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74 THIS CHAPTER IS DESIGNED to help users find their way into
international legal materials. It operates on the understanding that international law
. . . is not an esoteric business with a discipline and a methodology of its own. It is part and parcel of the legal science, and it demands the same kinds of skills and techniques and intellectual approach that all branches of legal science demand. The peculiarity lies in the widely scattered source-material and in the very nature of public international law itself . . . (Rosenne, Practice and Methods of International Law (Oceana, Dobbs Ferry, NY,1984), ix)
The chapter also follows the order of the list of sources established by article 38(1) of the Statute of the ICJ (see para 15), but adds two others. The sources are
• treaties
• customary international law
• judicial decisions
• resolutions of international organisations
• academic writings, and
• current information.
The chapter concludes with some practical examples of how to obtain access to specific information.
Principal collections in New Zealand
75 The principal New Zealand collections for international legal documents are the International Documents Collection, Parliamentary Library (IDC) and the other public United Nations depositary libraries: the Victoria University of Wellington Library and the Auckland City Library.
76 Approach these sources first if seeking an international legal document, since they are best equipped to assist general users. Note that the IDC produces a current awareness list on international relations and the law. This list is available both through e-mail (documents@ceo.poli.govt.nz) (preferred) and in hard copy form. Chapter 5 indicates certain alternative sources: approach them only as a last resort.
77 Note that international legal materials are increasingly available through electronic databases. Two well-established legal databases which include international material are LEXIS and WESTLAW, both operating out of the United States, but accessible at a number of locations in New Zealand.
78 Another fast-growing means of electronic access is through the Internet, particularly its World Wide Web service (known also as “WWW” or “the Web”). This creates cross-references within and between bodies of text, allowing the user to move from a selected item to other linked items. The Internet is continually developing, with new sources (“servers” and “sites”) being added to it all the time. However, it is still relatively unstructured, in spite of the fact that good software is available to facilitate access to it, and new users should seek advice.
79 Because of the Internet’s dynamic nature, this guide does not attempt to make a comprehensive list of materials available, nor does it provide addresses. To date, however, the Internet gives access to, amongst other information, materials on treaties, the United Nations (eg, Security Council resolutions and press releases), international trade law, maritime and oceanic law, World Intellectual Property Organisation (WIPO), and human rights. In addition, there are public legal information servers such as the New Zealand Government Web Pages, the Australasian Legal Information Institute (NZLII), REFLAW (the Virtual Law Library Desk) and DOCLAW (United States Government documents) from the Washburn University School of Law Library, and Cornell’s Legal Information Institute. Certain publications also exist which may be of assistance: for example,
LAIR, a weekly newsletter of legal Internet sites from the Center for Computer-based Legal Research, Tarlton Law Library, and the Journal of Online Law.
80 The texts of treaties are to be found in
• national official documents and collections,
• international official documents and collections, and
• unofficial collections.
Use official sources if possible.
81 International Legal Materials (ILM) has become an indispensable contemporary collection of treaties and other relevant materials such as judicial decisions, resolutions and current information. The documents are generally reproduced from official sources. ILM appears bi-monthly and is published by the American Society of International Law, Washington DC. It is available in most law libraries and also through the online databases LEXIS and WESTLAW. One advantage it has over most of the other sources mentioned is that it often reproduces treaties before they are in force. Only treaties which are actually in force are subject to registration with the United Nations, and publication in national series is sometimes similarly delayed.
82 Among the national collections available in New Zealand are
• New Zealand Treaty Series (its texts also appear in the Appendices to the Journals of the House of Representatives, in section A),
• Australian Treaty Series,
• United Kingdom Treaty Series (the texts also appear in the Command papers series),
• Canada Treaty Series, and
• United States Treaties and International Agreements Series (and the Bevans collection covering earlier years).
National treaty lists are also helpful.
83 The text of a treaty may sometimes appear as a schedule to the statute or regulations which give effect to the treaty in the national legal system; for example, in the Geneva Conventions Act 1958, Carriage by Air Act 1967, Maritime Transport Act 1994, and regulations giving effect to double taxation agreements, social security agreements and extradition treaties. Sometimes the text might be appended even when it is not given domestic effect by legislation. The list of legislation in appendix C indicates New Zealand statutes to which a treaty text is attached.
84 A multilateral treaty will generally be adopted at a diplomatic conference (such as those called by the Swiss Government to adopt the Geneva Conventions or by the General Assembly of the United Nations to adopt the Vienna Convention on the Law of Treaties) or within an international organisation (such as the Assembly of the International Civil Aviation Organisation).
85 Those processes will generally produce a record of the proceedings (the written proposals, the debates, and relevant reports) and a document which sets out the treaty text (usually a final act in the case of a diplomatic conference or a resolution in the case of a treaty adopted within an organisation).
86 The Covenant of the League of Nations article 18 required that states parties to treaties register them with the League of Nations, which then published them. The Charter of the United Nations article 102 makes the same requirement. The 4834 treaties registered with the League of Nations were published in 205 volumes of the League of Nations Treaty Series while some 30,000 treaties have been registered with the United Nations. Those registered up to 1983 have been published in 1300 volumes of the United Nations Treaty Series (UNTS). Some treaties may also appear as documents of the General Assembly or Security Council.
87 Some of the specialised agencies, such as the International Labour Organisation and the International Civil Aviation Organisation, also publish collections of treaties prepared under their auspices. So too do regional bodies such as the Council of Europe.
88 There are collections from last century such as Hertslet’s Commercial Treaties, de Martens, and British and Foreign State Papers. For the most part, those treaties (if concluded after the Treaty of Westphalia 1648 and before the establishment of the League of Nations in 1919) are now to be found in the 231 volumes of the Consolidated Treaty Series (CTS) and 12 associated index volumes edited by Clive Parry.
89 A more restricted collection of major multilateral treaties with related commentary is Hudson (ed), International Legislation (Oceana, Dobbs Ferry, NY, 1970–1972). There are also useful collections in particular areas (such as Diamond and Diamond, International Tax Treaties of All Nations (Oceana, Dobbs Ferry, NY, 1975–)) and in basic document collections (eg, Brownlie (ed), Basic Documents in International Law and Osmanczyk, The Encyclopedia of the United Nations and International Relations (2nd ed, Taylor and Francis, New York/Philadelphia/London, 1990)).
90 The current status of treaties is sometimes difficult to determine, but it may be worth contacting the Ministry of Foreign Affairs and Trade for assistance. Information relevant to those major multilateral treaties deposited with the Secretary-General of the United
Nations is published each year: Multilateral Treaties Deposited with the Secretary-General. The United States publishes Treaties in Force annually; ILM contains relevant information; and Rohn has
published relevant volumes: World Treaty Index (2nd ed, American Bibliographic Center, Santa Barbara, 1983–1984) and Treaty Profiles (American Bibliographic Center, Santa Barbara, 1976). Specialised international organisations, such as the Hague Conference on Private International Law, also publish information on the status of the treaties which they administer.
91 This law arises from the practice of states in their international relations. The evidence of that practice is scattered and unsystematic; however, major textbooks such as Brownlie, Principles of Public International Law provide a useful starting-point. State practice can also be found in national sources, such as legislation and government statements. It is sometimes reproduced in national collections:
• UNITED STATES; the Digests of Wharton and Moore (8 vols, 1906), Hackworth (8 vols, 1940–1944), Whiteman (14 vols, 1963–1973), and later annual volumes; also Foreign Relations of the United States;
• UNITED KINGDOM; Parry and Fitzmaurice, A British Digest of International Law (Stevens, London, 1965–);
• FRANCE; Kiss, Répertoire de la pratique française en matière de droit international public (CNRS, Paris, 1962–1972).
92 Some periodicals contain practice sections (some on a model proposed by the Council of Europe: see Rosenne (para 74), 159–169); for example, British Yearbook of International Law (BYIL), Canadian Yearbook of International Law, Australian Yearbook of International Law, Japanese Annual of International Law, Netherlands Yearbook, Annuaire suisse de droit international. The New Zealand Foreign Affairs Record and an occasional publication series by the Ministry of Foreign Relations and Trade provide relevant New Zealand material.
93 The United Nations Legislative Series gathers information provided by states which is relevant to areas under study, usually by the ILC; for instance, on the law of the sea, nationality, state succession and immunities.
94 The documents, debates, reports, and yearbooks of the ILC, and the studies done for it, will often also gather state practice. The ILC provides a principal means by which the General Assembly carries out its function of progressively developing and codifying international law (Charter article 13(1)(a)).
95 That process of treaty-making means that the scattered, unsystematic character of state practice is now less significant. The unwritten, customary law may be replaced or codified by a treaty which
binds the parties and clearly addresses the issue; or if there is
an authoritative, systematic consideration of the matter. This has occurred, for instance, in respect of
• privileges and immunities of diplomats, consuls, special missions and international organisations,
• law of treaties, including the treaties of international organisations and succession to treaties,
• law of the sea,
• nationality, statelessness and refugees,
• state responsibility, and
• human rights.
96 Note also the work of the specialised agencies, other universal bodies, such as UNCITRAL, and regional bodies such as the Council of Europe and the Asian-African Legal Consultative Committee. There are in addition important private codification efforts, such as the work done by the Harvard Research in International Law between 1927 and 1940 and published in the American Journal of International Law.
97 The practice of international organisations is increasingly significant. Some of it is recorded in the Repertory of Practice of the United Nations Organs (United Nations, New York, 1955–), the United Nations Juridical Yearbook, the United Nations Yearbook and the Yearbook of Human Rights. There is also the massive documentation of the major organisations, which in New Zealand is held principally in the United Nations depositary libraries: see para 75.
98 The International Court of Justice is the principal judicial organ
of the United Nations (Charter article 92 and Statute). It is the successor of the Permanent Court of International Justice which existed from 1919 to 1946 (see, eg, Statute articles 36(5) and 37).
99 The publications of the PCIJ were divided into five series:
A judgments
B advisory opinions
C pleadings (oral, written, correspondence)
D rules
E annual reports.
The principal ICJ publications are similar:
• ICJ Reports (judgments, opinions, orders—published separately and later bound into annual volumes);
• pleadings (bound for each case);
• yearbooks, bibliographies.
100 Other permanent international courts (such as the European Court of Justice and the European Court of Human Rights) also have their own sets of reports. Judgments and awards of courts or tribunals set up to deal with a particular matter might be separately published; for instance, the Mixed Arbitral tribunals set up after the First World War and the Iran–United States Claims Tribunal set up as part
of the hostages settlement in 1981. They are sometimes included (edited or in full) in periodical journals and reviews.
101 International Law Reports (ILR) is the major collection of judgments and awards of a wide range of international courts (including the ICJ) and tribunals and national courts concerning international law. It includes relevant decisions of human rights bodies. (It was originally entitled the Annual Digest and Reports of International Law Cases and now extends beyond 100 volumes.)
102 The contents of United Nations Reports of International Arbitral Awards (RIAA) are indicated by its title. It has in part replaced some of the earlier collections (eg, those of Moore and Scott). Stuyt
also provides a comprehensive catalogue, Survey of International Arbitrations 1794–1989 (3rd ed, Nijhoff, Dordrecht/Boston, 1990).
103 Decisions of national courts can of course be found in the
national law reports, but the United Kingdom, the Commonwealth and United States also have collections of international law cases: Parry, British International Law Cases: a collection of decisions of courts in the British Isles on points of international law (British Institute of International and Comparative Law, Stevens, London, 1964–1973); Parry and Hopkins, Commonwealth International
Law Cases (Oceana, Dobbs Ferry, NY, 1974–1995); American International Law Cases (Oceana, Dobbs Ferry, NY, 1971–). As indicated, many national court decisions also appear in the ILR. It is in court decisions (national and international) as well as in the other sources that the content of the general principles of law referred to in article 38(1)(c) of the Statute of the ICJ (see para 15) is to be found.
104 The significance of resolutions of international organisations depends on the constitution of the organisation, the process of the preparation of the resolution, the content of the resolution (eg, does it purport to declare a legal position?), the voting on the resolution, the citations and re-citations of the resolution in subsequent resolutions, and subsequent practice. The texts are to be found in the records of the organisation in question. Significant resolutions may also appear in periodicals and ILM.
105 Academic writings, referred to in article 38 of the Statute of the ICJ as “teachings of publicists” (see para 15), are to be found in textbooks, journal articles, the publications of professional organisations (especially the Institut de Droit International and the International Law Association) and international organisations, and in professional work (eg, opinions and pleadings).
106 One major international journal is the Recueil des cours de l’Académie de droit international (RCADI) at The Hague. The volumes contain lectures in English and French given by leading international lawyers. There are also many specialist international law journals, of which the most important include the American Journal of International Law, the British Yearbook of International Law, and the International and Comparative Law Quarterly. Related literature in other areas—international relations, politics, economics, strategy—may be helpful as well. The major public international law bibliographies such as Beyerly, Public International Law. A Guide to Information Sources (Mansell, London/New York, 1991) will provide further guidance.
107 Unfortunately, there is no international equivalent of The Capital Letter, but the daily press can be of some help. The Bulletin of Legal Developments, a fortnightly survey of legal events world-wide and internationally published by the British Institute of International and Comparative Law, is very useful. So is the Commonwealth Legal Bulletin (quarterly) published by the Commonwealth Secretariat, although it has a longer lead time. The Financial Times Business Law Brief (monthly) is also valuable within its narrower context. The Ministry of Foreign Affairs and Trade lists all of New Zealand’s treaty actions in an appendix to its annual report, and it is also intending to use its Business Calendar for publicising relevant treaties. Finally, the Internet is becoming increasingly important as a direct means of access to current information such as drafts of treaties.
International Child Abduction and the ICCPR
108 A person interested in the gestation, birth and life (and possible death) of a major multilateral convention will wish to consider its preparation, acceptance, implementation and operation. Two major conventions usefully illustrate the sources for each of these
stages: the Convention on the Civil Aspects of International Child Abduction 1980 and the International Covenant on Civil and Political Rights 1966. New Zealand has accepted both.
109 Both were some years in the making. The records of their preparation (sometimes referred to as the travaux préparatoires) are available. New Zealand participated in the preparation of the Covenant but not of the Convention. The relevant documents (the proposals and debates by government representatives) were available as the texts were being elaborated and are now available in more accessible form. Those documents were of course critical for those involved in the process of preparation. They may continue to be significant to the interpretation of the texts. The documents are published by the relevant governments or secretariats, specifically the Permanent Bureau of the Hague Conference on Private International Law and the United Nations Secretariat.
110 The treaty texts themselves are to be found in various official and unofficial sources:
• the official records of the diplomatic conference which adopted the 1980 Convention and the United Nations General Assembly resolution which adopted the ICCPR;
• publications of the relevant body (eg, the Collection of Conventions published by the Permanent Bureau of the Hague Conference; Human Rights: a compilation of international instruments, published by the United Nations); and the UNTS (once the treaty has come into force, been registered under article 102 of the Charter, and actually published);
• national treaty series (eg, the New Zealand Treaty Series) and other parliamentary papers (for the ICCPR, see 1979 AJHR A 69 and the Bill of Rights white paper, 1984–1985 AJHR A 6);
• scheduled in some cases to relevant legislation (as the 1980 Convention is to the Guardianship Amendment Act 1991); and
• many unofficial sources, such as ILM, the collections of international law documents such as that edited by Brownlie, Basic Documents in International Law (for the ICCPR but not the 1980 Convention), and more specialised publications such as those on family law or human rights.
111 For the status of the treaties, the Permanent Bureau of the
Hague Conference and the Netherlands International Law Review (annually) issue schedules of the parties to the Hague Conference conventions, while the United Nations Secretariat annually issues Multilateral Treaties Deposited with the Secretary-General. Up-to-date information can be provided by the depositaries (the
Dutch Foreign Ministry and the United Nations Secretariat) and the Ministry of Foreign Affairs and Trade in Wellington.
112 Information about the treaties in operation is much more diverse. Multilateral treaties often have a reporting system, in law or in practice. States are to or do participate in a process of reporting to the relevant international body on their implementation of the treaty. This obligation or practice varies greatly.
113 The 1980 Convention includes no relevant obligation, but the Permanent Bureau of the Hague Conference has instituted a series of periodic meetings to which states parties are invited. It is gathering relevant national decisions and practice.
114 By contrast, the ICCPR does oblige parties to report periodically on the steps they have taken to implement its provisions. The parties appear before a committee established under the ICCPR and respond to questions from it. There are also provisions for complaints against a state party by another party or an aggrieved individual about alleged breaches of the obligations. All that activity is recorded in publications of the relevant organisations. In addition, the Ministry of Foreign Affairs and Trade publishes information bulletins on these reporting processes.
115 Relevant national court decisions may be available in national law reports. They may also appear in the ILR, the Uniform Law Review or specialised law reports (eg, those concerned with family law or human rights).
116 In the human rights area there is a further element: decisions
of regional bodies (especially in Europe) interpreting the regional human rights treaty may be relevant because of identical or similar wording to the ICCPR (and indeed to the New Zealand Bill of Rights Act 1990). The New Zealand courts (like the Canadian courts in relation to the Charter of Rights) certainly refer to that source.
117 International agreements which impact on domestic tax fall into two categories:
• double taxation agreements (DTAs); and
• international financial and diplomatic agreements.
118 New Zealand, like many other countries, taxes the world-wide income of its residents and also taxes any income of a non-resident which is sourced in New Zealand. The result of these policies is that sometimes two countries tax the same item of income.
119 The imposition of double taxation can have a detrimental effect on the exchange of goods and services, and on the movement of capital and human resources between nations. The primary role of DTAs is to remove double taxation and provide certainty of tax treatment. In addition, DTAs combat international tax avoidance through exchange of information and provide a mechanism for settling tax disputes and agreeing on issues of interpretation.
120 New Zealand has 24 DTAs with other countries. When New Zealand officials negotiate such agreements, they use a model agreement which is based on the OECD Model Taxation Convention on Income and on Capital. The resulting DTAs are given effect by Orders in Council made under s BB 11 of the Income Tax Act 1994.
121 Section CB 9(e) of the Income Tax Act 1994 provides that income will be exempt from New Zealand income tax if it is exempted by another Act. Such exemptions apply to diplomatic and consular representatives and certain international organisations. There is no equivalent provision in the Goods and Services Tax Act 1985. It is important to note that exemptions from income tax apply only if the international agreement is incorporated into New Zealand’s domestic law.
122 A number of enactments either incorporate into domestic law international agreements which provide exemptions from income tax or themselves provide for exemptions. The relevant international agreements are scheduled to the statute.
123 The International Finance Agreements Act 1961 makes provision for New Zealand to become a member of the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD), and the International Finance Corporation (IFC). Section 8(2) enacts sections of the articles of agreement relating to each of the three organisations which extend immunity from taxation to the respective organisation and its officers. The International Finance Agreements Amendment Act 1966 extended
that immunity to the Asian Development Bank (ADB) and
the International Development Association (IDA), while the International Finance Agreements Amendment Act 1975 extended the immunity to the Financial Support Fund of the OECD.
124 The Diplomatic Privileges and Immunities Act 1968 gives effect to the Vienna Convention on Diplomatic Relations 1961. Sections 19–21 exempt diplomatic agents from many kinds of taxes. The Consular Privileges and Immunities Act 1971 gives effect to the Vienna Convention on Consular Relations 1963, and s 4 enacts article 49 of the Convention, for example, which similarly exempts consular officers, employees and their families.
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