It is easy to take international law for granted. It is easy to think of international law as one of those esoteric subjects beloved of ivory tower academics, or a great way for law students to earn six easy credits. All of that may be true (except the “easy” credits part) but it gives only a superficial insight into the pervasiveness and significance of international law in our civilian and judicial lives.
Take our civilian life.
When asked about the relevance of international law, Ken Keith often asked people how they thought a letter sent from New Zealand manages to arrive at its destination overseas. Someone who mails a letter is, by and large, confident the letter will arrive, sometimes a bit late, but arrive it will.
But why should we be so confident? You are sending a tangible thing out of New Zealand to another country. Why should that other country accept it? And what about all the international airspace, or international waters, your letter needs to navigate? What if the carrier belongs to a third country? Aren’t there treaties that govern international aviation? Don’t all of these countries have different legal systems and attribute liability for loss in different ways? So much could go wrong. Underneath that most ordinary transaction is an extraordinary infrastructure of treaties, international organisations and international co-operation that ensures the most ordinary act of posting a letter stays ordinary.
It takes international law to post your letter.
International law affects us as judges as well, although perhaps not as often as it should. Family Court Judges often resort to international law when they deal with Hague Convention applications under the Care of Children Act 2004. I have, however, heard that bright young lawyers are occasionally met with skepticism in other courts when they make submissions that include references to international law.
There may be several reasons for such skepticism. It may arise from a lack of time to deal with an unusual wrinkle added by a submission about international law, particularly if it comes up in a list with the usual 60 matters to deal with, or a sentencing list with the usual 15 matters to consider, in one day. This might be the case if the judge believes more familiar domestic law is perfectly able to deal with the issue.
The skepticism might also arise from nervousness about the sources of international law. There is no equivalent of our domestic legislature in the international legal system. Instead, the binding authority of international law comes from agreements among states, and from long-standing consistent state practice where there is no treaty, called customary international law. That could make domestic judges skeptical of the authority, or perhaps even the reliability, of the international law being cited to them.
We have lately seen overseas departures from binding international legal obligations. This makes it incumbent on judges to maintain the rule of law, and the rule of international law, whenever the opportunity arises.
We are fortunate in New Zealand to have many ways of maintaining the rule of international law. We can resort to principles of statutory interpretation, such as the principle that Parliament is presumed not to legislate in breach of New Zealand’s international obligations.
We have Acts of Parliament that explicitly incorporate international law into domestic law, such as the United Nations Convention on the Law of the Sea Act 1996, and the Arbitration Act 1996 (that was a good year for international law) which incorporates the Model Law of the United Nations Commission on International Trade Law.
And we have access to extraordinarily good resources to research and quickly find international law:
The Ministry of Foreign Affairs and Trade operates New Zealand Treaties Online, a searchable database of all treaties that New Zealand is a party to;
the International Committee of the Red Cross operates a searchable database of 91 international humanitarian law of war treaties, as well as a record of customary international humanitarian law;
and the searchable United Nations Treaty Series Online is also incredibly useful.
In an increasingly frightening world, we judges need to steer the course and remind the world of the virtues of predictability and stability, whenever we get the opportunity to apply international law.