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Endnotes

[1] The Borderless World (Fontana, London, 1991), ix.

[2] Not to be confused with legally binding treaties are the so-called "soft law" documents such as the Rio Declaration and Agenda 21 adopted at the 1992 United Nations Conference on Environment and Development. Although these are negotiated, they are only morally binding.

[3] Brownlie, Principles of Public International Law (4th ed, Clarendon, Oxford,

1990), 604.

[4] Article 34 of the Vienna Convention on the Law of Treaties, for example, makes it clear that "[a] treaty does not create either obligations or rights for a third State without its consent".

[5] As expressed, for example, in Vienna Sales Convention article 1(1)(b).

[6] For other discussions, see Thornton, Legislative Drafting (3rd ed, Butterworths, London, 1987) 236_240; Mann, Foreign Affairs in English Courts (Clarendon, Oxford, 1986) 97_102; Mendis, "The Legislative Transformation of Treaties" [1992] Stat lr 216; Crawford, "International Law Standard in the Statutes of Australia and the United Kingdom" (1979) 73 ajil 642; Bennion, Statutory Interpretation (2nd ed, Butterworths, London, 1992) 459_466; and Keith, "New Zealand Treaty Practice: The Executive and the Legislature" (1964) 1 nzulr 272.

[7] There may be a case for increasing the role of the legislature in treaty-making, by means of greater notification and consultation before and during negotiation: see Keith, "The Making, Acceptance, and Implementation of Treaties: Three Issues for Consideration" (Law Commission, June 1995).

[8] See Memorandum by the Attorney-General (1991), reproduced in Chen and Palmer, Public Law in New Zealand Cases, Materials, Commentary and Questions (Oxford University Press, Auckland, 1993) 556; also some examples of Attorney-General statements, 556_563, and new Standing Order 258.

[9] See Pearce and Geddis, Statutory Interpretation in Australia (3rd ed, Butterworths, Sydney, 1988), para 5.7, and Burrows, Statute Law in New Zealand (Butterworths, Wellington, 1992), 233_245; also Bennion, Statutory Interpretation, 564_569.

[10] These documents were subsequently held to be treaties by the International Court of Justice, South West Africa Cases (preliminary objections) 1962 icj Reps 319, 330_332.

[11] See also Keith, "The Treaty of Waitangi in the Courts" (1990) 14 nzulr 37, 44_46.

[12] Derbyshire County Council v Times Newspapers [1993] ac 534, affirming [1992] qb 770.

[13] See qantas Airways Ltd v SS Pharmaceutical Co Ltd [1990] lrc (Comm) 261 (nswca), 277_279 citing Fothergill v Monarch Airlines [1981] ac 251 (eg 276, 282_283); and New Zealand Maori Council v Attorney-General [1987] 1 nzlr 641, 682.

[14] See, eg, Mabo v State of Queensland (1992) 107 alr 1 and Governor of Pitcairn v Sutton [1995] 1 nzlr 426 ca; also Cunningham, "The European Convention on Human Rights, Customary International Law and the Constitution" (1994) 43 iclq 537.

[15] Eg, Simpson v Attorney-General (Baigent's case) [1994] 3 nzlr 667 ca.

[16] Eg, dpp v Pete [1991] lrc (Const) 553 (Tanzania ca); R v Keegstra [1991] lrc (Const) 333 (scc); and Ministry of Transport v Noort [1992] 3 nzlr

260 (ca).

[17] Compare, eg, Brind v Secretary of State [1991] 1 ac 696; [1991] lrc (Const) 512 with R v Keegstra [1991] lrc (Const) 333 (scc).

[18] Compare, eg, Ellerman Lines Ltd v Murray [1931] ac 126 with Ramburn v Stock Exchange Commission [1991] lrc (Const) 272, 276_277 (Mauritius sc).

[19] See, eg, Tavita v Minister of Immigration [1994] 2 nzlr 257, 266 (ca).

[20] See, eg, the invoking of the principle of non-retroactivity of penal legislation "common to all the legal orders of the member-States and . . . enshrined in Article 7 of the European Convention . . . as a fundamental right; it takes its place among the general principles of law whose observance is ensured by the Court of Justice" (R v Kent Kirk [1984] 3 cmlr 522, 538).

Appendix footnotes

[1] Examples of such regulations include the Double Taxation Relief Orders (eg, Australia, sr 1972/244; Federal Republic of Germany, sr 1980/112; Republic of Korea, sr 1983/5), the Social Welfare (Reciprocity) Orders (eg, the Netherlands, SR 1990/359; United Kingdom, sr 1990/85), and certain shipping and civil aviation regulations.