Background

Part 1: Are there any international obligations and standards relevant to the legislation?

Part 2: If so, does the legislation properly implement those international obligations and standards?

A fundamental principle of international law is the proposition that treaties, regardless of their designation, are binding on the parties to them and must be performed in good faith. This rule is known in legal terms as pacta sunt servanda. This rule is reaffirmed in article 26 of the Vienna Convention on the Law of Treaties, 1969, which entered into force for New Zealand on 27 January 1980.[55]

Essentially, New Zealand is bound to comply with the treaties it executes, which requires it to ensure that its domestic laws are consistent with or give effect to them. New Zealand is also required to comply with customary international law. Consequently, as a matter of practice, those involved in preparing any legislation, whether new or amending or subsidiary, should identify and comply with the applicable international obligations and standards. This is achieved primarily by appropriate and timely consultation, particularly with the Ministry of Foreign Affairs and Trade (MFAT).

Issues discussed

The following issues are discussed in this Chapter:

Part 1: Are there any international obligations and standards relevant to the legislation?

Part 2: Does the legislation properly implement the relevant international obligations and standards?

International law covers a broad and growing range of subjects. Once confined to issues pertaining to the jurisdiction or territory of states, it now deals with many of the issues that were once the exclusive preserve of domestic legislatures. Domestic law is also evolving to remain abreast of the rapid expansion of transnational activities and concerns. Consequently, international law is becoming increasingly important as a source of domestic law in virtually every area. New Zealand's international obligations affect a wide variety of its domestic law (see Appendix 3). The influence of international law will increase as New Zealand's international obligations grow (which is the current trend).

New Zealand is party to around 900 multilateral and 1,400 bilateral treaties. It has about 700 Acts in force, of which 92 expressly refer to treaties, either specifically or generally. Fifty-one of these Acts refer to specified treaties, of which all but 4 are multilateral (see Appendix 3). These 51 Acts implement 99 different treaties, in whole or in part (20 deal with more than 1 treaty and several deal with an aspect of the same treaty). Fifty-three of these treaties are set out in schedules to their respective Acts and 2 are set out in schedules to their respective regulations. These treaties are not self-executing because they require the creation of operational machinery or the imposition of duties on individuals within New Zealand's jurisdiction to be effective.

These numbers seem small relative to the number of treaties that apply to New Zealand. However, the 92 Acts contain 32 general references to all treaties to which New Zealand is a party and 30 general references to all treaties on a particular subject to which New Zealand is a party. These Acts also do not include those Acts that implement treaties without referring to them in any way. Furthermore, when New Zealand is considering entering into a treaty, MFAT, in consultation with the relevant agencies, briefs the government of the day on the legislative changes that are necessary to implement the treaty. In many cases, no changes are required, as the existing law conforms to the terms of the treaty.

The main sources of international law are treaties, international custom, judicial decisions, and academic writings. In addition, international transactions are largely facilitated and regulated by rules and practices that arise via contract or acceptance, which are not directly binding on states nor issued or formulated by public authorities. The following publication provides a basic guide to the materials that are used to find, interpret, and understand international law, particularly as it affects New Zealand law: A New Zealand Guide to International Law and its Sources, New Zealand Law Commission, Report 34 (1996).

Of these sources, treaties are the most common and tangible manifestation of New Zealand's international obligations. MFAT maintains and occasionally publishes an up-to-date list of the treaties to which New Zealand is a party (see eg, New Zealand Consolidated Treaty List, Part 1 (Multilateral Treaties), New Zealand Treaty Series 1997, No. 1, NZHR, A.263 (1997); New Zealand Consolidated Treaty List, Part 2 (Bilateral Treaties), New Zealand Treaty Series 1997, No. 2, NZHR, A.265 (1997)).

The term treaties refers to all international agreements, whatever their form, that are governed by international law and intended by the parties to create obligations of treaty force (ie, are binding on the parties). It covers instruments called treaties, conventions, covenants, protocols, and agreements (including those based on exchanges of letters) between New Zealand and other countries, nations, or international organisations (including those inherited from the United Kingdom).[56] The form of a treaty does not alter its legal effect, but rather provides a means of classifying the treaty. The main classifications are as follows:

(a) agreement is by far the most common term and is often used for treaties regulating trade, or bilateral relations between states in a number of areas such as air transport, fisheries, visa abolition, and extradition;

(b) exchange of letters (or notes) constituting an agreement make up a large proportion of the previous category; as the title indicates, there are two documents rather than one, with the second document responding to the agreement proposed in the first and accepting it;

(c) convention is commonly used to refer to multilateral agreements;

(d) covenant is generally used to refer to multilateral human rights agreements;

(e) protocol describes agreements that supplement a principal treaty, which may be drawn up at the same time as the principal treaty or at a later stage;

(f) treaty, in addition to its generic meaning, is often used to refer to major agreements of political importance (eg, treaties of alliance or friendship).

Customary international law is also an important source of New Zealand's international obligations. This is a set of rules that has arisen out of state practice and, in a manner, indicates the extent to which individual states consider themselves bound by the practice. The leading texts on international law and judicial decisions concerning international law are generally a useful starting point in determining state practice in a particular area and the extent to which New Zealand engages in the particular practice, if at all. Many of the rules are codified in treaties, which makes them binding on all parties, regardless of a party's past practice. It is important to recognise that customary international law continues to develop.

There is also a category of instruments that are not binding at international law (often referred to as soft law), but to which regard should properly be had, and advice sought as necessary from MFAT as to their legal significance. These may include declarations, resolutions, instruments under negotiation, or international standards (some international standards are in fact binding).

If legislation is required, an essential task is to ensure that it is consistent with New Zealand's international obligations (ie, gives full effect to them). The consequence of not doing so risks placing New Zealand in breach of its obligations. If in breach, the government of the day will have to use some of its precious parliamentary resources to revisit and amend the non-compliant legislation to avoid termination of the relevant treaty, harm to New Zealand's international standing, or the application of sanctions. Producing legislation that is consistent with New Zealand's international obligations at the outset will obviate this waste of resources and avert any difficulties New Zealand may face as a consequence of non-compliance.

The domestic legal ramifications of non-compliance may also be significant. The courts will not hesitate to look beyond the words embodied in legislation to the relevant international obligations, both to aid interpretation (if necessary and appropriate) and, in the context of judicial review of administrative action, to examine whether decision-makers have taken the relevant considerations into account. Legislation that is consistent with New Zealand's international obligations is less likely to create interpretative or decisional difficulties.

Those preparing legislation should identify all international obligations and standards that are relevant to the legislation. MFAT should be consulted for this purpose.

International obligations may be incorporated into New Zealand law either directly or indirectly. In some cases, the relevant legislation simply reflects relevant obligations without referring to or repeating them. Sometimes legislation gives specific effect to a treaty (particularly in a situation where, were it not for the international obligation, New Zealand would not necessarily have to legislate). More rarely, legislation gives direct legal effect to the treaty itself, by giving it, or specific provisions of the treaty, legal force. Some treaties are designed to be incorporated directly into domestic legislation. The majority are not, and can contain references that are not normally used in New Zealand legislation. Care should be taken, however, in deciding whether or not to replace such references with the more familiar domestic ones, as this may alter the meaning and affect New Zealand's compliance with the relevant international rule.

The following drafting methods are used to implement New Zealand's international obligations through legislation - the force of law formula method, the subordination method, and the wording method.

"Force of Law" Formula Method

The "force of law" formula method sets out the full or partial text of a treaty, usually in a schedule, and uses a formula to proclaim it to have the force of law domestically. The treaty is left to speak for itself. This method is not used very often because the provisions of most treaties tend to be expressed in general terms and require translation into a more specific form to have effect in New Zealand. The purest example of this method is the Sales of Goods (United Nations Convention) Act 1994. Acts using the "force of law" formula method are listed in Part 3 of Appendix 3. In some cases, only specified parts of treaties are given the force of law. The provision may also be qualified (eg, Diplomatic Privileges and Immunities Act 1968, s. 5(1)).

Subordination Method

The subordination method involves drafting a provision in an Act that authorises the making of regulations or rules to give effect to particular treaties. This method is used fairly often, but is generally restricted to treaties that provide for ongoing technical changes that justify the delegation of lawmaking power from Parliament to the Executive (eg, Maritime Transport Act 1994, s. 36(1)). In some cases, regulations are used to trigger the application of the treaty or some part of the treaty (eg, Diplomatic Privileges and Immunities Act 1968, s. 10A(aa)).

In 1994, Parliament extensively revised New Zealand's intellectual property Acts to comply with the intellectual property provisions of the General Agreement on Trade and Tariffs. These Acts do not expressly indicate that they are implementing these provisions. However, the protections they provide are only available to persons from 'convention countries' or 'eligible countries', a designation that is conferred by Order in Council (eg, Layout Designs Act 1994, s. 37; in this case, the Layout Designs (Eligible Countries) Order 2000 is the relevant order, and it simply lists the countries that are eligible countries; the relevant order for the Patents Act 1953, the Designs Act 1953, and the Trade Marks Act 1953 is the Patents, Designs, and Trade Marks Convention Order 2000 ; the relevant order for the Copyright Act 1994 is the Copyright (Application to Other Countries) Order 1995).

Another special case concerns the use of regulations to designate the treaties that are relevant to an Act and its application (eg, Maritime Transport Act 1994, section 2; in this case, the Maritime Transport (Marine Protection Conventions) Order 1999 is the relevant order). Yet another special case concerns the use of regulations to extend the application of treaty provisions implemented in one Act to cover matters dealt with in another Act (eg, Antarctica (Environmental Protection) Act 1994, s. 54).

Section 2 of the United Nations Act 1946 also constitutes a special case. It allows the making of regulations to enable New Zealand to fulfil its obligations under article 41 of the Charter of the United Nations, that is, to give effect to Security Council decisions to employ certain non-military sanctions. These regulations may override statutes. The United Nations Sanctions (Angola) Regulations 1993 constitute one of 11 regulations made under this provision since 1991. Acts with similar provisions include the following: section 215(1) of the Child Support Act 1991; section 19(1) of the Social Welfare (Transitional Provisions) Act 1990; and section 30 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977. Acts using the subordination method in some way are listed in Part 4 of Appendix 3

Wording Method

In many cases, the wording of a treaty is incorporated into the body of the Act. The Act may specify the treaty that it seeks to implement or it may not. In either case, the wording of the treaty is reflected in the Act's provisions. Sometimes the wording is repeated verbatim and sometimes it is translated to accommodate local conditions, which is usually the case when specific operational provisions are required to give effect to general treaty provisions. Sometimes all or most of the provisions of treaties are implemented in this way and sometimes only a few select provisions are implemented in this way. As most treaties tend to be expressed in general language, mainly to achieve agreement, the wording method is used often.

The New Zealand Bill of Rights Act 1990 is probably the purest example of the wording method in which the specific treaty is indicated. The operative provisions of the Act do not refer to the International Covenant on Civil and Political Rights (ICCPR) or any of its components. It simply sets out the rights and freedoms that the ICCPR sets out, albeit using different words and form. The Human Rights Act 1993 is an example of the wording method in which the applicable treaties are not specified, but the types of treaties being implemented are mentioned. The operative provisions of the Act do not refer to any treaties or parts of treaties. Furthermore, the Act sets out a considerable amount of operational detail that is not found in these types of treaties, but is necessary to give effect to their provisions. The Abolition of the Death Penalty Act 1989 is an example in which the Act is silent as to the existence of a specific treaty or types of treaties. The Act implements the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty. However, the Act does not refer to any treaties in any way.

Most of the Acts listed in Appendix 3 use the wording method to some degree. Given the last example, it is reasonable to conclude that a significant number of Acts not listed also use this method.

Hybrids

In some cases, more than one method may be used. For example, New Zealand's intellectual property Acts use the wording method to set out the relevant treaty rights and protections, but use the subordination method to trigger the application of these provisions. As another example, the Adoption (Intercountry) Act 1997 uses the 'force of law' formula method to give the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption the force of law in New Zealand. However, unlike the Sale of Goods (United Nations Convention) Act 1994, it uses the wording method to create the specific mechanisms necessary for the administration of the law embodied in the treaty.

Legislation Template

Many of the Acts that implement specified treaties have some features in common. Some have titles or purpose clauses that indicate that the Act is implementing a particular treaty or set of treaties. Some have clauses that provide a means to prove matters pertaining to treaties. Many have definition clauses that are used to identify and locate particular treaties. Some have future proofing provisions. Most also set out the text of the specified treaty or treaties in a schedule or schedules, but not all do. Ultimately, the various drafting techniques are intended to make an Act implementing a treaty easy to use, especially if ready access to the treaty is required or would be beneficial. The template set out in Part 5 of Appendix 3 suggests provisions that may be of assistance in achieving this objective.

Annexing the Treaty

It is often, but not always, appropriate for the text of the treaty to be annexed to the relevant legislation. Annexation of an entire text is required if the treaty or parts of it are directly incorporated (ie, the formula method). If the legislation does not directly incorporate the provisions of the treaty but the main purpose of the legislation is to give effect to treaty obligations, then it is also usually appropriate to annex the text of the treaty to the legislation. This enables the public, practitioners, and the courts ready access to the primary source of the obligation, which is particularly important if there is a need for interpretation. There may, however, be practical difficulties in annexing the treaty text. Those difficulties should be carefully balanced against the public interest in having the text available together with the legislation. Advice should be sought from MFAT.

Language

Particular care should be taken with terms that have specific meanings at international law. Examples of these are reference to a "state" (which has a specific legal meaning) and "country" (which is a looser term), and any references to maritime boundaries. In most cases, it is preferable to use the same language as the treaty, but advice should always be sought from MFAT.

Treaty-making Process

New Zealand has adopted a treaty-making process in which all treaties that require ratification, accession, acceptance, or approval (and significant bilateral agreements at the discretion of the Minister of Foreign Affairs and Trade) must be tabled in Parliament and considered by the relevant Parliamentary Committee. Except in rare cases, the Government will not take binding treaty action until this step has been completed. The process is set out in the relevant Cabinet Office Circular. Treaties that require the enactment of domestic legislation before New Zealand can become party to them should be tabled before the legislation is introduced. This provides an opportunity for public consultation and scrutiny.

Several methods are used to implement treaties in New Zealand. If a treaty amounts to a self-contained body of law that does not require any operational machinery to support it, the "force of law" formula method can be used to implement the treaty. If a treaty requires operational machinery to support it or its terms require some form of translation to be effective, the wording method should be used. It can be used in conjunction with the formula method. The subordination method should be used if Parliament wishes to delegate technical matters to the Executive. It can be used in conjunction with the formula and wording methods. Care should be taken to ensure that legislation implementing a treaty is easy to use, that is, provides ready access to the treaty that it implements. The template presented in Part 5 of Appendix 3 sets out the various drafting techniques that are available to help achieve this objective.