New Zealand Yearbook of International Law
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On 14 March 2007, New Zealand ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[1]
On 30 March, New Zealand signed the Convention on the Rights of Persons with Disabilities and its Optional Protocol.[2] New Zealand made a considerable contribution to the drafting of the Disabilities Convention. HE Don MacKay, New Zealand’s Permanent Representative to the United Nations in Geneva, chaired the working group that drafted the initial convention text, and the sixth, seventh and eight sessions of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities. The New Zealand delegation, which included people with disabilities, also made a significant contribution to the negotiations.[3]
On 5 October, New Zealand acceded to the UNESCO Convention for the Protection and Promotion of the Diversity of Cultural Expressions.[4] This Convention aims to establish an international environment in which the diversity of cultural expression is affirmed and encouraged. The Convention recognises the significance of cultural activities, goods and services as vehicles of identity, values and meaning. The text of the Convention is essentially aspirational, and there are few binding legal obligations requiring specific actions by states. Article 2(1) does however, provide that cultural diversity can be protected and promoted only if human rights and fundamental freedoms are guaranteed.
In July, following the enactment of the Human Rights (Women in Armed Forces) Amendment Act 2007, New Zealand withdrew its last reservation to the Convention on the Elimination of All Forms of Discrimination Against Women, relating to the participation of women in the armed forces and law enforcement forces.[5]
In 2007 New Zealand was one of ten countries (along with Albania, Angola, Brazil, Croatia, Gabon, Mexico, the Philippines, Portugal (for the EU) and Timor L’Este) which led a cross-regional initiative for a global moratorium on executions. On 18 December, the General Assembly adopted Resolution 62/149 with 104 votes for, 54 against, and 29 abstentions.[6] The adoption of the resolution is further evidence of the world-wide trend towards abolition of the death penalty. New Zealand was the first country to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty, and its sponsorship of the 2007 Resolution demonstrates New Zealand’s ongoing commitment to world-wide abolition.
During 2007, New Zealand submitted two reports to human rights treaty bodies under the core human rights treaties, and received concluding observations from two of the treaty bodies.
New Zealand submitted its fifth periodic report under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Committee Against Torture in January.[7] The report covers the period 1 January 2003 to 1 January 2007. New Zealand’s fifth periodic report to the Human Rights Committee under the International Covenant on Civil and Political Rights was submitted in December.[8] The report covers the period January 1997 to December 2007.
In August, the Committee on the Elimination of Discrimination against Women delivered its concluding comments[9] on New Zealand’s sixth periodic report to the Committee.[10] The report covered the period March 2002 to March 2006. Matters receiving positive comment by the Committee included the 2004 adoption of an Action Plan for New Zealand Women and the 2005 establishment of the Taskforce for Action on Violence within Families.[11] The Committee highlighted a number of matters of concern. At the framework level, the Committee urged New Zealand to strengthen its provisions against direct and indirect discrimination, and to put in place a strategy to mainstream gender perspectives into national plans and institutions.[12] The Committee noted its concern that there has been a ‘climate change’ and ‘backlash’ against the recognition and promotion of women’s rights, and urged New Zealand to implement a campaign on the importance of equality between women and men, including the elimination of negative stereotypes.[13] Concern was also expressed about the rights of Maori, Pacific, Asian and other minority women in a number of areas including family violence, participation in public and political life, discrimination in the private sector labour market, and access to childcare and parental leave.[14] The Committee was also concerned about the lack of data on the extent of trafficking of women and girls in New Zealand.[15]
Also in August 2007, the Committee on the Elimination of Racial Discrimination delivered its concluding observations[16] on New Zealand’s fifteenth-seventeenth periodic report to the Committee.[17] The report covered the period 1 January 2000 to 22 December 2005. Matters receiving positive comment by the Committee included the 2004 Adoption of the New Zealand Settlement Strategy and the Settlement National Plan of Action, the New Zealand Diversity Action Programme, and the 2006 ratification by New Zealand of the 1961 Convention on the Reduction of Statelessness.[18] The Committee also raised a number of matters of concern. In terms of New Zealand’s constitutional framework, the Committee expressed its concern that the New Zealand Bill of Rights Act 1990 does not enjoy protected constitutional status, that the Treaty of Waitangi is not a formal part of domestic law and that recommendations made by the Waitangi Tribunal are generally non-binding.[19] Pressing issues of concern included the fate of the Principles of the Treaty of Waitangi Deletion Bill 2006, the inclusion of the Treaty of Waitangi in the new school curriculum, access to schooling for children with parents of illegitimate immigration status, and renewed dialogue about the Foreshore and Seabed Act.[20]
In EB v New Zealand,[21] the Human Rights Committee, in only its second finding against New Zealand, found that there had been a violation of Article 14 of the International Covenant on Civil and Political Rights. Mr EB brought a claim in his own name and on behalf of his children alleging that New Zealand had violated Articles 2, 14, 17, 23, 24 and 26 of the Covenant in the denial of access by EB to his children after prolonged access proceedings in the Family Court. In its decision, the Human Rights Committee found that a number of the alleged violations were not admissible either because of failure to exhaust domestic remedies or failure to sufficiently substantiate them. The Committee also found that EB had no standing to advance claims on behalf of his children. On the merits, the Committee recalled its jurisprudence that the right to a fair trial guaranteed by Article 14 included the expeditious rendering of justice, without undue delay. The Committee also referred to its previous jurisprudence that in the family context ‘the very nature of custody proceedings or proceedings concerning access of a divorced parent to [his / her] children requires that the issues complained of be adjudicated expeditiously.’[22] The Committee said that New Zealand therefore has an onus to ensure that all State actors involved in the resolution of such issues are sufficiently well resourced and structured to ensure prompt resolution of such proceedings. The Committee concluded that New Zealand had not demonstrated the justification for the protracted delay in the resolution of the access proceedings. However, the Committee went on to conclude that the Family Court’s decision not to grant EB access to two of his children was not a violation of the applicant’s rights under articles 17 and 23 of the ICCPR.
Committee member Ms Ruth Wedgwood disagreed with the Committee’s Views that there was a violation of Article 14 of the ICCPR. Ms Wedgwood was of the view that the Committee had given insufficient weight to the wider factual context of the dispute including allegations that EB had sexually assaulted his children and therefore presented a serious danger to them. In her view, the potential gravity of harm to a child was some explanation for the delay in resolving the Family Court access proceedings. The Committee failed to take account of the very real problems in case management which arise where there are parallel civil and criminal proceedings. She concluded that it was not appropriate for the Committee to ‘deride the conscientious attempt of the State party to reach a just result in this case.’[23]
In July, the New Zealand Government responded to the Committee’s Views in EB v New Zealand.[24] The response stated that it did not accept that a breach of Article 14(1) had occurred. Instead New Zealand accepted the individual View of Ms Wedgwood that ‘the suggestion that this case could be handled quickly … does not give weight to the difficulty of assessing delicate facts in the close confines of a family and to the trauma to children that can be caused by the very process of investigation.’[25]
In Manuel v New Zealand,[26] the Human Rights Committee found that there had been no violation by New Zealand of the International Covenant on Civil and Political Rights. Mr Manuel had alleged that his recall to prison to continue serving a life sentence for murder following his engagement in violent conduct while on parole was a violation by New Zealand of Articles 7, 9, 10, 14, 15 and 26 of the Covenant. The Human Rights Committee found that a number of the alleged violations were not admissible either because of failure to exhaust domestic remedies or failure to sufficiently substantiate the claim. In considering the claim that detention following recall to prison was arbitrary in breach of Article 9(1), the Committee found that as Mr Manuel had engaged in violent or dangerous conduct while on parole, New Zealand was justified in recalling him to prison. The Committee also noted that Mr Manuel’s ongoing detention was reviewed at least once a year by the Parole Board, a body subject to judicial review and therefore meeting the necessary requirements of independence set out in Rameka v New Zealand.[27] The Committee concluded that the recall and detention was not arbitrary in terms of Article 9(1) (the factual background to the claim also noted that in November 2006, the Parole Board had decided to release Mr Manuel).
During 2007, New Zealand representatives made a number of statements to various United Nations organs.[28] Thematic statements of particular note include a statement on the mainstreaming of human rights within the United Nations system, the statement to the Third Committee on the Promotion and Protection of the Rights of the Child, and the statements made at the Commemorative High Level Plenary meeting devoted to the outcome of the Special Session on Children. New Zealand statements referred to the human rights situations in a number of countries including Myanmar, Iran, Zimbabwe, Fiji, and Darfur in Sudan.
Natalie Baird
University of Canterbury
2007 was a significant year for Indigenous peoples and international law. The United Nations (UN) General Assembly adopted the Declaration on the Rights of Indigenous Peoples (the Declaration on Indigenous Peoples), after more than 20 years of negotiations, and the Human Rights Council established the Expert Mechanism on the Rights of Indigenous Peoples (the EMRIP). Further, the World Intellectual Property Office (WIPO) continued its work on traditional knowledge, as did the working groups associated with the Convention on Biodiversity (CBD). Indigenous issues were considered in institutions such as the World Health Organisation (WHO) and, of course, the Permanent Forum on Indigenous Issues. New Zealand was also the subject of review by the UN Committees on the Elimination of Racial Discrimination (CERD Committee) and the Elimination of Discrimination Against Women (CEDAW Committee) on its compliance with its human rights obligations, some of which raised issues involving Māori. This review details New Zealand’s state practice in these institutions.
The Declaration on Indigenous Peoples was adopted by the General Assembly on 13 September 2007 with 143 states voting for, 4 against and 11 abstentions.[29] New Zealand, together with Australia, the United States and Canada, voted against the Declaration.
During the negotiations on the Declaration on Indigenous Peoples in 2007, New Zealand, together with Canada, Colombia and the Russian Federation, unsuccessfully sought amendments to the Declaration in relation to self-determination, lands and resources, the requirement to seek Indigenous peoples’ consent to matters that affect them, Indigenous peoples’ intellectual property and redress.[30]
While New Zealand voted against the Declaration, it expressed its full support for the principles and aspirations of the Declaration, and confined its express objection to four provisions in the text, in its explanation of vote.[31] These provisions related to Indigenous peoples’ rights to lands and resources, redress and the need to consult and cooperate with Indigenous peoples to get their consent prior to taking actions that affect them.[32] New Zealand explained that, in its view, these provisions were contrary to New Zealand’s democratic processes, legislation and constitutional arrangements. Further, New Zealand placed on record its ‘firm view’ that
the history of the negotiations on the Declaration and the divided manner in which it has been adopted demonstrate that this text, particularly [the articles on lands and territories, redress and consent], does not state propositions which are reflected in State practice or which are or will be recognized as general principles of law.[33]
Māori issues were a focus in New Zealand’s state report to the Committee on the Elimination of Racial Discrimination (CERD Committee), presented to the CERD Committee in late July and early August 2007. The CERD Committee:
• encouraged continued discussion on the status of the Treaty of Waitangi with a view to its possible entrenchment as a constitutional norm, and its incorporation into legislation;
• highlighted the distinction between special measures for the advancement of ethnic groups and the permanent rights of Indigenous peoples;
• recommended that New Zealand ensure that any cut-off date for lodging historical Treaty of Waitangi claims not unfairly bar legitimate claims, and that it consider granting the Waitangi Tribunal binding powers to adjudicate Treaty of Waitangi matters;
• reiterated its recommendations that New Zealand renew dialogue with Māori to seek ways of mitigating the discriminatory effects of the Foreshore and Seabed Act 2004;
• recommended enhanced efforts to address the over-representation of Māori and Pacific people in the prison population and within the criminal justice system generally; and
• recommended that New Zealand ratify the International Labour Organisation Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries.[34]
Māori issues were the subject of New Zealand’s report to the CEDAW Committee and its observations in relation to New Zealand. The CEDAW Committee:[35]
• highlighted issues relating to violence against Māori women;
• commented on the under-representation of Māori women in public and political life;
• expressed concern about discrimination against Māori women in employment; and
• requested the State to analyse, assess and reduce the barriers that Māori women face in accessing childcare and parental leave.
New Zealand made a number of statements to the May session of the Permanent Forum on Indigenous Issues. When doing so, it stressed Indigenous peoples’ cultural and language rights and the need to address the negative effects associated with urbanisation of Indigenous peoples, including Māori.[36]
New Zealand ratified the CBD in 1994 and has subsequently participated in various work programmes associated with the Convention and the bi-annual meetings of the Conference of the Parties (COPs), which will meet again in 2008. There are a number of specialised working groups that guide the work of the COPs and many are of relevance to Indigenous peoples, including the Working Group on Article 8(j) of the Convention, which requires States parties to respect, preserve and maintain Indigenous communities’ knowledge, innovations, and practices. The CBD’s Working Group on Access and Benefit Sharing is also important for Indigenous peoples as it is to develop guidelines to assist States Parties and other stakeholders with the implementation of the CBD’s access and benefit sharing provisions, including in relation to Indigenous peoples’ traditional knowledge. Both of these working groups met in October 2007. At these meetings New Zealand expressed the view that it may be impossible to develop a one-size-fits-all international solution to the protection of Indigenous peoples’ traditional knowledge, suggesting that domestic approaches may be more appropriate.[37] New Zealand thus recommended the establishment of technical guidelines only at the international level.[38]
The World Intellectual Property Office (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources (IGC) continued its work on traditional knowledge in 2007. Its mandate is to debate and dialogue on the interplay between intellectual property, traditional knowledge, genetic resources and traditional cultural expressions and, in that context, to consider the possible development of an international instrument or instruments.
During 2007, in the 11th Session of the WIPO IGC, New Zealand took the position that there is a
need to reach consensus on the policy objectives and guiding principles before determining potential legal mechanisms for the protection of [traditional knowledge] or decisions about the form of any international obligations that may ensue including the possibility of drafting guidelines, a declaration, protocol, treaty or amendments to existing treaties.[39]
However, New Zealand also spoke positively of the potential to develop guidelines for users of traditional knowledge and policy makers, agreed to by Member states and promoted domestically and internationally.[40]
At the same session, New Zealand noted that self-definitions of traditional knowledge and traditional cultural expressions, by the holders of traditional cultural expressions, should be informed by customary laws and, unlike existing WIPO definitions, often include both tangible and intangible expressions.[41] New Zealand stated that rights holders and beneficiaries of benefits flowing from the use and exploitation of traditional cultural expressions should be ‘the holders and creators themselves and their community or communities’,[42] and that WIPO objectives should be to ‘prevent misappropriation, misuse, and misrepresentation of traditional cultural expressions.’[43] Further, New Zealand highlighted the need for consultation with, and the consent of, holders of traditional cultural expressions before use,[44] and spoke of New Zealand’s work on the development of sui generis models of protection for Māori intellectual property.[45]
While New Zealand did not make any interventions specifically in relation to Indigenous peoples at the WHO in 2007, it made a number of interventions on issues that particularly impact on Indigenous peoples, such as tobacco use.[46]
One of the most important decisions of 2007 on Indigenous peoples’ rights under international law is that of the Supreme Court of Belize in Cal & Ors v the Attorney General of Belize & Anor.[47] Coming from a common-law jurisdiction, the decision ought to be taken into account in New Zealand courts.
In upholding Mayan claims for recognition, protection and demarcation of communal lands held in accordance with Mayan customary law, the Supreme Court of Belize cited international institutional decisions, such as those by the Inter-American Commission on Human Rights, international human rights treaties relevant to Indigenous peoples and state practice. The Chief Justice stated ‘it is my considered view that both customary international law and general principles of international law would require that Belize respect the rights of its Indigenous peoples to their lands and resources.’[48] On the impact of the Declaration on Indigenous Peoples, he continued:
[W]here these resolutions or Declarations contain principles of general international law, states are not expected to disregard them. This Declaration […] was adopted by an overwhelming number of 143 states in favour with only four states against with eleven abstentions. It is of some signal importance, in my view, that Belize voted in favour of this Declaration. And I find its Article 26 of especial resonance and relevance in the context of this case, reflecting, as I think it does, the growing consensus and the general principles of international law on Indigenous peoples and their lands and resources.[49]
The Chief Justice concluded, ‘I am therefore, of the view that this Declaration, embodying as it does, general principles of international law relating to Indigenous peoples and their lands and resources, is of such force that the […] Government of Belize, will not disregard it.’[50]
B. Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples: Letter of Allegation to New Zealand
In November 2007 the Government received a letter of allegation for the Special Rapporteur on the Situation of the Fundamental Freedoms and Human Rights of Indigenous Peoples (Special Rapporteur on Indigenous Peoples) regarding the Police’s treatment of a number of people, including prominent Māori, when it searched and seized them and their property, under the Terrorism Suppression Act 2002 in October 2007.[51]
The Declaration contributes to the development of customary international law on Indigenous peoples’ rights to the extent that it expresses a degree of opinio juris of, at least, the 143 states that supported its adoption in the General Assembly. The opposition of only 4 states, including New Zealand, cannot undermine that development. This is supported, also, by comments such as those of the Supreme Court of Belize in the above-mentioned case and the references to the Declaration in various United Nations resolutions, such as that establishing the EMRIP.[52] Of course, the expression of opinio juris does not of itself create customary international law; consistent state practice is also necessary.
It is contentious whether Indigenous peoples’ rights, as reflected in the Declaration or elsewhere, constitute customary international law that is binding on New Zealand and part of New Zealand’s common law. New Zealand could, in the future, attempt to argue that it is a persistent objector to the Declaration and thus customary international law that is codified in the Declaration is not binding on it. New Zealand’s vote against the Declaration signals a possible future trend of objection to the rights of Indigenous peoples. However, it is unclear whether states can claim non-application of a human rights instrument on the grounds of persistent objection. Further, New Zealand expressly stated that its decision to vote against the Declaration was based on its objection to only 4 of its 46 articles. New Zealand stated its full support for the principles and aspirations of the Declaration and cited its own state practice (e.g. Treaty of Waitangi settlements) as evidence of its commitment to respecting and protecting the rights of Indigenous peoples. New Zealand’s statement that the Declaration’s provisions are not reflective of state practice and will not constitute general principles of law is subjective and conjecture. Finally, to some extent the Declaration simply repeats or codifies pre-existing customary international law on Indigenous peoples’ rights. New Zealand’s vote against the Declaration cannot in and of itself exempt it from the application of that pre-existing customary international law on Indigenous peoples’ rights.
The significant work being executed on traditional knowledge in the various UN agencies, including the WIPO and under the auspices of the CBD, outlined above, may signal the development of customary international law on Indigenous peoples’ rights to their traditional knowledge.
The Human Rights Council established the EMRIP in December 2007. EMRIP has the mandate to provide the Council with thematic expertise on the rights of Indigenous peoples to assist the Council in the implementation of its mandate.[53] A preambular paragraph in the resolution recalls the Declaration on Indigenous Peoples. New Zealand participated in the negotiations leading to the resolution to establish the EMRIP.
The Human Rights Council adopted, by consensus, the resolution extending and describing the mandate of the Special Rapporteur on Indigenous Peoples in September 2007.[54] New Zealand participated in the negotiations on the resolution, which requires the Special Rapporteur on Indigenous Peoples to, among other activities, promote the Declaration on Indigenous Peoples.
Claire Charters[•]
Ngati Whakaue
Victoria University of Wellington
Having signed the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Adoption of an Additional Distinctive Emblem (Third Additional Protocol) in 2006, New Zealand started the ratification process of the Protocol in 2007. In April, the Foreign Affairs, Defence and Trade Select Committee completed its treaty examination.[55] Although the Committee did not disagree with New Zealand ratifying the Protocol (the Report merely appends the National Interest Analysis), it noted that it did not consider this to be a priority.
The purpose of the Third Additional Protocol is to recognise a third protective emblem – the Red Crystal – that will have the same status as the two existing emblems, the Red Cross and the Red Crescent. This is to allow greater protection of armed forces’ medical personnel and humanitarian workers in situations where the existing emblems might not be accepted as neutral.
Minor legislative amendments are required to the Geneva Conventions Act 1958 and the Flags, Emblems and Names Protection Act 1981 to reflect the changed international obligation, but these have not yet been made. In line with stated policy, the Government will not take binding treaty action until the treaty is implemented in New Zealand law.
On 17 July 2007, Lianne Dalziel, Minister of Women’s Affairs announced that New Zealand’s only remaining reservation to the Convention on the Elimination of All Forms of Discrimination had been withdrawn.[56] The reservation had been made when New Zealand originally acceded to the treaty in 1985 and it related to the service of women in combat roles in the Armed Forces and Police. Section 33 of the Human Rights Act 1993 was the domestic provision reflecting that policy and it provided that nothing prevented preferential treatment based on sex to any member of those forces who had the duty of serving in an active combat role.
Although the Defence Force rescinded the policy of not allowing women in combat roles in 2000,[57] for the reservation to be lifted, a formal amendment to the Human Rights Act was necessary. This was made on 4 May 2007 with the entry into force of the Human Rights (Women in Armed Forces) Act 2007.
On 21 August 2007, New Zealand ratified the amendment to the Certain Conventional Weapons Convention (CCW) 1980.[58] The treaty, as its full name suggests, seeks to regulate or prohibit certain categories of weapons that cause superfluous injury and unnecessary suffering and does so by means of a series of Protocols each dealing with a particular category of weapon.[59] Article 1 of the treaty, as originally concluded, applied only to international armed conflicts.[60] In 2001, the states parties agreed to amend the Convention by extending its provisions (and all the provisions of its Protocols) to operations in non-international as well as international armed conflict. As a consequence of this ratification, New Zealand’s obligations under the Protocols now extend to both international and non international armed conflict.[61]
The fifth and most recent Protocol to the Certain Conventional Weapons Convention relates to explosive remnants of war (ERW). In February 2007, the Cabinet External Relations and Defence Committee authorised ratification of the Protocol by New Zealand and this was subsequently confirmed on 26 February 2007. The Protocol requires states parties to take measures to minimize the risks and effects of explosive remnants of war. ERW are defined as explosive ordnance that has been used in armed conflict but has failed to explode or stocks that have been left behind or dumped during an armed conflict. This might include artillery shells, mortar bombs, grenades, cluster munitions or bombs, but does not include mines and booby traps which are covered under a different Protocol.
Essentially, the Protocol places on the parties an obligation to mark and clear ERW in territory that it controls after a conflict as well as to record and share information on explosive ordnance that was used during a conflict. In accordance with Standing Orders, the Protocol needed to undergo Parliamentary Treaty examination process prior to ratification. To that end, the Foreign Affairs, Defence and Trade Select Committee reported back to the House on 25 May 2007 with no comments on the Protocol, thus paving the way for NZ to take the steps necessary to becoming party to this treaty.[62] Ratification was completed on 2 October 2007. No domestic legislative action was required because the Protocol is implemented through Defence Force Operational Procedures.
For a number of years, New Zealand, as a party to the Certain Conventional Weapons Convention, has been involved in attempts to reach consensus on a negotiation mandate on cluster munitions, with the aim of agreeing to another Protocol to the Treaty. The Convention already deals with cluster munitions to a certain extent. For example, a cluster munition falls within the definition of an Explosive Remnant of War and thus, by virtue of Protocol V, states are obliged to take responsibility for them post-conflict. However, many states, including New Zealand, were unsatisfied with such a limited approach and wanted to move towards a legally binding protocol which would prohibit cluster munitions, rather than simply manage the post-conflict aspects of unexploded submunitions as is the aim of Protocol V.
In February 2007, New Zealand, along with a number of other states, concerned with the lack of progress in the CCW negotiations, met in Oslo and agreed to negotiate a free-standing treaty that would ban cluster munitions.[63] During 2007 New Zealand also attended follow up meetings in Vienna and in Lima, with the aim of reaching agreement on a treaty text by the end of 2008.
In a statement to the First Committee of the General Assembly, New Zealand’s Ambassador for Disarmament, Don Mackay said, in relation to the cluster munitions process, ‘New Zealand has long advocated for the need to seriously address concerns relating to the use and design of cluster munitions, and is pleased to be part of the core group leading this effort.’[64] He was careful to explain that New Zealand was not abandoning the more traditional multilateral process within the CCW framework, but rather that the so-called Oslo Process was complementary to those efforts.
Even among those states participating in the Oslo Process, there are differences – some significant - in approach as to the precise parameters of any ban on cluster munitions.[65] Questions include the precise scope of the prohibition including whether there should be exemptions for munitions equipped with self-destruct mechanisms or with certain failure rates and questions of inter-operability, that is, whether a state party to any future treaty could operate in a military coalition where other states were using cluster munitions; deadlines for stockpile destruction and whether any munitions should be retained for research and training purposes; responsibility for clearance and procedures for ensuring compliance and transparency. These, and other issues, will be discussed and hopefully resolved in the course of 2008.
Treasa Dunworth,
University of Auckland
There can be little doubt that both nationally and internationally the imperative of addressing climate change overshadowed all other developments in environmental during 2007. Unfortunately, the start of the year did not augur well for New Zealand’s greenhouse gas reduction (GHG) commitments. In January, the United Nations Framework Convention on Climate Change[66] Expert Review Team published their Fourth In-depth Review[67] of New Zealand’s national GHG emissions. The Expert Review Team noted that
[t]otal GHG emissions excluding emissions and removals from land use, land use change and forestry (“LULUCF”) increased by 21.3 per cent between 1990 and 2004, whereas total GHG emissions including net emissions / removals from LULUCF increased by 17.9 per cent. [68]
This made the objective of returning New Zealand’s emissions to 1990 levels during the first commitment period of the Kyoto Protocol,[69] challenging, to say the least. The Government responded with a suite of measures that included the New Zealand Energy Efficiency and Conservation Strategy 2007[70] and the New Zealand Energy Strategy to 2050 – Powering Our Future,[71] the latter proposing the introduction of a national emissions trading scheme.
The Climate Change (Emissions Trading and Renewable Preference) Bill was introduced to Parliament on 4th December 2007[72] and provides detailed arrangements for the New Zealand emissions trading scheme. The scheme will cover all GHG in all sectors of the economy, and will be phased in over the period from 2008 to 2013.[73] In addition, the Bill proposes a ten-year moratorium on new baseload fossil fuel power generation, except to the extent necessary to maintain security of supply. The moratorium will be achieved by amendments to the Electricity Act 1992, although the operational details of the policy will be created in delegated legislation. This fundamental clarification from Government is to be welcomed, particularly as the Courts have been struggling with the issue of resource management consenting processes for fossil fuel powered stationary generation.[74] Further, the Bill fills the present policy lacuna and will, if legislation ensues, enable New Zealand to participate fully in the Kyoto Protocol’s flexible mechanisms.[75]
In terms of advancing the international climate change regime post 2012 some progress was achieved. However, the year ended without any clarity as to the specifics of the Protocol that will extend or replace Kyoto. In the lead up period to the 2007 United Nations Climate Change Conference in Bali,[76] the Prime Minister of New Zealand attended three international summits that each resulted in renewed political commitments to tackling climate change,[77] and diplomat Adrian Macoy was appointed to the newly created position of Climate Change Ambassador to lead future negotiations. Australia’s ratification of the Kyoto Protocol on the eve of the Bali Conference served to both isolate the United States as the only UNFCCC Annex 1 Party that had failed to ratify the Protocol, and brought renewed impetus to the global negotiations. The Conference culminated in the adoption of the Bali Roadmap, described by the President of the Conference as ‘the breakthrough that the world has been waiting for’.[78]
The Bali Roadmap affirmed the commitment undertaken by the UNFCCC Parties to launch a process of negotiation, to be completed by 2009, that will enable ‘the full, effective and sustained implementation of the Convention through long-term co-operative action, now, up to and beyond 2012’.[79] In addition, the Roadmap launched the Adaptation Fund and contained decisions in connection with technology transfer and emissions reduction from deforestation.[80] Importantly, from the perspective of New Zealand, the Ad Hoc Working Group on Further Commitments for Annex 1 Parties (AWG) adopted a new timetable and work programme, which requires Parties to submit, by 15th February 2009, their views on
[t]he scale of the emission reductions to be achieved by Annex 1 Parties in aggregate and on options for the allocation of corresponding mitigation effort and their contribution to the global effort to reach the ultimate objective of the Convention.[81]
Thus New Zealand must formulate a clear stance as to future national commitments by that date.
Bioprospecting is the process of examining genetic resources for potentially useful substances. New Zealand is party to the Convention on Biological Diversity (CBD),[82] the multilateral environmental agreement that deals, inter alia, with the ‘fair and equitable sharing of the benefits arising out of the utilisation of genetic resources’.[83] At the 8th Conference of the Parties to the CBD held in 2006, the parties agreed to refine the international regime on access to, and sharing the benefits from, genetic resources. The CBD Ad Hoc Working Group on Access and Benefit Sharing[84] is facilitating the negotiations. Given the high degree of endemism in New Zealand, this issue is of particular national importance. Accordingly, during 2007 the Government undertook consultation on a discussion document entitled Bioprospecting - Harnessing Benefits for New Zealand: A Policy Framework Discussion.[85] The Government is seeking to formulate domestic policy that will, in turn, inform New Zealand’s approach to the international discussions.
The New Zealand Government is currently considering the option of becoming a party to the International Tropical Timber Agreement 2006,[86] a commodity agreement between producer and consumer countries of traded tropical timber and timber products. The Agreement focuses on sustainable forest management and this goal is supported by funding and research projects. New Zealand has ratified the previous International Tropical Timber Agreements.[87]
New Zealand is also considering accepting the amendments made to the 1955 Plant Protection Agreement for the Asia and Pacific Region.[88] The Convention aims to secure action to prevent the spread and introduction of pests that threaten plants and plant products, and to promote appropriate measures for their control. The amendments will bring the Asia Pacific Region Agreement into line with the text of the 1952 International Plant Protection Convention as revised in 1997[89] and the World Trade Organisation Agreement on Sanitary and Phytosanitary Measures.[90] In essence, Asia Pacific members will be required to participate in regional committees to develop regional standards for plant protection, harmonise pesticide regulations and review integrated pest management strategies within the region.
Ceri Warnock
University of Otago
New Zealand has a keen interest in the law of the sea and participates in a wide range of international efforts in this area. This update focuses on international activities in which New Zealand has played a key role, and on New Zealand domestic developments in relation to the law of the sea.
One of the most significant developments in fisheries for New Zealand has been the negotiations for the establishment of a new South Pacific Regional Fisheries Management Organisation (SPRFMO). The SPRFMO will manage non-highly migratory species in high seas areas of the South Pacific. Negotiations for the SPRFMO began in February 2006, and during 2007 meetings were held in Reñaca, Chile in May and in Noumea, New Caledonia in September. New Zealand is playing a key role in negotiations. Together with Chile and Australia, New Zealand initiated the negotiations as a co-sponsor, and Bill Mansfield, a New Zealand international lawyer, is the independent Chair of the negotiations. New Zealand also established the Interim Secretariat for the SPRFMO in Wellington in 2007 and is funding the first two years of its operation.
Although negotiations for the text of the convention are ongoing, one of the most interesting developments in 2007 was the agreement among the parties on interim conservation and management measures to be applied to fishing activities in the area to be covered by the Convention. In December 2006 the United Nations General Assembly called upon regional fisheries management organisations (RFMOs) to take action to protect vulnerable marine ecosystems from the adverse effects of bottom fishing activities on the sea floor.[91] The General Assembly called on states participating in negotiations towards establishing RFMOs to adopt interim measures by 31 December 2007.[92] The interim measures adopted at the Third Meeting of the SPRFMO negotiations in May 2007 reflected this Resolution.[93]
The interim measures are expressly voluntary and non-binding. Measures apply to pelagic and bottom fisheries. In respect of pelagic fisheries, states agreed to: communicate their current level of fishing to the interim Secretariat and limit the vessels permitted to fish in the area; cooperate in building a scientific assessment of the stocks; to ensure an appropriate level of observer coverage (agreed at 10% of vessels); and ensure that vessels have a vessel monitoring system installed. For bottom fisheries, the interim measures are even stronger. States agreed to limit fishing effort to existing levels; not expand into new regions where bottom trawling is not occurring; require impact assessments before fishing is permitted; agree on conservation and management measures for areas vulnerable to bottom trawling; require vessels to cease bottom trawling within 5 nautical miles of any site with evidence of vulnerable marine ecosystems; appoint observers to vessels conducting bottom trawling; and ensure all vessels are equipped with vessel monitoring systems.
New Zealand has begun implementing the interim measures for its high seas fishing vessels.[94] In December the Secretary of Foreign Affairs and Trade gave notice that the interim measures are international conservation and management measures for the purposes of section 113B of the Fisheries Act 1996.[95] The Ministry also required increased observer coverage for vessels engaged in bottom trawling in the area. The Ministry of Fisheries has an ongoing programme for implementing other interim measures through the imposition of conditions on high seas permits from April 2008.[96]
New Zealand hosted a meeting of the Forum Fisheries Committee in Wellington in May 2007. The event included a ministerial level meeting and produced a report that led to the Vava’u Declaration on Pacific Fisheries Resources ‘Our Fish, Our Future’ passed by Pacific Islands Forum leaders in October 2007. This document declared Pacific states’ commitment to protecting and developing domestic fisheries, supporting regional bodies working on fisheries issues and progressing international efforts to protect tuna stocks in the Pacific.[97]
Whaling in the Southern Ocean was a significant issue for New Zealand in 2007. Protests by the Sea Shepherd Conservation Society against the Japanese whaling fleet undertaking scientific whaling in the ecologically sensitive Ross Sea, and the response by the Japanese vessels, led to concerns that one of the vessels may have been damaged. Among other activities, crew from the Sea Shepherd vessels threw butyric acid onto the decks of the Japanese ship Kaiko Maru. A collision between the Sea Shepherd vessel Robert Hunter and the Kaiko Maru was reported on 12 February 2007. On 15 February 2007 the Nisshin Maru, a Japanese vessel, caught fire, killing one crew member. New Zealand was concerned about the events for two reasons. First, the incidents raised the prospect of a significant oil spill or other form of contamination of the Antarctic marine environment, either from the fire or as a result of damage caused by the Sea Shepherd vessel. Second, New Zealand has search and rescue obligations covering the Ross Sea area and may have been required to offer assistance if any of the ships were in distress. Although New Zealand requested that the Japanese government have the Nisshin Maru towed from its position near a penguin colony, the vessel remained in place for several days until it was able to leave under its own power.
New Zealand and Japan subsequently co-sponsored a resolution at the 59th Meeting of the International Whaling Commission in Anchorage on Safety at Sea and Protection of the Environment.[98] The Resolution condemns actions that are a risk to human life and property at sea, urges governments to have regard to the importance of protecting the Antarctic environment and calls on states to cooperate in the suppression of actions which risk human life and property at sea.
A number of environmental conventions are currently being considered by New Zealand. In November 2007 the Ministry of Transport issued a discussion paper for public consultation on whether New Zealand should become a party to four international agreements: the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage; the 1996 Protocol to amend the 1976 International Convention on the Limitation of Liability for Maritime Claims; the 1973 Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil; and the 2000 Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances.[99] The Ministry of Agriculture and Forestry also began public consultation on whether New Zealand should become a party to the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments.[100] Decisions on whether New Zealand will accede to these agreements are likely to be made in 2008.
In the International Maritime Organisation (IMO), New Zealand continues to be active in groups looking at a range of environmental issues. For example, New Zealand instigated a work agenda item on the ‘development of international measures for minimising the translocation of invasive aquatic species through bio-fouling of ships’, which has been accepted by the Maritime Environmental Protection Committee. This work is aimed at minimising the spread of invasive species due to ship design.
In July 2007, a precautionary area off the Taranaki coast came into effect. This is an IMO endorsed protective measure.[101] Because the area contains a range of offshore petroleum operations as well as the operation of service vessels, ships navigating in the area have been instructed to take particular care in order to reduce the risk of a maritime accident and marine pollution.
In 2007 New Zealand was involved in an initiative in the IMO aimed at improving safety around ship lifting devices. A paper was submitted to the Maritime Safety Committee (MSC) recommending that states consider cranes on ships as part of a regular inspection routine. Although this is a requirement as part of the 1979 International Labour Organisation Occupational Safety and Health (Dock Work) Convention, (Convention 152),[102] only 26 states have ratified this Convention.[103] New Zealand has experienced accidents involving ship crane failures in recent years. The MSC accepted the need for work to be done on this issue, but it will be followed up in the future.
New Zealand was elected on to the IMO Council for a two year term from November 2007. The IMO Council is the executive body of the IMO that coordinates the work of IMO Committees and considers the draft work programme.
Finally, New Zealand was audited by the IMO in July 2007 for its compliance with IMO Conventions and regulations. This process is a recent development and is voluntary for states. New Zealand was chair of the working group that developed the audit procedure. The results are confidential between the IMO and the state being audited, and no public statement has been made by the New Zealand government about the results of the audit.
New Zealand signed the 2005 Protocols to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol of 1988 Relating to Fixed Platforms Located on the Continental Shelf in January 2007. These Protocols introduce a range of offences for activities including maritime terrorism and trafficking in weapons of mass destruction. The New Zealand government is working through the process of creating implementing legislation and will not be in a position to ratify the Protocols until 2008 or 2009.
New Zealand is a member of the Operational Experts Group (OEG), part of the Proliferation Security Initiative (PSI). The PSI is an international initiative designed to prevent shipments of weapons of mass destruction between countries and non-state actors of proliferation concern. In March 2007 New Zealand hosted a meeting of the OEG in Auckland. In October 2007, New Zealand participated in ‘Exercise Pacific Shield’ in Japan. ‘Pacific Shield 07’ involved personnel or assets from Japan, Australia, France, New Zealand, Singapore, the United Kingdom, and the United States. The exercise included training in interdicting and searching vessels for weapons of mass destruction. New Zealand contributed a P3 Orion aircraft to the Exercise in addition to personnel.
Two meetings between New Zealand and the Subcommission established by the Commission on the Limits of the Continental Shelf to consider New Zealand’s continental shelf submission were held in 2007. The Subcommission process is a lengthy one, involving exchanges of information and views between the Subcommission and New Zealand.
In 2007, New Zealand supported the successful re-election of Dr Phil Symonds, of Australia, to the Commission on the Limits of the Continental Shelf for a second five-year term. Dr Symonds was jointly nominated by Australia, New Zealand and Canada.
Joanna Mossop,
Victoria University of Wellington
The 30th Antarctic Treaty Consultative Meeting (ATCM) was held in New Delhi from 30 April to 11 May 2007. As in previous years, a key focus for New Zealand remained the protection of the Antarctic environment, and in particular, efforts to improve the management of human activities in Antarctica.
New Zealand tabled an information paper (IP 40)[104] at the meeting on the fire on board the Japanese whaling vessel Nisshin Maru in the Ross Sea in February 2007, noting its concern over the potential for a serious environmental emergency to have arisen from the incident. The paper provided an outline of events based on information recorded by New Zealand’s Rescue Coordination Centre.
Progress was made on the regulation of tourism within the Antarctic Treaty area. The ATCM adopted a resolution (Resolution 4 (2007))[105] proposed by the United States calling on the Parties to decline to authorise landings in Antarctica from vessels carrying more than 500 passengers, and to restrict the number of passengers ashore to 100 or fewer.
The ATCM also adopted a resolution (Resolution 5 (2007))[106] proposed by New Zealand recommending that the Parties discourage any tourism activities which might substantially contribute to the long-term degradation of the Antarctic environment and its dependent and associated ecosystems. The resolution was aimed in particular at preventing the development of permanent infrastructure in Antarctica for tourism.
New Zealand also presented a paper (WP 14)[107] which explored the possible implications for the effectiveness of the Antarctic Treaty System of the use of vessels for tourism in the Antarctic Treaty area which are not flagged to Treaty Parties. The paper argued that the use of such vessels, which is widespread in the Antarctic tourism trade, could undermine implementation of the 1991 Protocol on Environmental Protection and the Antarctic Treaty’s inspection regime.[108] The Parties agreed that the issue was of considerable concern and undertook to revisit it at the 31st ATCM due to be held in Kyiv in June 2008.
The announcement by the Prime Minister of New Zealand while the ATCM was underway of NZ$11.1 million in additional funding for New Zealand projects to be carried out under the auspices of the International Polar Year (IPY) was well received. This includes funding for New Zealand participation in the Census of Antarctic Marine Life to be undertaken by RV Tangaroa in the Ross Sea in February-March 2008.
New Zealand participated in the 26th annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) which took place in Hobart from 22 October to 2 November 2007. The framework for New Zealand’s participation continued to be the Strategy for the Future Management of the Marine Living Resources and Biodiversity of the Ross Sea (the Ross Sea Strategy),[109] which was agreed by Cabinet in March 2006. A significant achievement for the New Zealand delegation was the adoption of its proposal for a new Conservation Measure (31-02) on the closure of fisheries.[110] The new measure is designed to ensure catch limits set by the Commission are not exceeded, as well as providing a new notification and reporting requirement that further supports the effective management of CCAMLR fisheries.
New Zealand also contributed to the development of a new Conservation Measure on Bottom Fishing in the Convention Area (22-06)[111] on the basis of a proposal put forward by the United States. The Measure responds to United Nations General Assembly Resolution 61/105, adopted on 8 December 2006,[112] which calls upon regional fisheries management organisations to adopt and implement measures to prevent significant adverse impacts of bottom fisheries on vulnerable marine ecosystems.
New Zealand continued to play an active and influential role in CCAMLR by contributing by far the greatest amount of marine research and science for the Ross Sea. New Zealand delegates also chaired or convened the Working Group on Fish Stock Assessments, the Working Group on Incidental Mortality Arising from Fishing and the Conservation Measures drafting group of the Standing Committee on Implementation and Compliance which deals with illegal, unreported and unregulated (IUU) fishing.
The Commission adopted a decision[113] to undertake a performance review of CCAMLR during the 2007/08 intersessional period with the final report to be submitted to the Contracting Parties at the 2008 annual meeting. This decision took into account the call in United Nations General Assembly Resolution 61/105 for regional fisheries management organisations to undertake urgently such a review. New Zealand was concerned to ensure that the criteria for the review adequately reflected the fact that CCAMLR is an integral part of the Antarctic Treaty System. The role of CCAMLR within the Antarctic Treaty System was included in the final text of the criteria for the review. In addition the Chair of the Committee on Environmental Protection was invited to serve ex officio on the Review Panel.
The substantial increase in notifications for the krill fishery received for 2007/08 season (25 vessels for a total catch of 764,000 tonnes compared to six vessels which achieved a total catch of 104,364 tonnes in 2006/07) was cause for concern to many delegations including New Zealand. In the event following discussions in the Scientific Committee and the Commission a large number of notifications were withdrawn. New Zealand is concerned that any development of the krill fishery should proceed in an orderly manner, including with full coverage under the CCAMLR Scheme of International Scientific Observation.
Trevor Hughes,
Head, Antarctic Policy Unit
Ministry of Foreign Affairs and Trade
New Zealand’s state practice with regard to international economic law is a textbook example of the present state of international economic law: next to the multilateral arena (mainly represented by the WTO), the world of preferential trade agreements (PTAS, FTAS, RTAS) has established itself as the second strand of international economic law. To some extent, the WTO’s dispute settlement mechanism is keeping the two worlds together.
After the high hopes of the 2005 Hong-Kong Ministerial Meeting had vanished like the picture of Dorian Gray in 2006, 2007 ended on a more optimistic note. At the time of writing (1 June 2008) it is not clear whether the work done in 2007 will indeed produce a successful conclusion of the Doha Round. However, the preliminary results of the negotiations in 2007 revitalized the effort to incrementally change the Final Act of the Uruguay Round to better suit the present needs of its 151 Members.
New Zealand has continued to play an active role the Round, particularly through the work of its Permanent Representative in Geneva, Mr Crawford Falconer, who chairs the high-profile agricultural negotiations. The most important interim success had already been achieved at the Hong-Kong Ministerial meeting, where the phasing out of export subsidies for agricultural products by 2013 had been agreed. 2007 saw progress with regard to other forms of overall trade-distorting support (OTDS), such as export financing, certain practices of state trading enterprises and food aid.[114] [115]
With respect to flexibilities in the application of future tariff reductions, Ambassador Falconer injected certain tentative figures into the discussion, by inquiring whether Members would accept the right of developing countries to designate 8-12% of tariff lines as ‘special’, thus exempting them from general tariff cuts.[116]
Negotiations on non-agricultural market access (NAMA) showed less development, although Members continued to voice their belief that a solution was achievable in 2008. Services, the treatment of environmentally friendly products, the clarification of the rules concerning Antidumping (‘zeroing’, see infra) and subsidies were still highly contentious. With regard to the latter complex, the discussions concerning the prevention of subsidies for fishery industries were of particular interest to New Zealand, which supported a US proposal.[117] Substantial agreement was reached with regard to preventing subsidies facilitating fleet overcapacity and overfishing; proposed exceptions for developing countries were met with scepticism by New Zealand.[118]
Due to the perceived failure of the WTO’s Council for Trade-Related Aspects of Intellectual Property (TRIPS Council, cf. Art. IV:5 WTO Agreement) to properly address the enforcement of Intellectual Property rights, New Zealand entered into discussions with Canada, the EU, Japan, Korea, Mexico, Switzerland and the US on a plurilateral anti-counterfeiting agreement in order to facilitate the effective protection of IP rights through, inter alia, specialisation of, and closer cooperation between, law enforcement agencies.
Australia and New Zealand continue to aim for a Single Economic Market. In doing so, the two countries rely on cooperation, harmonisation and close co-operation: integrationist or supranational elements (which could draw on European experiences), while being considered in the context of a single currency by Australian parliamentarians[119], do not have the political support of the two countries.[120]
In 2006/7, trans-Tasman trade amounted to NZ$15.7 billion in goods and over NZ$6 billion in services. New Zealand is Australia’s sixth largest market and is its tenth largest source of imports. Almost 20% of New Zealand’s exports are being sold to Australia, which also provides 20% of its imports. Australia is New Zealand’s principal investment partner and New Zealand is the third largest destination for Australian investment abroad.
The revised CER Rules of Origin, based on a change in tariff classification approach, came into effect on 1 January 2007. Work on expanding the scope of application of the Trans-Tasman Mutual Recognition Arrangement (TTMRA) is continuing. TTMRA not only covers goods (with the exception of numerous foods), but also professional qualifications: qualifications to practice an occupation in one jurisdiction entail the right to do so in the other.
In order to remove trade barriers standing in the way of the goal of a single market, the contracting parties negotiated a Treaty on Trans-Tasman Court Proceedings and Regulatory Enforcement.[121] It deals with legal co-operation in civil proceedings with a trans-Tasman element, and the enforcement of civil penalties and certain regulatory criminal fines across the Tasman. It is expected to be concluded in 2008.
Although the CER was concluded in the early 1980s, New Zealand only started to develop WTO-compatible preferential trade relations after 2000. No new pertinent agreement was concluded in 2007.
Much of the New Zealand government’s resources related to trade policy and law were used during and for negotiating the rather ambitious Free Trade Agreement with China which was concluded in 2008 after 15 rounds of negotiations[122] and receives special attention elsewhere in this Yearbook.[123] It is the first preferential trade agreement between China and an OECD country. Structurally a WTO plus Agreement that builds on the foundation of the parties’ membership in the WTO, it aims to cover ‘substantially all the trade’ in goods (cf. Art. XXIV GATT) and to have ‘substantial sectoral coverage’ (Art. V GATS) with regard to trade in services.
Negotiations between the Association of South East Asian Nations (ASEAN), Australia and New Zealand continued in 2007, the first of four rounds[124] conducted in 2007 taking place in Wellington. Observers reported that New Zealand’s insistence on including labour, environmental and IP rights clauses threatened a conclusion of the negotiations by the target date 2009.[125] The New Zealand Ministry of Foreign Affairs and Trade (MFAT), however, remains optimistic that a comprehensive Free Trade Agreement can be concluded in 2008.
Two negotiating rounds between the Gulf Cooperation Council (GCC) – consisting of Bahrain, Kuwait, Oman, Qatar, Saudi-Arabia and the United Arab Emirates – and New Zealand kept the project of a pertinent FTA on track. The recent surge of FTAs with the GCC has initiated a race of many major exporting nations to avoid being left behind in markets that will be the major beneficiaries of rising oil prices in the coming decades.
Two further FTA projects took shape in 2007. New Zealand and India agreed to establish a Joint Study Group exploring the feasibility and scope of an FTA between the two countries which should cover goods, services and investment.[126] Talks with Korea concerning an FTA lead to the establishment of a Joint Study Group, which in turn paved the way for inter-governmental preparatory talks to discuss a possible FTA between these two OECD countries.[127]
The Pacific Four (P4) — Chile, Singapore, Brunei Darussalam and New Zealand — agreed with the United States to enter into formal negotiations on a Financial Services and Investment chapter. Modern Investment Agreements typically contain the prior consent of contracting parties to binding dispute settlement mechanisms.[128] New Zealand has traditionally been reluctant to commit in such fashion.
The Agreement on Requirements for Wine Labelling was signed on 23 January 2007 in Canberra by all members of the World Wine Trade Group (WWTG), an informal grouping of wine producing states comprising Argentina, Australia, Canada, Chile, New Zealand, South Africa and the United States. The Agreement permits the placement of four items of mandatory information — country of origin, product name, net contents and alcohol content — anywhere on a wine bottle label provided they are presented in a single field of vision. By establishing a set of common labelling information for all Parties, the Agreement aims at minimizing labelling-related trade barriers. The WWTG is sceptical of the EU’s positions regarding wine and spirits.[129]
On 27 August 2007, the Governments of Indonesia and New Zealand signed a Trade and Investment Framework. This arrangement expresses aspirations more than it contains legally binding commitments: the partners express a commitment to open, transparent and competitive markets and to fostering bilateral trade and investment. The arrangement provides for bilateral dialogue at operational and ministerial level.[130]
After many years of ultimately fruitless diplomatic efforts to lift an 86 year long ban on the importation of Apples, New Zealand requested, on 6 December 2007, the establishment of a WTO panel to address the matter.[131] The Australian market has been closed to New Zealand apples since 1921, when the disease fire blight was found to have affected New Zealand apples. In late 2006, the pertinent Australian government body (‘Biosecurity Australia’) issued a Final Import Risk Analysis Report for Apples from New Zealand which recommended that imports of apples from New Zealand be permitted, subject to a range of phytosanitary measures.[132]
It should be recalled that the obvious forum for such a dispute between the two old friends and allies — a dispute settlement mechanism within the CER framework — does not exist: the two partners deemed it unnecessary at first; later, the regional hegemon refused to take up pertinent proposals. Both Australia and New Zealand use resources for that case which seem to exceed the economic relevance of the matter for Trans-Tasman trade. It is the first dispute New Zealand has brought against Australia before a treaty-based dispute settlement mechanism.
New Zealand considers most of the risk management measures imposed by Australia to be inconsistent with Australia’s obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures.[133]
This is a case brought by Canada and Brazil against certain US support measures for producers of agricultural products, which, in the opinion of the complainants, violate their rights under the WTO Agreement on Subsidies and Countervailing Measures (SCM) and the Agreement on Agriculture (AoA).[134] The Dispute Settlement Body established a Panel at its meeting on 17 December 2007. New Zealand, together with Argentina, Australia, Chile, China, the EU, India, Japan, Mexico, Nicaragua, South Africa, Taiwan and Thailand reserved their third-party rights.
On 5 January 2007, New Zealand presented its written submission as Third Party in the dispute between the US and Brazil.[135] As a leading agricultural exporter, New Zealand has a particular interest in the application of the WTO Agreement on Subsidies and Countervailing Measures (SCM Agreement) and its disciplines to agricultural products. The submission explores the relationship between Article 21.5 DSU and Art. 7.8 SCM Agreement, addresses the jurisdictional issues, and focuses in substantive detail on an analysis of why certain United States measures (marketing loan payments and counter-cyclical payments) are not compatible with the SCM Agreement’s obligation to not adversely affect the interests of its (more efficient agricultural) trading partners.
At its meeting on 23 January 2007, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report, in United States — Measures Relating to Zeroing and Sunset Reviews.[136] As a Third Party, New Zealand had, in 2006, submitted its view of the legal issues at stake.[137] The Appellate Body endorsed the view that the WTO Antidumping Agreement allows the use of transaction-to-transaction methodology when determining the dumping margin, i.e. when comparing export price and the ‘normal value’ charged in the exporting country’s domestic market.
On 20 December 2007, the European Community and New Zealand agreed on new conditions for New Zealand’s butter quota.[138] The Agreement follows arrangements to curtail the consequences of a judgment of the European Court of Justice.[139] In that case, brought by a German dairy company, the ECJ held that the pre-existing arrangements were discriminatory as import licences for New Zealand butter were only issued to European subsidiaries of Fonterra. The new regime will attribute 55 per cent of import licences to traditional importers of New Zealand butter and 45 per cent to newcomers.
On 18 March 2007 the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression (Diversity Convention), having been ratified by more than the required thirty States, entered into force.[140] In late 2005, only the United Sates and Israel had voted against its adoption, while Australia, Honduras, Liberia and Nicaragua abstained. The entering into force of the Convention is the final breakthrough of the concept of cultural diversity as an internationally legitimized policy choice. It is reported here, however, because of the clear intent of some state parties to create a cultural exception for WTO obligations outside of the WTO Agreement. As will be recalled efforts to include a cultural exception within the WTO system proved unsuccessful in 1993.[141]
Stating explicitly that cultural goods transcend their economic value,[142] the Convention reaffirms in article 5 the right of its signatories ‘to formulate and implement their cultural policies and to adopt measures to protect and promote’ the diversity of cultural expressions within their territory. When taking action in favour of cultural diversity, States have to observe the ‘guiding Principles’ of the Convention, amongst which human rights are one consideration, together with, inter alia the ‘Principle of openness and balance’. The Convention states expressly that it may not be used to limit the scope of human rights and fundamental freedoms. The key provisions from the perspective of international economic law are to be found in article 6, according to which states may take certain protective measures which may be incompatible with WTO obligations: in particular, the Convention allows Parties to subsidize domestic and selected foreign producers, to set up local content thresholds and to set up quotas.
The Convention defines ‘cultural activities, goods and services’ as those ‘activities, goods and services, which at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have.’[143]
The central operative provision for bringing about the desired shielding effect for domestic policies safeguarding national cultural industries against foreign competition was supposed to be what is now article 20. This provision deals with the ‘relationship to other treaties: mutual supportiveness, complementarity and nonsubordination’.
Article 20 para. 1 first sentence of the Diversity Convention orders signatories to perform in good faith all their obligations under both the Convention and all other treaties. Article 20(1)(a) then introduces the concept of ‘mutual supportiveness’ between the Convention and other treaties. Signatories undertake to ‘foster mutual supportiveness between this Convention and the other treaties to which they are parties’. Article 20(1)(b) of the Convention commands that ‘when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention.’ The latter provision is an important political mandate to consider the Diversity Convention even in trade negotiations, a mandate which has already been taken up by the EU with willing partners in CARICOM.[144]
Article 20 para. 2, however, adds that nothing ‘in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.’ Due to this provision which clearly leaves WTO obligations unaffected, the Diversity Convention got the near unanimous support of the UNESCO membership. While happily supporting an international document intended to foster cultural diversity, many states - including New Zealand - would not have been prepared to subscribe to more far-reaching draft versions, such as: ‘The provisions of this Convention shall not affect the rights and obligations of any State Party deriving from any existing international instrument, except where the exercise of those rights and obligations would cause serious damage or threat to the diversity of cultural expressions.’[145] With such wording the Convention would have claimed to be superior to WTO law in case of conflict, provided that the requirements of that clause would have been met (‘serious damage or threat to the diversity of cultural expression’).[146]
Michael Hahn
University of Waikato
As in previous years, 2007 witnessed considerable activity but modest progress in the strengthening of nuclear disarmament and non-proliferation. The 1st Prepcom for the 1968 Treaty on the Non-proliferation of Nuclear Weapons (NPT)[147] 2010 Review Conference was convened, as was the 5th Conference for facilitating the entry-into-force of the 1996 Comprehensive Nuclear Test Ban Treaty (CTBT).[148] The Security Council remained seized of matters connected to weapons of mass destruction (WMD) disarmament in Iraq and Iran’s nuclear development programme. The General Assembly adopted a number of resolutions relating to these topics.[149] Through all of this, New Zealand continued to participate actively.
To a greater extent than generally recognised, the conceptual framework for dealing with the question of nuclear weapons (and other WMDs) rests on the two principles contained in the UN Charter pertaining to weaponry, namely disarmament and the regulation of armaments. Under the Charter:
• It has been the responsibility of the Military Staff Committee (MSC) to assist the Security Council in formulating plans, for the consideration of Member States, pertaining to a system for the regulation of armaments.[150] The MSC is to advise and assist the Security Council on questions relating to the military requirements for peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.[151]
• The General Assembly is empowered to consider the principles governing disarmament and the regulation of armaments and may make recommendations with regard to such principles to the Security Council or direct to all Member States.[152]
While the MSC has never been called upon to perform these functions, the international community concluded the 1968 Nuclear Non-Proliferation Treaty in partial fulfilment of its obligations under the Charter. The twin principles of disarmament and armaments regulation are captured in the NPT. The Treaty declares the intention of States Parties to undertake effective measures in the direction of nuclear disarmament, and, to that end, refers to the strengthening of trust between States to facilitate the elimination of nuclear weapons from national arsenals.[153] Article VI imposes a binding obligation on the five nuclear-weapon states to pursue negotiations in good faith on effective measures relating to nuclear disarmament.[154] In exchange, non-nuclear-weapon States undertake to abjure the acquisition or use of nuclear weapons, and to develop nuclear energy exclusively for peaceful purposes.
The persisting contention within the international community over the extent to which either of these two legal principles and obligations are being faithfully respected and attained continues to underlie all legal, diplomatic and political footwork through the past four decades. The year 2007 was no exception.
This section will review the principal developments in this respect during 2007, and New Zealand’s role in them. It will conclude with some general observations on the relationship between law and politics as it pertains to the question of nuclear weapons.
The principal development with regard to the NPT in 2007 was the First Preparatory Committee Meeting for the 2010 NPT Review Conference (NPTRC), convened in Vienna in May. The lingering issues that marked the stand-off of the 2005 NPTRC were still identifiable in the Prepcom’s deliberations. The main points to be discussed were identified in the Chairman’s Working Paper.[155] States parties expressed their views on inter alia, ten generic points:
1. The NPT remains the cornerstone of the global non-proliferation regime and the ‘essential foundation for the pursuit of nuclear disarmament’.
2. The Treaty rests on three pillars: nuclear disarmament, nuclear non-proliferation, and peaceful uses of nuclear energy. The importance of ‘balanced, full and non-selective’ application and implementation of the Treaty was stressed.
3. Multilateralism and mutually-agreed solutions, in accordance with the UN Charter, provide the only sustainable method of dealing with the multiplicity of disarmament and international security issues.
4. The possibility of non-state actors, including terrorists, gaining access to WMDs and their means of delivery is a matter of concern.
5. Continued support to ensure universality of the Treaty is essential. The non-parties (India, Israel and Pakistan) are urged to accede ‘promptly and without condition’.
6. Non-compliance with the Treaty can undermine non-proliferation, disarmament, universality and peaceful uses of nuclear energy.
7. The commitment to implementing Article VI remains. While recent moves to nuclear disarmament were recognised, the slow pace of progress in implementing the thirteen practical steps is a matter of concern.
8. The total elimination of nuclear weapons is the ‘only absolute guarantee’ against their use. The indefinite extension of the NPT does not imply the indefinite possession of nuclear arsenals. The ICJ’s Advisory Opinion[156] regarding the obligations of nuclear-weapon States was recalled and support expressed for a nuclear weapons convention.
9. Reducing the deployed status of nuclear weapons through de-alerting is important. Greater information from the nuclear-weapon States on the active and reserve status is necessary.
10. The contribution of nuclear-free zones (now covering 105 States) is recognised, and the creation of the Central Asian Nuclear Weapon-free Zone is welcomed. Support for Mongolia’s nuclear-free zone was expressed. The importance of establishing zones in the Middle East and South Asia was stressed.
Of further interest to the potential evolution of international law on the subject were two particular background papers.
At the conference Austria provided a ‘food-for-thought’ paper on the multilateralisation of the nuclear fuel cycle.[157] Given the widespread global presence of the nuclear industry today (435 nuclear power plants; some twelve countries with enrichment facilities, and 40 with the technical expertise to produce nuclear weapons), together with the ‘gradual erosion of the international non-proliferation regime’, there was an urgent need to act. One possibility could be a return to one of the key ideas that lay at the root of European integration. Although the challenges that confronted European security half a century ago concerned a different field of technology (steel and coal), the political answers sought today might, nonetheless, be similar. The EU founding members laid the basis of their community by placing substances and technologies that could be used peacefully, but also for the production of weapons, under multilateral control. Similar proposals for the nuclear sector had been discussed at the international level for many years. It was now appropriate to promote a multilateralisation of the nuclear fuel cycle under the auspices of an ‘international nuclear fuel bank’ to ensure, monitor and verify safe, secure and fair distribution. The Austrian idea involved a two-track process: the first dealing with all nuclear-related activities; and the second with enrichment facilities. It was ‘now crucial’ for the responsible political leadership to demonstrate real commitment and vision so that this process could be launched.
For its part, Costa Rica circulated a model nuclear weapons convention,[158] a revision of an earlier model circulated by the UN Secretary-General in 1997.[159] The new draft was intended to assist States parties to the NPT in their deliberations with respect to the implementation of article VI. It explored the legal, technical and political elements required for the achievement and maintenance of a nuclear-weapon-free world. In this respect it went beyond the obligations of States parties to the NPT to also address disarmament obligations of all States under customary international law as affirmed by the ICJ in its 1996 advisory opinion.
The stalemate between the five NPT nuclear-weapon States and the non-nuclear weapon States continued. In the Prepcom, the former reiterated their commitment to nuclear disarmament under Article VI. A number of them delivered presentations on the measures they had taken to reduce their nuclear weapon arsenals and reduce their alert status. The suggestion was made during the meeting that the UN Secretariat should compile a comparative table recording measures undertaken by them under Article VI, for tabling at the 2010 Review Conference.[160]
Two specific non-proliferation issues were addressed in the Prepcom. States parties reaffirmed the importance of implementing the 1995 NPTRC Resolution on the Middle East.[161] This had been an essential part of the basis for the indefinite extension of the Treaty itself. It was noted that all Middle East States except Israel were NPT parties. Israel was urged to accede ‘as soon as possible’. It was suggested that a subsidiary body on a Middle East zone be established for the 2010 Review Conference.[162] Serious concern was expressed over Iran’s nuclear development programme. Iran was urged to comply with Security Council resolutions 1737 and 1747 which ‘demonstrated the resolve of the international community’. Iran expressed its readiness to resolve outstanding issues within the IAEA (International Atomic Energy Agency) framework, provided Security Council disengagement is realised.[163]
In September 2007, the 5th Conference on Facilitating the Entry-into-Force of the CTBT was convened, pursuant to Article XIV of the Treaty. The Treaty was opened for signature in 1996 and immediately signed by all five NPT nuclear-weapon States. But while France, UK and Russia have ratified, China and the US have not. The Treaty, currently ratified by 144 States, will not enter into force until all 44 Annex 2 States have ratified. At present, 35 such States have ratified, but there remain nine states – of which six have signed but not ratified,[164] and three have not signed.[165] Six of the nine states however, attended the Conference.[166]
India, which explained its decision not to sign on the grounds that the entry-into-force procedure is unprecedented and contrary to customary international law, did not attend, nor did the United States or Democratic Peoples Republic of Korea. Pakistan, despite being a non-signatory state, attended for the first time as an observer, and stated that it was ‘not opposed to the objectives and purposes’ of the Treaty.[167]
In its Final Declaration the Conference decided by consensus what measures consistent with international law could be undertaken to accelerate the ratification process. It reiterated that the cessation of all nuclear explosions, constraining the development and qualitative improvement of nuclear weapons and ending the development of advanced new types of nuclear weapons, constituted an effective measure of nuclear disarmament and non-proliferation.[168]
In 2007 the Security Council, remaining seized of the matter of Iran’s nuclear development programme, adopted a resolution of legal significance. Under SC Resolution 1737 of 27 December 2006, the Council had explicitly stated that it was ‘acting under Article 41 of Chapter VII of the Charter’.[169] The Council then, inter alia, affirmed that Iran shall implement resolution 2006/14 of the IAEA Board of Governors and decided that Iran shall suspend its proliferation-sensitive nuclear activities.[170]
This authoritative language used by the Council is redolent of SC Resolution 687 (1991) under which the Council decided that Iraq would unconditionally agree not to acquire or develop nuclear weapons.[171] SC Resolution 687 was the first, and hitherto sole, case of the Council revoking the traditional right of a sovereign state under customary international law to withdraw from the NPT and acquire nuclear weapons. The Council appears here to be engaging in similar self-empowerment with respect to Iran.
In SC Resolution 1747, adopted on 24 March 2007, the Council reiterated its determination to reinforce the authority of the IAEA in this matter. It underlined the necessity of the Agency, which is ‘internationally-recognised’ as having authority to ensure compliance with safeguards agreements, to continue its work to resolve the outstanding issues. The Council called for a report from the IAEA within 60 days on whether Iran had established full and sustained suspension of all its activities referred to in SC Resolution 1737, affirming that it would suspend the sanctions in the event of Iranian compliance.[172]
During 2007 the Council also took steps of legal significance with respect to Iraq. Recalling its fourteen relevant resolutions dating back to 1991 and acting under Chapter VII, the Council terminated the mandates of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and the IAEA under those resolutions. The operations of UNMOVIC and the IAEA’s Iraq Nuclear Verification Office (INVO) were deemed to be no longer necessary for the purpose of verifying Iraq’s compliance with its nuclear non-proliferation obligations. These steps responded to the request made on 8 April by the Foreign Minister of Iraq that the mandates of these organisations be terminated.[173] The Government of Iraq reiterated its commitment to the NPT and relevant Council resolutions, and noted that the new Constitution made it impossible for it to acquire WMDs.[174] In June the US and the UK advised the Security Council that inter alia ‘all appropriate steps have been taken to secure, remove, disable, render harmless, eliminate or destroy’ all of Iraq’s known WMDs and ballistic missiles. The US and the UK noted the actions Iraq has taken or intends to take ‘demonstrate and affirm to the international community its belief that it is now in full compliance with its disarmament obligations under the relevant Council resolutions’.[175]
The General Assembly’s resolutions pertaining to nuclear weapons at its 62nd Session in 2007 are set out in Table 1 (see Annex). They can generally be seen as falling into four categories: nuclear disarmament, nuclear doctrine, nuclear-free zones and nuclear terrorism. The first two categories raise complex issues of policy and are considered below.
- 62/24 NPTRC obligations[176]
In Resolution 62/24, the Assembly calls for, inter alia, further efforts by the nuclear-weapon States to reduce their nuclear arsenals unilaterally; a diminishing role for nuclear weapons in security policies, and the engagement as soon as appropriate, of all nuclear weapons States in the process leading to the total elimination of their nuclear weapons. This resolution was adopted by 109 votes to 55; with 15 abstentions. New Zealand voted against this resolution.
- 62/25 A nuclear-free world[177]
In Resolution 62/25 the Assembly emphasises the central role of the NPT and its universality in achieving nuclear disarmament and nuclear non-proliferation. It reaffirms that the outcome of the 2000 NPTRC sets out an agreed process for nuclear disarmament. It urges India, Israel and Pakistan to accede to the NPT ‘as non-nuclear-weapon States promptly and without conditions’, and urges the Democratic Peoples Republic of Korea to rescind its announced withdrawal. This resolution was adopted by 156 votes to 5, with 14 abstentions. New Zealand supported, having co-sponsored, this resolution.
- 62/37 Elimination of nuclear weapons[178]
The General Assembly reaffirms in Resolution 62/37, the importance of the universality of the NPT and encourages further steps towards nuclear disarmament, including greater reductions in all types of nuclear weapons. Adopted by 170 votes to 3, with 9 abstentions, New Zealand supported this resolution.
- 62/39 ICJ opinion on the threat or use of nuclear weapons[179]
The General Assembly expressed the conviction in Resolution 62/39 that the continuing existence of nuclear weapons poses a threat to all humanity and that their use would have catastrophic consequences for all life on Earth. It recognised that the only defence against a nuclear catastrophe is the total elimination of nuclear weapons and the certainty that they will never be produced again. The Assembly underlined the ICJ conclusion that there exists an obligation to pursue in good faith, and bring to a conclusion, negotiations leading to nuclear disarmament.[180] The Assembly called upon all States to commence negotiations for a nuclear weapons convention. This resolution was adopted by 127 votes to 27, with 27 abstentions. New Zealand supported it.
- 62/42 Nuclear disarmament[181]
The General Assembly recognises in Resolution 62/42 that there now exists ‘conditions for the establishment of a world free of nuclear weapons’, and emphasises the need to take practical measures for the purpose of achieving that goal through the ‘thirteen steps’ agreed at the 2000 NPTRC. The Assembly noted its appreciation for the unilateral measures taken by the nuclear weapon States for nuclear arms limitation, but reiterated concern over the slow progress towards the total elimination of their nuclear arsenals and nuclear disarmament. The Assembly recognises that the ‘time [is] now opportune’ for all nuclear weapon States to take effective disarmament measures with a view to achieving the elimination of these weapons. Nuclear disarmament and nuclear non-proliferation are ‘substantively inter-related’. It recognises that there is a ‘genuine need’ to diminish the role of nuclear weapons in strategic doctrines and security policies. This resolution was adopted by 117 votes to 47, with 17 abstentions. New Zealand supported this resolution.
- 62/51 A nuclear weapons convention[182]
The General Assembly expressed its conviction in Resolution 62/51 that nuclear weapons pose ‘the most serious threat to the survival of mankind’. It is convinced that a multilateral, universal and binding agreement prohibiting the use or threat of use of nuclear weapons will contribute to the elimination of the nuclear threat and to the climate for negotiations leading to the ultimate elimination of nuclear weapons. It is determined to achieve an international convention prohibiting the development, production, stockpiling and use of nuclear weapons, leading to their ultimate destruction, and requested the Conference on Disarmament to commence negotiations towards achieving that end. This resolution was adopted by 120 votes to 52, with 10 abstentions. New Zealand voted against this resolution.
- 62/59 Nuclear testing[183]
The General Assembly reiterated in Resolution 62/59 that cessation of nuclear weapons testing is a meaningful step in the process towards nuclear disarmament, and that the entry-into-force of the CTBT, opened for signature in September 1996, is now more urgent than ever. It urges States that had not done so to sign and ratify the Treaty. This resolution was adopted by 176 votes to 1, with 4 abstentions. New Zealand supported the Resolution, having been the principal sponsor.
- 62/19 Negative assurances[184]
The General Assembly in Resolution 62/19 expressed its conviction that nuclear weapons pose the greatest threat to mankind and to the survival of civilization. It is convinced that nuclear disarmament and the complete elimination of nuclear weapons are essential to remove the danger of nuclear war. It was determined to abide by the relevant provisions of the Charter on the non-use of force or threat of force by all Member States. The Assembly reaffirmed the urgent need to reach an early agreement on effective international arrangements by which the nuclear-weapon states would assure non-nuclear weapon States against the use or threat of use of nuclear weapons. The Assembly appealed in particular to the nuclear-weapon States to agree on a common formula to that effect in a legally-binding international instrument. This resolution was adopted by 121 votes to 1, with 56 abstentions. New Zealand abstained from voting.
- 62/32 Nuclear danger[185]
The General Assembly in Resolution 62/32 reaffirmed that any use or threat of use of nuclear weapons would constitute a violation of the UN Charter. It was convinced that nuclear disarmament and the complete elimination of nuclear weapons are essential to remove the danger of nuclear war. The Assembly called for a review of nuclear doctrines and, in that context, immediate and urgent steps to reduce the risks of unintentional and accidental use of nuclear weapons, including through de-alerting and de-targeting. It requests that the five nuclear- weapon States take necessary measures to those ends. This resolution was adopted by 117 votes to 55, with 12 abstentions. New Zealand voted against.
- 62/36 Operational readiness[186]
In Resolution 62/36 the General Assembly recalled that the maintenance of nuclear weapons on high alert was a feature of Cold War nuclear posturing and expressed concern that, notwithstanding the end of that era, several thousand nuclear weapons remained on high alert, ready to be launched within minutes. Such a high level of readiness increased the risk of their use. Resolution 62/36 calls for further practical steps to be taken to decrease the operational readiness of nuclear weapons systems, with a view to ensuring that all nuclear weapons are removed from high-alert status. This resolution was adopted by 139 votes to 3, with 36 abstentions. New Zealand supported this resolution.
The UN General Assembly voting in 2007 offers interesting material for legal analysis. In terms of voting patterns, there would seem to be three groups of resolutions. The question arises whether these groups carry different implications with respect to customary law.
(a) Some resolutions attracted virtually all Member States with one or a few voting against. Apart from the four consensus resolutions, the US consistently voted against every one of the nuclear resolutions (on three occasions in total isolation), which raises issues as to whether it can invalidate them as an expression of the will of the international community or whether it is building evidence of persistent objection. With three resolutions (62/35, 62/36 and 32/513), the US, UK and France opposed as a Western nuclear-allied group, which raises similar questions. The US opposed three other resolutions (62/25, 62/37 and 62/56) along with Israel, India, Pakistan, and/or North Korea – not exactly strategic partners. Again this small and strange conglomeration raises similar questions. It is a matter of perennial debate whether a UN General Assembly resolution that is adopted by an overwhelming majority creates customary international law when that resolution is opposed by a small number of powerful States. Certainly a treaty may come into force and create binding legal obligations for those acceding States. Does a General Assembly resolution create binding custom for those voting in favour? It would seem to be so when the other actions of those States convey clear affirmation of their resolve. Does it create customary international law that is universally applicable? Only, it would seem, if the substance of the resolution were of the status of ius cogens. Whether declarations condemning the possession of nuclear weapons are within this category is in dispute.
(b) Other General Assembly resolutions attract the opposition of all Western nuclear-reliant States, which comprises a substantial minority opposition. When all of these states, including New Zealand, which has theoretically placed itself outside of the Western nuclear-reliant group, vote against a resolution, the minority can be as large as fifty-five States. It is unlikely that customary law can be created by such a divided expression of international opinion.
(c) A third group is more problematic. With respect to resolution 62/39 (on the illegality of use or threat of use of nuclear weapons), the Western nuclear-reliant group was split. Twenty-seven states opposed the resolution, 27 states abstained and four neutral states (Austria, Ireland, Sweden and New Zealand) voted in favour of the resolution. In this resolution the General Assembly essentially extended political endorsement to the 1996 advisory opinion of the ICJ, a further indication that such an expression of will constitutes ‘soft law’ in the sense of emerging customary international law.
New Zealand maintains a self-perception of active and insightful engagement on nuclear questions. Having renounced nuclear deterrence in 1985, and established a national nuclear-free zone in 1987, it departed company from its ANZUS partners on nuclear issues. New Zealand’s voting pattern has been increasingly at variance with Australia and the United States on nuclear-related issues. Since 2000 New Zealand has tended to ‘partner’ in its voting pattern with the seven-strong New Agenda Coalition (NAC) of which it is a member.[187] Yet the NAC’s voting pattern across the nuclear disarmament and non-proliferation resolutions does not reflect total uniformity of national policies (see Table 2).
New Zealand was active in the NPTRC Prepcom in May 2007, associating itself with the NAC. The NAC Working Paper reaffirmed that ‘any presumption of the indefinite possession of nuclear weapons by the nuclear-weapon States is incompatible with the integrity of and sustainability of the nuclear non-proliferation regime’. A nuclear-weapon-free world would ultimately require the underpinning of a ‘universal and multilaterally-negotiated, legally-binding instrument’ with a framework encompassing mutually-reinforcing sets of instruments. The Paper addressed the issues of universality, nuclear doctrines, reductions in nuclear forces, security assurance and nuclear-weapon-free zones, fissile material and weapons testing.[188] The NAC delivered statements consistent with the themes in the Working Paper, in Cluster 1 Group and in Plenary.[189]
Later in the year at the General Assembly, New Zealand introduced three related resolutions: 62/59 on testing; 62/36 on nuclear danger; and 62/35 on a nuclear-weapon-free Southern Hemisphere.
It can be seen from the above that New Zealand was active during 2007 in nuclear disarmament and non-proliferation, both at the NPTRC Prepcom and at the 62nd session of the General Assembly.
There appears however, to be an inconsistency in the application of New Zealand’s nuclear policy. It is difficult to reconcile, on the one hand, New Zealand’s renunciation of nuclear deterrence and its commitment to the ultimate elimination of nuclear weapons from national arsenals through a multilateral, legally-binding instrument with, on the other hand, its votes in opposition to Resolutions 62/24, 62/32 and 62/51, which aim to do just that. No explanation of its vote was given by New Zealand in 2007 on any resolution indicating any policy concerns it might have entertained on the three resolutions on which it voted against.
There clearly is a strong political element to this – the three resolutions were introduced by Iran or India. New Zealand generally explains that it tends to vote ‘in company with like-minded countries’,[190] but that is essentially meaningless. As noted above, its voting pattern on nuclear weapons issues variously coincides with Ireland and Sweden, and to a lesser extent with Egypt, Brazil – rather than with Australia and the UK.
Although these observations address political rather than legal considerations, they are not without legal significance. With a view to enhancing the legal status of General Assembly resolutions, New Zealand could consider an approach to its voting at the United Nations that more faithfully reflects a legal rather than a political stance on nuclear disarmament and non-proliferation. A set of procedural principles could be devised, for example, that works towards depoliticising the nature of a General Assembly vote. New Zealand could consider the following three such principles:
• A decision by New Zealand on a vote for a draft resolution at the UN General Assembly should be taken strictly on the merits of the draft’s content, without regard to the identity of the sponsoring State(s).
• If a resolution is broadly consistent with New Zealand’s stated policy, irrespective of whichever country has introduced it, or is its prime sponsor, then New Zealand should vote for it.
• If any subordinate part of a resolution causes difficulty in terms of compatibility with New Zealand policy, New Zealand should request paragraph voting, offering an explanation of its vote on any such paragraph it opposes.
Dr Kennedy Graham
University of Canterbury
College of Europe
|
Cluster
|
Resol. No.
|
Resolution
|
Sponsor
|
For
|
Against
|
Abstain
|
|
|
|
|
|
|
|
|
|
N.F. world
|
62/24
|
NPTRC obligations
|
Iran
|
109
|
55
NZ
|
15
|
|
|
62/25
|
Nuclear-free world
|
NAC –
Mexico
|
156
NZ
|
5
India, Isr, Pak, US
|
14
|
|
|
62/37
|
Elimination of nucl. Weapons
|
Japan
|
170
NZ
|
3
DPRK, India, US
|
9
|
|
|
62/39
|
Illegality of use or threat
|
Malaysia
|
127
NZ
|
27
|
27
|
|
|
62/42
|
Nuclear disarmament
|
NAM – Myanmar
|
117
NZ
|
47
|
17
|
|
|
62/51
|
Nucl. Weapon convention
|
India
|
120
|
52
NZ
|
10
|
|
|
62/59
|
Nuclear testing
|
NZ
|
176
NZ
|
1
US
|
4
|
|
N. doctrine
|
62/19
|
NSAs
|
Pakistan
|
121
|
1
US
|
56
NZ
|
|
|
62/32
|
De-alerting
|
India
|
117
|
52
NZ
|
12
|
|
|
62/36
|
Nuclear danger
|
NZ
|
139
NZ
|
3
Fr UK US
|
36
|
|
|
62/513
|
Nuclear danger
|
Mexico
|
133
NZ
|
3
Fr UK US
|
43
|
|
NWFZs
|
62/15
|
Africa
|
Nigeria
|
Consensus
|
|
|
|
|
62/16
|
LAC
|
Mexico
|
Consensus
|
|
|
|
|
62/18
|
ME
|
Egypt
|
Consensus
|
|
|
|
|
62/31
|
SEA
|
Indonesia
|
174
NZ
|
1
US
|
5
|
|
|
62/35
|
Sthn. Hem.
|
NZ
|
169
NZ
|
3
Fr UK US
|
8
|
|
|
62/56
|
M.E. risk of proliferation
|
Egypt
|
170
NZ
|
5
India, Isr, US
|
7
|
|
N.terrorism
|
62/33
|
Prevention
|
India
|
Consensus
|
|
|
|
|
62/46
|
R/active material
|
|
|
|
|
|
State
|
Yes
|
No
|
Abstain
|
|
Brazil
|
11
|
|
|
|
Egypt
|
11
|
|
|
|
Ireland
|
6
|
3
|
2
|
|
Mexico
|
11
|
|
|
|
New Zealand
|
7
|
3
|
1
|
|
South Africa
|
10
|
|
1
|
|
Sweden
|
6
|
3
|
2
|
[1] Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 18 December 2002, 42 ILM 26 (in force 22 June 2006).
[2] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 46 ILM 443 (in force 3 May 2008).
[3] For more information, see Office for Disability Issues http://www.odi.govt.nz/what-we-do/un-convention/ at 28 February 2008.
[4] Convention for the Protection and Promotion of the Diversity of Cultural Expressions, opened for signature 20 October 2005 (in force 18 March 2007).
[5] Note 52, Chapter IV.8, Multilateral Treaties Deposited with the Secretary-General (5 July 2007). See further the 2007 update related to International Humanitarian Law in this section.
[6] Moratorium on the use of the death penalty, GA Res 62/149, UN GAOR, 62nd sess, 76th plen mtg, UN Doc A/RES/62/149 (2008).
[7] CAT/C/NZL/5 (2007).
[8] CCPR/C/NZL/2007 (2007).
[9] CEDAW/C/NZL/CO/6 (2007).
[10] CEDAW/C/NZL/6 (2006).
[11] CEDAW/C/NZL/6 (2007), paras 6 and 8.
[12] CEDAW/C/NZL/CO/6 (2007), paras 12-15.
[13] CEDAW/C/NZL/CO/6 (2007), paras 22-23.
[14] CEDAW/C/NZL/CO/6 (2007), paras 24-27, 30-31, and 34-37.
[15] CEDAW/C/NZL/CO/6 (2007), paras 28-29.
[16] CERD/C/NZL/CO/17 (2007).
[17] CERD/C/NZL/17 (2006).
[18] CERD/C/NZL/CO/17 (2007), paras 5, 6 and 9.
[19] CERD/C/NZL/CO/17 (2007), paras 12, 13, 18.
[20] CERD/C/NZL/CO/17 (2007), paras 14, 19-20 and 23.
[21] CCPR/C/89/D/1368/2005 (2007).
[22] CCPR/C/89/D/1368/2005 (2007), para 9.3.
[23] CCPR/C/89/D/1368/2005 (2007), p 20.
[24] New Zealand Government, United Nations Human Rights Committee – Communication No 1368/2005 submitted by EB: The New Zealand Government Response to the Views of the Human Rights Committee in relation to Communication 1368/2005 (2007) <www.justice.govt.nz> at 17 October 2007.
[25] New Zealand Government, United Nations Human Rights Committee – Communication No 1368/2005 submitted by EB: The New Zealand Government Response to the Views of the Human Rights Committee in relation to Communication 1368/2005 (2007) <www.justice.govt.nz> at 17 October 2007, para 7.
[26] CCPR/C/91/D/1385/2005 (2007).
[27] CCPR/C/79/D/1090/2002 (2003).
[28] For the text of these statements see Ministry of Foreign Affairs and Trade <www.mfat.govt.nz/Media-and-publications> at 29 February 2008.
[29] UN General Assembly Resolution 61/295 ‘Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (13 September 2007).
[30] Letter from the Permanent Missions of Canada, Colombia, New Zealand and the Russian Federation to the President of the General Assembly (13 August 2007). Copy on file with author. New Zealand’s views were similarly expressed in General Assembly discussions on the Declaration on 21 June 2007. A verbatim report of those discussions is on file with the author.
[31] ‘Declaration on the Rights of Indigenous Peoples’ Explanation of Vote by HE Rosemary Banks, New Zealand Permanent Representative to the United Nations, 13 September 2007 and available at Ministry of Foreign Affairs and Trade <http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/0-13-September-2007.php> at 16 January 2008.
[32] UN General Assembly ‘Declaration on the Rights of Indigenous Peoples’ (13 September 2007) UN Doc A/61/L.67 and available at IWGIA <http://www.iwgia.org/graphics/
Synkron-Library/Documents/InternationalProcesses/DraftDeclaration/07-09-13ResolutiontextDeclaration.pdf> at 16 January 2008.
[33] Above n 3.
[34] United Nations Committee on the Elimination of Racial Discrimination ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination: New Zealand’ (15 August 2007) UN Doc CERD/C/NZL/CO/17.
[35] United Nations Committee on the Elimination of All Forms of Discrimination Against Women ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination: New Zealand’ (10 August 2007) UN Doc CEDAW/C/NZL/CO/6.
[36] Donna Matahaere-Atariki, ‘Implementation of the Millennium Development Goals’ (Statement delivered at the United Nations Permanent Forum on Indigenous Issues, New York, 17 May 2007); and Donna Matahaere-Atariki, ‘Urban Indigenous Peoples and Migration’ (Statement delivered at the United Nations Permanent Forum on Indigenous Issues, New York, 21 May 2007).
[37] New Zealand Statement on Traditional Knowledge and Access and Benefit Sharing at the 2007 Convention on Biodiversity Ad-Hoc Open-Ended Working Group Access and Benefit Sharing (Montreal, 10 October, 2007). Copy on file with author.
[38] New Zealand Statement on Access and Benefit Sharing and Traditional Knowledge Compilation at the Convention on Biodiversity Sub-Working Group I of the 5th Ad-Hoc Open-Ended Working Group on Article 8(j) (Montreal, 17 October 2007). Copy on file with the author.
[39] New Zealand ‘Written Comments on the List of Issues for the Protection of Traditional Knowledge and Traditional Cultural Expressions/Expressions of Folklore’ UN Doc WIPO/GRTKF/IC/10/7 Prov as Annex 1 (12-13 July 2007) and available at WIPO <http://www.wipo.int/export/sites/www/tk/en/igc/pdf/new_zealand_tk-tce.pdf> at 17 January 2008.
[40] Ibid.
[41] Ibid.
[42] Ibid at para 118.
[43] Ibid at para 135.
[44] Ibid at para 151.
[45] Ibid at para 220.
[46] Email from Wendy Edgar to Claire Charters, 12 February 2008.
[47] (2007) Claim Nos 171 and 172 of 2007, Conteh CJ (Belize Sup Ct).
[48] Ibid, paras 127 – 128.
[49] Ibid, para 131.
[50] Ibid, para 132.
[51] Maori Party ‘Government’s Human Rights Humiliation’ (Press Release, 17 January 2008).
[52] United Nations Human Rights Council Resolution 6/36 ‘Expert Mechanism on the Rights of Indigenous Peoples’ UN Doc A/HRC/6/L.42 (14 December 2007).
[53] United Nations Human Rights Council Resolution 6/36 “Expert Mechanism on the Rights of Indigenous Peoples” and available in UN Doc A/HRC/6/L.11/Add.1 (19 December 2007).
[54] United Nations Human Rights Council Resolution 6/12 “Human Rights and Indigenous Peoples: Mandate of the Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous Peoples” (28 September 2007) available online at: <http://ap.
ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_6_12.pdf> at 22 May 2008.
[•] I especially thank the Ministry of Foreign Affairs and Trade and the Ministry of Health for the information they provided for this review. The views expressed here are my own, as are any errors and omissions.
[55] Foreign Affairs, Defence and Trade Committee, New Zealand House of Representatives, International Treaty Examination of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Adoption of an Additional Distinctive Emblem.
[56] Lianne Dalziel, Minister of Women’s Affairs, ‘Sixth Periodic Report of New Zealand, Opening Statement’ (39th session of the United Nations Committee on the Elimination of Discrimination against Women, New York, 2 August 2007).
[57] Defence Force Order 05/2000.
[58] Convention on Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 10 April 1981, 1342 UNTS, 137 (entered into force 2 December 1983). Prior to ratification, the Foreign Affairs, Defence and Trade Committee had conducted its treaty examination in accordance with Standing Orders and reported to Parliament on 25 May 2007.
[59] Non-Detectable Fragments (Protocol I), Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II) Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), Blinding Laser Weapons (Protocol IV) and Explosive Remnants of War (Protocol V). New Zealand is party to all five protocols.
[60] Being situations covered by Article 2 common to the Geneva Conventions 1949 and Article 1(4) of Additional Protocol I.
[61] That is, to situations referred to in Article 3 common to the Geneva Conventions 1949, but not to situations referred to in Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. Article 1(2) as amended.
[62] Foreign Affairs, Defence and Trade Committee, New Zealand House of Representatives, International Treaty Examination of the Protocol on Explosive Remnants of War to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects.
[63] Declaration, Oslo Conference on Cluster Munitions, Oslo, 23 February 2007. Available from the website of the Norwegian Ministry of Foreign Affairs at <http://www.regjeringen.
no/en/> at 23 May 2008.
[64] Don Mackay, Ambassador for Disarmament, “Statement” (First Committee General Debate, United Nations General Assembly, New York, 10 October 2007).
[65] 49 states participated in the Oslo meeting, 70 in the Lima Conference and 138 in Vienna.
[66] Framework Convention on Climate Change, 31 ILM (1992), 851 (in force 21 March 1994) (UNFCCC).
[67] UNFCCC Report of the centralized in-depth review of the fourth national communication of New Zealand (Document FCCC/IDR.4/NZL) (18 January 2007), United Nations Office Geneva, available online at: <http://unfccc.int/documentation/documents/advanced_search/
items/3594.php?rec=j&priref=600004184> at 20 February 2008.
[68] Ibid, p 5, para 13.
[69] Protocol to the Framework Convention on Climate Change (Kyoto), 37 ILM (1998), 22 (in force 16 February 2005) (Kyoto Protocol). The first commitment period runs from 2008 to 2012. New Zealand ratified the Kyoto Protocol on 19 December 2002 and adopted the Climate Change Response Act 2002 to provide for its implementation.
[70] Minister of Energy, New Zealand Energy Efficiency and Conservation Strategy (11 October 2007), available online at: <http://eeca.govt.nz/eeca-library/eeca-reports/neecs/
report/nzeecs-07.pdf > at 20 February 2008.
[71] Minister of Energy, New Zealand Energy Strategy to 2050 – Powering Our Future (11 October 2007), available online at: <http://www.med.govt.nz/templates/
MultipageDocumentTOC____31948.aspx> at 20 February 2008.
[72] Climate Change (Emissions Trading and Renewable Preference) Bill, Government Bill no 187-1. First reading 11 December 2007.
[73] Individual sectors will be brought into the ETS in a phased manner: forestry first, then liquid fossil fuels, stationary energy, industrial processes, and finally agriculture and waste.
[74] See for example, Greenpeace New Zealand Ltd v Northland Regional Council [2006] NZHC 1212; [2007] NZRMA 87; Genesis Power Ltd v Greenpeace New Zealand Inc [2007] NZCA 569.
[75] The use of the Kyoto Protocol flexible mechanisms (i.e. international emissions trading pursuant to Article 7, clean development mechanism pursuant to Article 12 and joint implementation pursuant to Article 6) will be permissible if their use is supplemental to domestic action. The Marrakesh Accords defined supplemental as constituting a significant element of the efforts made by the parties. See Decision 15/CP.7 (2001) available online at: <http://unfccc.int/resource/docs/cop7/13a02.pdf#page=2> at 24 May 2008.
[76] The United Nations Climate Change Conference, Bali, Indonesia, 3–14 December 2007, 13th Conference of the Parties to the UNFCCC and 3rd Meeting of the Parties to the Protocol to the UNFCCC (Kyoto).
[77] APEC, Sydney, Australia, 8-9 September 2007 resulting in the APEC Leaders Declaration on Climate Change, Energy Security and Clean Development; East Asia Summit, Singapore, 21 November 2007, resulting in turn in the Singapore Declaration on Climate Change, Energy and the Environment; Commonwealth Heads of Government Meeting, Kampala, Uganda, 23–25 November 2008, resulting in turn in the Lake Victoria Commonwealth Climate Change Action Plan.
[78] Address to Closing Plenary by His Excellency Mr Rachmat Witoelar, President of UN Climate Change Conference, 15 December 2007, available online at: <http://unfccc.int/
meetings/cop_13/items/4049.php> at 20 February 2008.
[79] See, UNFCCC Bali Action Plan, Draft Decision -/CP.13 (Advanced Unedited Version) available online at: <http://unfccc.int/meetings/cop_13/items/4049.php> at 20 February 2008).
[80] See, UNFCCC Adaptation Fund Draft Decision-/CMP.3; UNFCCC Reducing emissions from deforestation in developing countries approaches to stimulate action Draft Decision-/CP.13; UNFCCC Development and transfer of technologies under the Subsidiary Body for Scientific and Technological Advice Draft Decision-/CP.13, all available online at: <http://unfccc.int/meetings/cop_13/items/4049.php> at 20 February 2008.
[81] UNFCCC Conclusions Adopted by the Ad Hoc Working Group on Further Commitments for Annex 1 Parties under the Kyoto Protocol at its resumed fourth session held in Bali, 3-11 December 2007; Review of work programme, methods of work and schedule of future sessions, pp 4-5, para 10 (b), available online at: <http://unfccc.int/meetings/cop_13/items/
4049.php> at 20 February 2008.
[82] Convention on Biological Diversity, 31 ILM (1992), 818 (in force 29 December 1993)(CBD). Other international fora and instruments concerned with bioprospecting include the Food and Agriculture Organisation’s Commission on Genetic Resources for Food and Agriculture and the International Treaty on Plant Genetic Resources for Food and Agriculture (in force 29 June 2004) available online at <http://www.planttreaty.org/
texts_en.htm> at 10 March 2008. New Zealand has not ratified this treaty although consideration is being given to this possibility.
[83] Convention on Biological Diversity, ibid, Article 1.
[84] See the Convention on Biological Diversity website, Access and Benefit Sharing web page, <http://www.cbd.int/abs/> at 20 February 2008.
[85] Ministry of Economic Development, Bioprospecting – Harnessing Benefits for New Zealand: A Policy Framework Discussion (9 July 2007) available online at: <http://www.
med.govt.nz/templates/MultipageDocumentTOC____28013.aspx> at 20 February 2008.
[86] International Tropical Timber Agreement 2006 (not in force) available online at <http://untreaty.un.org/English/notpubl/XIX_46_english.pdf> at 10 March 2008.
[87] See the UNCTAD website, The International Tropical Timber Agreement web page, <http://www.unctad.org/Templates/Page.asp?intItemID=3648 & lang=1> at 10 March 2008.
[88] Text of the amendments are available online at: <http://www.fao.org/docrep/meeting/
x3208e.htm#b> at 23 May 2008.
[89] International Plant Protection Convention, in force 3 April 1952, available online at <https://www.ippc.int/IPP/En/default.jsp> at 10 March 2008.
[90] Uruguay Round Trade Agreement, Statement of Administrative Action, Agreement on the Application of Sanitary and Phytosanitary Measures, H.R. DOC No. 316, 103D CONG., 2D SESS., Vol 1, pp 742-763 (27 September 1994) (Agreement on Sanitary and Phytosanitary Measures).
[91] GA Res, UN Doc A/Res/61/105 (2007), para 83.
[92] Ibid, para 85.
[93] Report of the Third International Meeting on the Establishment of the Proposed South Pacific Regional Fisheries Management Organisations, Annex F, available at <www.
southpacificrfmo.org> at 27 March 2008.
[94] A Penney et al, New Zealand Implementation of the SPRFMO Interim Measures for High Seas Bottom Trawl Fisheries in the SPRFMO Area, SPRFMO-V-SWG-09, March 2008, available at <http://www.southpacificrfmo.org/science-working-group/swg-meetings/fifth-swg-meeting/> at 28 March 2008.
[95] Fisheries (High Seas Fishing Notifications) Notice 2007, 2007/393. New Zealand Gazette, 20/12/2007, No. 142, 3723.
[96] Penney et al, above n 4, 1.
[97] Vava’u Declaration on Pacific Fisheries Resources, ‘Our Fish, Our Future’, Annex B, Forum Communiqué, October 2007, PIFS(07)12, available at <www.forumsec.org> at 27 March 2008.
[98] International Whaling Commission, Resolution 2007-2, available at <http://www.
iwcoffice.org/meetings/resolutions/resolution2007.htm#res2> at 9 April 2008.
[99] Four International Maritime Environmental Conventions/Protocols, Ministry of Transport, Discussion Document, November 2007.
[100] Managing And Controlling The Risk To The Marine Environment From Ballast Water Discharges: New Zealand’s Response To The International Convention For The Control And Management Of Ships’ Ballast Water & Sediments, MAF Biosecurity New Zealand Discussion Paper No 2007/04, October 2007.
[101] IMO SN.1/Circ.257, 11 December 2006.
[102] Articles 22 and 23.
[103] New Zealand has not ratified ILO Convention 152.
[104] Text available online at: <http://www.ats.aq/documents/ATCM30/ip/ATCM30_ip040_e.
Doc> at 22 May 2008.
[105] Text available online at <http://www.ats.aq/devAS/ats_meetings_meeting_measure.
aspx?lang=e> at 22 May 2008.
[106] See note 2.
[107] Text available online at <http://www.ats.aq/documents/ATCM30/wp/
ATCM30_wp014_rev1_e.doc> at 22 May 2008.
[108] Inspection is provided for under Article VII of the 1959 Antarctic Treaty and Article 14 of the 1991 Environmental Protocol.
[109] See the (2007) 4 NZYIL at 305-7.
[110] Text reproduced in the 2007/8 Schedule of Conservation Measures in Force available online at <http://www.ccamlr.org/pu/e/e_pubs/cm/07-08/all.pdf> at 23 May 2008.
[111] See note 7.
[112] Available online at: <http://daccessdds.un.org/doc/UNDOC/GEN/N06/500/73/PDF/
N0650073.pdf?OpenElement> at 23 May 2008.
[113] Reproduced in Annex 7 of the Report of CCAMLR XXVI and available online at: <http://www.ccamlr.org/pu/e/e_pubs/cr/07/a7.pdf> at 23 May 2008.
[∗] The reporter is much indebted to the Legal Division of the Ministry of Foreign Affairs and Trade, in particular Mr. Rod Harris, Deputy Director of the Legal Division’s Trade Law Unit.
[114] See Committee on Agriculture, May 2007, Second Communication from the Chairman of the Committee on Agriculture Committee on Agriculture – Special Session, 1 August 2007, Revised Draft Modalities for Agriculture, WTO Doc. TN/AG/W/4.
[115] See Bridges, November –December 2007, 5.
[116] Ibid, 6.
[117] Negotiating Group on Rules, 22 March 2007, Fisheries Subsidies: Proposed New Disciplines, Proposal from the United States, WTO Doc. TN/RL/GEN/145.
[118] Cf. Negotiating Group on Rules, 10 September 2007, Fisheries Subsidies: Proposed New Disciplines, Revised Proposal from Indonesia, WTO Doc. TN/RL/GEN/150 Rev. 1; 17 September 2007, Special and Differential Treatment. Joint Proposal from Argentina and Brazil (WTO Doc. TN/RL/GEN/151). See also Bridges No. 6, October 2007, 9.
[119] Sydney Morning Herald, 12 April 2006, available online, <http://www.smh.com.au/
news/national/push-for-union-with-new-zealand/2006/12/04/1165080877899.html>
at 12 April 2006.
[120] 2007 CER Ministerial Forum Joint Statement, 31 July 2007, <http://www.trademinister.
gov.au/releases/2007/wtt070731_joint_statement.html> at 31 August 2007.
[121] Text available on New Zealand Ministry of Foreign Affairs and Trade, <http://www.mfat.govt.nz/Treaties-and-International-Law/03-Treaty-making-process/International-Treaties-List/12-Private-International-Law.php> at 10 June 2008.
[122] See the text of the China-NZ FTA and related information provided by the NZ government at <www.chinafta.govt.nz> at 10 June 2008.
[123] See Tony Angelo and Ping Xiong, [2008] NZYbkIntLaw 4; (2007-8) 5 NZYIL 65.
[124] The 8th to 12th round, available at MFAT website, http://www.mfat.govt.nz/Trade-and-Economic-Relations/Trade-Agreements/Asean/index.php> at 10 June 2008.
[125] Bridges, November –December 2007, 22.
[126] Press Release of Phil Goff, 28.10.2007, available at <www.beehive.govt.nz> at 10 June 2008.
[127] Joint Press Release by President Lee Myung-bak and Prime Minster Helen Clark, 16 May 2008.
[128] Pacific Four Close Economic Partnership (CEP) Information Bulleting 2008, available on the MFAT website, <www.mfat.govt.co.nz> at 10 June 2008.
[129] http://www.ita.doc.gov/td/ocg/WWTG-Wine%20Labelling%20Agreement.pdf
[130] Available at <http://ditjenkpi.depdag.go.id/website_kpi/files/content/1/
Final_TIF_Ind_Selandia_Baru20070907110537.pdf> at 12 June 2008.
[131] Australia - Measures Affecting the Importation of Apples from New Zealand (WT/DS367). Both MFTAT and DFAT provide excellent internet-based access to their pertinent submissions.
[132] It is noteworthy that the Australian apple industry, which is said to have considerable political clout, does not produce for export, but is successfully satisfying internal demand. See Australia – Measures Affecting Importation of Salmon, WT/DS18; Japan — Measures Affecting the Importation of Apples, WT/DS 245; European Communities — Measures Concerning Meat and Meat Products (Hormones), WT/DS 45.
[133] The Panel was established at the meeting of the WTO Dispute Settlement Body on 21 January 2008, and was composed on 12 March 2008. Chile, Chinese Taipei, the European Communities, Japan, Pakistan and the United States have reserved the right to participate as third parties in the dispute.
[134] See WT/DS365/13 (9 November 2007), Request for the Establishment of a Panel by Brazil.
[135] United States — Subsidies on Upland Cotton (Recourse to Article 21.5 of the DSU), WT/DS267/RW, pages A-79 et seq.
[136] WT/DS322/AB/R; summary at <http://www.wto.org/english/tratop_e/dispu_e/cases_e/
ds322_e.htm> at 12 June 2008.
[137] WT/DS322/R, para. 5.76 et seq.
[138] See Official Journal of the European Union L 340/96-99, 22.12.2007.
[139] ECJ (Grand Chamber), 11 July 2006, Case C-313/04, Franz Egenberger GmbH Molkerei und Trockenwerk v Bundesanstalt für Landwirtschaft und Ernährung.
[140] See article 29, Diversity Convention, available at UNESCO, <www.unesco.org> at 12 June 2008.
[141] See M Hahn, ‘A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law’ (2006) 9 Journal of International Economic Law 515 et seq.
[142] See preambular paragraph 18: ‘cultural activities, goods and services conveying identities, values and meanings have both an economic and a cultural nature, and must therefore not be treated as solely having commercial value’.
[143] Article 4, paragraphs 3 and 4; the Diversity Convention does state that cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services.
[144] MEMO/08/15 Brussels, 11 January 2008, available at <http://europa.eu/rapid/
pressReleasesAction.do?reference=MEMO/08/15&format=HTML&aged=0&language=EN&guiLanguage=en> at 12 June 2008.
[145] UNESCO Doc. CLT/CPD/2005/CONF.203/6 (Paris, 3 March 2005), Preliminary Report of the Director-General containing two preliminary drafts of a Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, 36.
[146] This wording is inspired by article 22(1) of the 1992 Convention on Biological Diversity Convention, <http://www.biodiv.org/convention/articles.asp> at 12 June 2008: ‘1. The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.’
[147] 788 UNTS 169, opened for signature 1 July 1968, entered into force 5 March 1970.
[148] 35 (1996) ILM 1443, opened for signature 24 September 1996, not yet in force .
[149] Discussed infra.
[150] UN Charter, Article 26.
[151] UN Charter, Article 47.
[152] UN Charter, Article 11.
[153] NPT, 8th and 11th preambular paragraphs.
[154] A debate exists on the interpretation of Article VI, namely, whether nuclear disarmament can feasibly be achieved only simultaneously with a treaty on general and complete disarmament (See Hine Wai Loose, ‘2005 – Year of the NPT – But What Happened to Nuclear Disarmament?’ in (2007) 4 NZYIL 139-40). The general opinion is that, with the two goals separated as they are by a comma in the text of the Treaty, the drafters had in mind two separate negotiations and end results, separated in time. Thus, agreement on nuclear disarmament is envisaged to precede agreement on general and complete disarmament.
[155] Chairman’s Working Paper, NPT/CONF2010/PC.1/WP78, May 11, 2007.
[156] International Court of Justice, Reports of Judgements, Advisory Opinions and Orders, “Legality of the Threat or Use of Nuclear Weapons” Advisory Opinion of 8 July 1996.
[157] NPT/CONF/2010/PC.I/7, 30 April 2007.
[158] NPT/CONF/2010/PC.I/17, 1 May 2007.
[159] UN document A/C.I/52/7.
[160] ‘Chairman's Working Paper’, NPT/CONF2010/PC.1/WP.78, May 11, 2007, paragraph 15.
[161] NPT/CONF.1995/32 (Part I), Annex, available at <http://disarmament.un.org/wmd/npt/
1995RESME.htm> at 2 June 2008.
[162] See note 14, paragraphs 34, 35.
[163] Ibid, paragraph 37.
[164] China, Egypt, Indonesia, Iran, Israel and United States.
[165] Democratic Peoples Republic of Korea, India and Pakistan.
[166] China, Egypt, Indonesia, Iran, Israel and Pakistan. Colombia also attended as an observer and subsequently ratified in January 2008.
[167] Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization, ‘Conference concludes with strong expressions of support for the CTBT and urgent calls for its entry into force’, 20 September 2007, available at <http://pws.ctbto.org/> at 12 June 2008.
[168] Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization, Conference Materials, available at <http://pws.ctbto.org/> at 12 June 2008.
[169] It is infrequent that the Council refers specifically to a particular article when citing Chapter VII.
[170] S/RES/1737 (2006), paragraphs 1 and 2. In subsequent paragraphs the Council applies sanctions against the Islamic Republic of Iran.
[171] S/RES/687 (1991) paragraph 12.
[172] S/RES/1747 (2007), paras. 11, 12 and 13.
[173] Letter dated 8 April 2007 from the Minister for Foreign Affairs of Iraq addressed to the President of the Security Council, S/RES/1762 (2007), Annex II, paras. 2, 5.
[174] Paragraph 9(e) of the Permanent Constitution of the Government of Iraq, available at <http://portal.unesco.org/ci/en/files/20704/11332732681iraqi_constitution_en.pdf/iraqi_constitution_en.pdf> at 7 June 2008.
[175] Letter of June 2007 from the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom of Great Britain and Northern Ireland (signed 22 June) and Secretary of State of the United States of America (signed 27 June) to the United Nations addressed to the President of the Security Council, S/RES/1762 (2007), Annex I.
[176]A/RES/62/24, Follow-up to nuclear disarmament obligations agreed to at the 1995 and 2000 Review Conferences of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (adopted 5 December 2007).
[177] A/RES/62/25, ‘Towards a Nuclear-free World accelerating the implementation of nuclear disarmament commitments’ (adopted 5 December 2007).
[178] A/RES/62/37, Renewed determination towards the total elimination of nuclear weapons (adopted 5 December 2007).
[179] A/RES/62/39, Follow-up to the advisory opinion of the ICJ on the Legality of the Threat or Use of Nuclear Weapons (adopted 5 December 2007).
[180] The preamble, GA Resolution 62/39; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, para 99.
[181] A/RES/62/42, Nuclear disarmament (adopted 5 December 2007).
[182] A/RES/62/51, Convention on the Prohibition of the Use of Nuclear Weapons (adopted 5 December 2007).
[183] A/RES/62/59, Comprehensive Nuclear Test Ban Treaty (adopted 5 December 2007).
[184] A/RES/62/19, Conclusion of effective international arrangements to assure non-nuclear weapon States against the use or threat of use of nuclear weapons (adopted 5 December 2007).
[185] A/RES/62/32, Reducing nuclear danger (adopted 5 December 2007).
[186] A/RES/62/36, Decreasing the operational readiness of nuclear weapons systems (adopted 5 December 2007).
[187] Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa and Sweden.
[188] Working Paper submitted by Ireland on behalf of Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa and Sweden as members of the New Agenda Coalition, NPT/CONF.2010/PC.1/WP15, dated 1 May 2007.
[189] NZ Cluster II statement (nuclear non-proliferation) to the First Preparatory Committee for the 2010 NPT Review Conference 9 May 2007; NZ Cluster I Statement (nuclear disarmament) to the First Preparatory Committee for the 2010 NPT Review Conference 8 May 2007; NZ Cluster III statement (peaceful uses of nuclear energy) to the First Preparatory Committee for the 2010 NPT Review Conference, 30 April 2007;
Preparatory Committee for the 2010 Review Conference of the Parties to the Treaty on the Non-proliferation of Nuclear Weapons: General Debate, Statement by HE Don Mackay, Permanent Representative to the United Nations in Geneva, 30 April 2007, available NZ Ministry of Foreign Affairs and Trade <http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/2007/index.php#dis1> at 2 June 2008.
[190] ‘New Zealand has joined with a coalition of like-minded countries to press for faster elimination of nuclear arsenals.’ NZ Ministry of Foreign Affairs and Trade: NZ’s Foreign and Security Policy Challenges, May 2000 – Disarmament and Non-proliferation, <http://executive.govt.nz/MINISTER/burton/defence/mfat/issues-disarmament.htm> at 2 June 2008; and ‘New Zealand is also taking the lead, in concert with like-minded countries such as Norway, Sweden, Belgium, Austria, Switzerland, Denmark, Ireland, Mexico and Jordan, in calling for strong and legally binding controls on the design and use of cluster munitions.’ Hon Phil Goff, NZ Minister for Disarmament, 28 September 2006, <http://calm.org.nz/?p=19> at 2 June 2008.
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