New Zealand Yearbook of International Law
Hon Phil Goff*
If the law of the jungle rather than the rule of law were to prevail, small nations such as New Zealand would inevitably lose out to the interests of larger and more powerful countries. International law, however, is not only significant to small countries. The security of all states is ultimately dependent on an international framework of rules that are designed to ensure the safety and security of their populations from threats such as terrorism. The growth of international law and these institutions over the last 60 years has fundamentally changed the way countries relate to each other, and has increased both the stake and voice of smaller countries in international affairs. For New Zealand that change has been for the better. We have invested, and continue to invest, a large amount of effort in seeking to ensure that the international system delivers. From a New Zealand perspective, there are four fundamental aspects underpinning international legal order. These are the United Nations Charter and UN system, internationally agreed legal norms and rules, effective international dispute settlement and judicial bodies, and regional integration and cooperation.
The most fundamental pillar of the international order is the United Nations. The UN was built on a determination after the Second World War to repudiate the use of force by providing for the peaceful settlement of disputes and an internationally agreed legal order for the maintenance of peace and security. In nearly 60 years, it has played a crucial role in the development and maintenance of international law. The tools within the UN system have shown themselves fit for this purpose, as long as members choose to use them. The International Law Commission has played a critical role in the analysis and codification of complex legal challenges. It has been an honour for New Zealand to have recently had Bill Mansfield elected to the membership. The great exercises in codification under the UN’s authority — the Vienna Convention on the Law of Treaties, the Convention on the Law of the Sea to take just two examples — serve to underscore the UN’s success as a law making institution. The wider UN system has itself also supported the development of a broad range of instruments in areas such as human rights, social and gender equality, environmental protection and resource management.
But in its most important, and most difficult, area of responsibility, the maintenance of international peace and security, there will always be limitations on what the UN can achieve. The effectiveness of the United Nations depends on the political will of its members, and in particular of course its leading members. We witnessed in March, in relation to Iraq, an inability to achieve agreement in the Security Council on the appropriate way forward. While there was agreement on the goal of securing Iraq’s compliance with UNSC resolutions, there was no agreement over means and if and when the ultimate sanction of force available under the UN Charter should be used. A pivotal issue became what constituted appropriate authorization under the UN system for the use of force. There was disagreement over whether existing Security Council resolutions provided sufficient authorization for the action ultimately taken. Over a number of months a common will proved elusive, including on this legal issue. The question which remains is if and how we can avoid the sort of stalemate reached in the Security Council over Iraq from occurring again in the future.
Following the intervention in Kosovo there was considerable reflection on a set of principles that might govern any right of humanitarian intervention, including the crucial role of the Security Council in any such situations. What we need to do now is similarly think about the lessons for the future for the UN and international law flowing from the events in Iraq. How does the UN deal effectively and consistently with a member state that is failing to comply with UNSC resolutions? Are there improvements in the way that the Security Council can undertake the diplomatic process? There also needs to be a renewed commitment by Member States to the UN’s principles and the importance of acting in accordance with international law. It is reassuring in this regard that UNSC 1483 gave prominence to the need for all states to comply fully with their obligations under international law, including the Geneva Conventions and the Hague Regulations. It also affirmed the important role that the United Nations has to play in the reconstruction of Iraq and the restoration of democratically based institutions. Iraq represented a failure of the UN, as its detractors have pointed out. However, this needs to be seen in the context of other successes in such places as Bosnia, Namibia and East Timor and in its efforts to combat terrorism.
Anyone disputing the relevance or usefulness of international law need only look at the broad range of daily activities it now encompasses. Aviation, shipping, fishing, postal services, trade in goods and services, intellectual property, plant varieties, weights and measures, work conditions, telecommunications and meteorology are all examples of areas of activity now regulated by public international law. International law encompasses standards for environmental protection, disarmament, war crimes and other international crimes, human rights, trade and international peace and security. In the private international law field it covers important areas of mutual co-operation relevant to individual private activity.
The range of areas now governed by international rules has grown exponentially. Important new instruments for which we have recently enacted implementing legislation include the Conventions on Terrorist Bombings and Terrorist Financing and Security Council Resolution 1373, the UN Convention against Transnational Organised Crime and its protocols on Migrant Smuggling and People Trafficking. New Zealand is also currently working on becoming party to the Conventions on the Protection of Nuclear Material and Marking of Plastic Explosives, the Framework Convention on Tobacco Control, the Stockholm Convention on Persistent Organic Pollutants and the Rotterdam Convention on Prior Informed Consent.
While the scope of international norms and standards has grown, many are still far from universally accepted. Not all states are party to all treaties. Measures to address global problems like terrorism or environmental degradation will not be fully effective in achieving their objectives if they are implemented unevenly. States must continue to be persuaded of the benefits of international law and international institutions for solving global problems. In that respect all societies are grappling with the challenge of reconciling the principles of state sovereignty with the reality of globalisation. Viruses like HIV/AIDS1 and as we’ve seen most recently, SARS,2 don’t respect national borders. Nor can one country acting alone effectively protect its population from their threat. Combating terrorism, and other transnational crime such as trafficking in women and children or preventing the commercial sexual exploitation of children through the internet, all require highly developed cooperation mechanisms that transcend national borders. Sovereignty may continue to be strongly defended as a fundamental principle of the international legal order, but it must increasingly be understood to exist within a framework of internationally agreed rules that constrain state action inside, as well as outside, its borders. The sovereign decision to be bound by international standards in areas such as human rights should be rightly regarded as one of the most appropriate manifestations of sovereignty, not as subjugation to some foreign legal order. Elaboration of norms and standards is only the first step. A key challenge lies in achieving their full implementation by the states that sign on to them. Small and developing countries face particular challenges in this respect.
The UN and other international institutions, as well as civil society, have a key role in ensuring that states have the technical capacity to implement the obligations they have undertaken. For New Zealand building such technical capacity is an important aspect of our development assistance programmes. As an example, we are with Australia helping with the drafting of model counter-terrorism and transnational crime legislation for countries in the Pacific region to use as appropriate. Further challenges lie in securing the international enforceability of agreed international norms and standards and in ensuring consistency in the application and adherence to international law across the range of areas it now encompasses.
One of the most commonly heard criticisms of international law is the absence of a means to enforce it. While international rules have always been a point of reference for peoples and communities arguing for domestic change, the ability of governments to hold other governments accountable for breaches of international law has been limited, and for individuals to hold governments to their international legal obligations even more so. Fortunately, this situation is slowly changing. More and more focus is shifting from standard setting and rule-making to enforcement and implementation. There has been growing acceptance by states of the need to give teeth to their international commitments through adopting enforcement mechanisms, and establishing specialist judicial bodies that can address international wrongs.
New Zealand has seen major benefits from an enforceable rules-based international trading system. This is a sea change from the situation that we faced in the trading world of two decades ago. If we had a problem then with a trading partner the only answer was to pursue all political levers in the knowledge that the international legal avenues for resolving such problems were minimal. The WTO dispute settlement system has fundamentally changed this. To date we have been successful in utilising the WTO dispute settlement system to protect access to Europe for our butter, to remove unjustified tariffs on our lamb exports to the United States and illegal subsidies on Canada’s dairy exports. At the same time we must acknowledge its limitations. Rulings on fundamental differences between the major players such as the EU and the US have in some cases not succeeded in resolving those differences. This is perhaps not surprising, but what may be more surprising is that such fundamental differences haven’t toppled the system, nor have they discouraged states from further rule making and continuing to negotiate to resolve those differences within the system. In the UN there has also been progress in giving human rights treaties more teeth. Four of the six core human rights treaties have complaints mechanisms. But there is still resistance to international accountability. Individuals continue to have a limited ability to hold their governments to international human rights standards and there continues to be impunity for many human rights violations.
A further significant development in recent years has been the creation of the International Criminal Court. Years of effort by governments and civil society, and the terrible modern-day experiences in Rwanda and the Former Yugoslavia, have culminated in the creation of a new international institution that aims to put an end to impunity for the most grievous crimes in international law and so deter their commission in the future. We hope that the International Criminal Court, which will soon be fully operational, will become one of the pre-eminent instruments of international justice. The support given to the establishment of the ICC accords, with the growing recognition that robust mechanisms for dispute settlement and enforcement, and international justice, can have an important place and ultimately serve all states’ interests. In particular, I hope that the quality of the new court and safeguards against misuse of its procedures will persuade the United States and other countries to embrace it rather than seeking exemption from its jurisdiction.
New Zealand’s experience on international dispute settlement to date, whether in relation to WTO disputes, nuclear testing in the Pacific, the Rainbow Warrior case, or fisheries issues such as southern blue fin tuna, has been very positive. We have not always secured all aspects of the redress that we were seeking. But the institutions we have had recourse to have acted with deliberation and fairness in weighing the issues and delivering rulings. It is important to continue to build on and strengthen the mechanisms available for the resolution of differences between states, and the ability to enforce the resolution once reached.
The final area I would like to address is how regional integration and cooperation can support the rule of law and the work of international institutions. Regionalism can be both a catalyst for wider multilateral developments and complement action and institutions at the multilateral level. Working together at the regional level can help small states like New Zealand, identify and pursue shared objectives in the international law making process. Working collectively, South Pacific states have been able to achieve a voice and visibility at the multilateral level that they could not have achieved individually. A good example of this is the way Pacific Island countries banded together during the Law of the Sea negotiations in the ‘70s to defend their coastal state interests in fisheries and other marine resources. That cooperation was repeated in relation to the global challenge of driftnet fishing in the late ‘80’s and remains essential in regional and multilateral fisheries discussions. It has been demonstrated most recently in the concluding of the Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific. The Pacific Islands Forum is a valuable institution for enabling Pacific States to pursue issues of key concern to the region in a diverse range of areas including trade, good governance and regional security.
International law and cooperation through international and regional institutions is fundamental to New Zealand’s approach to the situation in the Solomon Islands. The Solomons was on the verge of becoming a failed state with the collapse of the rule of law, the failure of its economy and its loss of ability to provide basic social services. Its Government sought assistance from the Pacific through a police-led deployment, backed by the military, to control criminal elements. Member States of the Forum were able to make a collective response under the framework of the Forum’s Biketawa Declaration and with the approval of the Commonwealth and the UN.
Regional cooperation also has a crucial role to play in the trade and economic area. Both New Zealand and Australia have benefited greatly from CER, which celebrates its 20th anniversary this year. Long before NAFTA or the WTO, New Zealand and Australia created one of the most open and comprehensive trade agreements in the world. The integration of our two economies and the benefits that has brought is underpinned not only by close ties of friendship and commerce but increasingly by a comprehensive framework of international legal rules that continues to evolve.
In conclusion, what are the key lessons that we should carry forward from our past experience into the future? First, the framework of international law and institutions must continue to be dynamic and adapt to new global challenges. This includes the areas such as terrorism, transnational crime, humanitarian intervention, and the economic, social and human rights areas. Second, we must achieve a greater commitment by states to invest in and work with the international legal system to make it better, rather than to operate outside it. Countries need to realise that to secure their national interests they must act multilaterally. Third, commitment can only be effective if you adhere to all aspects of international law rather than those aspects that maybe convenient. It is a contradiction to suggest that international law is fine in one context, such as the WTO, but not so fine in another one, such as the UN. Our security and the protection of our interests will not be guaranteed through such a selective approach to the challenges of globalisation. Fourth, more than just creating new instruments of international law, what we need is wider and better adherence to existing ones. Finally, I believe international law and its institutions remains the best means for addressing the challenges of globalisation and harnessing its benefits both for New Zealand and all states.
* Minister of Foreign Affairs and Trade for New Zealand. Taken from the Minister’s opening address to the 11th annual meeting of the Australian and New Zealand Society of International Law, International Governance and Institutions: What Significance for International Law? 4 July 2003, held at Wellington, New Zealand.
1 Human Immunodeficiency Virus / Acquired Immunodeficiency Syndrome.
2 Severe Acute Respiratory Syndrome.
International Institutions and Governance
New Zealand Yearbook of International Law