National Law in New Zealand
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Added on 2020-03-16
National Law in New Zealand
Added on 2020-03-16
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Running Head: Law 1Law
Law2Introduction:Relationship between international and national law in New Zealand is described on the basis of dualist system, and as per this theory international law and national law drives on different planes. For the purpose of forcing the law, the provisions of treaties must be incorporated into legislation through parliament. However, the method through which Courts uses the internationalinstruments also exposes the language related to dualism. As stated in article 27 of Vienna Convention on the Law of Treaties1 states the provisions related to internal laws and their observance on treaties. However, in Case Ashby v Minister of Immigration [1981] 1 NZLR 222, Richardson, J stated at p 2292, Court stated that if provisions of the domestic laws are clearthen such provisions must be given effect in our Courts no matter whether such provisions complied with the New Zealand’s international obligations or not. This paper critically evaluates the relationship between international law and domestic law in context of these two conflicting statements. Lastly paper is concluded with brief conclusion. Relationship between national and international law:The Vienna Convention on the Law of Treaties was concluded in 1969, and in 1980 this treaty was entered into force. It must be noted that the first sentence of the para 13 stated the pacta sunt servanda principle in international law. As per this principle, Article 26 of VCLT defines the binding nature of VCLT3 and this article further states that if any country signed any treaty then such treaty is binding on the country, and the country must performed the stated obligations in good faith. One important way to compile with the obligations stated in treaty is to ensure that domestic laws of the country are consistent with the obligations stated in treaty and imposed on 1 Vienna Convention on the Law of Treaties- Article 27. 2 Ashby v Minister of Immigration [1981] 1 NZLR 222, Richardson, J stated at p 2293 Vienna Convention on the Law of Treaties- Article 26.
Law3the country by the treaty. However, second sentence of para 13 states that article 27 is relevant in this context and not the article 264. Article 27 of the VCLT states different purposes and as per this article party cannot use its internal laws as justification in context of contravention of international law. In other words, when country contravenes its obligations defined under the treaty then it is not possible or party to use its domestic law as defense. It must be noted that this principle is also defined under the Article 3 of the International Law Commission (ILC) Articles of State Responsibility. For effective working, it is necessary that party must have clear understanding of international law and its relation with domestic law. There are number of countries where international law without any transformation considered as the law of the land, but some countries are also there which give preference to their domestic law. Implementation of treaties and its effect:It is not possible for executive who signs the treaty to change the domestic law, but it does not mean that Courts cannot use the provisions of international law in their judgments if parliament does not enacted these laws in the domestic laws. As per the practice related to international law there are number of representative of the states who have authority to adopt the international treaty. However, some other officials also have authority to negotiate and adopt the treaty. These functions are the functions of executives, and this principle is cleared in case law Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347–3485. 4 Prabhash Ranjan & Farheen Ahmad, (2016). Is the Supreme Court Confused About the Application of International Law?, < https://thewire.in/53930/supreme-court-international-law/>, Accessed on 13th October 2017. 5 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347–348.
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