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Laws confused about laws
By Steven | April 26, 2010
For someone who is readily outraged by news stories that contain falsehoods about him, Michael Laws certainly doesn’t display the same regard for accuracy in his own journalism.
In the Sunday Star-Times yesterday, he railed against the Declaration on the Rights of Indigenous People, arguing that it is likely to be a potent legal force for change in the country. Along the way, he seriously mischaracterises its status, saying it “gifts [Maori] a path toward self-determination”; it will “influence all future law and policy practice”; it will “advance” Maori activists’ “separatist agenda”; “it gifts the right of veto to Maori upon policies that they can consider may not be in their best interests”; it “will soon become a staple in public law lectures across the country”.
Wrong.
For one thing, it’s unlikely to find much of a place in general public law lectures (as opposed to specific courses on indigenous rights). It’s not significant enough. It might rank a bare mention, along with a myriad of international instruments that affect NZ in various ways, but it’s a long way down the list of international documents with serious clout. This remark of Laws’ is best filed under “Laws – Loathing of Law Lecturers” rather than “Public Law – Likely Curriculum”.
I’d also be surprised if there’s a law school in the country whose public law course gives any lengthy play to even the most important international declaration ever: the Universal Declaration on Human Rights (UDHR). Why not? Because its importance is largely rhetorical and historical. It certainly paved the way for other international instruments that did have more bite – such as the International Covenant on Civil and Political Rights (ICCPR). The difference is that the UDHR is non-binding and aspirational; the ICCPR creates obligations for those countries that sign up. There is no formal penalty for countries that sign the UDHR if they later breach it. There is no place even to take a complaint. Countries don’t have to report to any UN committee about how they’re getting on in implementing it. At best it may play into the rules of international law that emerge by a consensus of nations. But it can’t be enforced in any court.
So that’s the status also enjoyed by the Declaration on the Rights of Indigenous People. In fact, it’s much weaker, since it doesn’t have the grandfatherly gravitas of the UDHR.
It might get some teeth if its principles were embodied in a proper treaty like the ICCPR. With the ICCPR, signatories agree to comply with the obligations. They agree to ensure that their domestic laws reflect those obligations. They have to report periodically to an international committee about their progress in implementing those obligations. They may even agree (as NZ has) to allow citizens to make complaints to the Human Rights Committee.
Still, those are not very strong teeth. They are only baby teeth. They don’t have very much bite. There is very limited scope for them to affect the substantive law in NZ. They can’t be directly enforced in our courts. They may be relevant when courts are interpreting a wide statutory power or ambiguous statutory phrase. They are likely to be raised when policy is being developed. So even though such Conventions are binding on the country at international law, they don’t necessarily have much impact at the coalface of the NZ courts and in Parliament. Even if the UN Human Rights Committee upholds a complaint against us, or otherwise criticises our lack of compliance with the ICCPR, we might ignore them. Other countries might frown at us for not playing nice in the community of nations. But it doesn’t change NZ’s laws. For example, the no-fault possession offences in our censorship laws have long been criticised by the UN Human Rights Committee, but we’ve chugged happily along with them.
Remember: that’s the status of the Covenant, an international instrument whose obligations are “binding” on us. A Declaration doesn’t even reach that degree of significance. It’s a ghost in the machine.
Add to that the government’s statement delivered to the UN when signaling its u-turn on the declaration. It’s chock-full of riders and hedges: repeated references to NZ’s “existing frameworks”, “own distinct approach” and “existing legal regimes”, and this:
Those existing frameworks, while they will continue to evolve in accordance with New Zealand’s domestic circumstances, define the bounds of New Zealand’s engagement with the aspirational elements of the Declaration.
In other words, “we’re doing this our way”.
Starting to get the idea that this has been overblown a bit? Right. It doesn’t provide “rights of veto” over legislation. It doesn’t put Maori on a path to self-determination or separatism. It will not influence all future law and policy practice.
Here’s what it might do. Lawyers may occasionally use it to suggest that a particular statute or statutory power should be interpreted consistently with it, but only where:
1. the statute is genuinely ambiguous, AND
2. the declaration is highly relevant to the issue, AND
3. the lawyer is able to slide around the problem that the declaration is not based on any government promises , and so does not technically raise the presumption of consistency with international obligations; AND
4. the lawyer also overlooks the government’s cautious statement to the UN about the boundaries of its support for the declaration; AND
5. there is a favourable wind.
It’s likely to form but one strand of an argument made up of many others, or it’s likely to lose. Hardly “an invitation to existing courts to expand an existing breach into a chasm”, as Laws would have it.
The declaration may also be brought up in discussions of government policy, but I doubt it will have much sway independent of whatever support the government may already have for the policy in question. The Waitangi Tribunal is likely to draw from it, though its jurisprudence will continue to revolve around the Treaty of Waitangi.
Mostly, it will be a rhetorical tool used by Maori interests and a rod for the government’s back by those opposed to it. Like Laws. That may be the biggest impact it has, perhaps bearing out the headline after all: “Ripples from this DRIP will be far-reaching”.
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