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15 THE PRINCIPAL SOURCES OF INTERNATIONAL LAW are
treaties, international custom, judicial decisions, and academic writings. These sources are reflected, for example, in article 38(1) of the Statute of the International Court of Justice (ICJ), which provides:
(1) The Court, whose function is to decide in accordance with inter-national law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting States;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
16 International transactions are also in large measure facilitated and regulated by rules and practices which are not directly binding on states and are not issued or formulated by public authorities. The following are examples of ways in which they come about:
• the practice of an industry, a profession or a trade that might be given force, constrained or supplemented by national law;
• standard terms and model contracts such as those of the Inter-national Chamber of Commerce (ICC), which might incorporate some of the practice into a more definite and accessible form;
• restatements of the law by experts such as the International Institute for the Unification of Private Law (UNIDROIT) on international commercial contracts, or successive meetings of the Commonwealth on human rights;
• unilateral recognition of foreign qualifications and standards; and
• model laws and standard practices recommended, by UNCITRAL for instance, for adoption by national authorities.
These rules and practices depend for their authority on a range of matters including acceptance and contract, the authority of the body promulgating them, and appropriate references in national law—for instance, to generally accepted practices.
17 Chapter 4 considers in turn each of the sources listed in article 38(1) of the statute, and how to obtain access to it in New Zealand. But because treaties are of major importance, in part I they are discussed more fully, with particular attention to their nature, their function, and how they are concluded, given effect to and implemented.
18 A treaty is an international agreement between two or more
states or other international persons, governed by international law. (“Other international persons” include bodies such as the United Nations, the World Bank, and the South Pacific Commission.)
19 An international agreement can have a variety of names:
• Treaty is the generic term, but is generally confined to major agreements of political importance (eg, treaties of alliance, treaties of friendship and the Antarctic Treaty) but also found elsewhere (as in treaties of extradition).
• Agreement is by far the most common title, as in agreements regulating trade, air transport, fisheries, and visa abolition; it features especially in bilateral agreements (ie, agreements between two states).
• Exchanges of notes (or letters) constituting an agreement make up a large proportion of the agreement category. As the title indicates, there are two documents rather than just one; the second document responds to the agreement proposed in the first and accepts it. They are usually bilateral.
• Convention is the word commonly used for multilateral treaties
(ie, those which are open to acceptance by a large number or even all states). This usage is especially common in the United Nations and its specialised agencies. A framework convention is one which establishes its own institutional and decision-making framework for interpreting, developing and implementing its provisions.[2]
• Protocol is commonly used for an agreement supplementary to a principal treaty. It might be drawn up at the same time as the principal instrument or later.
20 Other names are used from time to time, such as charter or constitution (for major international organisations such as the United Nations, the International Labour Organisation and the Organisation of African Unity); declaration; covenant (particularly for major documents such as the constitution of the League of Nations and the human rights instruments adopted by the General Assembly of the United Nations in 1966); instrument; and regulations (particularly for supplementary instruments such as those adopted by the
World Health Assembly or the International Telecommunications Conference).
21 Adjectives are sometimes also added, such as additional, special, supplementary and intergovernmental. The name of the place where a treaty is signed might also be a part of the title (as in the Chicago Convention on International Civil Aviation).
22 The law of treaties is to a large extent governed by the Vienna Convention on the Law of Treaties which entered into force in 1980, and by the associated Convention of 1986 on treaties between states and international organisations and treaties between international organisations.
23 While the Vienna Convention on the Law of Treaties may not as a whole be “declaratory of general international law”,[3] its 85 articles regulate the major questions which arise in disputes concerning treaties between states parties. In addition, several of its provisions have been held by the International Court of Justice to be declaratory of international law: see also para 69. These include the conclusion of treaties, reservations, entry into force, deposit and registration, invalidity, termination and suspension, application and effects, amendment and modification, and interpretation. (The full text of the Vienna Convention on the Law of Treaties is reproduced in appendix A.)
24 The functions and subject matter of treaties are various. They serve the functions of distinct legal instruments available in national legal systems. Examples are
• constitutions, as of the international organisations;
• legislation, as with the many conventions which regulate much international and related activity;
• conveyancing documents, for land and maritime boundaries and in treaties regulating the status of a particular area (such as the Panama Canal or Antarctica); and
• contracts, as in the exchange of promises concerning trade, investment, air transport, taxation or loans (often made in the context of a multilateral system), or to resolve a particular controversy or establish an ongoing political relationship (where the national analogies might be to an accord among government, business and labour, or an agreement between the federal and state authorities in a federal jurisdiction).
Their subject matter is wide-ranging and includes the following:
• war and peace, such as the United Nations Charter, treaties of alliance, the Geneva and Hague Conventions relating to warfare and the protection of the victims of armed conflict, armistices, treaties of peace, the Statute of the International Court of Justice, the Hague Convention establishing the Permanent Court of Arbitration, regional and bilateral treaties for the resolution of disputes, the Vienna Conventions on Diplomatic and Consular Relations;
• disarmament and arms control, such as the Partial Nuclear Test Ban Treaty, the Non-proliferation Treaty, the Convention on the Comprehensive Prohibition of Chemical Weapons, the Statute of the International Atomic Energy Agency, and regional arms control measures, for instance in Latin America, the South Pacific and Antarctica;
• international trade, including the World Trade Organisation (WTO) agreements, regional economic agreements, and a great number of bilateral agreements such as the Australia New Zealand Closer Economic Relations Trade Agreement (CER);
• international finance, including the multilateral agreements establishing the World Bank and the related agencies, regional banks (eg, the Asian Development Bank), and numerous bilateral arrangements such as loan agreements and double taxation agreements;
• international commercial transactions, concerning both the relationship between states (eg, customs facilitation, common nomenclature for tariffs) and private commercial transactions (including treaties regulating carriage by sea and air, the international sale of goods and international commercial arbitration);
• international communications, for example by sea and by air, where many multilateral and bilateral treaties regulate traffic rights, safety and liability; international telecommunications; the recognition of qualifications, for example in respect of piloting ships and aircraft and driving motor vehicles;
• the law of international spaces, particularly the long-established law of the sea, the relatively new law of the air, and the much newer law of outer space; and the law relating to specific areas such as Antarctica, international canals, and areas of particular international concern;
• the law relating to the environment, which is a matter of relatively recent general concern and includes treaties relating to the protection of whales and other marine life, oil pollution, the ozone layer, wetlands, and methods of warfare threatening environmental destruction—some specific examples being the Framework Convention on Climate Change and the Convention on Biological Diversity (concluded at the United Nations Conference on Environment and Development (UNCED) in 1992), and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal;
• human rights and related matters, including the general instruments drawn up by the United Nations (international covenants on economic, social and cultural rights and on civil and political rights), and on more particular matters (eg, genocide, refugees, prostitution, the political rights of women, discrimination on grounds of race and sex, and the regional instruments drawn up especially in Europe and the Americas);
• labour conditions and relations, particularly the 150 or more conventions drawn up by the International Labour Organisation since 1919; and
• other areas of international economic and social co-operation, such
as the gathering and dissemination of information (health
and other statistics, and the work of the World Meteorological Organisation), and combating crimes with international ramifications (eg, slavery, drug trafficking, international hostage-taking, and hijacking of aircraft and ships).
25 That is a only brief outline of the subject matter of international treaty-making. It is necessarily incomplete because there is no limit to the matters which states may wish to bring under an international agreement, and over recent decades there has been an explosion of areas of international concern. New Zealand of course participates fully in international treaty-making: it is or has been party to
more than 1500 treaties (including some inherited from the United Kingdom).
26 Although many of the functions of treaties are analogous to those of domestic or municipal laws, their efficacy should not be judged in the same manner as domestic law. Because they operate between parties on an international level, they are more likely to result
in difficulties of interpretation and particularly of enforcement. Nevertheless, many treaties—for example, those regulating international communications—function most successfully.
27 International law and practice have established that various representatives of the state (eg, the Head of State, Head of Government, Minister of Foreign Affairs, heads of diplomatic missions, and representatives accredited to international conferences or organisations) have authority to negotiate and adopt or authenticate the text
of a treaty. Other officials may also be given specific authority to negotiate or to agree to a treaty text.
28 These are executive functions, as the Privy Council made clear in a Canadian case (Attorney-General for Canada v Attorney-General
for Ontario [1937] AC 326, 347–348). On the other hand, the performance of treaty obligations, if they involve changes to the existing domestic law, requires action by the legislature. In practice, the treaty might be negotiated simply between the representatives of the two states immediately concerned, or at a conference of the interested states for the purposes of negotiating that particular text (eg, in
the aftermath of a war), or within an established international framework, which may be regional (eg, the South Pacific Forum) or universal (as within the United Nations and its agencies).
29 In some circumstances, the representatives may be not only those of governments, but also of international organisations or countries which are not yet fully independent. The International Labour Organisation is unique in providing for tripartite representation at its conferences, involving representatives of employers and unions as well as governments.
30 Treaties come into force and take effect at the international level according to their own terms. In some cases that may be simply on signature, as is common with more straightforward bilateral agreements (although sometimes the effective date is postponed to enable the appropriate administrative steps to be taken).
31 However, signature often represents no more than a concrete expression of an intention to ratify the treaty in the future (although it does imply the obligation to act in good faith). More important or complex treaties, the final acceptance of which may require substantial changes in governmental policy or in national law, may
lead to the text being established by signature but not becoming
binding until the state in question takes the further action most
commonly referred to as ratification. Ratification is sometimes known as acceptance or approval and should not be mistaken for implementation in national law.
32 Treaties create binding obligations only as between signatory parties.[4] Those states which have not signed such a treaty, but which wish to become party to it, may have the right accorded under the treaty to accede or adhere to the text and thereby become bound by it. A state becoming a party to a multilateral convention may also be able to file reservations, indicating that it will not be bound by one or other of the provisions.
33 All the actions just mentioned are actions at the international level. Whether they also make any change to national law is a matter for the national constitutional system. In some countries they do. In others, including New Zealand, they do not—as the Privy Council in Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 made clear. How they become a part of national law is discussed in chapters 2 and 3.
34 The international methods of implementation are various: diplomatic representation, negotiation, conciliation, mediation, good offices, fact-finding, inspection, arbitration, adjudication, recourse to a relevant regional organisation or specialised agency or universal organisation. These are all peaceful processes of dispute resolution, invoked at the international level. The processes might be bilateral; or they might involve a third party or a regional or universal
body. They might lead to binding third party decisions or recommendations.
35 States may also be able to retaliate, claiming that the breach or an alleged breach by the other party to a treaty frees them of their obligations towards that party. In some cases, they may also be able to take action against individuals who allegedly breach a treaty. Treaties, especially labour and human rights conventions, may require the parties to them to report to an international body or to the other parties on the legislative and other steps they have taken to give effect to their terms. The method of implementation depends a great deal on the character of the treaty and the relationships it establishes.
36 A treaty might have at least four major effects. It might (a) create rights and obligations simply for the parties (usually states, but sometimes extending to individuals). Examples are the provisions of the Charter of the United Nations which place duties on states not to use force and oblige them to settle their disputes in a peaceful manner; or more generally much of the body of the law of friendly relations between states.
37 A treaty might (b) have consequences for others (especially individuals) in their dealings with the parties. The law regulating the public aspects of international trade and communications
provides a good example: WTO, customs facilitation, the Chicago Civil Aviation Conventions and bilateral air transport agreements. Those treaties operate on a day-to-day basis between states, but individual traders and airline companies and their customers have very real interests under them, sometimes matched by rights under the relevant national law (eg, to particular tariff treatment or to operate their aircraft in and out of foreign airports).
38 A treaty might (c) create rights owed to an individual by a state. The whole body of human rights law, for instance, regulates the relationship between a state and its own nationals and residents. This body of law has developed essentially within the last 50 years, although elements of it are to be found at the very outset of the law of nations. It often attracts the most attention in discussions of the implementation of international law in national legal systems.
By contrast, a treaty might create obligations and prohibitions (as opposed to rights) which affect individuals—for instance, establishing international crimes, as did the Montreal Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971.
39 Finally, a treaty might (d) regulate rights between individuals, with the state parties having little immediate interest. Examples are the treaties governing private law relations, arising, for instance,
from international trade and communications and from family and personal matters. Complementing the public law treaties, such
as the General Agreement on Tariffs and Trade (GATT) and the Chicago Conventions (in (b) above), are the Vienna Convention on the International Sale of Goods and the Warsaw Conven-
tion for the Unification of Certain Rules Relating to International Carriage by Air. Conventions regulating the choice of law in personal matters (eg, the validity of wills) or providing a uniform law (eg, the European Convention on the Legal Status of Children Born out of Wedlock) are steadily being negotiated and accepted.
40 While these categories are not watertight, they help to highlight the great changes in the role of international law as well as to facilitate thinking about the means of national implementation. For instance, the rights and obligations under (a) are for the most part given effect to through the prerogative or other foreign affairs powers of the executive, in the day-to-day relations of states. There are exceptions: for instance, sanctions under Chapter VII of the United Nations Charter will generally require implementation through the national legal system (often including legislative action and possibly the courts), since the rights of individuals (often recognised in the law under (b)) will be interfered with. The law of diplomatic immunity may also involve the courts and require legislation. But those exceptions are limited and cover only a small part of the area falling within (a).
41 By contrast, the treaties under (d) operate almost solely within the national legal systems (including the courts) of the states that are parties to them (and sometimes of other states as well[5]). Once the relevant legislation (if any) has been enacted and the state has accepted the treaty at the international level, the states parties generally have nothing to do with the treaty, unless there is an international dispute about the adequacy of its implementation, or there is a proposal for amendments (as with the Warsaw Convention at various times since 1929).
42 The treaties under (c) contrast with those under (a) since they operate within the national legal systems and generally require new legislation (if the present law does not already give effect to them). They also contrast with treaties under (d) since they continue
to engage the state as an immediate party to the right-obligation relationship.
43 THERE IS A BASIC CONSTITUTIONAL PRINCIPLE (already
mentioned in paras 28 and 33) that the executive cannot, by entering into a treaty, change the law. In addition to the prerogative steps taken by the executive to become party to the treaty, legislation is in general needed if the treaty is to change the rights and obligations of individuals or to enhance the powers of the state. This chapter considers the means of legislative implementation, while the next chapter considers the role that treaties play in courts.
44 Legislative practice and the relevant commentary indicate five broad approaches to the use of legislation to implement treaties. In four of them it is necessary for the treaty to be enacted somehow in domestic legislation. The reason lies in the concept of the separation of powers: if the treaty affects rights and duties under national law, then the treaty becomes the concern of the legislature and not merely of the executive (which will have negotiated the treaty).[7]
45 The five approaches are as follows:
• no legislation is required;
• the Act gives direct effect to the treaty text, by using a formula to the effect that the treaty provisions “have the force of law” in
New Zealand;
• the Act uses some of the wording of the treaty, incorporated into the body of the relevant area of law, or indicates in some other way its treaty origins;
• the substance of the treaty is incorporated into the body of the law, without any obvious indication of the fact; and
• the Act might authorise the making of subordinate legislation (regulations or rules) which is to give effect to identified treaties or at least take cognizance of them; that subordinate legislation might take any of the second, third and fourth approaches above.
46 Treaties are now discussed according to the five approaches outlined above. Their allocation turns on
• the personal scope of the rights, interests and obligations created by the treaty;
• the nature of the rights, interests and obligations of the treaty states; and
• the importance in terms of policy and principle of the matters involved.
The last is particularly relevant to the choice between primary and secondary legislation. Some legislation will not fall clearly within one of the approaches: much of it for instance combines elements of the second and third approaches in para 45; and Acts often directly implement major treaty provisions while delegating authority (the fifth approach) for detailed implementation.
47 If the treaty operates essentially at the international level between states, creating rights and obligations only for them, then gener-
ally no question of national law arises. National law need not be changed; no rights and obligations under it are involved.
48 Examples of treaties which allow this approach are the Convention on International Liability for Damage caused by Space Objects, the Statute of the International Court of Justice, the Vienna Convention on the Law of Treaties, and the Hague Convention on the Pacific Settlement of International Disputes 1899. The second and last provide for exercises of prerogative and foreign affairs powers in the electoral and nomination processes, and in the actual operation of international dispute resolution processes. It is possible (but unlikely) that questions of immunity and privileges of those involved in the processes could arise; and if so, national legislation may be needed, as in s 10 of the Diplomatic Privileges and Immunities Act 1968, which confers, by Order in Council, diplomatic privileges and immunities on judges and registrars of the International Court of
Justice (ICJ).
49 Many statutes enacted in New Zealand, as elsewhere in the Commonwealth, set out the treaty text and provide that all or part of it is to “have the force of law”. Although the legislation may provide some support (eg, in naming the courts to exercise jurisdiction under the treaty), essentially the treaty is left to speak for itself.
50 Although formulated for a different purpose, the distinction between self-executing and non-self-executing treaties is useful here. It has been explained as follows:
Only such provisions of a Convention are self-executing which may be applied by the organs of the State and which can be enforced by the Courts and which create rights for the individuals; they govern or affect directly relations of the internal life between the individual, and the individuals and the State or the public authorities. Provisions which do not create by themselves rights or obligations of persons or interests and which cannot be justiciable or do not refer to acts or omissions of State organs are not self-executing . . . (Malachtou v Armefti (1987) 88 ILR 199, 212–213)
If a treaty provision falls within the second, “non-self-executing” category, extensive national practice emphasises that further action must be taken by national, and especially legislative, authorities before the treaty provisions can be given effect to by national courts. Characteristics of the treaties indicating the need for that action include the following:
• The treaty might empower the state to take action. Consider for instance those parts of the law of the sea relating to the continental shelf and the exclusive economic zone (and probably the territorial sea as well): international law does not require states to make the claims that they are entitled to make. National action additional to the acceptance of the treaty is called for; in some cases that action will be executive but usually it is legislative. The Tokyo Convention on Crimes on Board Aircraft and the High Seas Intervention Conventions similarly authorise national action which in some cases will require a legislative basis.
• The treaty itself might create a duty to take national legislative action. For instance, article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination requires states parties to declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred, and incitement to racial discrimination, all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including their financing.
• The treaty might not only create a duty to take that distinct
state legislative action, but it might also give that obligation a programmatic character. For instance, the undertaking of each states party under article 2(1) of the International Covenant on Economic, Social and Cultural Rights is to “take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.
• The wording of the undertaking might be so broad as not to provide judicially manageable standards. Pious declarations are non-self-executing. Some of the condemnatory language in the Racial Discrimination Convention has such a character.
• The obligations may be of a procedural rather than a substantive character. Many treaties, for instance in the trade and environment areas, require states to notify affected states and consult about certain matters. These provisions operate essentially
only between the states parties (see paras 47–48). Chief Justice Marshall made an important statement in the first major United States decision on this matter:
. . . when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court. (Foster v Neilson (1828) 27 US 253, 314; (1830) 8 US 108, 121)
51 What kinds of treaties can be directly implemented (for instance, by scheduling their text and directly stating that they have the force of law)? Legislative and judicial practice identify several groups of treaties:
• PRIVATE LAW CONVENTIONS. Among these treaties are
the Warsaw Convention on Carriage by Air, the New York Convention on the Recognition and Enforcement of Arbitral Awards, the Hague Rules on Carriage of Goods by Sea, the United Nations Convention on Contracts for the International Sale
of Goods, the UNCITRAL Model Law on International Commercial Arbitration, the International Centre for the Settlement of Investment Disputes (ICSID) Convention, and the Convention on the Civil Aspects of International Child Abduction. With the exception of the last, the relevant statutes do directly implement the scheduled treaty text.
• SAFETY AND REGULATORY CONVENTIONS. The provisions of many conventions in this general category, for instance those adopted by the International Labour Organisation, are often integrated into the body of the relevant law. But at least in the maritime and aviation areas there are instances of direct application—often by means of subordinate legislation—of the conventions and regulations relating to the safety of life at sea, collisions at sea, and the rules of the air.
• PRIVILEGES AND IMMUNITIES. The relevant provisions of the Vienna Conventions on Diplomatic and Consular Relations can similarly be scheduled to the legislation and given the force of law.
• EXTRADITION. Some states also find it convenient to implement some bilateral treaties directly. On the model of the United Kingdom extradition legislation (first enacted in 1870), New Zealand and other Commonwealth legislation provides for the direct application of extradition treaties, most but not all of which are bilateral. In this case, the principal legislation establishes the basic policy, while subordinate legislation gives effect to the treaties. That principal legislation may however place important limits on the treaty negotiators—for instance in respect of the extradition of citizens, or the requirement that the treaty be subject to termination on a year’s notice or less, or the categories of offences that might be included. At least those limits exist if the treaty is to be implemented by subordinate legislation.
• DOUBLE TAXATION AGREEMENTS. These are drafted in a standard form which facilitates their direct incorporation into the law. That direct incorporation also facilitates direct reference to the Organisation for Economic Cooperation and Development (OECD) Model Convention with its commentary. Some bilateral social security and health care agreements are also given direct effect.
• INTERNATIONAL CRIME CONVENTIONS. Most of these follow the third and fourth approaches of para 45. But in the case of the Geneva Conventions of 1949 and the 1977 first Additional Protocol, New Zealand along with several other Commonwealth countries has provided directly that contravention of the grave breach provisions in the texts is an offence. The legislation deals separately with matters of procedure and appeal in conformity with national law. The texts of the Conventions and Protocol as a whole are scheduled to the Act.
52 The groups of treaties listed so far are given direct effect to by legislation which takes a positive form: the treaty has the force of law in the national legal system. By contrast, the legislation in many cases explicitly limits its application by reference to treaties or other international obligations. For instance, a long-standing New Zealand statute authorises the making of regulations prohibiting or restricting foreign vessels from coastal trade on the basis of reciprocity, “so far as treaty obligations binding on Her Majesty’s Government of New Zealand permit” (see s 204(1) of the Customs Law Act 1908). As the next chapter shows, courts might also read legislation as limited by relevant treaty provisions even if the treaty is not mentioned, so long as the legislative language allows. Such provisions can
derive both from treaties existing at the time of enactment and from subsequent treaties.
53 As already indicated in para 50, there will often be good reason for incorporating the substance of the treaty provision into the body of the law rather than leaving the treaty to speak for itself. Sometimes this will be done relatively conspicuously; sometimes the treaty origin or connection will be obscured. One possible danger of obscurity is mentioned in para 61.
54 The indication of the treaty origin may appear in a number of ways—by the use of treaty wording, by express reference to the treaty, or both, as in the following instances:
• INTERNATIONAL CRIME CONVENTIONS. Legislation implementing conventions concerning crimes relating to international civil aviation and maritime navigation often uses the treaty language in stating the substantive offence. The legislation also frequently refers, in the title, preamble or a purpose provision, to the treaties which it is designed to implement. That might also be the case with the Convention on Crimes against Internationally Protected Persons, the Torture Convention and the Genocide Convention. In the last case, however, New Zealand, like other Commonwealth countries, decided that its regular criminal law deals adequately with the matter and that no further legislation is required.
• REGULATORY MATTERS. Much of the wording included in the conventions relating to marine pollution can be carried directly over into the national legislation, as can much of the
scheduled and often amended technical detail in the Ozone Layer Convention and Protocol. Again, it is possible to refer to the relevant treaties in the legislation.
55 If the judgment is made before acceptance of a treaty that
national law already implements the treaty (as with the Genocide Convention, para 54), then there will be no sign on the face of the relevant legislation that for the future the legislation will also be implementing the treaty.
56 HUMAN RIGHTS TREATIES generally require this approach. The main human rights treaties—the 1966 International Covenants, and the Racial Discrimination, the Discrimination Against Women, and the Child Conventions—call to a large extent for legislative and other actions by the states parties. Many of their provisions are not self-executing. Further, they are relevant to a very wide range of law and are not confined within a particular topic. Acceptance calls for a broad and detailed review of that wide range of law and practice. That review might lead to particular amendments to the law, but it is unlikely that the treaties will appear in the text as the origin of the amendment. On the other hand, general bill of rights, human rights or anti-discrimination legislation might refer to the relevant treaties, although such legislation will not be comprehensive.
57 The New Zealand Bill of Rights Act 1990 is a major instance. According to its title, the purpose of this Act is
(a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand;
(b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.
58 The Bill of Rights Act requires the Attorney-General to report to the House of Representatives any provision of a Bill which appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights Act; and an administrative procedure has been established in support of that obligation.[8]
59 Those within the executive and the legislature concerned with the enactment of legislation must accordingly address the question of compliance with the Bill of Rights Act, which may require reference to relevant treaty obligations and their interpretation. Such a treaty reference is also required by Cabinet Office rules. Ministers in proposing legislation are to answer the question, Does the legislation comply with relevant international obligations and standards? Recent concrete situations in which these questions have been considered include proposed legislation interfering with court proceedings, procedural safeguards controlling the use of public powers affecting the important rights and interests of individuals, and freedom of speech in relation to racial vilification.
60 INTERNATIONAL CRIME CONVENTIONS. The treaty provisions concerning some offences, including those relating to drugs, are not necessarily directly reflected in the relevant criminal law. Where they are incorporated in the criminal law, it may not use the treaty language or refer to the treaties.
61 One danger of not implementing the treaty language is that
those concerned with reviewing and amending the legislation or
with applying and interpreting it may be ignorant of the treaty relationship if the legislation is silent about its international origins or context. Treaty obligations might be breached unknowingly.
Even if the treaty language is not capable of direct use and implementation, the statute might nevertheless be able to indicate its treaty origins by appropriate references in the title, for instance, or the purpose provisions, or provisions empowering the making of regulations and the exercise of public powers. Such a reference might avoid later problems.
62 Technical and regulatory treaties can be—and are—implemented in part by the delegation of legislative and executive power: for instance, the Convention on International Civil Aviation, the International Air Services Transit Agreement, and GATT and the agreements associated with the WTO. Aspects of other conven-
tions (eg, those relating to pollution or the ozone layer) are also implemented in this way. One justification of such delegation of power is that changes might be technical and need to be made quite frequently, and Parliament has settled the principle and policy at an earlier stage. Ordinarily, it need not be concerned with the ongoing detailed application of the policy. Indeed, some of
the relevant rules (eg, some adopted under the International Civil Aviation Organisation (ICAO) Convention) might become part of national law automatically, without any national action.
63 That approach is supported by the general doctrine about the delegation of legislative power. In New Zealand the doctrine has been stated as follows:
The line between the primary and the delegated lawmaker should in general be that between principle and detail, between policy and its implementation. Parliament with its representative composition and through its public processes should address and endorse (or not) the policies presented to it by the executive, while recognising that matters of less significance or of a technical character, or requiring rapid adaption or experimentation might be left to subordinate law-
making. Another situation in which lawmaking powers might be and are delegated—and in broader terms—is to deal with emergencies. (Legislation Advisory Committee, Legislative Change: guidelines on process and content (2nd ed, Report No 6, 1991), para 113)
64 Some statutes also confer power to list the states parties to the treaties. That might occur by Order in Council or more simply and conveniently by a statement from the Secretary for Foreign Affairs and Trade.
65 ALTHOUGH THE BASIC CONSTITUTIONAL PRINCIPLE is that
the executive cannot, by entering into a treaty, change the law, it does not follow that courts may not have regard to treaties unless Parliament has acted to incorporate their provisions into law. There are at least five ways in which courts might take treaties into account:
• as a foundation of the constitution;
• as relevant to the determination of the common law;
• as a declaratory statement of customary international law which is itself part of the law of the land;
• as evidence of public policy; and
• as relevant to the interpretation of a statute.
The discussion of these matters is brief. The law is evolving, and more extensive discussions are available,[9] particularly of the third and fifth ways, which are of most significance.
66 An example of the use of a treaty in a constitutional context is found in cases about the power of New Zealand, as well as Australia and South Africa, to legislate for mandated territories brought under their administration when the League of Nations was established. Courts in those countries in the 1920s and 1930s sought the source of that power in a range of documents, including the Treaty of Versailles, which established the mandates system, and the mandates documents themselves.[10]
67 The question of basic constitutional effect has also been raised, but not settled, in respect of the Act of Union of 1707 between England and Scotland, as well as the Treaty of Waitangi. The very broad wording of principal provisions of those treaties raises in addition the issue of their self-executing or justiciable character.[11]
68 English courts have recently decided that local government institutions cannot sue for defamation.[12] The Court of Appeal reached that conclusion principally by reference to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court considered that it could depend on the Convention since the common law was uncertain and there was no controlling decision of the Court of Appeal or House of Lords. The House of Lords was able to reach the same conclusion without having to rely on the Convention. Lord Keith, with whom the other Law Lords concurred, agreed with the view that in the area of freedom of speech there was no difference in principle between the law of England and the Convention: “. . . I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the Treaty in this particular field” (551).
69 Since courts accept that customary international law is part of national law and since the best evidence of customary international law may very often be the relevant codification treaty, courts do refer to such treaties. One important instance is the Vienna Convention on the Law of Treaties.[13] This use of treaties is increasingly important as more and more treaties are concluded. The influence is especially apparent in the area of human rights. Treaties are of course one of the international sources to which a court might refer in determining the current state of customary international law and hence
the common law. They might also refer to decisions of the ICJ,
reports of the International Law Commission (ILC), and academic writings.[14]
70 In Re Drummond Wren [1945] 4 DLR 644, an Ontario court used the United Nations Charter to strike down a racially restrictive covenant. For Mackay J, in discovering public policy, “first and of profound significance is the recent San Francisco Charter to which Canada was a signatory and which the Dominion Parliament has now ratified”. He referred to the stirring references to human rights in the preamble and articles 1 and 55, and mentioned as well the Atlantic Charter and the disapproval of racial discrimination to be found in Ontario statutes prohibiting some but not all acts of racial discrimination. The New Zealand Supreme Court in Van Gorkom v Attorney-General [1977] 1 NZLR 535, 542–543 likewise recognised that reference could be made to international documents (in
this case, the Universal Declaration of Human Rights and the Declaration on Elimination of Discrimination Against Women) when it invalidated discriminatory conditions laid down by a Minister under subordinate legislation.
71 Courts may be willing to have regard to a treaty in interpreting legislation, even if the treaty has not been incorporated into national law[15] (or even if the treaty did not exist when the statute was enacted). A very common instance now is the interpretation of constitutional documents, including Bills of Rights, by reference to the International Covenant on Civil and Political Rights or regional human rights treaties and then by reference to decisions interpreting those texts.[16] That international material, along with comparative material, may be relevant to determining whether a limit on a right is a reasonable one prescribed by law which can be demonstrably justified in a free and democratic society—the test stated in the Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights Act 1990.
72 The question of interpretation, like others noted in this chapter, is a complex one which produces different attitudes. Among the issues are the following:
• THE THRESHOLD. Must the legislation be ambiguous or
the likely interpretation unreasonable or absurd, before having recourse to international sources?[17]
• THE SILENT STATUTE. If the legislation makes no reference to the treaty, can courts nevertheless have regard to it?[18]
• THE DIRECT RELEVANCE OF THE TREATY. Reference to the treaty may be reserved to the situation where the legislation was, apparently, designed to give effect to the treaty, or the treaty may be relevant even when there was no such connection. Courts are increasingly willing to consider the treaty in the second situation as well, because they impute to Parliament an intention to legislate consistently with its international obligations.[19] They take this approach in particular when the treaty, especially a human rights treaty, is designed to control state action. By their very nature, statutes which might be read as challenging those protections are not designed to give effect to the relevant treaties.
73 It is possible to find courts in the Commonwealth taking either more restrictive or broader approaches to those questions, and to related ones such as the relevance of the treaty to an administrator’s discretion or a court’s discretion in granting relief. Differing attitudes on this matter are connected with larger questions of judicial method and with what appears to be a greater willingness of some courts to have regard to a broader range of material in reaching their decisions. More basic constitutional issues might also be relevant. For instance, in the United Kingdom, the European Convention on Human Rights is not only relevant to the interpretation of areas of United Kingdom legislation governed by European Community law, but the Convention might even be the basis for striking the United Kingdom law down.[20]
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