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• Conventions Or Model Laws?
• Negotiation Of Conventions
• How Conventions Become Law

2 Conventions in international law

13 THIS STUDY PAPER considers a number of international texts which are referred to collectively as “conventions”. Convention is the word most commonly used for a multilateral treaty which is open to acceptance by a large number of States.¹² This usage is especially common in the United Nations and its agencies.

CONVENTIONS OR MODEL LAWS?

14 Many of the conventions discussed in this Study Paper were produced by the United Nations Commission on International Trade Law. UNCITRAL uses a variety of techniques to promote the harmonisation of international trade law;¹³ the two legislative techniques it uses are conventions and model laws. When maximum uniformity is important, the desirable form is a convention; it establishes an international obligation to adopt legislation in line with the convention’s provisions. A convention is negotiated, and so must be adopted in full or not at all. It can lack flexibility in that States wanting to adhere to most but not all provisions may not be able to adopt the Convention formally.

15 A model law can provide greater flexibility than a convention, as a country’s legislature, when incorporating a model law into domestic law, is free to modify or dispense with some of its provisions. However, the more idiosyncrasies that a State introduces when adopting model laws, the less the degree of harmonisation between its domestic law and that of other States. A model law is finalised and adopted by UNCITRAL whereas a convention requires, in addition to the work in UNCITRAL, the convening of a universal Diplomatic Conference.¹⁴

NEGOTIATION OF CONVENTIONS

16 International law and practice have established that representatives of a State have authority to negotiate and adopt the text of a convention. This is a function of the executive branch of government;¹⁵ however, it is a principle of constitutional law that the executive cannot change the national law by entering into an international agreement. The performance of obligations under a convention often involves action by the Parliament, to amend the existing domestic law.

17 The Law Commission recommended in 1997 that the value of consultation with Parliament and interested or affected groups at the negotiating stage of a convention be recognised.¹⁶ Parliament’s role in the consultation process is likely to be extended following Select Committee recommendations that time be set aside on the parliamentary timetable for international treaties to be debated.¹⁷

HOW CONVENTIONS BECOME LAW

18 Conventions come into force and take effect according to their own terms. Once concluded, conventions are usually signed by the negotiating parties. However signature does not generally amount to full acceptance of the convention: rather it is an indication of the State’s intention to ratify in the future. Final acceptance may involve substantial changes in government policy or domestic law, so that a State is not bound by a convention until it is formally ratified or approved.

19 States that were not involved in negotiating and concluding a convention but wish to become a party to it at some later stage may have the right under the convention to accede to it and therefore become bound. Most of the conventions considered in this Study Paper have already been concluded, so the issue is whether New Zealand will become a party to them by accession. A party to a multilateral convention may also file reservations, indicating that it will not be bound by one or more of the provisions of the convention.

20 Conventions can be incorporated into domestic law in four ways:¹⁸

• an Act gives direct effect to the text of the convention, by providing that it “has the force of law” in New Zealand;
• an Act uses some of the wording of the convention, or indicates in some other way its origins;
• the substance of the convention is incorporated into legislation, without any obvious indication of the fact; or
• an Act authorises the making of subordinate legislation (regulations or rules) which is to give effect to a particular convention. That subordinate legislation might take any of the three forms outlined above.

21 In addition, a very few treaties operating at the international level which raise no issues of domestic law may take effect with no need for domestic legislation. Examples include the Convention on International Liability for Damage caused by Space Objects, the Vienna Convention on the Law of Treaties, and the Hague Convention on the Pacific Settlement of Disputes 1899.

22 Private law conventions, which are the subject of this Study Paper, can often be directly implemented by scheduling their text and stating they have the force of law. Current examples include the Hague Rules on the Carriage of Goods by Sea, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. These Conventions have force of law under the Maritime Transport Act 1994 and the Arbitration Act 1996 respectively.¹⁹