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• The Implications For New Zealand Law-Making
• Wider Implications
• Purpose And Structure Of The Guide

Introduction: A Globalising World

1 WE LIVE IN AN INCREASINGLY GLOBALISED WORLD. This

is a trend which has been clear for some years in travel and telecommunications. Where in 1955 only some 50,000 passengers flew into and out of New Zealand, nowadays over three million people do so each year. And where in 1950 New Zealanders made only about 20 international telephone calls a day, they now make nearly 100,000.

2 But there is another, perhaps more significant respect in which the world is becoming globalised, and that is in the international dissemination of information by electronic means. Consider access to library resources (of which the legal database LEXIS is just one powerful example) or the world financial markets, where the almost instantaneous foreign exchange trading now amounts to many times the value of the international trade in goods.

3 The consequence of these developments, as Kenichi Ohmae[1] sums it up, is that “Nothing is ‘overseas’ any longer”. The implications are wide-ranging. National power and authority are becoming less and less effective. Already the international community is showing less reluctance to intervene in conflicts which might once have been seen as purely internal—as in the former Yugoslavia or Somalia, for instance. But it is perhaps in the growing realisation that environmental problems can only be tackled by the co-ordinated action of a number of states that the concept of national sovereignty is being most severely challenged.

The implications for New Zealand law-making

4 Whether they relate to telecommunications or to reducing the depletion of the ozone layer, transnational activities cannot function effectively without a degree of regulation and standardisation. This means that they must be subject to international agreements or laws which bind members of the community of nations. In common with other jurisdictions, New Zealand is a party to a multitude of international agreements. In addition to formal agreements, a body of customary international law has grown up out of the practice of states in their international relations, a body of law to which New Zealand is also subject.

5 As a party to a treaty, New Zealand is obliged to comply with the relevant treaty provisions, and, where necessary, give full effect to them in its domestic law. Article 27 of the Vienna Convention

on the Law of Treaties stipulates that states cannot excuse non-compliance by reference to inadequate national law. Governments need to have practical arrangements, therefore, to ensure that they comply. For instance, the New Zealand Cabinet Office Manual

requires Ministers proposing new legislation to the Cabinet Legislation Committee to report on the proposal’s compliance with New Zealand’s international treaty obligations. The process of checking draft legislation against the provisions of the New Zealand Bill of Rights Act 1990 also often raises treaty compliance issues, since

that Act closely follows the International Covenant on Civil and Political Rights (ICCPR), by which New Zealand is bound.

6 But New Zealand’s international obligations may not only require the enacting of dedicated legislation, they may also have an effect on the development of domestic legislation in general, and even on already existing legislation. Appropriate and timely consultation during the process of developing legislation is therefore important to ensure that international obligations are not being overlooked or breached.

7 About a quarter of New Zealand public Acts appear to raise issues connected with international law (see appendix C). Any proposal to amend such legislation should prompt the question whether there is a treaty which must be taken into consideration. Even when there is no direct obligation, there may well be an international standard—especially in the human rights area—which is relevant to the preparation of new legislation and the replacement and amendment of the old. It may also be relevant to the interpretation of legislation.

Wider implications

8 New Zealand’s international obligations have implications well beyond the technical law-making process. They have major consequences for approaches to law and public power, for legal education (both in the universities and in ongoing training), for law reform agencies, for legal practitioners, and for the courts. They are also reflected in the growing public debate about “sovereignty”. It is worth noting here the words of Chancellor James Kent, the great American judge and teacher of the early nineteenth century:

By this law [of nations] we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to the national character, and the happiness of mankind. (Commentaries on American Law, 1826)

9 The wider view is not only necessary if states are to play their full part in the world, giving effect to their international obligations and receiving proper recognition of their rights; it can also have advantages for the development of areas of national law which

need not follow international standards. A good example is that of Australia borrowing its statutory statement of the law of interpretation of statutes from international law; another is the application in Scottish law of the United Nations Commission on International Trade Law (UNCITRAL) 1985 Model Law on International Commercial Arbitration to domestic arbitration.

10 A better understanding of our international obligations requires better education and information for the profession at large, and for the public. But it also has a profound influence on the democratic process and popular participation in national law-making. For often the international legal text will have been developed long before

it becomes an issue in the domestic context. Often the only

real question is whether to accept the international text or not. Increasingly, there will be little choice, particularly for a small

state like New Zealand which participates as a full member of the international community.

11 In these circumstances, it is to New Zealand’s advantage if it participates in the treaty-making process at the negotiation stage and before the international text is settled. Where possible, there should be early notification of matters subject to negotiation and extensive consultation with interested parties such as Maori, women’s groups, environmental groups, and the business sector.

Purpose and structure of the guide

12 For all of the reasons given in the preceding paragraphs, the Law Commission considers it desirable to issue this basic guide to international law as it affects New Zealand law, and to the materials

and sources within New Zealand which help to find, interpret and understand international law. In doing so, the Commission is also meeting its statutory duty under s 5(1)(d) of the Law Commission Act 1985 to advise on “ways in which the law of New Zealand can be made as understandable and accessible as practicable”. It has prepared the guide with assistance and advice from many organisations whose work is affected by New Zealand’s international obligations (see acknowledgments).

13 Part I provides a context for the guide. It focuses in particular on the principal source of international law and obligations, the law of treaties. It then lists the varieties of international agreement, and briefly discusses the ways in which they are implemented. Part II provides information on the sources, including where to find

them, some practical examples, and details on selected international organisations, associations, and treaties relevant to New Zealand. The three appendices feature the text of a sample treaty (the Vienna Convention on the Law of Treaties), a glossary of acronyms (of which there are many in the area), and a list of New Zealand statutes

which have international legal implications. There is also a select bibliography.

14 The information compiled in part II is by no means comprehensive. Not only would an attempt to make it so have inflated the scope

of what is intended to be a modest publication, but much of the information would soon have become outdated. The aim here is to provide enduring information which can point the user in the desired direction, by consulting the correct reference works, for instance, or approaching the agency which is most likely to hold the required material. If the guide succeeds in doing this, as well as in increasing the awareness of New Zealand’s international obligations, it will have achieved its purpose.