New zealand law commission



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THE COURTS


37 While the courts are not involved directly in the treaty making process, they are increasingly involved in the results, for example, in the construction of and decisions concerning statutes which fulfil or may fulfil New Zealand’s treaty obligations. In that sense the courts can become part of the general process of treaty implementation.

The extent to which treaty obligations may be examined or analysed in domestic courts, or give rise to claims in domestic courts, is a matter for domestic law. The existence of the treaty obligations as a commitment between the state parties thereto is a matter for international law.42

38 It is established in New Zealand that treaties do not, as in the United States of America, have direct effect upon our domestic law43 – recall the House of Lords statement:

International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty’s Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation.44

39 Nor have New Zealand courts followed the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 27345 and held that the execution of a treaty gives rise to a legitimate expectation that administrative decisions will take into account the international treaty obligations.

40 It is well settled that to the extent that New Zealand domestic law may be uncertain, that uncertainty should be resolved in a way that avoids contravention of New Zealand’s international obligations.46 In Tavita v Minister of Immigration [1994] 2 NZLR 257, which related to a binding provision in the Convention on the Rights of the Child unincorporated in domestic law, Cooke P (as he then was) observed that

[t]he law as to the bearing on domestic law of international human rights, and instruments declaring them, is undergoing evolution. For the appellant Mr Fliegner drew our attention to the Balliol Statement of 199247 . . . with its reference to the duty of the judiciary to interpret and apply national constitutions, ordinary legislation and the common law in the light of the universality of human rights. . . . A failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them.48 [footnote added]

The court was critical of any suggestion which might imply that New Zealand’s adherence to international instruments was at least partly “window dressing”.

41 More recently the Court of Appeal in New Zealand Airline Pilots’ Association Inc v Attorney-General49 considered a relevant provision in the Chicago Convention on civil aviation. Although the particular convention provision was not binding (expressed in “may” rather than “shall” terms) and did not form part of domestic law, the court held that so far as the wording of legislation allows, the legislation should be read in a way consistent with New Zealand’s obligations. Further, such an interpretation applies whether or not the legislation was enacted with the purpose of implementing the relevant text.

42 In summary, when considering the treaty making process, it should not be thought that a treaty which has not been the subject of legislation is irrelevant to the New Zealand legal system.50


3 What is the current significance of treaty making?


43 The broader context for the treaty making process, and therefore for this report, is the internationalisation of the law, the forces of globalisation, and matters of sovereignty and democratic deficit. These provide compelling reasons for re-examining the treaty making process at the end of the 20th century.

THE INTERNATIONALISATION OF LAW, GLOBALISATION AND SOVEREIGNTY


44 The world is being affected in massive ways by major developments in science and technology, on the environmental front, in ecology, trade and financial arrangements, communications, agriculture, food and health, population growth and movement, methods of warfare, ideology and political arrangements – to mention some matters at this extraordinary time. These changes have been occurring incrementally for a very long time, gradually at first:

After a very long period of gradual globalisation, the era post World War II was characterised by an enormous surge of new issues or technologies and their potential for increasing co-operation or antagonism, and by a dramatic increase in the number of independent sovereign states which again must either co-operate or antagonise.51

45 Witness the expansion of the international community from the 50 founder member states of the United Nations, to the membership as at 31 May 1997 of 185 states. Another indication is that in 1950 New Zealanders, in the course of the whole year, made 5,793 overseas telephone calls, or just under 16 a day (figures from the Post Office records). When the information was last publicly available the daily figure had reached 100,000 (not including faxes and emails).52

46 Those changes have a legal reflection in a vast range of treaties among other sources of international law. The United Nations treaty lists show that two treaties (at least) are signed every day. In accordance with the principle, stated by President of the United States, Woodrow Wilson, at the end of World War I, that covenants are to be “open”,53 well over 30,000 treaties have been registered with the United Nations.54 Those treaties limit the powers of states in multifarious ways.55

47 As noted in the Cabinet Office Manual56

[m]ajor changes in . . . trade patterns, . . . financial systems, . . . the environment and many other matters of international concern mean that more and more law is made through international processes. The powers of national governmental institutions are correspondingly reduced. This has important consequences for national and international constitutional processes.

48 The idea of a national Parliament with full power to make whatever law it likes without any constraint from outside, from the rest of the world, was never an accurate one. With the massive changes just mentioned, that idea has become more and more a distraction and an impediment to careful thought about arrangements for lawmaking. Consider, for example, the cautious formulation by the United Nations Secretary-General in his major report to the Security Council in 1992, An Agenda for Peace:

Respect for [the] fundamental sovereignty and integrity [of States] are essential to any common international progress. The time of absolute and exclusive sovereignty, however, has passed; its theory was never matched by reality. . . . Globalism and nationalism need not be viewed as opposing trends, doomed to spur each other on to extremes of reaction. . . . Respect for democratic principles at all levels of social existence is critical, within States and within the community of States.57

49 Further, this statement by a New Zealand Prime Minister:

We live in a globalised world economy. . . . Individual countries, no matter how large or powerful, cannot themselves deal with such transnational issues as climate change, capital flows, resource conservation and drug trafficking. . . . The role of Government in international relations is increasingly one of identifying and aligning self interest with the values most of its electorate hold to be important, and then protecting and projecting those values into its dealings with other Governments and international organisations. . . . In an inter­dependent world, pure sovereignty – the complete control of one’s own affairs – is not possible.58

50 New Zealand, because of its size and position, cannot hope to create all “rules” within its own boundaries and be unaffected by others. New Zealand, for instance, accounts for a mere 0.2–0.3% of the world’s trade.

51 “Globalisation also implies an intensification in the levels of interaction, interconnectedness, or interdependence between the states and societies that constitute the modern world community.”59 Consider, for example, the worldwide communication and data trading achieved through the internet.60 The United Nations Development Programme’s latest Human Development Report (entitled The Shrinking World) notes that the use of the internet is doubling every year and telecommunications are increasing at 20% per year.61 The realities of an increasingly globalised world require a shift in the objects and aims of international law itself. The focus of international law was traditionally primarily concerned with the boundaries between countries and the protection of citizens and territory from other states; while the object of modern international law must be co-operation rather than protection.62 Correspondingly, treaty making practice has become increasingly important both in the international sphere and in its effect at the domestic level. The means by which New Zealand’s own foreign relations are conducted must be considered in that light.

52 The increasing internationalisation of law has had a ripple effect throughout domestic law, both legislation and the common law. The Commission considers accordingly that it is insufficient to continue discussion of treaty making issues solely in terms of the traditional separation of powers – that in New Zealand Parliament makes the law, the executive governs the country within the law, and the judiciary declare and enforce the law. Within that power split, it has traditionally been the executive which negotiates treaties and is politically responsible through checking and reporting processes to Parliament – the law making body. To respond to the surge in the internationalisation of law, such checking, reporting and approval functions and mechanisms need to be updated, and involve a greater role for Parliament. As the Ministry of Justice observed:

Because the growing body of international law is having an increasing impact on domestic law, involving Parliament in the treaty-making process may be an historical inevitability. The old law and practices may have been adequate for a time when international law was relatively young and unimportant. However, in the world of internationalisation, especially in the areas of economics and human rights, New Zealand’s treaty-making process may well be overdue for re-evaluation and change.63

53 Issues of sovereignty commonly arise in relation to the topic of international law and treaty making. It is interesting to note that

the first real examples of true, useful co-operative functional treaty making arose from the desire of states to extend their sovereignty by securing rights which their existing sovereignty did not accord them, for example, to pass messages through cables or wires in adjacent European countries.64

More recently sovereignty issues are expressed as a concern that growing internationalisation of law, with more law being made offshore, will result in loss of independence. The effect of treaty making upon national sovereignty is expressed by former Australian Governor General, Sir Ninian Stephen as follows:

[I]t has been estimated that no less than fifty thousand international instruments have come into existence in the past fifty post-war years and that a whole horde of intergovernmental agencies, some two thousand of them, now exist, most of them busy rule-making for the world.

What this amounts to is a partial transference by nations of their sovereignty in recognition of their interdependence one with another, or their absolute need in today’s world to relate to other nations and to do so in part through the medium of international treaties and conventions giving rise to new international law and involving a diminution of sovereignty and a growth of common-form laws.65

54 Similarly, New Zealand’s corresponding freedom to choose whether to become a party to a treaty has diminished. In some cases New Zealand may not have a real choice whether it should enter an international agreement where, for instance, the text is widely supported and failing to accede would prove detrimental to the national interest. Further, there may be instances where decisions at an international level are automatically binding without action on the government’s part. For example, by virtue of its membership of the United Nations New Zealand is obliged to give effect to decisions made by the Security Council under Chapter VII of the United Nations Charter.66

55 Conversely, the point has been made that treaties may also be a means by which New Zealand can enhance its sovereignty. By working with other countries to achieve goals and to put a brake on unilateral behaviour by larger states, New Zealand can exercise a greater influence than if acting on its own.67 A different view expressed is that a country actually exercises its state sovereignty when it negotiates, concludes and ratifies treaties. The core issue then becomes not whether state sovereignty is restricted but whether the exercise of state sovereignty restricts parliamentary sovereignty (that is, its legislative freedom) to an unacceptable extent.68

56 In sum, the process of globalisation means that states have not, for many years, existed in “splendid isolation”.69 Consequently, treaty making practice and the functioning of traditional doctrines of national constitutional law such as Parliamentary supremacy and sovereignty must be re-examined. This re-examination must take place in light of an increasing number of activities which are conducted on a transnational basis, and the fact that national actions increasingly have international ramifications.70


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