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Ministry of Foreign Affairs and Trade --- "International Decisions Involving New Zealand" [2004] NZYbkIntLaw 18; (2004) 1 New Zealand Yearbook of International Law 345

INTERNATIONAL DECISIONS INVOLVING NEW ZEALAND

Ministry of Foreign Affairs and Trade^*

I. Decisions of the World Trade Organisation

United States – Definitive Safeguard Measures on Imports of Certain Steel Products

In mid 2002, New Zealand - along with Brazil, China, the European Union, Japan, Korea, Norway and Switzerland - mounted a formal WTO challenge to the safeguard measures that the US imposed in March 2002 that year on a range of steel products, including a 30 percent tariff on products exported by Newmanufacturers. The Panel ruled in July 2003 that the safeguards breached the US obligations under Article XIX of the GATT 1994 and Articles 2.1, 3.1 and 4.2 of the WTO Agreement on Safeguards. It also exercised judicial economy and did not rule on a number of other claims made by the complainants. The US appealed the Panel’s ruling and in November 2003 the WTO Appellate Body ruled heavily in favour of the arguments presented by New Zealand and its fellow respondents. On 4 December 2003 the United States President announced that the safeguard measures would be removed with effect from 5 December 2003. This immediate implementation was recognition in part of the strength of the Appellate Body’s ruling.

Japan – Measures Affecting the Importation of Apples

In May 2002 the United States brought WTO dispute settlement proceedings against Japan in relation to its restrictions intended to protect it against the introduction of fire blight. New Zealand was a third party in these proceedings along with Australia, Brazil, the EC and Chinese Taipei. The United States argued that Japan’s fire blight measures on apples breached the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) in that they were being maintained without sufficient scientific evidence and not based on an appropriate risk assessment. New Zealand made substantial submissions to the Panel, pointing to the lack of any evidence that fire blight had ever been introduced into any area through mature apple fruit. The Panel ruled that the Japanese measures breached the SPS Agreement. In November 2003 the Appellate Body upheld the Panel’s legal and factual findings on the WTO-inconsistency of Japan’s measures relating to apples.

II. Views Adopted by the Human Rights Committee¹

Sahid v New Zealand, Communication No 893/1999, Views adopted 28 March 2003

The author, a Fijian citizen who had been living in New Zealand, alleged on behalf of himself, his daughter and his grandson that his removal from New Zealand to Fiji amounted to violation by New Zealand of Articles 23(1) and 24(1) of the International Covenant on Civil and Political Rights. The Committee found that the author did not have standing to present a claim on behalf of his daughter and grandson, and these claims were therefore inadmissible. The Committee noted its earlier decision in Winata v Australia that in extraordinary circumstances a State Party must demonstrate factors justifying the removal of persons within its jurisdiction that go beyond simple enforcement of its immigration laws in order to avoid a characterisation of arbitrariness. In this case, the author’s removal to Fiji left his grandson with his mother and her husband in New Zealand. Given the lack of exceptional factors in this case, the Committee found that the author’s removal was not contrary to his right under Article 23(1) of the Covenant and concluded that there was no breach of any of the Articles of the Covenant by New Zealand.

Joslin et al v New Zealand, Communication No 902/1999, Views adopted 17 July 2002

The authors alleged that New Zealand law violated Articles 2(1), 16, 17, 23(1), 23(2) and 26 of the International Covenant on Civil and Political Rights because it does not permit same-sex marriages. The Committee found that there was no violation of any of the rights in the Covenant. The Committee noted that the use of the term ‘men and women’ in Article 23(2), which provides for the right to marry, has been consistently and uniformly understood as indicating that the treaty obligation of States Parties stemming from Article 23(2) is to recognise as marriage only the union between a man and a woman wishing to marry each other. In light of the scope of the right to marry under Article 23(2), the Committee found that the mere refusal to provide for the marriage between homosexual couples did not constitute a violation of the rights of the authors as alleged. Committee member Lallah (and Scheinen concurring) released an individual opinion. That opinion did not find any violation of the Covenant, but observed that a denial of certain rights or benefits to same-sex couples that are available to married couples may amount to discrimination prohibited under Article 26, unless otherwise justified on reasonable and objective criteria.

* This section comprises materials kindly provided by the New Zealand Ministry of Foreign Affairs and Trade, Legal Division, Wellington.

1. Views (the technical term used for the non-binding decisions of the body) adopted by the United Nations Human Rights Committee on Individual Communications under the Optional Protocol to the International Covenant on Civil and Political Rights, to which New Zealand is a party.

International Decisions Involving New Zealand

New Zealand Yearbook of International Law