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© New Zealand Centre for Public Law and contributors
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The mode of citation of this journal is: (2004) 2 NZJPIL (page)
The previous issue of this journal is volume 1 number 1, November 2003
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Cover photo: Robert Cross, VUW ITS Image Services
Opening Address Hon Margaret Wilson
Articles Weak-Form Judicial Review: Its Implications for Legislatures Mark Tushnet
The Constitutional Role of the Courts: A Perspective from a Nation without a Bill of Rights George Williams
Socio-Economic Rights in South Africa: The Record after Ten Years Dennis Davis
Hidden Anxieties: Customary International Law in New Zealand Treasa Dunworth
Some Thoughts on Access to Justice Ronald Sackville
Comments The Basic Themes Lord Cooke of Thorndon
Closing Remarks Sir Ivor Richardson
The New Zealand Journal of Public and International Law is a fully refereed journal published by the New Zealand Centre for Public Law at the Faculty of Law, Victoria University of Wellington. The Journal was established in 2003 as a forum for public and international legal scholarship.
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CUSTOMARY INTERNATIONAL LAW
IN NEW ZEALANDTreasa Dunworth∗ The role of customary international law has to date received little attention in New Zealand courts and legal writing. Treasa Dunworth advocates closer attention to customary international law, and explores the possibility of adopting a "pedigree approach" to its reception into New Zealand common law.
I INTRODUCTIONWhen one is asked to speak on the topic of "international law and adjudication", the question of the role of international treaties in the domestic legal system is a mainstay.
There is a range of issues to discuss: the appropriate role of Parliament in the process of treaty ratification and approval; the means by which treaties are incorporated in legislation; the role of the courts in handling treaties, whether in the guise of administrative law, statutory interpretation, or otherwise. But while the role of international treaties in our domestic legal system has received an increasing level of attention in recent years, the role of customary international law has been relatively neglected.
∗ Senior Lecturer in Law, University of Auckland. The author acknowledges the assistance of a Chapman Tripp Research Scholarship and the research assistance of Joanna Hickey. Thanks also to Mary-Rose Russell and the staff at the Davis Law Library, to Janet McLean for her comments on an earlier draft, and to the anonymous referees for their constructive comments.
The title of this paper echoes the title of a paper by Hilary Charlesworth, Madelaine Chiam, Devika Hovell, and George Williams, "Deep Anxieties: Australia and the International Legal Order" (2003) 25 Sydney LR 423, in which the authors sketch out a map of the interaction between the Australian legal system and international law, noting that the increasing use of international law is a cause of considerable anxiety in Australia. In echoing that title, I am attempting to encapsulate my impression that those anxieties are also prevalent, but not articulated, in New Zealand.
68 (2004) 2 NZJPIL This is quite astonishing given that when one opens any traditional textbook on international law, one finds, in the standard chapter on the relationship between international law and domestic law, that in common law jurisdictions such as New Zealand, while treaties are not part of domestic law unless incorporated by statute, customary international law is automatically part of the common law.1 It is even more astonishing that we have paid so little attention to the status of customary international law when we realise that customary international law is that body of international law made of up state practice (or what states do) and opinio juris (what states think). It is therefore inevitably the product of political interests—even more so than international treaties.2 One might have thought that in light of the heightened political content of customary international law, the domestic legal system would be less, rather than more, receptive to custom than to treaty.
It seems, however, that despite its basis in state power and its consequent vulnerability to manipulation, customary international law may well be gaining ground in some overseas jurisdictions.3 My concern is that in the absence of a thorough discussion, the New Zealand courts may find themselves making decisions based on customary international law (or making decisions not to take account of customary international law) without having had the opportunity to think through the broader consequences of such decisions.4 The aim of this paper, then, is to start a discussion on the appropriate role for customary international law in New Zealand. The paper first examines the way in which the New Zealand courts treat customary international law. That examination demonstrates 1 See for example Ian Brownlie Principles of Public International Law (6 ed, Oxford University Press, Oxford, 2003) 41–45. But see Antonio Cassese International Law (Oxford University Press, Oxford, 2001) 162–181 for an overview of approaches in non-common law jurisdictions.
2 For an overview of customary international law, see Treasa Dunworth "The Rising Tide of Customary International Law: Will New Zealand Sink or Swim?" (2004) 15 PLR 36, 38–40, and citations therein.
3 Though the trend is far from clear-cut—see discussion in Dunworth "The Rising Tide of Customary International Law", above n 2, 40–46.
4 Almost without exception, the literature on the use of international law by domestic courts focuses on international treaty law. For example, the special issue of the Victoria University of Wellington Law Review in 1999 dealing with international law (vol 29(1)) did not consider, except in passing, customary international law. The New Zealand Law Commission barely acknowledges customary international law in its report A New Zealand Guide to International Law and Its Sources (NZLC R34, Wellington, 1996). More detailed consideration of the issue can be found in K J Keith "International Law and New Zealand Municipal Law" in J F Northey (ed) The A G Davis Essays in Law (Butterworths, London, 1965) 130, but almost forty years on, a revisiting of the issue is overdue.
CUSTOMARY INTERNATIONAL LAW IN NEW ZEALAND 69that customary international law currently plays a role in two ways—by means of direct application and as an interpretative tool. The discussion also shows that the role of customary international law, as opposed to international treaty law, has been relatively minor, but that despite the lean pickings (or perhaps because of them?), there is uncertainty in the jurisprudence and in the literature surrounding the place of customary international law in New Zealand law. In fact, despite the self-confident starting point of Blackstone's quote, on which the earlier English cases rely, that "customary international law is part of our law", the relationship is anything but clear, and what scant judicial and academic comment there is shows that it is marked by confusion and uncertainty.
In my view, that uncertainty provides both an opportunity and a challenge. It provides an opportunity to respond to future cases on a principled, rather than an ad hoc, basis. It provides a challenge in that to take advantage of that opportunity it is necessary first to agree on those principles. In attempting to start that discussion, I explore the arguments surrounding the reception of customary international law—which in many ways simply mirror the larger debate on the role of international law in domestic law generally;
although, as will be seen, customary international law raises particular additional concerns. I conclude by proposing that a pedigree approach be considered, whereby not all norms would be received in the same manner or to the same extent.
II THE CASE LAWThe most notable feature of the New Zealand case law on the question of customary international law is its scarcity. Only occasionally has the issue come before the courts.
When it has done so, the courts "appear to have proceeded on the assumption, as William Blackstone put it over 200 years ago, that customary international law (or in his terms the law of nations) is part of the law of the land."5 The majority of cases involve issues of sovereign immunity. Sovereign immunity is an ideal subject through which to examine the role of customary international law in the domestic sphere because it is still governed, for the most part, in the international sphere by customary rather than treaty law.
Furthermore, in New Zealand at least, there is no legislation governing the matter.6 Thus 5 Rt Hon Sir Kenneth Keith "The Impact of International Law on New Zealand Law" (1998) 6 Waikato LR 1, 22 (citing William Blackstone Commentaries on the Laws of England IV ch 5). See also Sir Kenneth Keith "Roles of the Courts in New Zealand in Giving Effect to International Human Rights—With Some History" (1999) 29 VUWLR 27, 34 where he simply states that "[b]y contrast [to treaties] customary international law is part of the law."
6 This is important because a domestic statute will always override customary international law:
Chung Chi Cheung v The King  AC 160 (PC). Not everyone is happy with the absence of legislation: see W K Hastings "Sovereign Immunity in New Zealand"  NZLJ 214; W K Hastings "Controller and Auditor-General v Davison: Three Comments" (1996) 26 VUWLR 459; and the closing observations of Barker J in Marine Steel Ltd v Government of the Marshall Islands  2 NZLR 1, 9–10 (HC).
70 (2004) 2 NZJPIL in New Zealand, when a question pertaining to sovereign immunity comes to be decided, the courts are actually applying customary international law directly, though they may not use that language.
That the New Zealand courts ought to apply the doctrine of sovereign immunity is unquestioned. In Marine Steel Ltd v Government of the Marshall Islands7 the plaintiff sought leave to serve proceedings out of New Zealand to recover monies owing under a contract for ship repairs. One of the arguments raised was that the doctrine of sovereign immunity precluded the Court's jurisdiction. The Court rejected the argument on the basis that the Marshall Islands was not a sovereign state. However, in the course of its decision, the Court accepted that in the normal course of events it would be bound by the rule of immunity. In considering the argument that the customary international law rule of sovereign immunity could be relied on as a basis on which to strike out civil proceedings in the New Zealand courts, Barker J said "[o]bviously, the Court ought not to give leave to serve proceedings out of the jurisdiction against a foreign government, if to do so would breach the rule of sovereign immunity".8 Implicit in that statement is the assumption that the (customary international law) rule of sovereign immunity binds the court.
The immunity argument was also raised (this time successfully) in Buckingham v Hughes Helicopter.9 In that case, the Court set aside a warrant of arrest of a helicopter on board a United States military transport ship, having accepted the United States' application to have the warrant set aside on the basis that the ship and the helicopter were protected by sovereign immunity. Although the Court did not engage in any detailed discussion of the basis on which sovereign immunity was part of the law, Hardie Boys J quoted Lord Atkin's passage from The Cristina10 that the doctrine of sovereign immunity arises from "international law engrafted into our domestic law".11 Smellie J took the same approach in Reef Shipping Co Ltd v The Ship "Fua Kavenga"—again without further elaboration.12 7 Marine Steel Ltd v Government of the Marshall Islands, above n 6. See commentary by Jerome B Elkind "Sovereign Immunity"  NZLJ 505;  NZLJ 263.
8 Marine Steel Ltd v Government of the Marshall Islands, above n 6, 3.
9 Buckingham v Hughes Helicopter  2 NZLR 738 (HC).
10 Compania Naviera Vascongado v Steamship "Cristina"  AC 485, 490 (HL).
11 Buckingham v Hughes Helicopter, above n 9, 741.
The most famous sovereign immunity case in New Zealand has been the so-called "Winebox Case": Controller and Auditor-General v Davison.13 On the facts, the Court held that immunity did not lie, although the basis on which its decision was founded is far from clear. The commercial nature of the transactions in question was clearly a factor in applying the restrictive version of sovereign immunity and thus excluding immunity on the facts, as was the Court's extreme disapproval of the actions of the Cook Islands.14 Nonetheless, the significant point in this context is that there was no suggestion that the Court could take the view that it was not bound at all by the doctrine of sovereign immunity.