AWA: Academic Writing at Auckland

New Zealand Courts (Courts) should consider International Law (IL) to the extent that it enables them to fulfil their constitutional obligations to the society they serve. Under our Westminster-style of government, the independent Judiciary’s constitutional role is: to apply, develop and interpret the law; and hold other branches of Government accountable under the Rule of Law (ROL).

In a sense our Common Law (CL) is international law; it was imported here. Since inception CL Courts have looked beyond immediate geographical boundaries to understand common principles when developing and applying the CL. The legal certainty principle requires Courts to only develop law aligned with Sovereign Parliament’s intention. Accordingly, Courts must have regard to international agreements, protocols or instruments the Executive has committed New Zealand (NZ) to when developing the law. Emerging torts of wrongful conception and invasion of privacy are recent examples of how NZ can benefit from ‘piggybacking’ off IL. Advantages of this include time and cost savings for the Judiciary and taxpayers, plus compatibility of our law’s direction with our nearest cultural and legal neighbours’ laws.

Stare decisis affords an in-built right to not apply foreign law incompatible with local conditions. However, IL the Executive contracts us to might oblige Courts to apply law that does not suit our local context. ‘Universal’ values and norms underpinning many IL agreements are Eurocentric[1]. They reflect hegemonic values of (now) unchecked Western democratic capitalism, potentially presided over by a Reality TV star[2]. As I read them, IL’s ‘universal’ values are generally compatible with NZ’s essentially Eurocentric legal culture. But big is not necessarily best. For example, many of the pre-European values of tikanga Maori seem to offer extraordinary potential, especially in environmental matters. Yet where the Executive specifically contracts us to IL that is too rigid, Courts cannot guarantee flexible development of local CL. Courts should avoid adhering too closely to IL’s ‘universal’ values, where to do so would lead to CL that does not reflect NZ’s own ethics and culture. This could ultimately denigrate the law in our citizenry’s eyes. And international development of CL would miss the unique value proposition that is NZ’s singular perspective when our unique law is made available other jurisdictions for their future consideration.

We are an increasingly globalised community. We expect government to enable us to work and live internationally or transnationally. And we expect Courts to develop CL to assist this where possible. Increased Executive focus on multilateral political and trade agreements seems to come with a cynical disregard for the values and principles embedded in our CL and even statute. For example, the TPPA was negotiated behind closed doors yet may impact the practical limits to which Courts can direct the development of the CL and governance of our citizenry for years. My concern is that intensified regionalisation paired with majoritarian politics may exacerbate this, reducing our Court’s jurisdiction to apply and develop NZ-specific CL.

I submit this is an age of majoritarian politics, where it is critical that an independent Judiciary lean on IL wherever possible to protect our CL principles and uphold the ROL. The Judiciary should leverage ratified instruments to enforce our citizens’ rights[3], especially from governmental encroachment of individual rights in the wake of 9/11. Where the Government then legislates to overrule the CL, at least the politicians must act openly and wear political costs of policies reducing our rights. Courts can also leverage IL to uphold society’s values, freedoms and peace, by acting positively when politicians will not[4]. Courts might also use IL to afford the Judiciary maximum flexibility of statutory interpretation.

Law is more art than science and does not exist in a vacuum. It exists to serve the society it is rooted in. NZ’s society evolves incessantly, as does the world beyond our shores. The law’s prescriptive rules need to meet and support this dynamism. Incremental case law is better equipped for this than sporadic statute. When developing or applying the CL the Courts should regard various IL as powerful weapons in their arsenal.

In a world of majoritarian politics, an independent Judiciary may be all that stands between the ROL and the Executive trading our established rights for trade or political concessions. As NZ negotiates globalisation, Courts have a constitutional obligation to grasp any aspect of IL that preserves their jurisdiction to apply and develop our CL where it protects our rights, freedoms and values – and to resist IL where it does not.

[1] My unabashedly postcolonialist interpretation is sympathetic to TWAIL readings.

[2] Reference to the spectre of ‘President Donald Trump’.

[3] As in C v Holland [2012] NZHC 2155 at [67].

[4] As in Finnigan v New Zealand Rugby Football Union Inc (No.2) [1985] 2 NZLR 18.