Waikato Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Waikato Law Review |
|
In 1886 Oliver Wendell Holmes spoke to a University audience of the “secret isolated joy of the thinker who knows that a hundred years after he is dead and forgotten many men who have never heard of him will be moving to the measure of his thought - the subtle rapture of a postponed power”.[1] That hidden power can be for good or for ill. The road on which we imagine we are marching - the facts on which the thought was based - may have disappeared; they may not ever have existed.
I begin with two statements of thought, statements which have had major and, I will argue, seriously misleading effects on the way we understand our law in its international setting. Again I take them from about 100 years ago, but similar statements could easily have been found 50 years ago when the firm under whose auspices I am honoured to give this lecture was established, or 40 years ago when, with a son of a founder of the firm, I began my law studies. The two statements relate to the two parts of the title to this lecture.
The first thought, about national legislative power, was stated by A V Dicey in 1885 in the first edition of An Introduction to the Study of the Law of the Constitution. He declared that “Parliament ... has, under the English constitution, the right to make or unmake any law whatever”.[2]
The second statement, about the character and scope of international law, could be taken from any one of a large number of writers. In 1880, W E Hall, a noted English international lawyer, began the first edition of his book on International Law in this way:
International law consists in certain rules of conduct which modern civilised states regard as being binding on them in their relations with one another ... (emphasis added).
A great Victorian scientist T H Huxley once famously declared that many a beautiful theory had been slain by ugly facts.[3] In parts II and III of the paper, I refer to a limited selection of some of the facts and the related law, of a century ago and of the present day, to test the theories or thoughts, “beautiful” or not, of Dicey and Hall.[4] The main part of this paper, part IV, is concerned with institutional consequences, especially for national processes and national law, of much law being made elsewhere. The final part suggests consequences for the profession and for legal education. We must slay some theories!
I begin with crime, a major subject of national legislation, but in various situations the subject, in addition, of international prohibition and regulation. That additional element has long constituted a recognition that national law alone was not adequate if the problem in issue was to be adequately dealt with. Over 120 years ago both the New Zealand and English courts had regard to international law in deciding whether they had jurisdiction over homicides at sea where the alleged offender was on board a foreign ship.[5] That matter has subsequently become the subject of treaty provisions codifying the generally exclusive jurisdiction of the flag state on the high seas, a principle reflecting the freedom of the high seas and also seen at work early in this century in a dispute about the extent of coverage of New Zealand industrial awards applying to trans-Tasman shipping.[6] While individual judges, notably Lord Mansfield (although hesitantly), national legislatures and navies moved against slavery, international agreement was also essential, especially in respect of actions on the high seas, if that scourge was to be ended.[7]
It was not just the substance of the criminal law that was being formulated internationally last century (and indeed had been for much longer when piracy and war crimes are taken into account) but also the methods for the enforcement of that law. So the second half of the nineteenth century saw the rapid development of extradition law based on an extensive network of bilateral treaties. The bulk of New Zealand’s extradition arrangements can indeed be traced back to that time.[8]
To move to the month of the lecture, May 1998, a new Extradition Bill has been introduced into the New Zealand Parliament, and the Group of Eight Leaders meeting at their Summit in Birmingham have focused on what they identified as three major challenges facing the world on the threshold of the twenty-first century. One was tackling drugs and transnational crime, which, they say, threaten to sap economic growth, undermine the rule of law and damage the lives of individuals in all countries of the world. They elaborated on that challenge:
Globalization has been accompanied by a dramatic increase in transnational crime. This takes many forms, including trafficking in drugs and weapons; smuggling of human beings; the abuse of new technologies to steal, defraud and evade the law; and the laundering of the proceeds of crime.
Such crimes pose a threat not only to our own citizens and their communities, through lives blighted by drugs and societies living in fear of organized crime, but also a global threat which can undermine the democratic and economic basis of societies through the investment of illegal money by international cartels, corruption, a weakening of institutions and a loss of confidence in the rule of law.
They elaborated on what they saw as “indispensable” international cooperation relating to money laundering, assets confiscation, combating official corruption, trafficking of human beings, joint law enforcement, high-tech crime, environmental crime and the drugs problem.
Extradition law reflected a need to deal with the movement of certain people over borders. The development of the transborder movement of information by the telegraph and post similarly required international regulation and international institutions (from 1875 in the case of the telegraph and 1891 in the case of the post). The freedom to lay telegraphic cables under the oceans was quickly recognised as one of the freedoms of the sea. In addition, the cables were protected by multilateral treaty from 1884 with the States parties (including New Zealand in respect of which there was a separate accession) undertaking to enact legislation making it an offence wilfully or negligently to damage the cables, and placing strict civil liability on those who did that damage.[9] That is still the case, with Parliament in 1996 enacting a revised Submarine Cables and Pipelines Protection Act which expressly mentions its treaty base.
Communications technology has of course developed amazingly over the last 120 years. When in 1876 New Zealand first became linked to the Imperial cable through Sydney and “the east” to London the cost of sending a 20 word message from Sydney to London was £9.9.6, the equivalent of about $1,000 today or $50 a word. Even 50 years ago telecommunications were expensive and limited as appears from the fact that on an average day in 1950 the total New Zealand population of 1,900,000 made only 16 overseas telephone calls. The daily figure was nearly 100,000 when it recently became commercially sensitive; and in the early part of 1998 a weekend telephone call of any length to the United Kingdom or North America cost $15 maximum. As well, there are the new technologies, unimagined even 50 years ago, of the fax and the internet.
In a fascinating recent paper, Terence O’Brien, the Director of the Centre for Strategic Studies, discussed as one aspect of the information technology revolution its
impact on the actual conduct and system of government, both nationally and internationally. At the national level greater accountability and transparency forced upon political leadership by information technology suggest that the revolution is reinforcing basic features of democracy. More open politics and societies are the result. International relations should grow more peaceable. The effects on authoritarian states like China have been to enlarge understanding, ideas and influence amongst populations previously restricted, even suppressed. The role of communications in the collapse of East Germany, and their contribution to the breaking down of the Berlin Wall, six years ago, is widely regarded to have been significant.[10]
He balanced against that impact and diminishing national control a governmental move “towards reliance upon international organisations, regimes, rules, systems and law to meet the lengthening list of transnational challenges which the revolution is bringing”.
Information and ideas recorded in books had of course long been moved across borders. While national copyright legislation could protect the intellectual property of the author and publisher within national jurisdictions (and indeed throughout the Empire) it could not provide protection in foreign countries. Their cooperation, generally based on bilateral or multilateral understandings and treaties, was required if the “piracy” of which Charles Dickens for instance vigorously complained on his tours of America was to be defeated.[11] The first major multilateral development was the establishment of the Berne Union in 1886 with the signing of the Convention for the Protection of Literary and Artistic Works. The treaty setting up the Paris Union protecting Industrial Property (patents) had been signed three years earlier. International copyright has been in the news in recent days with the enactment by the New Zealand Parliament of the budget measure permitting parallel importing.[12]
So far I have been mainly speaking about the movement of people and things across national borders or actions in international areas, especially the high seas. But the international law makers were also giving attention to actions confined within national borders which were seen as having international consequences.[13] By 1900 the International Association for Labour Legislation was established with the objective, among others, of furthering the study of procuring uniformity in the various labour codes. This was a step on the way to the establishment of the International Labour Organisation in 1919 and the explicit recognition, first, that “the failure of one nation to adopt humane conditions of labour is an obstacle in the way of other nations which wish to improve the same standards in their own countries” and, second, of the essential principle that labour is not simply a commodity of trade. That second principle can be seen at work - although its exact parameters continue to be a matter of controversy - in the recent decision of the seven permanent members of the Court of Appeal in Aoraki Corporation Ltd v McGavin.[14] After calling attention to the sharp changes to employment law which Parliament had introduced by enacting the Employment Contracts Act 1991, the principal judgment continued:
Nevertheless it is important to emphasise again that the personal grievance provisions are part of the overall balance reflecting the special characteristics of employment contracts and under which ... employees and employers have mutual obligations of confidence, trust and fair dealing.[15]
The G8 at their Birmingham meeting have made a related statement in their renewal of support
for global progress toward the implementation of internationally recognized core labour standards, including continued collaboration between the ILO and [World Trade Organisation] secretariats in accordance with the conclusions of the Singapore [WTO Ministerial] conference and the proposal for an International Labour Organisation declaration and implementation mechanism on these labour standards.[16]
Conservation of resources in international areas is much more obviously a matter that calls for international as well as national action. While the initial understanding of the freedom of the high seas, as including an unfettered freedom to take the living resources of the sea, was based on assumptions about the inexhaustibility of the supply given the available methods of fishing, by the second half of last century some species were seen as being at risk. To take one example from the time of Dicey and Hall, the American Secretary of State in 1887 instructed his representatives in France, Great Britain, Canada, Japan, Russia, Sweden and Norway to request the governments to which they were accredited to cooperate with the United States “for the better protection of the fur seal fisheries in Bering Sea”. While on the American view there was a good prospect of successful negotiation, an unnamed colony of a foreign nation (in fact Canada) proposed “to destroy this business in the indiscriminate slaughter and extermination of the animals, in the open neighbouring sea, during the period of gestation, when the common dictates of humanity ought to protect them”. The argument being made in support of that slaughter, based on freedom of the high seas, would, in the American view, take under its protection piracy and the slave trade. Following lengthy diplomatic exchanges between the United States and the United Kingdom, the matter was submitted to arbitration. The arbitrators held in favour of the freedom of the high seas but, in accordance with the arbitration agreement, proposed regulations for the protection of the seals by regulating the places, time and method of catch. The two States agreed to that proposal.[17]
Environmental concerns now command, rightly, much greater international and national attention with the recognition especially at Stockholm in 1972 and Rio in 1992 of major threats to the world’s environment and the corresponding need for concerted international action to respond to the threats. Those concerns continue to include the protection of maritime mammals, as recognised in the periodic meeting of the International Whaling Commission being held this month in Oman.
The final area of fact and related law I mention is the law of armed conflict, especially the law protecting the victims of warfare. By its very nature, international armed conflict cannot be governed simply by national law, and the world community has formulated that law in treaty form from 1864 onwards. Rules of customary international law had of course applied to wars from much earlier. Armed conflicts, especially internal ones,[18] are distressingly still a prominent feature of the world. The substantive law has been both further elaborated and shockingly breached. In part as a consequence of those breaches, greater attention is being given to the means of implementation and enforcement, for instance in the proposals to establish a permanent International Criminal Court to be considered by the diplomatic conference to be held in Rome in June. Such a court was proposed at least as early as 1874 by Gustave Moynier, one of the founders of the International Committee of the Red Cross.[19]
Most of the facts and the related law, national and international, that I have mentioned, existed in the 1880s and would have been known to Dicey who after all began preparing his great work on the conflict of laws in 1882. Even if he was looking narrowly at what under “the English constitution”[20] the Queen in Parliament could do, his statement could not have a practical reality in an increasing range of situations. That was so for two basic reasons. The first is that some matters of real importance to the United Kingdom could not then and cannot now be the subject of national law alone. While Parliament might legislate on the matter, that legislation would be ineffective without international support and action. Secondly, not only was national power inadequate to achieve its ends in many situations, but even if it were adequate it was also sometimes constrained in those endeavours by international law, whether or not the national courts would enforce that constraint. National law has never been available to excuse breaches of international law.[21] The facts appear to destroy or at least heavily qualify Dicey’s statement or theory when the law of the United Kingdom is seen in its wider context.
What of Hall’s? The Hall definition of international law emphasises that the rules are binding on States in their relations with one another. While the rules discussed above were largely prepared by governments and in form at least are binding on them in their relations with one another, most also create or are the basis of rights and duties of individuals. Those rights and duties are in addition usually the subject of national law and administered by national courts and other national institutions. So, while the extradition treaties do regulate relations between the State parties, they also provide for significant individual duties (and rights) and are applied in national courts and by national Ministers and other national officials; the law of armed conflict creates rights for victims and corresponding duties for an enemy state, and imposes duties on individuals, for instance in respect of war criminality enforceable by the enemy state, the national state and even neutral states; international copyright law creates rights and duties between individuals who are generally nationals of different states as does the cable protection law; and the affected parties under that cable law may be nationals of one and the same state, as generally will be the case of workers and employers who have rights and duties under labour conventions.
In summary, the rules in question may be binding between individuals, or between individuals and states (with the individuals having rights in some cases and duties in others); many of the rules will be enforceable through national courts and institutions; and there may be no apparent international element in the facts covered by the international rule. The rules are not simply, or even principally, binding on states “in their relations with one another”. Hall’s restrictive definition did not and does not square with the facts. It stands in the way of a proper understanding of the reality of international law.
Greater emphasis to the present day highlights even more the dangers of moving to the measure of Dicey and Hall.
Major, even revolutionary, changes in recent years in science and technology, in population growth, in the environment, in global financial markets, in communications, in trade patterns and in ideology have led to a rash of books with titles like The Borderless World, The Work of Nations, The Retreat of the State, The End of the Nation State, Global Dreams: Imperial Corporations and The New World Order, The Global Neighbourhood and Twilight of Sovereignty. One of the major studies, by Professor Paul Kennedy of Yale University, is entitled Preparing for the Twenty-First Century. He concludes the first part of his book by referring to two major changes in the power of the State:
These global changes ... call into question the usefulness of the nation-state itself. The key autonomous actor in political and international affairs for the past few centuries appears not just to be losing its control and integrity, but to be the wrong sort of unit to handle the newer circumstances. For some problems, it is too large to operate effectively; for others, it is too small. In consequence, there are pressures for a “relocation of authority” both upward and downward, creating structures that might respond better to today’s and tomorrow’s forces for change.[22]
We should not however assume that all is new under the sun. The most recent Human Development Report 1997 published by the United Nations Development Programme provides a valuable reminder that some of the facts have scarcely changed since the beginning of the century. For 17 industrial countries for which there are data, their exports as a share of GDP were 12.9% in 1913, not much below the 1993 level of 14.5%. Capital transfers as a share of industrial country GDP are still smaller than in the 1890s, and earlier eras of globalisation saw far greater movement of people around the world. Today immigration is more restricted.[23]
More generally, many States show every sign of insisting in particular contexts, such as trade, human rights, and the environment, on the rhetoric and practice of national sovereignty. But huge changes have occurred. And ideas whose time have come can have a real force of their own. The force of ideas is reflected in a third movement of public power which has been occurring apace.
That movement is to privatise public power, very often as a consequence of technology and related private action. Some of that private power is now and has for a long time been the subject of private law arising from practice, understandings, standard terms and agreement.[24] The changes present major issues about the public control of that private power and the democratic character of the public international law-making process. How for instance is anticompetitive behaviour which escapes the control of any single national regulator to be tested and if necessary checked?[25] I largely leave those issues for others or for another occasion.
Rather, two relevant present-day facts - New Zealand foreign trade and the movement of people in and out of New Zealand - are emphasised. The value of the goods and services exported from New Zealand is about 30% of the gross domestic product. The value of imports is about the same. (Trading in the New Zealand dollar occurs at more than 50 times that rate). For a long time the great bulk of that foreign trade was within the (former) Empire - especially to the United Kingdom - and accordingly was largely governed in essence by a single body of law, especially the major commercial statutes enacted late last century in the United Kingdom and adopted throughout the Empire. But now up to 40% of New Zealand’s exports are to East Asia and about 30% of imports come from there, 20% of exports and imports are with Australia, 10% of exports are to the United States and 20% of imports are from there, and only about 7% of exports and imports are with the United Kingdom. That activity is governed by extensive bodies of international law. There is the public law operating in major but not exclusive measure between States, especially the recently enhanced law of the World Trade Organisation including the General Agreement on Tariffs and Trade. Other treaty-based law regulates the carriage of goods by sea, air and land and applies to the private relationships between the traders and carriers. And the widely accepted Vienna Convention on the International Sale of Goods generally governs the sale itself, although the parties to the contract can agree to vary or even set aside the rules in the Convention. The parties might also agree to have their disputes resolved by arbitration rather than by subjecting themselves to the courts of one or other parties, a process now facilitated by the preparation by the United Nations Commission on International Trade Law of its Model Law on International Commercial Arbitration, a model adopted, with some adaptations, by the New Zealand Parliament in the Arbitration Act 1996 for local arbitrations as well as for international ones.
Similarly, the movement of people in and out of New Zealand cannot be simply the subject of New Zealand law. Their contracts of carriage will generally be governed by the Warsaw Convention on Carriage by Air of 1929 and its treaty and contractual amendments. Their travel may be facilitated by visa abolition or fee waiver agreements or by agreements (as with Australia) for free entry. In some circumstances the United Nations Convention and Protocol on the Status of Refugees will be relevant, as may provisions of the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Convention on Torture.[26] Some figures highlight the practical significance of those bodies of law. Forty years ago only 1,000 people flew into and out of New Zealand each week. The figure is now about 70,000 a week, or 4,000,000 a year, an increase by a factor of 70 (and the passenger mile figure will have increased by more). The number of refugee applications has also increased markedly, for instance from 27 to 1977 in the period 1987-1991, a matter mentioned by the Court of Appeal in suggesting the need for legislation regulating that matter.[27]
The facts and related law considered so far have emphasised public, governmental law - especially that made by treaty internationally and legislation nationally. But to return to an earlier point, an increasingly extensive range of international activity is regulated by private law, established by the practice, custom or codes of ethics of an industry, occupational group or profession; or by the standard terms prepared for instance by the International Chamber of Commerce; or by the insurance and shipping interests; or by restatements by experts; or by a set of rules and institutions agreed to by the members of an industry. An example of the first is the Hippocratic oath and of the last the body of law governing the world diamond industry.[28] In some cases the private agreement will supplement the public law. In other cases it will stand essentially alone, although in the end it will be referable to some national systems of law if only at the point when an exercise of the private law is being recognised, enforced or challenged.
As already hinted, not all aspects of this development are benign. Professor Harry Arthurs, of Osgoode Hall Law School, has made that point very effectively in recent papers, including one given in Wellington, called “Globalization and its Discontents”.[29] The United Nations Secretary-General, Kofi Annan, has also underlined the worry in his proposals relating to “uncivil society” as he calls it.[30] But, to repeat, the major problems arising from private power which has escaped from national regulation and control are not my subject on this occasion. I am keeping closer to home.
I return to the treaties to which New Zealand is party and to related statutes. As appears from the invaluable, recently published New Zealand Consolidated Treaty List (2 parts 1997), New Zealand is or has been party to about 2,000 treaties and, according to a Law Commission list, almost 200 of the approximately 600 public Acts on the statute book have possible implications for New Zealand’s international obligations arising from those treaties and other sources.[31] The whole list demonstrates the pervasive effect of international law on our national law. Another Law Commission publication briefly indicates both the functions and subject matter of treaties.[32] So far as functions are concerned, they can be compared to constitutions, legislation, conveyances, gifts and contracts.[33] Their wide-ranging subject matter includes war and peace, disarmament and arms control, international trade, international finance, international commercial transactions, international communications, international spaces, the environment, human rights, labour conditions and relations, and other areas of international economic, social and cultural cooperation.
I take two statutes from both the beginning and the end of the alphabetical list of New Zealand statutes to suggest the pervasiveness of international law in our national law and to illustrate some particular characteristics of the law in issue and the international processes involved. Those statutes are the Abolition of the Death Penalty Act 1989, the Accident Rehabilitation and Compensation Insurance Act 1991, the Weights and Measures Act 1987 and the Western Samoa Act 1961.
The first enabled New Zealand to be the first State to accept the additional protocol to the International Covenant on Civil and Political Rights (ICCPR) prohibiting the death penalty - an action which the government took without giving Parliament or the public any chance to comment. That human rights instrument, like the two Covenants, has no express provision for withdrawal. There are good arguments, now accepted by the Human Rights Committee, the United Nations Secretariat and the Australian Attorney-General, that there is also no implied unilateral power of withdrawal.[34] That prohibition on State action is to be related to the essential character of human rights and fundamental freedoms, especially as that character has been perceived since 1945.
The accident rehabilitation and compensation statute is designed, among other things, to give effect to New Zealand’s obligations under International Labour Conventions which it has ratified. Those Conventions are subject to long-established international complaints procedures. Those procedures have been used in recent years, first to make it clear that New Zealand has been in breach in certain respects of its obligations, and second to cause steps to be taken to ensure compliance. The Conventions are to be related back to the proposition mentioned earlier and established early in the century that setting up and maintaining humane labour conditions in a nation may require international agreement as well as national action. International trade was now seen as requiring agreed minimum labour standards.
The Weights and Measures Act incorporates into New Zealand law the basic measurements in accordance with the Convention of the Metre 1875, to which New Zealand acceded as recently as 1991. In a practical sense a country which engages in international trade, especially to the extent that New Zealand does, could not conceivably stand aside from that international system. The parties to the Convention agreed to establish and maintain a permanent international scientific bureau of weights and measures, in Paris. The bureau is charged with several responsibilities including all comparisons and verifications of the new prototypes of the metre and kilogram. The Convention also provides for the ongoing administration and supervision of the work of the bureau.
The Western Samoa Act marked the end of New Zealand’s responsibility for that country, and was enacted in accordance with the decision of the United Nations based on a referendum of the Samoan people that Samoa was to become independent. That responsibility had always been governed by international law, first when Western Samoa was occupied enemy territory from 1914 to 1919, second as a mandated territory from 1919 to 1946, and third as a trust territory from 1946 to 1961.[35] As with the ILO, there were reporting and monitoring processes, under the Permanent Mandates Commission of the League of Nations and the Trusteeship Council of the United Nations.
The developments, both ancient and modern, that I have sketched raise a series of important questions about how these extensive bodies of law are (1) developed, (2) accepted and implemented by (3) Parliament, (4) courts and (5) internationally, especially so far as New Zealand is concerned. In this part of the paper I emphasise treaties, but the other sources of international law should not be neglected. The relative brevity of the discussion in sections (2) and (3) below and to some extent in (4) reflects extensive recent writing in those areas.
The first stage is agenda setting and then the negotiation and preparation of the text of the proposed instrument. The orthodox position under the New Zealand constitution is that the negotiation of treaties is an executive function as part of the royal prerogative. It is exercised in practice by the Minister of Foreign Affairs and Trade and other ministers and their officials, including ambassadors and representatives at international organisations. The prerogative and the practice are consistent with the rules of international law about treaty making.[36]
It does not follow of course that the government cannot involve others in these processes, by giving notice and relevant information, by seeking information, by consultations and by having others directly involved in the international negotiation, for instance as members of the delegation. That wider involvement is actually required by the Constitution of the International Labour Organisation: union and employer representatives participate in its processes, including the drafting of conventions, equally with government representatives. The World Conservation Conference of the International Union for the Conservation of Nature and the International Red Cross and Red Crescent Conferences also provide instances of governmental and non-governmental representatives meeting together. A notable recent development in United Nations diplomacy is the calling of non-governmental organisation conferences in parallel to the major conferences held for instance on human rights, women, and the environment and development.[37]
New Zealand practice over a lengthy period also provides instances of wide interest group involvement. The Secretary of Foreign Affairs and Trade has for instance provided an interesting account of the processes of consultation followed in the Uruguay Round negotiations which led to the setting up of the WTO and the extensive related agreements.[38] Such requirements and practices recognise the realities that much law is being made elsewhere and that once the text is settled it is much more difficult for relevant non-governmental interests to be accommodated. It is to be hoped that the government will respond positively to the first related recommendation made by the Law Commission in its 1997 report on The Treaty Making Process that
the value of notification to and consultation with Parliament and affected or interested groups at the negotiating stage be recognised, with the purpose of developing and formalising such practices.[39]
Indications of a positive response appear from the form of the National Interest Analysis relating to certain treaties (mentioned under the next heading) which will require the government to report to Parliament on the consultations it has undertaken in respect of those treaties which are now to be tabled.
The acceptance of the text, once its negotiation is completed, as binding on New Zealand is also part of the prerogative power of the executive and that too is consistent with international law requirements.[40] But again practice in New Zealand and elsewhere shows that wider public and, in particular, Parliamentary involvement is possible and indeed required by democratic principle. In fact the government has just accepted significant parts of the recommendations of a Parliamentary select committee, recommendations which were similar to the second recommendation made by the Law Commission in its Treaty Making report, enabling Parliament and the public to scrutinise the government’s proposed actions in respect of treaties which are subject to a distinct stage of ratification, accession or acceptance.[41] The process is to be facilitated by the preparation of a National Interest Analysis setting out the domestic implications of the treaty and the reasons New Zealand should accept the treaty and, as noted, the consultations undertaken or proposed. This step rightly recognises that the importance of the treaty making process does require greater Parliamentary and public participation than has recently occurred.[42] Practice, in Australia[43] as well as in New Zealand, will indicate whether that participation should take a more extensive form.
The third Law Commission recommendation relates to the legislative implementation of treaties:
so far as practicable, legislation implementing treaties or other international instruments [should] give direct effect to the texts, that is, use the original wording of the treaties, and that when that is not possible, the legislation [should] indicate in some convenient way its treaty or other international origins.[44]
While there has not been a formal response to that recommendation there are encouraging signs that those responsible for the preparation of legislation appear to have accepted the value of not providing a legislative gloss to treaty language when it is designed for direct application. The Adoption (Intercountry) Act 1997 which simply provides that the Convention has the force of law in New Zealand is to be contrasted with the Guardianship Amendment Act 1991. This Act was intended to implement the Abduction Convention, but created unnecessary difficulty by using wording different from that in the Convention, a difference which encouraged arguments that Parliament was intending a different result.[45]
Not all treaty provisions are written in a way which allows direct application of their terms by the courts. Indeed, many expressly contemplate that national legislation will be enacted integrating the substance of the treaty into national law, for instance by creating new offences and imposing penalties or establishing new rights and duties for individuals. That legislation might use the wording of the treaty to a greater or lesser extent or it might bear no particular relationship to it. As the third Law Commission recommendation indicates, it might refer - or not - to the treaty. There is real value in including a reference, for those administering the legislation, interpreting it or considering its amendment or repeal.[46]
In other cases, the judgment may be made by those responsible that no legislation is required to give effect to the treaty - for instance because it operates only between States and does not affect the rights and duties of individuals (as with major parts of the Charter of the United Nations); or because it confirms or declares customary international law which is part of New Zealand law (as with parts of the Vienna Convention on the Law of Treaties); or because New Zealand law already complies with it (or is thought to) (as with the Convention on the Rights of the Child, subject to the reservations which were made). Problems can of course arise if that judgment turns out to be faulty.
Other legislation may be enacted with no reference at all to international obligations which, it might later be contended, are relevant to its operation. As indicated in the next part of this paper, that omission does not necessarily exclude those obligations being invoked as relevant to the interpretation or operation of the legislation.[47]
Last year the Court of Appeal ruled that the police could have access by way of a search warrant to the cockpit voice recorder (the black box) recovered from the Ansett Dash 8 which crashed near Palmerston North and held by the Transport Accident Investigating Commission. It also held that the Commission could append extracts from the transcript of the record to its accident report. The Court rejected the arguments made by the Air Line Pilots’ Association that the search warrant and reporting powers were constrained in some way by an annex to the Chicago Convention on International Civil Aviation 1944, titled “Aircraft Accident and Incident Investigation”.[48]
In answering the question whether the Chicago Convention was part of the law of New Zealand, the Court said that it was
well established that while the making of a treaty is an Executive act, the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. The stipulations of a treaty duly ratified by the Executive do not, by virtue of the treaty alone, have the force of law.[49]
The Court accordingly turned to the relevant legislation, consisting of five Acts and three sets of subordinate instruments, to see whether the necessary legislative action had been taken. It concluded that “some of the provisions of the convention and annexes are appropriate in their subject matter and drafting for direct application in the law of New Zealand, others require detailed national legislation, while still others do not require national legislation at all”.[50] The Court distinguished between the different roles the aviation convention played and the different ways in which it may be implemented by the parties to it and in which it may operate in national law. I use some of the categories suggested by the Court and also by the Law Commission.[51] It will be seen that some are better established than others and that it can be difficult to draw lines between them.[52]
(a) A constitutional role
The Chicago Convention recognises that States have sovereignty over the airspace above their territory and territorial sea. Those provisions, which, according to the Court, “incorporate principles of customary international law, are reflected in fundamental constitutional arrangements and leave the States parties free to exercise their authority recognised by international law”.[53] A few years earlier in an immigration case the Court drew attention to the statement by a Commonwealth Judicial Colloquium of the vital duty of the judiciary to interpret and apply national constitutions, ordinary legislation and the common law in light of the universality of human rights.[54] Kirby J in a recent judgment in the High Court of Australia used an interpretative principle that on a constitutional question which was finely balanced it was appropriate for the judges to favour an interpretation of the Constitution conforming with principles of universal and fundamental rights rather than an interpretation involving a departure from the rights.[55] Earlier in this century New Zealand and Australian judges similarly looked to international law in finding the sources and limits of the powers of their Parliaments to deal with the government of the mandated territories of Western Samoa and New Guinea.[56] Later in this paper I quote from a 1990 judgment of the House of Lords which in a very understated way recognised the supremacy of European Community law over the law of the United Kingdom. As The Times editorialised at the time, A V Dicey would not have been amused.
(b) Customary international law as part of the law of New Zealand
Courts in New Zealand appear to have proceeded on the assumption, as William Blackstone put it over 200 years ago, that customary international law (or in his terms the law of nations) is part of the law of the land.[57] Some treaties may be evidence of customary international law or declaratory of it. One recurring instance is the use by courts of the provisions of the Vienna Convention on the Law of Treaties relating to good faith compliance with treaties and their interpretation.[58] Treaties and proposals for treaties have also been among the material drawn on in decisions about foreign state immunity, a matter which is not the subject of legislation in New Zealand unlike the position in a number of other common law countries. Those decisions all proceed on the basis that that part of customary international law may deny New Zealand courts the jurisdiction which they would normally be able to exercise. The immunity rules might also be used in the interpretation of legislation apparently conferring jurisdiction on a court.[59]
(c) Treaties as relevant to the determination of the common law
Defamation cases in the United Kingdom and New Zealand have drawn on provisions of the European Convention on Human Rights and the International Covenant on Civil and Political Rights and their elaborations by the relevant treaty bodies in determining the balance between freedom of expression and the protection of reputation. (The cases also illustrate the point made earlier about the headings I am using, since they could be included under the preceding heading.) The recent Court of Appeal judgment on defamation in the Lange case[60] refers, for instance, to the European Convention and the ICCPR as well as to a wide range of legislation (not all directly concerned with political speech), writers from Coke and Milton in the seventeenth century, Mill, Stephen and Dicey in the nineteenth century to Hogg in this, judgments from seven jurisdictions and law reform proposals. Decisions of the European Court of Human Rights relating to political defamation and interpreting European Convention wording which is similar to that of the Covenant are given some emphasis. That Court has stressed that freedom of speech constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. With much if not all of that material cited, the treaties and the judicial explication of them might be seen not so much as a formal source of New Zealand law as a material or literary source on which courts properly draw.[61] The use made by the Court of Appeal in a recent criminal legal aid case[62] of determinations of the Human Rights Committee can be considered in the same way.
(d) The interpretation of legislation by reference to international law and treaties
Over a long period the courts have stated the presumption or principle of statutory interpretation that, so far as its wording allows, legislation should be read in a way which is consistent with New Zealand’s international obligations. An example is the black box case[63] which included references to cases about immigration, child abduction, foreign state immunity, the Treaty of Waitangi and income tax. Sometimes the approach may be expressly related to ambiguity in the legislation, as in a case about dumping duty,[64] but ambiguity does not appear as a necessary prerequisite in the run of judgments.
Much will turn on the drafting of the legislation and of the treaty. I consider in turn the varying legislative forms, mentioned earlier. If the treaty text is directly part of the law (as may happen with no official New Zealand action at all) the courts have stressed the importance of using international methods of interpretation. They have used a valuable statement made by Lord Wilberforce (following Lord Wright) that they should determine the meaning unconstrained by technical rules of English law, or of English precedent, but on broad principles of general acceptation.[65] They have also referred to the provisions about the interpretation of treaties codified or declared in the Vienna Convention on the Law of Treaties.[66] The general rule which that Convention states has been compared to the direction stated in s5(j) of the Acts Interpretation Act 1924:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.[67]
That direction can be in conflict or at least in a tension with principles and values of the wider legal and constitutional system arising beyond the particular measure. One matter bearing on that is the interpreter’s assessment of the scope and significance of the context and the related principles and values, and the relative weight to be given to it.[68]
The particular text - treaty or statute - may itself emphasise the international element. The United Nations Convention on Contracts for the International Sale of Goods (which has been part of the law of New Zealand since 1995) provides:
Article 7
(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.
(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
The Arbitration Act 1996 contains in section 3 guidance on the material that can be used in interpreting the Act which is closely based on the Model Law on Arbitration prepared by the United Nations Commission on International Trade Law:
The material to which an arbitral tribunal or a court may refer in interpreting this Act includes the documents relating to the Model Law ... and originating from the United Nations Commission on International Trade Law, or its working group for the preparation of the Model Law.
To help that process the Law Commission reproduced two of the major documents relating to the Model Law in its report on Arbitration.[69]
Instead of incorporating the relevant treaty text, the legislature may attempt to give effect to it by conferring or controlling powers to make regulations, rules and decisions in terms of “international agreements”, “international obligations” and “conventions”. At least 40 such statutory provisions are to be found in the statute book. They cover a wide range of activity including border control; transport by air, land and sea; natural resources including fisheries; Antarctica; animal health; intellectual property; privacy; diplomatic privileges and immunities; international trade including tariffs and the operations of the producer boards; taxation; and recognition of foreign qualifications. Because of their very terms a court may have to determine what the relevant texts are, the powers they confer and the limits they impose. The action taken under the statute may then be tested against that text.
The particular legislation may present a further issue since some statutes provide only that the relevant authority is to “have regard to” or “take into account” the obligation, as opposed to a direction that it must “give effect” to, or “act consistently” or “not act inconsistently”, or “observe” the international rules. The latter, stricter set of obligations adopts the proper approach. An authority required only to “have regard to” the international obligation might consider itself free to breach the obligation (once it had had regard to it), with consequent problems for New Zealand’s compliance with its international obligations.[70]
The drafting of the relevant provision of the Tokelau Act 1948 (section 3B enacted in 1996) highlights another issue about the drafting and interpreting of such provisions which was recently considered by the High Court of Australia in a case relating to the rights of New Zealand television producers under the Closer Economic Relations Agreement.[71] Since 1996, the Fono of Tokelau has had powers to make rules for the peace, order and good government of Tokelau, but any rule that is inconsistent with any international obligation of, or applying in respect of, Tokelau “shall, to the extent of the inconsistency, be of no effect”.[72] That explicit consequence is not drawn in any of the other statutory provisions referred to in the preceding paragraph. Nor was it drawn in the relevant provision of the Australian Broadcasting Services Act in the CER case. Section 160 requires the Australian Broadcasting Authority to “perform its functions in a manner consistent [among other things] with Australia’s obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country”. All judges agreed that the Authority had not performed its functions in a manner consistent with the CER agreement. Sir Gerard Brennan in one of his final judgments as Chief Justice would have held the non conforming provisions of a challenged standard to be invalid and of no effect.[73] But the other four judges held that while an act done in breach of section 160 was unlawful it was not invalid.[74] Their reasons included the following:
• not every obligation under section 160 has a rule-like quality which can be easily identified and applied;
• while some international obligations are relatively clear many international conventions and agreements are expressed in indeterminate language as a result of the compromises made; often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed; the fact that Australia is party to 900 treaties was mentioned;
• if public inconvenience was a result of the invalidity of the act, courts have always accepted that that would be an unlikely purpose;
• the provision was to be seen as directory only, with the possible consequences of punishment being imposed[75] and declarations and injunctions being sought, but without the consequence of immediate nullity.
The approach, especially in terms of the first and second points, might be seen as giving inadequate effect to those treaty provisions which do have “a rule-like quality” or are “relatively clear”. In this context, as in others, the distinction between “self-executing” and “non self-executing” treaties found in several jurisdictions, notably the United States, may be seen as helpful. That is suggested by the comment in the black box case that the international text contemplated that national law or action would set up a process for decision, with competing considerations stated or implied within it.[76]
A third legislative technique is to incorporate in the statute the substance of the treaty - or some of it. In some cases the treaty origin will be made explicit. A notable instance is provided by the New Zealand Bill of Rights Act 1990, which has been the subject of extensive judicial interpretation and commentary, in part by reference to the ICCPR, New Zealand’s commitment to which, according to its title, is affirmed by the Bill.[77]
In such cases the presumption of interpretation in conformity with the international obligations is often invoked. That is to be seen, for instance, in cases in the last 20 years relating to tariffs and anti-dumping, race hatred legislation, citizenship and statelessness, the settlement of international investment disputes, international arbitration, taxation, mental health, extradition, child abduction and shipping.[78] The international text might not even be binding.[79]
In other cases the statute in issue has no obvious connection to the treaty invoked. It may for instance have been enacted before the treaty was drafted and accepted, or the two texts may, at first sight at least, appear to operate in distinct spheres. That can be seen for instance in a number of cases, some controversial, relating to immigration (and racial discrimination and rights of children and families),[80] legal aid in respect of criminal appeals and complaints to the Human Rights Committee (and the International Covenant on Civil and Political Rights)[81] and the right to marry (and discrimination).[82]
A close study of the judgments mentioned in the last two paragraphs and related cases would identify differences depending, among other things, on the drafting of the international text (and its varying force and effect) and of the legislation, any differences between the texts, differing judicial attitudes and the wider social and political context in which the issue arises. I take one controversial case to suggest the varying relevance of those matters. In Lesa v Attorney-General,[83] the Privy Council, reversing the New Zealand Court of Appeal and overruling an earlier decision of that Court,[84] held that persons born in Western Samoa between the enactment of the British Nationality and Status of Aliens (in New Zealand) Act 1928, and its repeal and replacement by the British Nationality and New Zealand Citizenship Act 1948, were natural-born British subjects in terms of New Zealand law and became New Zealand citizens under the 1948 Act when that status was first established. For the great bulk of that time Western Samoa was a mandated territory under article 22 of the Covenant of the League of Nations. In terms of that provision it had “ceased to be under the sovereignty” of Germany, and in application of “the principle that the well-being and development of such peoples form a sacred trust of civilisation” it was to be under the “tutelage” of New Zealand as Mandatory. That tutelage was subject to scrutiny by the League. Western Samoa moved to trusteeship status under the United Nations in 1946 and became independent in 1962.
After setting out the procedural history of the case and a related case, Lord Diplock mentioned that a formidable argument based on the terms of the 1928 Act had unfortunately not been brought to the attention of the Court of Appeal and had emerged for the first time in the closing stages of the opening address of plaintiff’s counsel. Lord Diplock noted that “Their Lordships will accordingly go straight to the Act of 1928 and first consider its construction independently of the Act of 1923 which it repealed”. That focus on the particular wording, and in particular on the proposition that the Act was to apply to Western Samoa in the same manner in all respects as if it were part of New Zealand led the Privy Council inexorably to the conclusion that in the present context Western Samoa was part of His Majesty’s dominions and within His allegiance and that birth there conferred natural-born British subject status. It was only in the last substantive paragraph of the judgment that the Privy Council moved away from the legislation and referred to the “strongest argument” to the contrary - certain resolutions about nationality in mandated territories adopted by the Council of the League of Nations shortly before the enactment of the 1923 Act. Those resolutions (which the Privy Council did not set out) provided:
(i) that the status of native inhabitants is distinct from that of nationals of the Mandatory power;
(ii) that native inhabitants are not invested with the nationality of the Mandatory Power by means of the protection extended to them;
(iii) that it was not inconsistent with (i) and (ii) that individual inhabitants should voluntarily obtain naturalisation from the Mandatory Power under its own law; and
(iv) that it was desirable that native inhabitants who received the protection of the Mandatory Power should be designated by a descriptive title specifying their status under the Mandate.
Consistently with those resolutions and in accordance with Imperial legislation agreed to at Imperial Conferences the 1923 and 1928 Acts provided for voluntary naturalisation ((iii) above). The dispute was whether the Acts had any wider effect.
The Privy Council agreed with the Court of Appeal that, although the resolutions did not impose obligations binding on New Zealand under international law (although (i) and (ii) could be seen as authoritatively declaring the position under the Covenant and Mandates and interpreting existing obligations), they would be relevant in resolving any ambiguity in the meaning of the legislation. But the Privy Council was unable, for the reasons it had already stated, to find any ambiguity or lack of clarity in that language.
The New Zealand Court by contrast had thought that the legislative provisions so far as they related to Western Samoa could “not be sensibly considered without a reference to the general background of the relations between that territory and New Zealand up to the time of the passing of the [1923] Act”. The Court began with the German renunciation of right and title to Western Samoa in the Treaty of Versailles and traced the various international, imperial and national measures that were taken to set up the mandate. The Court recorded two propositions that were not disputed by counsel for the person claiming citizenship : the mandate did not cause the inhabitants of the territory to become British subjects and they could not be naturalised under the law in force before 1923. The Court then set out the League resolutions mentioned above, and commented that
In the absence of unequivocal language it is not to be supposed that the New Zealand Parliament would intend to legislate in a manner inconsistent with moral, if not legal, obligations in this sphere ... .[85]
The difference between the two courts can be put in terms of the emphasis each placed on particular legislative words and their “unambiguous meaning”, on the one side, and, on the other, their context (not just the Mandatory system but also the Imperial one given the exclusive control exercised at that time by the Imperial Parliament over the general grant of British subject status and the still subordinate position of Dominion legislatures) and purpose (relevantly here “to make special provisions for the naturalization of persons resident in Western Samoa” in accordance in fact with agreements reached at the Imperial conferences). While the Privy Council went “straight” to the 1928 Act, the New Zealand Judges looked at it, like its 1923 predecessor, in its broader contexts.[86] While not denying that they were confined by the words of the statute, they did not see themselves as confined to them.
At least in part as a result of adopting that different approach, the New Zealand judges were able to give what many - including the two governments - considered was a more accurate account of the relationship between the mandated territory and the mandatory power than that given by the Privy Council, which on the basis of an incomplete reference to one provision of the Mandate (and no other part of the international and imperial background) saw no difficulty in a mandated territory being in essence under the sovereignty of the Mandatory power.[87] The more comprehensive contextual approach of the New Zealand judges might be thought more appropriate where constitutional and international elements are central.[88]
The international implementation mechanisms would once have been seen as falling outside my topic, but their rapidly growing significance and the increased public notice of them justifies four brief comments. So too do judicial indications, in respect of the Human Rights Committee and the International Centre for the Settlement of Investment Disputes (ICSID), that in some senses our judicial structure does not end with our national court system.[89] It is a puzzle that the mechanisms are so often neglected in discussions of our broader legal system.
The first point, by way of repetition, is that New Zealand has been subject to the processes for international implementation and monitoring of its international obligations for all of its independent existence. To the mechanisms already mentioned operating under the International Labour Organisation and the mandate and trusteeship systems, can be added among others the Permanent Court of Arbitration (1900), the League of Nations (1919), the International Court (1931), the United Nations (1945), the International Centre for the Settlement of Investment Disputes (1980), ad hoc arbitrations (as with the William Webster case in 1925 and the Rainbow Warrior cases in 1986 and 1990), the six human rights treaty committees (from 1972), the International Humanitarian Fact Finding Commission (1991), the Law of the Sea Tribunal and Continental Shelf Commission (1996), and the World Trade Organisation dispute settlement procedures (1995).
That list makes the second point - the wide and increasing range of subject matters in respect of which New Zealand is subject to international monitoring, investigation and judgment.
The third point is about the opportunities that these mechanisms provide for New Zealand, New Zealand individuals and organisations as claimants. That is to be seen in ICJ, ILO, ICSID, WTO and human rights proceedings brought by or against New Zealand, New Zealand organisations and individual New Zealanders. Increasingly, as well, New Zealanders are being elected and appointed to those bodies including at present the WTO dispute settlement body and appellate body, three of the human rights treaty committees, the Commission on the limits of the continental shelf, and the International Humanitarian Fact Finding Commission.
The fourth point is related to the third. Several of the implementation provisions require the State parties, New Zealand included, to report periodically on the action they have taken to give effect to their treaty obligations. That reporting process may provide opportunities to interested bodies to supplement, and help provide a basis for questioning, the official New Zealand position. That opportunity is expressly provided for in the Constitution of the ILO. Practice varies in respect of other reporting processes, but increasingly non-governmental organisations are becoming involved in those reporting processes. This involvement is evidenced in 1998 by the preparation in New Zealand and presentation in New York of the New Zealand government report to the Committee on the Elimination of Discrimination against Women.
My short message for the profession, including faculty and students in the law schools, is that certain old ideas must be slain if we are to do our jobs properly. We have to look more closely at the Westphalian State than many of us have in recent years. We take it too much for granted. We do that unthinkingly with the comfort of the clearly stated thoughts of Dicey and of Hall and others like them. We should realise that their ideas are relatively new - as indeed is the Westphalian State which is, for instance, only half the age of the University.[90] Those ideas are not immutable.
I wonder whether some of those in the very place about which Dicey made his famous statement about the power of Parliament have yet to see the real significance of what the members of the judicial committee of one chamber of that institution said in 1990 when Lord Bridge, in an understated way, recorded a constitutional revolution:
Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty (Cmnd. 5179-II) it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.[91]
Thinking about the position of practitioners, academics and students, consider the legal systems in which clients, especially those involved in trade or business or communications or intellectual property or finance, or the movement of families and individuals, really operate. Where are the relevant powers? Where is the law made? Where are powers of decision and enforcement exercised? If we think that our law is an island entire unto itself, can we really understand the ways in which law operates today, or serve those clients, or teach those who will serve those clients? I trust that by now my answers to those questions are clear.
Consistent with those answers is the resolution adopted last year by the Institut de Droit International, about the teaching of international law. The Institut:
Emphasising that international law increasingly affects the content of municipal law and that a knowledge of international law is necessary to discharge a wide range of professional responsibilities at the national level and the responsibilities of individuals in an increasingly cohesive international society;
Reaffirming that, in the conditions prevailing in the present world, legal education is incomplete if it does not cover the basic elements of public and private international law;
Noting that the international community is moving to a more complex system in which non-State actors are increasing in importance and that international and national laws are becoming more closely interrelated;
Anxious to ensure that the teaching of international law is sufficiently adapted to changes in the international system and to the role and interests of various non-State actors, including individuals.
Recommends that:
1. Every school and faculty of law offer a foundation course or courses on public and private international law. The purpose of such courses is to familiarise students with the basic elements of public and private international law and to provide a foundation on which more specialized knowledge can be acquired at later stages of the educational process.
2. No law student graduate from schools or faculties of law or enter the practice of law and the judicial or diplomatic service without having had a foundation course or courses on public and private international law.[92]
I would go further and emphasise the importance of international legal materials being integrated into the regular subjects of the curriculum. National legal systems cannot be adequately understood unless they are firmly seen in their international context. Again I return to the last century to help make my point. Towards the end of a life time in the law, including being the leading judge in New York, Chancellor James Kent returned to the University to teach budding lawyers at Columbia College. His lectures were published in the enormously influential Commentaries on American Law, the first edition in 1826. He began not with the law of New York (city or state) nor with the law of the United States, but with “the law of nations”. The faithful observance of that law, he said, is essential to the national character and the happiness of humanity. Even his contrasting references to nation and to humanity help make my point.
To be concrete about the New Zealand situation, I refer to five standard subjects of the law curriculum:[93]
• do legal system courses follow Kent’s advice, generally or in concrete contexts (for instance in respect of international and colonial practice relating to indigenous rights and the extension of empire, around the time he was writing, if the Treaty of Waitangi is to be understood as a product of its time)?
• do contract courses discuss the United Nations Sales Convention, the Conventions on the Carriage of Persons and Goods and standard terms prepared by the International Chamber of Commerce and others which between them cover much of the contractual activity reflected in New Zealand’s GDP?
• do family law courses consider intercountry adoption, international abduction of children, international enforcement of maintenance orders, relevant general treaties (on children, discrimination against women and human rights) as well as the issues relating to the recognition of foreign status?
• do equity courses consider the conventions on the formal validity of wills and the administration of deceased estates?
• do commercial law courses consider transnational investment protection, transnational insolvencies and international commercial arbitration - as well as the relevant parts of the public law of international trade which bear directly on private traders?[94]
I conclude with another great nineteenth century thinker - this time a novelist - who developed or rather anticipated Oliver Wendell Holmes’ metaphor about movement, felt and unfelt, by reference to astronomy and history. In his last chapter of War and Peace, Leo Tolstoy mentioned the long and stubborn struggle between the old Ptolemaic views of the universe and the new Copernican one.
Theology stood on guard for the old views and accused the new of violating revelation. But when truth conquered, theology established itself just as firmly on the new foundation.
Just as prolonged and stubborn is the struggle now proceeding between the old and new conception of history, and theology in the same way stands on guard for the old view and accuses the new view of subverting revelations.
Just as in astronomy it was necessary to renounce the consciousness of an unreal immobility and to recognise an unfelt motion it is similarly necessary to renounce a freedom that does not exist, and to recognise a dependence of which we are not conscious.
[*] Judge of the Court of Appeal of New Zealand, Professor Emeritus of the Victoria University of Wellington, Associé de l’Institut de Droit International. I am very grateful to Margaret Bedggood, Dean of the School of Law, and Warren Scotter, of Harkness Henry, and their colleagues, for the invitation to give the Harkness Henry Lecture and their hospitality. I received valuable comments on a draft of this paper from Graeme Buchanan, Scott Davidson, Alex Frame, Paul Hunt, Bill Mansfield, Robert McCorquodale, Janet McLean, Geoffrey Palmer, Diana Pickard, Paul Rishworth, Peter Spiller, Lyn Stevens and John Wallace. Because the subject matter bearing on the title is huge I have had to be selective. My selection, especially in part IV of the paper, is also partly governed by other recent writing. Because many of the matters I mention continue to evolve, I have included only limited references to developments since I gave the Lecture.
[1] “The profession of the law”, Conclusion of a lecture delivered to undergraduates of Harvard University, on February 17, 1886, in Speeches by Oliver Wendell Holmes (1900) 22, 25-26.
[2] (10th ed, 1959) 39-40.
[3] “Biogenesis and Abiogenesis” in his Collected Essays (1893-1894).
[4] Alex Frame and Paul Rishworth suggest in different ways that the discussion in the text may be unfair to Dicey, especially by taking the one quoted sentence out of context. The criticism has real force, given, for instance, Dicey’s countervailing emphasis on the sovereignty of the people (recently used by the Court of Appeal in Lange v Atkinson [1998] 3 NZLR 424, 463) and on the rule of law, and the teaching purpose of An Introduction, based on University lectures. But the sentence is very quotable, is often quoted (eg by Wild CJ in Fitzgerald v Muldoon [1976] 2 NZLR 615, 622) and has taken on a life of its own. And that is so even if Dicey was helping his students’ understanding by stating a fiction rather than a legal rule.
[5] R v Dodd (1874) 2 CA (NZ) 598 and R v Keyn [1876] UKLawRpExch 73; (1876) LR 2 ExD 63.
[6] Re the Award of the Wellington Cooks and Stewards Union (1906) 26 NZLR 394 (FC).
[7] For an excellent account see Hugh Thomas, The Slave Trade: The History of the Atlantic Slave Trade 1440-1870 (1997) especially books 5 and 6.
[8] New Zealand Consolidated Treaty List part two (1997) lists extradition treaties with 52 countries. Treaties with only 15 countries were concluded this century and only 2 of those - with Fiji, after it had left the Commonwealth and the Fugitive Offenders Act 1881 no longer applied, and the United States, replacing a treaty of 1794 - were concluded in the last 50 years. See also the list in M A Soper, The Laws of New Zealand: Extradition and Fugitive Offenders (1993) 65-68.
[9] Convention for the Protection of Submarine Cables, 14 March 1884, 163 CTS 391, supplemented in 1886, 168 CTS 337, and 1887, 169 CTS 375. The provisions have been carried over into the 1982 United Nations Convention on the Law of the Sea articles 113 and 114 (see also article 115) which became binding on New Zealand in 1996, 1982 ILM 1621.
[10] T O’Brien, “The Impact of Information Technology on Politics and Powers in International Affairs”, paper given at the TUANZ Conference, Wellington, 17 July 1997.
[11] Eg Fred Kaplan, Dickens : A Biography (1988) 124-125, 127-128, 133. The New Zealand Copyright Act 1913 replaced 17 imperial statutes, dating from 1734 to 1888, including at least four concerned with international copyright.
[12] Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998.
[13] This was not a new development. The treaties of Westphalia of 350 years ago, seen by many as marking the beginning of the modern State system, included provisions protecting minorities (1 CTS 119 and 127).
[14] [1998] NZCA 88; [1998] 3 NZLR 276.
[15] At 287.
[16] As foreshadowed by the G8, the International Labour Conference in June 1998 adopted the ILO Declaration on fundamental principles and rights at work.
[17] J B Moore, A Digest of International Law (1906) vol 1, 890-923. See also the steps taken by the Japanese and Russian Governments (ibid, 922-929).
[18] For a concrete discussion of a modern day attempt to apply the Geneva law to an internal conflict, a process which involves rulings by the national Constitutional Court, see Frits Kalshoven, “Protocol II, the CDDH and Colombia” in K Wellens (ed), International Law : Theory and Practice - Essays in honour of Erik Suy (1998) 597.
[19] Hall, “The first proposal for a permanent international criminal court” (March 1998) 322 Int Rev R C 57.
[20] Scots lawyers have of course long taken a different view, eg Smith, “The Union of 1707 as Fundamental Law” [1957] PL 99, and A W Bradley and K D Ewing, Constitutional and Administrative Law (12th ed 1997) 79-82 and the Scottish cases and writing they mention.
[21] Eg Exchange of Greek and Turkish Populations Case PCIJ Series B No 10 (1925) 20, and article 27 of the Vienna Convention on the Law of Treaties. For a recognition of the principle by a great British (Admiralty) judge, Sir William Scott, see Le Louis [1817] EngR 835; (1817) 2 Dods 210, 165 ER 1464.
[22] P Kennedy, Preparing for the Twenty-First Century (1993) 131. The World Bank in its World Development Report 1997: The State in a Changing World (1997) addresses the effectiveness of the modern State. The report defines the State’s capability as the ability to undertake and promote collective actions effectively. A Orford and T Baird provide a valuable commentary in “Making the State Safe for the Market: The World Bank’s World Development Report 1997” (1998) 22 Melb ULR 195.
[23] United Nations Development Programme, Human Development Report (1997) 83. For a much older reminder, see the publication in 1686 by Gerard Malynes, Merchant, of the third edition of his Consuetudo, vel, Lex Mercatoria or the Ancient Law - Merchant (about commodities, money, and the exchange of money - and much else especially relating to the law of the sea).
[24] See the valuable account by Professor Roy Goode, “Reflections on the Harmonization of Commercial Law” in R Cranston and R Goode (eds), Commercial and Consumer Law: National and International Dimensions (1993) ch 1.
[25] Eg Economist 4 July 1998, 14, 77-78.
[26] The Refugees and Torture Conventions are considered in S v Refugee Status Appeals Authority [1998] 2 NZLR 291; and the International Covenant on Civil and Political Rights and Children’s Convention is considered in Rajan v Minister of Immigration [1996] NZCA 484; [1996] 3 NZLR 543.
[27] Butler v Attorney-General, unreported, CA181/97, 13 October 1997.
[28] Bernstein, “Opting out of the legal system: extra legal and contractual relations in the diamond industry” (1992) 21 JLE 115.
[29] See also Arthur, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields” (1997) 12 CJLS/RCDS 219.
[30] Renewing the United Nations: A Programme for Reform: Report of the Secretary-General (14 July 1997) A/51/950 paras 143-145, 209.
[31] Law Commission, New Zealand Guide to International Law and its Sources (1996 NZLC R34) Appendix C.
[32] “Treaties: What are they, what do they do, how are they made, and how are they given effect?” (1991) in Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (rev ed 1991 Report 6) 76, 77-78.
[33] Lord McNair, “The Functions and Differing Legal Character of Treaties” (1930) 11 BYIL 100 (reprinted as Appendix A to his Law of Treaties (1961)).
[34] The Secretariat and Committee took that position in 1997 when the Democratic People’s Republic of Korea purported to withdraw from the ICCPR, while the Australian Attorney-General had expressed it in 1994 ([1995] AYIL 470, quoting Senate Debates (28 November 1994) 3372).
[35] For the three stages see eg In Re Gaudin [1915] NZGazLawRp 9; (1915) 34 NZLR 401, 406-407; the mandate, the Samoa Act 1921, A Frame, Salmond: Southern Jurist (1995) 189-198, and the text at nn 54 and 81-86; and the trusteeship agreement, the 1946 Amendment Act and Boyd and Aikman in Angus Ross (ed) New Zealand’s Record in the Pacific Islands in the Twentieth Century (1969) 189-270 and 308-341.
[36] Eg Lord Atkin in Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347-348, and article 7(2) of the Vienna Convention on the Law of Treaties. For recent United Nations publications relating to the multilateral processes of law making see United Nations, International Law on the Eve of the Twenty-First Century: Views from the International Law Commission (1997) and Making Better International Law: the International Law Commission at 50 (1998).
[37] Eg Chinkin, “Global Summits: Democratising International Law-making?” (1996) 7 PLR 208.
[38] Nottage, “The GATT Uruguay Round 1984-1994: 10 years of consultation and cooperation” (August 1994) 3(3) MFAT Record 17.
[39] Law Commission, The Treaty Making Process: Reform and the Role of Parliament (1997 NZLC R45) para 144.
[40] See the judgment of the Privy Council and the provision of the Vienna Convention mentioned in n 36 above.
[41] See the Report of the Foreign Affairs, Defence and Trade Committee, Inquiry into Parliament’s Role in the International Treaty Process 1997 AJHR 1.4A 8-9, Law Commission report n 37 above paras 162-186, the Government response to the Committee Report 1998 AJHR A5 (indicated as well in the speech of the Minister of Foreign Affairs & Trade launching the Consolidated New Zealand Treaty List given on 17 December 1997), the related debate and decisions of the House of Representatives, 28 May 1998, Hansard 9419-9443, and a Cabinet Office Circular of 6 July 1998. The Law Commission report refers to discussions of New Zealand and other practice. See also Gobbi “Enhancing Public Participation in the Treaty Making Process: An Assessment of New Zealand’s Constitutional Response” (1998) 6 Tulane Jl of Int and Comp L 57, and papers given to the Conference on Treaties and New Zealand Law, Wellington, 7 and 8 August 1998, International Law Association (New Zealand Branch).
[42] For a notification of the first batch of treaties due to come before Parliament under the new procedure see 501 LawTalk 18; and for an account of earlier New Zealand practice, see (1964) 1 NZULR 272.
[43] A major recent step was the report of the Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (November 1995). The Australian Government responded positively to that Report which proposed the tabling of all treaties (see Law Commission report No 45 84-93). Part of the outcome is to be seen in the stream of reports of the Joint Standing Committee on Treaties of the Parliament of the Commonwealth of Australia. By June 1998 sixteen have been published, the latest on the OECD Convention on Combating Bribery. See Burmester at the ILA Conference in n 41 above.
[44] Report n 39 above, para 195.
[45] For an earlier discussion of those problems see “International Business Law” New Zealand Law Conference April 9-13 1996 Conference Papers Volume I. See also n 89 below about inaccurate legislative implementation of an arbitration treaty.
[46] For instances of the apparently consequential neglect of relevant treaties see R v Decha-Iamsakun [1992] NZCA 125; [1993] 1 NZLR 141, a slavery case which draws on dictionary definitions but not on the binding treaty definitions provided by the 1926 and 1956 Slavery Conventions[1927] LNTSer 19; , 60 LNTS 253 and 266 UNTS 40; and the Medicine Amendment Act 1989 repealed by the Medicine Amendment Act 1990.
[47] The choice of legislative form has been the subject of recent extensive discussion, see eg the 1996 and 1997 Law Commission reports nn 29 and 37 above and the sources they refer to including those listed in n 6 of Report 34. An essential step is to ensure that those responsible for the preparation of legislation take relevant treaty and other international obligations into account. The Cabinet Office Manual (1996) 5-26 and 122, 124, requires Ministers when proposing legislation to report on compliance with relevant international obligations; see also n 70 below.
[48] New Zealand Air Line Pilots’ Association v Attorney-General [1997] 3 NZLR 269.
[49] At 280-281, citing Lord Atkin speaking for the Privy Council in Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347.
[50] At 285.
[51] See the reports in nn 31 and 39 above.
[52] Because of the emphasis in much writing on international human rights (in part related to the 50th anniversary commemoration of the Universal Declaration of Human Rights) and because I have recently twice considered the place of international human rights in New Zealand Courts, I give less attention to cases in that area. See “The application of international human rights law in New Zealand” in “Developing Human Rights Jurisprudence” (1998) 7 Seventh Judicial Colloquium on the Domestic Application of Human Rights Norms at Georgetown, Guyana, 1996 47, also published in (1997) 32 Texas Int LJ 401; and “Roles of the Courts in New Zealand in giving effect to international human rights - with some history” (one of a series on the 50th Anniversary of the UDHR) (1999) 29 VUWLR 27.
[53] New Zealand Air Line Pilots’ Association v Attorney-General [1997] 3 NZLR 269, 284-285. Consider also the majority decision in R v Keyn, n 5 above, which can be read as recognising the freedom of States under international law to claim territorial seas and facilitating but not requiring the making of jurisdictional claims.
[54] Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257, 266. For the latest statement from the Judicial Colloquium, see “The Georgetown Conclusions on the effective promotion of human rights through law” [1996] PL 562.
[55] Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 147 ALR 42, 147; see similarly Kartinyeri v Commonwealth [1998] HCA 22 paras 166-167; [1998] HCA 22; 152 ALR 540, 598-600.
[56] See further part II(1) of the human rights paper, n 52 above, the Award case n 6 above, and the Samoan citizenship cases discussed later in this paper.
[57] Commentaries, book IV, ch5.
[58] Eg New Zealand Air Line Pilots’ Association v Attorney-General [1997] 3 NZLR 269, 289.
[59] Marine Steel Ltd v Government of the Marshall Islands [1981] 2 NZLR 1, Buckingham v Hughes Helicopter [1982] 2 NZLR 739, Reef Shipping Co Ltd v The Ship “Fua Kavenga” [1987] 1 NZLR 550, Governor of Pitcairn v Sutton [1994] NZCA 277; [1995] 1 NZLR 426 (especially 433-434), and Controller and Auditor-General v Davison [1996] 2 NZLR 278 (especially 305, 306-307).
[60] Lange v Atkinson [1998] 3 NZLR 424.
[61] See eg the valuable discussion by Clive Parry, The Sources and Evidences of International Law (1965) ch 1, drawing on Salmond and related writing.
[62] Nicholls v Registrar Court of Appeal [1998] 2 NZLR 385.
[63] New Zealand Air Line Pilots’ Association v Attorney-General [1997] 3 NZLR 269, 289. In the maritime Award case, n 6 above at 428, two of the Judges quoted a passage in almost identical terms from the judgment of a great international lawyer, Sir Robert Phillimore, in R v Keyn, n 5 above, at 85.
[64] Auckland Harbour Board v Controller of Customs [1992] 2 NZLR 392, 396.
[65] James Buchanan & Co Ltd v Babco Shipping and Forwarding (UK) Ltd [1978] AC 141, 152, eg in King-Ansell v Police [1979] 2 NZLR 531, 537, 540; New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 714; Baltic Shipping Co Ltd v Pegasus Lines SA [1996] 3 NZLR 641, 647; see also CBI NZ Ltd v Badger Chiyoda [1988] NZCA 319; [1989] 2 NZLR 669, 682.
[66] New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 682, and New Zealand Air Line Pilots’ Association v Attorney-General [1997] 3 NZLR 269, 289.
[67] Article 31(1); see other provisions of articles 31, 32 and 33 relating to context, drafting history, practical application and multilingual texts; and also cl 5(1) of the Interpretation Bill currently before Parliament, a provision which draws (although in its current Parliamentary form incompletely) on the Vienna wording, see Law Commission, A New Interpretation Act (1990 NZLC R 17) ch III and appendix D.
[68] See paras 44-49, 54-58, 72 and 261 of the Law Commission report, “International Law and New Zealand Municipal Law” in J F Northey (ed) The A G Davis Essays in Law (1965) 130, 132-133, and the discussion of the Lesa case, n 83 below.
[69] Law Commission, Arbitration (1991 NZLC R20) 279-351. See paras 205-208 for the reasons for including s 3.
[70] Compare the wording of the successive ss 4(2) of the 1990 and 1996 Ozone Layer Protection Acts. The later provision correctly requires consistency with rather than (mere) regard to the relevant international obligations. Changes in the same sense were made to the Fisheries Bill 1995 in the course of its passage through Parliament, see the chapter on International Obligations in Report of the Legislation Advisory Committee 1 January 1994 to 31 December 1995 Recurring Issues (Report No 9 June 1996), especially paras 75-82.
[71] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998); 153 ALR 490.
[72] Tokelau Act 1948 s 3B(1).
[73] Paras 32-43; 501-504.
[74] Paras 94-100; 517-518.
[75] Simpson v Attorney-General [1955] NZLR 271, 281 being cited in support.
[76] New Zealand Air Line Pilots’ Association v Attorney-General [1997] 3 NZLR 269, 290.
[77] Eg G Huscroft and P Rishworth (ed), Rights and Freedoms (1995) especially chs 2 and 3, B Robertson (ed), Adams on Criminal Law (loose leaf) ch 10, P Joseph, Constitutional Administrative Law in New Zealand (1993) ch 26, and regular contributions to the New Zealand Law Review by Brookfield, Rishworth, Joseph and others as well as many other articles on particular cases, eg nn 80 and 82 below.
[78] Eg Sigma Agencies Ltd v Collector of Customs (Northern Region) [1997] 1 NZLR 647; Customs Agents Wellington Ltd v Comptroller of Customs [1994] NZHC 1283; [1994] 2 NZLR 759; King-Ansell v Police [1979] 2 NZLR 531; Yan v Minister of Internal Affairs [1997] 3 NZLR 450; Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649; Baltiman Aps Ltd v Nalder & Biddle Ltd [1994] NZCA 238; [1994] 3 NZLR 129; Commissioner of Inland Revenue v United Dominions Trust Ltd [1973] 2 NZLR 555; Re S [1992] 1 NZLR 363; Mewes v Attorney-General [1979] 1 NZLR 648; Gross v Boda [1995] 1 NZLR 649; and Baltic Shipping Co Ltd v Pegasus Lines SA [1996] 3 NZLR 641.
[79] Eg Birds Galore Ltd v Attorney-General (1988) [1989] LRC (Const) 928, 938-940; 90 ILR 567, 578-579, referring to Van Gorkom v Attorney-General [1977] 1 NZLR 535, discussed in the Georgetown paper, n 52 above, at 52.
[80] Ashby v Minister of Immigration [1981] 1 NZLR 222, Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257, Puli’uvea v Removal Review Authority [1996] NZCA 234; (1996) 14 FRNZ 322, and Rajan v Minister of Immigration [1996] NZCA 484; [1996] 3 NZLR 543, discussed eg by Joseph [1998] NZ Law Rev 109-116.
[81] Wellington District Legal Services Committee v Tangiora [1997] NZCA 326; [1998] 1 NZLR 129 and Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385.
[82] Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523, criticised eg by Butler [1998] NZLJ 229.
[83] [1982] 1 NZLR 165 CA and JC, [1982] UKPC 30; [1983] 2 AC 20.
[84] Levave v Immigration Department [1979] 2 NZLR 74 CA, relating to an Act of 1923 replaced by the 1928 Act in issue in the Lesa case.
[85] [1979] 2 NZLR 74, 79.
[86] See the surprising comment by the Privy Council that the 1923 resolution appeared to be inconsistent with the provision in article 2 of the Mandate “that Western Samoa was to be governed as an integral part of the Dominion of New Zealand” ([1982] 1 NZLR 165, 176). I say surprising since the article read as a whole and in context appears to present no inconsistency at all.
[87] The Governments of New Zealand and Western Samoa found the Privy Council decision unacceptable, and within a month negotiated an agreement which substantially reversed its general effect; see the Protocol of 21 August 1982, AJHR A56, and the Citizenship (Western Samoa) Act 1982. The Privy Council judgment and the governmental and legislative responses were the subject of extensive commentary. For James Crawford “the real difficulty with the decision is that it undermines the assumptions of all parties concerned over a long period of time, assumptions which formed the basis of transactions such as the establishment of the independent State of Western Samoa and the administration (from 1959 onwards) of its separate citizenship legislation” ((1982) 53 BYIL 268).
[88] Compare for instance Lord Hoffman’s discussion of constitutional interpretation for the Privy Council in a recent Mauritius case, Mutadeen v Pointu [1998] UKPC 9; [1998] 3 WLR 18, 25-26, and the structure of another judgment, contemporaneous with the Lesa judgment, relating to another important Samoan constitutional issue, Attorney-General of Western Samoa v Saipa’ia Olomalu (1982) reported in (1984) 14 VUWLR 275 (Western Samoan Court of Appeal; I was a member of that Court).
[89] Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257, 266 and Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649. A Law Commission recommendation to give accurate effect to the ICSID Convention remains unimplemented although the other proposals have been enacted in the Arbitration Act 1996, Arbitration (1991 NZLC R20) paras 154-171, 449. The omission of those provisions from the Bill in the course of its passage was not explained by the Select Committee or in the Parliamentary debate.
[90] Many of course date the modern State and interstate system from the signing of the Treaties of Westphalia of exactly 350 years ago (n 12 above). See eg the choice by Clive Parry of those treaties as the foundation and starting point of his Consolidated Treaty Series (1648-1919) which, with the League of Nations and United Nations Treaty Series in well over 2000 volumes, provide us with much of the formal interstate law of the world. See also Leo Gross “The Peace of Westphalia” (1948) 42 AJIL 20.
[91] R v Secretary of State for Transport, Ex parte Factortame Ltd (no 2) (1990) UKHL 13; [1991] 1 AC 603, 658-659; see also R v Secretary of State for Employment, Ex parte Equal Opportunities Commission [1994] UKHL 2; [1995] 1 AC 1, 26-27, both discussed in “Sovereignty: a legal perspective” in G A Wood and L S Leland Jr (eds) State and Sovereignty. Is the State in Retreat? (1997) 83-88.
[92] See also the remainder of the resolution, including its appendices and the background material, in 67(1) Annuaire 121-217; and the debate on the proposed resolution in 67(2) Annuaire 83-193.
[93] I have not chosen those such as labour law, taxation and environmental law in which the international element is obvious.
[94] I should make it clear that I am not contending that every skerrick of relevant international law should be included in every course. No law programme can be completely comprehensive nor should it try to be. What is required is a sense, arising from some examples, of the integral character of international law in our national law.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/WkoLawRw/1998/1.html