada (3rd ed, Carswell, Toronto, 1992), 282-283.

297 Hogg, 282-283.

298 Lee (ed), "Canadian Practice in International Law During 1974 as Reflected in Correspondence and Statements of the Department of External Affairs", excerpts from a memorandum of June 11, 1974, written by the Bureau of Legal Affairs (1975), reproduced in The Canadian Yearbook of International Law, vol XIII, 367; noted in Prowse, "New Zealand Treaty Practice: A Reappraisal", LLB (Hons) dissertation, University of Otago, Dunedin, 1996, 45.

299 Hogg, 285.

300 Prowse, 44.

301 The approach taken by the Privy Council has been criticised and since the abolition of appeals to the Privy Council, the Supreme Court of Canada has indicated the possibility that it will reconsider the reasoning in the Labour Conventions case: Hogg, 294.

302 In 1998 the Law Commission itself will be establishing an internet website where its publications, such as A New Zealand Guide to International Law and its Sources (nzlc r34 1996), and this report will be available.

303 Some of the major "treaty" website addresses were noted in a review by Mark Gobbi (1996) 19(4) Public Sector 26.
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