Human Rights and the New Zealand Government's Treaty Obligations
4 Yearbook, New Zealand Association for Comparative Law 57, 1998
19 Pages Posted: 12 Dec 2012 Last revised: 22 Feb 2015
Date Written: 1998
New Zealand law on a wide range of issues must take into account and is often bound by the relevant international norm or obligation. The number of new treaties which appear on the scene with increasing regularity is extraordinarily high. Of central importance are issues such as the effects of globalisation on state sovereignty and democracy. Apart from the increase in sheer quantity of international instruments that bear upon the conduct of states, three features of international law since the Second World War stand out. The first is the enormous range of treaties concerning the environment. The second is the development of international human rights law. The third is the burgeoning quantity of international trade law. This paper discusses the development of international human rights law. It considers the relationship between international law and municipal law and the increasing acceptance of the two becoming intertwined as a monist legal system.
Human rights became legally recognised at international law following international revulsion regarding World War Two atrocities. International law has now gradually provided a framework for the delivery of human rights to individuals as well as sometimes to peoples. The paper covers the background of this evolving framework of human rights law from the Charter of the United Nations onwards. It discusses the philosophy behind the understanding of universal human rights and the idea that the content of the international norm cannot vary – the International Bill of Rights reflects minimum standards that recognise the humanity of all individuals.
The paper turns to consider New Zealand’s response to international human rights. It recognises that New Zealand has always been an enthusiastic supporter of human rights and the development of careful treaties defining them. With that said, the Human Rights Committee has noted that it is expressly possible to enact legislation contrary to the Bill of Rights Act provisions and that this appears to have been done in some cases. New Zealand has been enthusiastic to embrace internationally promulgated norms on human rights but not so anxious to monitor its own domestic laws and practices to see that they were fully in compliance with those international obligations. The New Zealand legislature has not been meticulous about protecting basic rights. Neither have the administrative and judicial authorities been zealous in ensuring that the exercise of state power remains within the norms.
The decision by the Government to terminate the Consistency 2000 project, and repeal provisions in the Human Rights Act intended to give primacy to human rights prohibitions, is susceptible of serious criticism. It significantly reduces New Zealand’s commitment to the honouring of its human rights obligations and is likely to attract the attention of the Human Rights Committee. A full systematic and comprehensive study of the problems of New Zealand law and practice would have been greatly to our advantage so that New Zealand had a full inventory of exactly what its problems were in respect of the grounds of prohibited discrimination. This would have been an invaluable resource in reshaping statutes over time. The issues will remain for New Zealand if domestic law does not comply with international obligations. It will make it harder to argue that we are, as a country, as steadfast in pursuit of human rights principles as we represent ourselves to be at an international level. In the pragmatism that dominates New Zealand government, it is easy to lose sight of principle.
Keywords: human rights, New Zealand Human Rights Act, international human rights law, United Nations Charter
JEL Classification: K19, K33, K39
Suggested Citation: Suggested Citation