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• The Internationalisation Of Law, Globalisation And Sovereignty
• “Democratic Deficit”
• Concerns Expressed By Mäori

3 What is the current significance of treaty making?

43 THE BROADER CONTEXT for the treaty making process, and therefore for this report, is the internationalisation of the law, the forces of globalisation, and matters of sovereignty and democratic deficit. These provide compelling reasons for re-examining the treaty making process at the end of the 20th century.

THE INTERNATIONALISATION OF LAW, GLOBALISATION AND SOVEREIGNTY

44 The world is being affected in massive ways by major developments in science and technology, on the environmental front, in ecology, trade and financial arrangements, communications, agriculture, food and health, population growth and movement, methods of warfare, ideology and political arrangements – to mention some matters at this extraordinary time. These changes have been occurring incrementally for a very long time, gradually at first:

After a very long period of gradual globalisation, the era post World War II was characterised by an enormous surge of new issues or technologies and their potential for increasing co-operation or antagonism, and by a dramatic increase in the number of independent sovereign states which again must either co-operate or antagonise.⁵¹

45 Witness the expansion of the international community from the 50 founder member states of the United Nations, to the membership as at 31 May 1997 of 185 states. Another indication is that in 1950 New Zealanders, in the course of the whole year, made 5,793 overseas telephone calls, or just under 16 a day (figures from the Post Office records). When the information was last publicly available the daily figure had reached 100,000 (not including faxes and emails).⁵²

46 Those changes have a legal reflection in a vast range of treaties among other sources of international law. The United Nations treaty lists show that two treaties (at least) are signed every day. In accordance with the principle, stated by President of the United States, Woodrow Wilson, at the end of World War I, that covenants are to be “open”,⁵³ well over 30,000 treaties have been registered with the United Nations.⁵⁴ Those treaties limit the powers of states in multifarious ways.⁵⁵

47 As noted in the Cabinet Office Manual⁵⁶

[m]ajor changes in . . . trade patterns, . . . financial systems, . . . the environment and many other matters of international concern mean that more and more law is made through international processes. The powers of national governmental institutions are correspondingly reduced. This has important consequences for national and international constitutional processes.

48 The idea of a national Parliament with full power to make whatever law it likes without any constraint from outside, from the rest of the world, was never an accurate one. With the massive changes just mentioned, that idea has become more and more a distraction and an impediment to careful thought about arrangements for lawmaking. Consider, for example, the cautious formulation by the United Nations Secretary-General in his major report to the Security Council in 1992, An Agenda for Peace:

Respect for [the] fundamental sovereignty and integrity [of States] are essential to any common international progress. The time of absolute and exclusive sovereignty, however, has passed; its theory was never matched by reality. . . . Globalism and nationalism need not be viewed as opposing trends, doomed to spur each other on to extremes of reaction. . . . Respect for democratic principles at all levels of social existence is critical, within States and within the community of States.⁵⁷

49 Further, this statement by a New Zealand Prime Minister:

We live in a globalised world economy. . . . Individual countries, no matter how large or powerful, cannot themselves deal with such transnational issues as climate change, capital flows, resource conservation and drug trafficking. . . . The role of Government in international relations is increasingly one of identifying and aligning self interest with the values most of its electorate hold to be important, and then protecting and projecting those values into its dealings with other Governments and international organisations. . . . In an interdependent world, pure sovereignty – the complete control of one’s own affairs – is not possible.⁵⁸

50 New Zealand, because of its size and position, cannot hope to create all “rules” within its own boundaries and be unaffected by others. New Zealand, for instance, accounts for a mere 0.2–0.3% of the world’s trade.

51 “Globalisation also implies an intensification in the levels of interaction, interconnectedness, or interdependence between the states and societies that constitute the modern world community.”⁵⁹ Consider, for example, the worldwide communication and data trading achieved through the internet.⁶⁰ The United Nations Development Programme’s latest Human Development Report (entitled The Shrinking World) notes that the use of the internet is doubling every year and telecommunications are increasing at 20% per year.⁶¹ The realities of an increasingly globalised world require a shift in the objects and aims of international law itself. The focus of international law was traditionally primarily concerned with the boundaries between countries and the protection of citizens and territory from other states; while the object of modern international law must be co-operation rather than protection.⁶² Correspondingly, treaty making practice has become increasingly important both in the international sphere and in its effect at the domestic level. The means by which New Zealand’s own foreign relations are conducted must be considered in that light.

52 The increasing internationalisation of law has had a ripple effect throughout domestic law, both legislation and the common law. The Commission considers accordingly that it is insufficient to continue discussion of treaty making issues solely in terms of the traditional separation of powers – that in New Zealand Parliament makes the law, the executive governs the country within the law, and the judiciary declare and enforce the law. Within that power split, it has traditionally been the executive which negotiates treaties and is politically responsible through checking and reporting processes to Parliament – the law making body. To respond to the surge in the internationalisation of law, such checking, reporting and approval functions and mechanisms need to be updated, and involve a greater role for Parliament. As the Ministry of Justice observed:

Because the growing body of international law is having an increasing impact on domestic law, involving Parliament in the treaty-making process may be an historical inevitability. The old law and practices may have been adequate for a time when international law was relatively young and unimportant. However, in the world of internationalisation, especially in the areas of economics and human rights, New Zealand’s treaty-making process may well be overdue for re-evaluation and change.⁶³

53 Issues of sovereignty commonly arise in relation to the topic of international law and treaty making. It is interesting to note that

the first real examples of true, useful co-operative functional treaty making arose from the desire of states to extend their sovereignty by securing rights which their existing sovereignty did not accord them, for example, to pass messages through cables or wires in adjacent European countries.⁶⁴

More recently sovereignty issues are expressed as a concern that growing internationalisation of law, with more law being made offshore, will result in loss of independence. The effect of treaty making upon national sovereignty is expressed by former Australian Governor General, Sir Ninian Stephen as follows:

[I]t has been estimated that no less than fifty thousand international instruments have come into existence in the past fifty post-war years and that a whole horde of intergovernmental agencies, some two thousand of them, now exist, most of them busy rule-making for the world.
What this amounts to is a partial transference by nations of their sovereignty in recognition of their interdependence one with another, or their absolute need in today’s world to relate to other nations and to do so in part through the medium of international treaties and conventions giving rise to new international law and involving a diminution of sovereignty and a growth of common-form laws.⁶⁵

54 Similarly, New Zealand’s corresponding freedom to choose whether to become a party to a treaty has diminished. In some cases New Zealand may not have a real choice whether it should enter an international agreement where, for instance, the text is widely supported and failing to accede would prove detrimental to the national interest. Further, there may be instances where decisions at an international level are automatically binding without action on the government’s part. For example, by virtue of its membership of the United Nations New Zealand is obliged to give effect to decisions made by the Security Council under Chapter VII of the United Nations Charter.⁶⁶

55 Conversely, the point has been made that treaties may also be a means by which New Zealand can enhance its sovereignty. By working with other countries to achieve goals and to put a brake on unilateral behaviour by larger states, New Zealand can exercise a greater influence than if acting on its own.⁶⁷ A different view expressed is that a country actually exercises its state sovereignty when it negotiates, concludes and ratifies treaties. The core issue then becomes not whether state sovereignty is restricted but whether the exercise of state sovereignty restricts parliamentary sovereignty (that is, its legislative freedom) to an unacceptable extent.⁶⁸

56 In sum, the process of globalisation means that states have not, for many years, existed in “splendid isolation”.⁶⁹ Consequently, treaty making practice and the functioning of traditional doctrines of national constitutional law such as Parliamentary supremacy and sovereignty must be re-examined. This re-examination must take place in light of an increasing number of activities which are conducted on a transnational basis, and the fact that national actions increasingly have international ramifications.⁷⁰

“DEMOCRATIC DEFICIT”

57 The term “democratic deficit” describes another aspect of treaty making which is currently attracting strong international criticism.⁷¹ Treaties can have a wide range of implications for a nation’s legal and administrative systems, economy, and individual citizens. Thus, there is concern that the practice whereby treaties are entered into by the executive, without significant parliamentary or public involvement, is undemocratic. The deficit is perceived at both the national and the international levels:

The question of the degree of public participation in the treaty-making process has been at issue since World War I. Arthur Ponsonby, a parliamentarian in the United Kingdom who served as Under Secretary of State for Foreign Affairs, attributed the cause of World War I to the existence of secret treaties. He published a book in 1915 entitled Democracy and Diplomacy (Methuen, London, 1915) in which he argued that the existing treaty making process was far less democratic than it should be.⁷²

58 Sir Ninian Stephen, noting the potential for a “democratic deficit”, stated:

When power passes from nation-states to international agencies, the international elector risks becoming increasingly unimportant, and increasingly isolated from influence over affairs that may be of direct concern to him or her.
The decline in the extent of national sovereignty may mean just that – policy affecting the citizen may be determined at levels altogether too remote, in international forums by people largely immune to the sorts of pressures that the citizen can still exert over policy-making by Australian governments if sufficiently determined and if their determination is shared by sufficient others.⁷³

CONCERNS EXPRESSED BY MÄORI

59 Concerns over globalisation and the treaty making process expressed by the Australians as the “democratic deficit” are similarly expressed by Mäori in New Zealand. Such expressions often take the form of, in general, a loss of sovereignty or, more specifically, a need to protect täonga, intellectual and cultural property rights and cultural values. This includes a lack of control over the use of indigenous flora and fauna, the use of te reo,⁷⁴ as well as Mäori words and symbols, and a lack of consultation with iwi. For Mäori, the basis of these concerns can be found in a desire to uphold the protections enshrined in the Treaty of Waitangi. Given the current treaty making process (which rarely involves Parliament) the recently increased numbers of Mäori members of Parliament can have limited effect in this regard.

60 The importance of matters of intellectual and cultural property – täonga – for Mäori in any discussion of globalisation can be seen in the following excerpt:

The international context is particularly important in intellectual property. Ideas and their exploitation are not constrained by national boundaries but, in the absence of international mechanisms, intellectual property rights can only be national. The need for international co-operation and reciprocity to provide a workable system of intellectual property was recognised more than a century ago.⁷⁵

61 Further, concerning the use of intellectual property rights by indigenous peoples as a response to matters of globalisation, article 29 of the United Nations draft Declaration on the Rights of Indigenous Peoples states:

Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of flora and fauna, oral traditions, literature, designs and visual and performing arts.

62 The draft Declaration when finalised will not be binding upon states, and it should be noted that the text of the Declaration is not as yet settled. The draft Declaration has been the subject of much debate and continues to hold potential for further discussion.

63 The Mataatua Declaration on Cultural and Intellectual Property Rights, June 1993, also makes several recommendations on such property rights, to indigenous peoples, states, national and international agencies, and to the United Nations.⁷⁶

64 In relation to Mäori:

Aroha Te Pareake Mead (Ngati Awa, Ngati Porou) . . . points out that the tangible and intangible aspects of property – that is, the cultural and intellectual aspects – are traditionally encompassed in Mäori culture under the concept – täonga. . . . The one concept – täonga – relates to real, personal, tangible, intangible cultural and intellectual property. It encompasses both the physical and metaphysical, perceiving each to be interdependent on, and therefore inseparable from, one another. “Misappropriation of physical indigenous täonga (assets) therefore, is wholly related to misappropriation of indigenous knowledge.”⁷⁷

65 International agreements being negotiated on a wide range of matters, such as for example trade and copyright, may have an impact upon the use of indigenous flora and fauna⁷⁸ and the use of te reo as brand names. Such agreements can therefore be relevant to the “full, undisturbed and exclusive” authority over täonga provided by the Treaty of Waitangi.⁷⁹ One commentator has noted that

[i]n an increasingly globalised trading environment, businesses are seeking not only markets but also sources of innovation in and from the world’s indigenous peoples. Indigenous peoples, individually (by person and by people) and collectively are, not surprisingly, seeking to protect their resources and their heritages. A recent focus of their attention has been the use of intellectual property law for such protection and calls have been made to include cultural heritage protection in both the international and domestic schemes of intellectual property law.⁸⁰

66 Another comments:

We should realise that the issue is control. Mäori must be able to determine the appropriateness of the use being made of our cultural heritage. To permit otherwise would be to deprive Mäori of their identity. The challenge for domestic and international communities is to acknowledge that Mäori and other indigenous peoples have their own perspective of what intellectual and cultural property are and to recognise why such täonga should be protected. . . . That Mäori seek to preserve that intellectual and cultural property . . . should be seen as something positive.⁸¹

67 Concerns have been voiced over lack of consultation with iwi in the treaty making process.⁸² For example, in relation to the Multilateral Agreement on Investment negotiated by the government and concerning foreign investment in New Zealand, a commentator noted that the negotiation of international agreements by the Crown without consulting Mäori has been happening since 1840

but most dangerously perhaps, in terms of our future well-being, in relation to the Uruguay round of GATT, the whole negotiations over intellectual property and now what have been so far secret negotiations on investment. Clearly any policy that occurs in this country is also Mäori policy and we have a right to be involved in international negotiations. . . . Particularly in relation to the fact that, if we were able to negotiate specific protections with the Crown as part of a Treaty settlement in relation to resources, and if foreign companies sought to buy up or make investments in that area, those protections could well be seen as a restraint on investment and therefore in breach of the international agreement.⁸³

68 Further, for Mäori,

the freeing up of trade creates open access to everything from our land to our täonga, . . . we have no real information or input into the GATT process. Indeed the signing of the GATT agreement itself was done by the Crown without consultation with our people, an issue which is currently being pursued as a breach of the Treaty before the Waitangi Tribunal.⁸⁴

69 The need to work through the competing claims, as a result of the internationalisation of law, at both international and domestic level is apparent.