'Sovereignty at the Beginning of the 21st Century - Fundamental or Outmoded?': The 2003 Sir David Williams Lecture (audio)

(Article as later published in the Cambridge Law Journal)

Cambridge Law Journal, 63(3), November 2004, pp. 581–604
Printed in Great Britain
ARTICLES
SOVEREIGNTY AT THE BEGINNING OF THE
21ST CENTURY: FUNDAMENTAL OR
OUTMODED?
K.J. KEITH*
EXACTLY ninety-eight years ago today, fifteen young New
Zealanders played a game of rugby against fifteen members of
colleges of what I understand is known here as ‘‘the other place’’.
One wit said that the game was an even one because six tries were
scored in the first half and seven in the second. I need not tell
you that all the tries were scored by the one side or which side it
was.
What I should tell you is what those young New Zealanders
knew and thought. In the words of a marvellous New Zealand
novelist, Lloyd Jones, in The Book of Fame:
Space was our medium:
our play stuff
we championed the long view
the vista
the English settled for the courtyard
The English saw a thing
we saw the space inbetween
...
The English saw an obstacle
we saw an opportunity ...
The formality of doorways caused the English to stumble into
one another and compare ties
while we sailed through the proud figureheads we were
...
* Judge of the Supreme Court of New Zealand. This paper is based on the text of the Sir David
Williams lecture given at the University of Cambridge on 7 November 2003. I am very grateful
for comments on earlier drafts by Ilias Bantekas, Roger Clark, Jocelyn Keith, David Mullan,
Sir Geoffrey Palmer, Paul Rishworth and Sir David Williams, and for research assistance from
my clerk, Tim Smith. This version also benefits from my final discussions with Sir William
Wade on the evening of the lecture and at lunch the next day.
581
there were the trails of a life spent in a valley and the distance
travelled between obscurity and fame.1
I begin with that game and that journey towards fame, which our
honorand tonight would remind me later included fatigue and the
irresistible attraction of defeat, for a number of reasons.
The first, just mentioned, is personal to Sir David and me and
goes back to our first meeting on 4 May 1970. The second reason
is to make three points about the law applied in those games. The
‘‘laws of rugby’’, as they are called, are privately made—these days
by the International Rugby Board—and are not made under official
authority.2 They are international. And they are administered by
privately appointed referees, not judges appointed by the Queen
following procedures discussed by Sir Sydney Kentridge in last
year’s lecture,3 and having protected tenure. The third and principal
reason is to suggest the central and critical significance of
differences in ways of thinking; ‘‘the thought is what counts’’.4
Einstein and Matisse also caused a stir in 1905 and an artist,
speaking to a reporter from Le Figaro on his new cubist manifesto,
discussed the way the New Zealanders conquered space.5
How then should we think of sovereignty at the beginning of
the twenty-first century? How do ideas of space, of courtyards and
vistas, of obstacles and opportunities, help us in thinking about
sovereignty?
I shall address sovereignty, particularly parliamentary
sovereignty, within national constitutions, notably those of the
United Kingdom and New Zealand; sovereignty in international
law; and the impact of that body of law on national law and on
parliamentary sovereignty. The areas are vast. I realise that I risk
being superficial, but, given the professional interests Sir David and
I share, I do, like those young men, want to champion the long
view, the vista.
Parliamentary sovereignty
The doctrine of parliamentary sovereignty, it was famously said by
R.F.V. Heuston,6 is almost entirely the work of Oxford men. On
parliamentary sovereignty, I emphasise developments in the four
1 (Auckland 2000), pp. 75, 76. 2 Professor Roy Goode in an excellent essay sets out the range of ways in which international
transactions may be regulated, ‘‘Reflections on the Harmonisation of Commercial Law’’ in R.
Cranston and R. Goode (eds.), Commercial and Consumer Law: National and International
Dimensions (Oxford 1993), ch.1. The variables include private or public regulation; unilateral,
bilateral, regional or universal rules; binding, recommendatory or model laws; rules or
authoritative professional opinion. 3 Sir Sydney Kentridge, ‘‘The Highest Court : Selecting the Judges’’ [2003] C.L.J. 55. 4 Lloyd Jones, The Book of Fame, p. 167. 5 Lloyd Jones, The Book of Fame, p. 154. 6 ‘‘Sovereignty’’, in Essays in Constitutional Law (2nd ed., London 1964), p. 1.
582 The Cambridge Law Journal [2004]
decades since he wrote that essay. This is familiar material and
there is an element of presumption in an outsider adding to the
extensive commentary.7 But perhaps distance brings some
perspective, as may appear from the movement of the discussion
from England to the United Kingdom, the Empire and
Commonwealth, Europe and the wider world community.
I begin with a statement of the orthodox Oxford position. It is
hard to go beyond Albert Venn Dicey writing only 120 years ago:
The principle of Parliamentary sovereignty means neither more
nor less that this, namely, that Parliament ... has, under the
English constitution, the right to make or unmake any law
whatever; and, further, that no person or body is recognised
by the law of England as having a right to override or set aside
the legislation of Parliament.8
As I move from England to the Scottish element of the British
constitution, I recall that Dicey was much vexed over the impact of
his proposition on his strongly Unionist views of the Irish
question.9 The argument has of course long been made in the
North that the Act of Union restrained the powers of the
Parliament at Westminster. Fifty years ago, in the case challenging
the use of the numeral II in the title of Queen Elizabeth, the Lord
President, Lord Cooper, agreed with the Lord Advocate’s
concession that Parliament could not repeal or alter such of the
provisions of that Act as were stated to be ‘‘fundamental and
unalterable for all time coming’’. ‘‘The principle of the unlimited
sovereignty of Parliament is a distinctively English principle which
has no counterpart in Scottish constitutional Law’’.10 Professor
Heuston declared that the remarks in the judgment, of which it
7 Professor A.W. Bradley continues to provide excellent description and analysis, e.g. ‘‘The
Sovereignty of Parliament—Form or Substance?’’, in J. Jowell and D. Oliver (eds.), The
Changing Constitution (4th ed., Oxford 2000), p. 23. 8 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed., London 1959),
pp. 39–40 (the emphasis added to the text is reflected in the preface to the first edition where
Dicey speaks only of the constitution, constitutional law and government of England). Sir
Richard Wild C.J. put this passage at the centre of his judgment in Fitzgerald v. Muldoon
[1976] 2 N.Z.L.R. 615, 622, in holding that the Prime Minister had acted unlawfully in
suspending without Parliamentary sanction the operation of a statutory superannuation
scheme. 9 Ibid., p. 68 note 1, and A. V. Dicey and R. S. Rait, Thoughts on the Union Between England
and Scotland (London 1920), pp. 242–244, 252–254 and also 99–100. For a fresh view, the
thesis of which is indicated in its title, see Rivka Weill, ‘‘Dicey was not a Diceyan’’ [2003]
C.L.J. 474. 10 MacCormick v. Lord Advocate 1953 S.C. 396, 411. Lords Carmont and Russell agreed (414
and 417). Lord Cooper referred to the Dicey and Rait book in the course of argument in
MacCormick (406) and, in his judgment, he quoted from ‘‘the modified views expressed by
Dicey’’ there (411–412). Fifty years on consider one Hamlyn lecturer’s prediction of a major
Anglo-Scottish collision over constitutional matters (Anthony King, Does the United Kingdom
still have a constitution? (London 2001), pp. 85–90), and the wider context of devolution, the
subject of valuable publications by the Constitution Unit, most recently Alan Trench (ed.),
Has Devolution made a Difference? The State of the Nations 2004 (Exeter 2004).
C.L.J. Sovereignty 583
might be said that had they not been made by Lord Cooper they
would not have been believed, may be disregarded as completely
contrary to the whole tenor of English authorities on the point.11
But the Court was after all concerned with the constitution of the
United Kingdom.12 Why should a fundamental document such as
the Act of Union not be considered as having some restraining
effect? Such a question has been asked in New Zealand about the
Treaty of Waitangi of 1840 signed on behalf of Queen Victoria and
by Maori chiefs, by means of which New Zealand came under
British ‘‘kawanatanga’’ (‘‘governorship’’) according to the Maori
text (which was the text signed by the great majority of the Maori
signatories) or ‘‘sovereignty’’ in the English text. I do not go down
that route tonight,13 except to note one feature of the Supreme
Court Act 2003 which replaces the Privy Council with what New
Zealand Parliament refers to as a new court of final appeal14 within
New Zealand comprising New Zealand judges. Parliament included
a provision stating that nothing in that Act affects New Zealand’s
continuing commitment to the rule of law and the sovereignty of
Parliament (s.3(2)). It is interesting to see that re-emergence of
Dicey’s duality15 and to compare it with the statement made only
seventeen years earlier in s.16 of the Constitution Act that
Parliament ‘‘continues to have full power to make law for New
Zealand’’. Those contrasting provisions do not appear to be
constitutive or restrictive enactments. The 1986 one takes a
descriptive form. In the regular course of things it could take no
other and it was composed in that way to leave untouched
questions about the extent of Parliament’s powers since the limits
arising from the imperial connection were finally removed in 1947.16
That of 2003 with its inbuilt tension or even contradiction can
11 ‘‘Sovereignty’’, at p. 10. 12 There is the seeming paradox that the Scottish Court accepted that the practice relating to the
numbering of the Kings and Queens had referred to the Kings and Queens of England since
the Norman Conquest: consider the numerals attaching to the Edwards and James (1953 S.C.
at p. 413). 13 For some discussion see Sian Elias QC, ‘‘The Treaty of Waitangi and Separation of Powers in
New Zealand’’, in B.D. Gray and R.B. McClintock (eds.), Courts and Policy: Checking the
Balance (1995), p. 206; Rt.Hon. Justice E.W. Thomas ‘‘The relationship of Parliament and the
Courts—a Tentative Thought or Two for the New Millennium’’ (2000) 31 V.U.W.L.R. 5; and
‘‘The Treaty of Waitangi in the Courts’’ (1990) 14 N.Z.U.L.R. 37, 45–46 (referring in note 28
to a particular exchange between the executive and the courts in 1989–90). 14 On finality, consider the increasing occasions for review of national court decisions by
international courts and tribunals. This is familiar in Europe, but consider e.g., Le Grand in
the International Court of Justice and United States courts and the role of the Human Rights
Committee in respect of New Zealand court decisions, e.g. Herbert Potter v. New Zealand,
decision of 29 July 1997, Report of the Human Rights Committee UNGAOR A/52/40 vol. II
p. 294. 15 Professor Heuston, ‘‘Sovereignty’’, at p. 2 refers to ‘‘the curiously tortuous chapter [13] in
which Dicey attempted to prove that the doctrines of parliamentary sovereignty and the Rule
of Law are not actually contradictory’’. 16 See the Officials Committee, Constitutional Reform (1986).
584 The Cambridge Law Journal [2004]
claim to be no more than a savings provision. As Sir John
Salmond said, no statute can confer this power on parliament for
this would be to assume and act on the very power that is to be
conferred.17
Rather than take those matters further, I move beyond the
United Kingdom to the Empire or rather to its dismantling.
Heuston mentions the centrifugal forces at work after the adoption
of the Statute of Westminster in 1931. They were at work
somewhat earlier if we think of 1776 or, less dramatically, of the
Durham report of 1839.18 He was inclined to think that a failure of
the Imperial Parliament to recite the consent of a Dominion when
purporting to legislate for it would mean that the legislation was
invalid.19 In that he was adhering to what he referred to as the
‘‘new’’ doctrine of parliamentary sovereignty under which
Parliament could rewrite the rules which defined its composition
(the ‘‘who’’) and the procedure to be followed in making law (the
‘‘how’’)—but not restrain its area of power as a sovereign
legislature (the ‘‘what’’). But ‘‘practical politics’’, international law
and much legislative and other practice, as well as some Court
decisions, show that the geographic area of the law making power
of the once mighty Imperial Parliament has been drastically
reduced.20 That is also to be seen, although to a much lesser
degree, in other parts of the Commonwealth, for instance as
territories for which New Zealand was responsible become
independent or become states in free association with it.21 I might
also mention that in 1986 the New Zealand Parliament repealed, so
far as they were part of the law of New Zealand, the remaining
Imperial constitutional statutes including the 1852 Constitution Act
and its amendments and the legislation adopting the Statute of
Westminster. A little later a Westminster statute removed the
17 Jurisprudence (7th ed., London 1924), 170; see also H.W.R. Wade: the common law rule
relating to parliamentary sovereignty is above and beyond the reach of statute; ‘‘The Basis of
Legal Sovereignty’’ [1955] C.L.J. 172, 186–189. For a recent valuable discussion see that of the
Chief Justice, Dame Sian Elias, ‘‘Sovereignty in the 21st Century: Another spin of the Merrygo-round’’ (2003) 14 P.L.R. 148. 18 The Report and Despatches of the Earl of Durham, Her Majesty’s High Commissioner and
Governor-General of British North America (London 1839); and for the United States see 22
Geo. 3 ch. 46 (1782) authorising the King to conclude a peace or truce with the colonies and
plantations in North America and to repeal Acts applying to them. 19 ‘‘Sovereignty’’, pp. 27–28. 20 Compare e.g. the manner and form provision of the Statute of Westminster s.4 with the denial
of legislative power in the Indian Independence Act 1947 s. 6(4) and e.g., Manuel v. AttorneyGeneral [1983] Ch. 77 (C.A.). 21 Compare e.g. the Western Samoa Act 1961 s.4, in which the New Zealand Parliament simply
denied to itself any legislative power with the Cook Islands Constitution which originally
restricted the New Zealand Parliament’s lawmaking powers over the Cook Islands to cases
where the Cook Islands Parliament so ‘‘requested and consented’’ (art 46); in 1981 the Cook
Islands Parliament altered the Constitution to remove even this limited power: Constitution
Amendment (No 9) 1981.
C.L.J. Sovereignty 585
colonial constitutional remnants from the law of the United
Kingdom.22
Another factor bearing on law within the Empire is or was the
court system. A century ago, there were of course two top courts—
the Appellate Committee of the House of Lords for the United
Kingdom and the Judicial Committee of the Privy Council for the
remainder. At the beginning of the second decade of the twentieth
century, in the context of strong local criticism of decisions of the
Privy Council, the Prime Ministers of Australia and New Zealand
proposed that there should be a single Imperial Court which would
include Dominion Judges, particularly when cases from that
Dominion were being heard.23 There should also be provision for
the publication of dissenting opinions, as happened in other
appellate courts. There was support on the final issue—although
that action was not in fact taken until the 1960s under pressure
from Australian judges24—but the idea of a single Imperial Court
received a polite rebuff. It is remarkable that efforts were made as
late as the 1950s and 1960s to revive it.25 While Dominion Judges
did sit in the Privy Council in the early 20th century, a New
Zealand Judge appears not to have sat on a New Zealand case
until the 1970s.26
The power of the Imperial Parliament was always in practice
limited in area and subject matter and over time those limits
became a matter of legal restraint as the legislative powers of the
colonies and dominions extended; so too the power of the executive
in Westminster became limited as colonies obtained responsible
government and moved towards independence; and there was never
a single Imperial judiciary to enforce and apply Imperial law in a
consistent and uniform way. I leave with you the question whether
those major limits on the powers exercisable in London over the
Empire and Commonwealth were ever sufficiently recognised in the
English writings on parliamentary sovereignty.27
Following a chronological as much as a geographic approach, I
next mention a matter discussed with distinction in the first of these
22 Statute Law (Repeals) Act 1989. 23 ‘‘Imperial Conference 1911: Summary of Proceedings’’ Cd 5745; [1911] I A.J.H.R. A4 and Cd
5746–1. See also the argument in 1904 by the Chief Justice, Sir Robert Stout, for a final
Court of Appeal in New Zealand ‘‘Appellate Tribunals for the Colonies’’ (1904)
Commonwealth Law Review 3. 24 Judicial Committee (Dissenting Opinions) Order in Council 1966 and Robert Stevens, The
English Judges: Their Role in the Changing Constitution (Oxford 2002), p. 43. 25 See R. Stevens, The Independence of the Judiciary: the view from the Lord Chancellor’s Office
(Oxford1993), pp. 30–39 and ‘‘Public Law in New Zealand’’ (2003) 1 N.Z.J. P.I.L. 3, 15–16. 26 Police v. Duffield [1974] 1 N.Z.L.R. 419, on which Wild C.J. sat. 27 Compare K.C. Wheare, The Statute of Westminster and Dominion Status (5th ed., London
1953); British Coal Corporation v. The King [1935] A.C. 500 (P.C.); and Jeffrey Goldsworthy,
The Sovereignty of Parliament—History and Philosophy (Oxford 2001).
586 The Cambridge Law Journal [2004]
lectures by Justice Sandra Day O’Connor,28 the impact of European
law and institutions on the British constitution. Because much has
been said on this topic since at least the 1960s, I make only three
references—to the judgment of Lord Bridge in the second
Factortame case in 1990,29 to a debate in the House of Lords on 5
June 199630 and to Sir William Wade’s article, ‘‘Sovereignty—
Revolution or Evolution?’’ published in October of that year.31
With related commentaries,32 they demonstrate the value of
different ways of thinking and speaking by people in different
positions within public life.
Lord Bridge, it has always seemed to me, was declaring, even if
somewhat obscurely, but with the understatement befitting a senior
judge, a constitutional revolution, and not simply some rule of
statutory construction. In the critical passage in his judgment, he
said this:
Some public comments on the decision of the [European]
Court of Justice, affirming the jurisdiction of the courts of the
member states to override national legislation if necessary to
enable interim relief to be granted in protection of rights under
Community law, have suggested that this was a novel and
dangerous invasion by a Community institution of the
sovereignty of the United Kingdom Parliament. But such
comments are based on a misconception. If the supremacy
within the European Community of Community law over the
national law of member states was not always inherent in the
EEC Treaty it was certainly well established in the
jurisprudence of the Court of Justice long before the United
Kingdom joined the Community. Thus, whatever limitation of
its sovereignty Parliament accepted when it enacted the
European Communities Act 1972 was entirely voluntary. Under
the terms of the 1972 Act it has always been clear that it was
the duty of a United Kingdom court, when delivering final
judgment to override any rule of national law found to be in
conflict with any directly enforceable rule of Community law.
Similarly, when decisions of the Court of Justice have exposed
areas of United Kingdom statute law which failed to
implement Council directives, Parliament has always loyally
accepted the obligation to make appropriate and prompt
amendments. Thus there is nothing in any way novel in
according supremacy to rules of Community law in those areas
28 ‘‘Altered States: Federation and Devolution at the ‘Real’ Turn of the Millennium’’ [2001]
C.L.J. 493. 29 R v. Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) [1991] 1 A.C. 603,
658–659. 30 Hansard (H.L.), 5 June 1996, cols. 1254–1313. Is anything to be made of the change of the
heading of the initial print of Hansard from ‘‘The Judiciary : Public Controversy’’ to that in
the final version, ‘‘Judiciary, Legislature and the Executive’’? 31 (1996) 112 L.Q.R. 568. 32 Particularly by Sir Neil MacCormick: e.g. his Questioning Sovereignty: Law, State, and Nation
in the European Community (Oxford 1999).
C.L.J. Sovereignty 587
to which they apply and to insist that, in the protection of
rights under Community law, national courts must not be
inhibited by rules of national law from granting interim relief
in appropriate cases is no more than a logical recognition of
that supremacy.
The 1996 House of Lords debate, initiated by Lord Irvine of Lairg
before the Labour Party victory at the polls, is significant not so
much for understatement but for non-statement, for what was not
said, by those who participated in the debate. True, several Law
Lords repeated the orthodox view, for instance in the words of
Lord Reid who said that it was not beyond the power of
Parliament to do things against strong moral, political and other
reasons. ‘‘If Parliament chose to do any of them, the courts would
not hold the Act of Parliament invalid’’.33 Lord Wilberforce was
one who had no doubt about the supremacy of Parliament. ‘‘It is
written in stone’’. In addition to referring to Lord Reid’s statement
he mentioned another to the same effect by Lord Wright in the
famous or notorious wartime case, Liversidge v. Anderson.
34
It was an historian, Lord Beloff, coming late in the debate, who
emphasised the silence. Nothing that he had proposed to say, he
declared, had been said. The serious issue to which he was
surprised no noble and learned Lord had yet referred was the role
of the two bodies of European law and of the two European
Courts.
After all, it is the cases which have involved the intervention of
European courts that have been the most important in
restricting the sovereignty of our Parliament.
He was surprised that, although many references had been made to
Lord Denning, not much attention had been paid to the fact that
he was one of the few senior members of the judiciary who pointed
out early on that the whole British judicial and legal system would
now be seriously altered in ways which had perhaps not been
foreseen when the country acceded to the Treaty of Rome. On an
issue fundamental to our constitutional way of being the Law
Lords had, on the whole, been very reticent.35
The criticism has considerable force—although I would except
Lord Bridge (speaking in a judgment and not in a debate) from
33 Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, 723. 34 [1942] A.C. 206, 260–261. 35 Hansard (H.L.), 5 June 1996, cols. 1298–1299. He said that ‘‘to find self-restraint among the
judges of the two European courts is as improbable as to find alcoholic self-restraint among
the practitioners of association football’’ and concluded, ‘‘when we consider matters which
should preoccupy us and which, in the light of history, are likely to seem characteristic of the
age in which we live, their echo in your Lordship’s House is rather muffled’’.
588 The Cambridge Law Journal [2004]
it—and, as Sir William Wade has suggested,36 the criticism might
also be directed at Ministers in the lead up to the 1972 legislation
and the later referendum. That brings me to his 1996 contribution
to the debate, a contribution which may be related back to his
path-breaking article of 1955. I am persuaded by his later
conclusion that the Judges when faced with the novel situation
presented by the entry of the United Kingdom into the European
Community in 1972 adopted or declared a new rule of recognition
or ultimate legal principle about the validity and effect of Acts of
Parliament. Practical politics required that change on Britain’s
creation of new ties with Europe. Perhaps the professor can speak
with greater clarity and plainness than the judge or the politician.
Certainly he did in this case, as have others who have disagreed
with the conclusion that a ‘‘revolution’’ has occurred.37 However
the 1972 decisions are to be seen, it is undoubtedly the case that a
major substantive limit on the area of the power of Parliament
arises from the United Kingdom being in Europe.38
I have so far considered three possible limits on the areas of
Parliament’s powers. I now come to the questions whether
Parliament can redefine itself and whether it can require new
procedures to be followed if certain laws are to be enacted? The socalled ‘‘new’’ doctrine of the 1950s and later says that Parliament
can do that,39 but that view has been strongly challenged.40 I
mention the matter only to indicate the need for caution and the
value of developing relevant conventions. On caution, consider a
statute, passed in the last days of a disputatious Parliament by a
narrow majority, requiring a 75% vote of any later Parliament or a
referendum of the electorate if any of the statutes passed during
that Parliament was to be repealed or amended. Such a requirement
that legislation require the support of more than half the members
of the New Zealand House of Representatives, the House has said,
36 ‘‘What has happened to the Sovereignty of Parliament’’ (1991) 107 L.Q.R. 1, 3 and note 16
above, 573–574; on the state of knowledge of members of Parliament (the subject of the
fourth sentence of the passage from Lord Bridge quoted above) see Danny Nicol, EC
Membership and the Judicialisation of British Politics (Oxford 2001) interestingly reviewed by
Chloe Wallace in (2003) 66 M.L.R. 167 and discussed by Ian Loveland (who supervised
Nicol’s research) in [1995] Public Law 205, 206. Of the mass of recent writing, I suggest that
Ferdinand Mount’s The British Constitution Today (1992) stands out and calls for greater
attention by lawyers. 37 See, among others, Sir John Laws, ‘‘Law and Democracy’’ [1995] Public Law 72, 88–89. 38 Anthony King in his third Hamlyn lecture, ‘‘The United Kingdom Constitution Amended’’, in
Does the United Kingdom still have a Constitution, pp. 54–55, lists ‘‘Europe’’ as the first of a
number of constitutional changes, cumulatively of immense significance, which in his view
crept up on the country, unannounced; see also pp. 80 and 95. See more broadly Robert
Cooper, The Post-Modern State and the World Order (London 2000). 39 E.g., Heuston, ‘‘Sovereignty’’, especially pp. 6–7. 40 E.g., Wade, ‘‘The Basis of Legal Sovereignty’’ [1955] C.L.J. 177.
C.L.J. Sovereignty 589
can be introduced into New Zealand legislation only if it is adopted
by the same majority.41
On developing conventions, since 1956 certain basic elements of
the New Zealand electoral system can be amended only with a 75%
majority of Parliament or a referendum.42 That requirement has
been consistently followed; and notwithstanding the fact that the
requirement is not itself protected from repeal or amendment by a
regular statute the Attorney-General, in the midst of the vigorous
debate which led to the introduction of a proportional electoral
system in 1993, declared that that requirement could itself be
altered only by one of those special procedures.43
My fifth matter—the sovereignty of parliament in the wider
context of the international community—relates back to private law
making, through custom and more formal statements, and forward
to the discussion of sovereignty in international law. As much
writing about international commerce, finance and communications
makes plain, those critical parts of the world economy are governed
in large measure by private law formulated, to take just one
example, in the standard terms of the International Chamber of
Commerce.44 Over the centuries some of those practices and
standard terms have become part of the common law, for instance,
through the law merchant (consider Lord Mansfield),45 or
incorporated in legislation as in some of the later nineteenth
century commercial statutes,46 or codified and developed in treaties
or model laws such as those prepared by UNCITRAL47 or stated
authoritatively by bodies such as UNIDROIT.48
Parliaments are of course free to legislate when the matter is
governed only by custom or privately promulgated rules (although
if the custom has developed into a rule of customary international
law, any legislation must, as a matter of international law, conform
with that rule), but, as the continuing existence of many of those
rules—like those made by the International Rugby Board—shows,
such matters are frequently seen as not being the State’s business.49
41 Standing Orders of the New Zealand House of Representatives, S.O. 261; see also Cabinet
Manual (2001) p. 6. 42 Electoral Act 1993, s. 268 and Constitution Act 1986, s. 17; the original provision was s.189
of the Electoral Act 1956. 43 Hon. Paul East (3 August 1993) 537 N.Z.P.D. 17140–17141. See also Report of the Royal
Commission on the Electoral System, Towards a Better Democracy (1986), pp. 287–292. 44 E.g. Goode, ‘‘Reflections on the Harmonisation of Commercial Law’’ in Cranston and Goode
(eds.) Commercial and Consumer Law. 45 C.H.S.Fifoot, Lord Mansfield (Oxford 1936). 46 E.g., Sale of Goods Act 1893 (U.K.); Bills of Exchange Act 1882 (U.K.). 47 E.g., United Nations Convention for the International Sale of Goods 1980; UNCITRAL.
Model Law on International Commercial Arbitration 1985. 48 E.g., UNDROIT Principles of International Contracts. 49 Private lawmaking or contracting out (a process facilitating it) is not of course an unmitigated
good. Robert Cooper has recently described the unique circumstances of Afghanistan under
590 The Cambridge Law Journal [2004]
Sovereignty and International Law
The references to treaties and customary international law bring me
to the sixth matter relevant to Parliamentary sovereignty—the role
of international law; and to my second major area of concern,
sovereignty in international law and the impact of international law
on national law. In this area too facts are critical. As T. H. Huxley
once declared, many a beautiful hypothesis has been slain by an
ugly fact.50 Much recent writing has emphasised the growing
integration of economies, financial systems and information systems
and their impact on law and legal institutions and on the role of
the state.51
Ten years ago, the French Ambassador to the European Union,
Jean-Marie Guehenno, published a book La Fin de la De´mocratie.
The chapter headings give a sense of his argument. They include
‘‘The End of the Nation’’, ‘‘The End of Politics’’, ‘‘An Empire
without an Emperor’’, ‘‘Religions without God’’, ‘‘Imperial
Violence’’ and ‘‘The Imperial Age’’. When two years later the book
was translated into English, The End of Democracy had become
The End of the Nation State.
52
This is what the Ambassador, now Assistant Secretary-General
of the United Nations for Peacekeeping Operations, said about the
nation:
Too remote to manage the problems of our daily life, the
nation nevertheless remains too constrained to confront the
global problems that affect us. Whether it is a question of the
traditional functions of sovereignty, like defence or justice, or
of economic competencies, the nation appears increasingly like
a straitjacket, poorly adapted to the growing integration of the
world.53
He had earlier made the point that the state was poorly equipped
to collect taxes, because of the mobility of investment and talent,
and hardly more effective in managing spending.54 After calling
attention to the huge problems with defence policy he turned to the
legal system:
the Taliban: ‘‘What was left of the state was dominated by an extreme Islamist regime that
contracted out different state functions to different bodies: finance to drug barons, health and
welfare to the United Nations and various NGOs, and defence to Osama bin Laden’’. The
Breaking of Nations : Order and Chaos in the Twenty-First Century (London 2003), p. 68. 50 Biogenesis and Abiogigenesis, in Collected Essays (London 1894–1908), vol. viii. Huxley was a
proponent of Darwinism. 51 See e.g., the masterly study by Paul Kennedy, Preparing for the Twenty-First Century (London
1993). 52 J.-M. Guehenno, The End of the Nation State (Minneapolis 1995). 53 Guehenno, End of the Nation State, pp. 12–13. 54 Guehenno, End of the Nation State, pp. 10–11.
C.L.J. Sovereignty 591
No juridical system can claim to be immune from international
influences, as the increasing importance of the law elaborated
in Brussels in a regulation of the different countries of the
European Union clearly shows. This constraint is not only the
consequence of an institutional construction resulting from a
political will. It reflects the evolution of economies and the
need to conform to international norms, which define
themselves on a supranational level: a country that isolates
itself within particular juridical norms, believing that it will
protect its industry from incursions from abroad, deals its
industries a fatal blow, for it seals its cutting edge industries
within a market too restricted to allow for the amortisation of
research expenditures and the development necessary to
maintain competitivity.55
Let me mention some facts supporting the sense of the rapidly
developing technology. The UNDP, in one of its valuable Human
Development Reports, under a heading ‘‘The Shrinking World’’,
gives some of the facts and figures supporting that heading and
other expressions such as ‘‘the global village’’ and ‘‘the world
without borders’’. The cost of maritime transport, it says, has
dropped over the last seventy years to about one third of what it
was and the cost of air travel per mile flown has dropped about the
same, in just thirty years. The cost of international telephone calls
has dropped much more, to about 1/50th since 1940. There has
been an amazing increase, matching those figures, in the use of
those technologies. Two New Zealand figures also make the point.
The number of people flying in and out of New Zealand over the
last forty years has increased from about 50,000 per year to well
over 4,000,000. In 1950 New Zealanders, in the course of the whole
year, made 5,793 outward telephone calls, or just sixteen a day: the
Post Office carefully recorded each and every one. When the
information was last publicly available about fifteen years ago the
daily figure had reached nearly 100,000 and that figure takes no
account of faxes and e-mail. The UNDP says that the use of the
Internet is doubling every year and telecommunications are
increasing at 20% a year. The huge information flows across the
globe have transformed the way in which business is done.56
But we should pause. Some things, the UNDP reminds us, are
not that different from the decade with which I began. Very
helpfully it recalls that for seventeen industrial countries for which
there are data exports in 1913 as a share of GDP were 12.9%, not
much below the level in 1993 of 14.5%. Capital transfers as a share
of those industrialised countries’ GDP are still smaller than they
55 Guehenno, End of the Nation State, p. 15. 56 UNDP Human Development Report (1997), p. 83.
592 The Cambridge Law Journal [2004]
were in the 1890s, and earlier eras of globalisation saw far greater
movement of people around the globe.
We did not need 11 September to tell us that the great
technological and ideological changes over recent decades are not
entirely benign in their effects. To take one example, some have
estimated that the world illegal drug business—a transnational
game that is far more powerful than some states—generates
revenues in excess of the total public aid for development, an
estimated $100 billion.57
A leading British and European diplomat, Robert Cooper,
arguing that interference in the internal affairs of another country is
not an aberration in foreign policy, makes the point in these terms:
The difficulty is that as borders become more open—itself a
consequence of a foreign policy that has brought a long period
of peace—the impact of developments abroad increases.
Foreign competition, the illegal trade in drugs, illegal
immigration and ... opportunities for international terrorism
multiply. These challenges on the home front have their origin
in problems abroad: wars and failed states captured by corrupt
or criminal interests. All require foreign policy solutions. In
war, foreigners arrive in violent and obvious ways; in peace,
their arrival is less dramatic and their presence less obtrusive,
but the effects can be just as far-reaching.58
The title to his book The Breaking of Nations : Order and Chaos in
the Twenty-First Century, suggests his broader thesis.
For some decades those developments have led the international
community to adopt an extensive array of treaties designed to
combat the evils, most recently last Friday by the United Nations
General Assembly adopting a convention against corruption.59
The international facts of a century ago were reflected by
international law making, even if on a lesser scale than at present.
In 1899 and 1907 the Hague Peace Conferences were held, the first
major international law making conferences not designed to deal
with the aftermath of major warfare.60 It was time of great
optimism, reflected in the first inaugural lecture in law ever given at
Victoria University College in Wellington, New Zealand, almost one
hundred years ago, by John Salmond. He chose not jurisprudence
57 Guehenno, End of the Nation State, p. 3. For a further discussion of organised crime and the
declining authority of states, see S. Strange, The Retreat of the State: The Diffusion of
Power—the World Economy (Cambridge 1996). 58 Robert Cooper, The Breaking of Nations : Order and Chaos in the Twenty-First Century
(London 2003). 59 United Nations Convention against Corruption, New York, 31 October 2003. 60 E.g. Arthur Eyffinger, The 1899 Hague Peace Conference : ‘The Parliament of Man, the
Federation of the World’ (The Hague 1999).
C.L.J. Sovereignty 593
nor torts nor contracts but international law as his subject.61 At
about that time, as well, the first moves were made towards the
establishment of international labour law to add to the already
extensive bodies of treaties governing and protecting trade,
communications (the telegraph, including submarine cables, and the
post), intellectual property, railways, waterways, wild animals in
Africa, North Sea fisheries and the victims of warfare, regulating
sanitary matters and the sugar trade, providing for the gramme and
the metre as the international weights and measures, fixing
Greenwich as the meridian, and prohibiting the slave trade.62 The
availability of other methods of regulating international
transactions appears from the fact that much of maritime law at
that time was not the subject of extensive multilateral treaties law
but was in large part left to custom, standard contracts and forms,
customary international law and national law.63
Under our constitutions, the orthodox view then and is now
that Parliament, both here and in New Zealand, can override treaty
obligations along with other obligations under international law—
with at least the qualification, however it is to be seen, for the
United Kingdom in respect of Europe.64
But the position in international law is flatly to the contrary.
International law prevails over national law. As declared in the
Vienna Convention on the Law of Treaties, a party to a treaty may
not invoke the provisions of its internal law as a justification for
failing to enforce a treaty.65 The International Law Commission has
made it crystal clear in its draft articles of 2001 on state
responsibility that that proposition is not confined to treaty
obligations. It applies to obligations under general international law
as well.66 That position is routinely taken by states. Again to go
back a century, the United Kingdom took exactly that position in a
dispute with the United States over American legislation which
gave American vessels a preference, in breach of the Panama Canal
61 J. Salmond, ‘‘If Germany Came to New Zealand’’, reported in The New Zealand Mail (1
August 1906), reprinted in (1999) 30 V.U.W.L.R. 489. 62 The Index of British Treaties 1101–1968 (1970) edited by Clive Parry and Charity Hopkins
shows that the United Kingdom had concluded about 3000 treaties by 1905; The Multilateral
Treaty Calendar 1648–1995 by C.L. Witkor lists 6048 multilateral treaties in total and about
520 up to 1905; and Manley O. Hudson in his International Legislation, vol. 1, xix to xxxvi
lists 257 multipartite treaties for the 50 years from 1864–1914. 63 E.g., D.P. O’Connell, The International Law of the Sea (Oxford 1983). 64 See pp. 586–589, above. 65 Article 27 of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS, p. 331. 66 Draft articles 3 and 32, Report of the International Law Commission 2001 (G.A.O.R., A/55/
10); see also the authorities supporting those propositions in the commentaries to the two
drafts, also reproduced in James Crawford, The International Law Commission’s articles on
State Responsibility : Introduction Text and Commentaries (Cambridge 2002), pp. 86–90 and
207–208.
594 The Cambridge Law Journal [2004]
treaties, in using the Canal. On the urging of President Woodrow
Wilson, Congress repealed the offending legislation.67
Governments and Parliaments in our tradition are very
conscious of that overriding international obligation. So too,
perhaps increasingly, are our courts, as I shall discuss. But before I
consider the roles of parliaments and courts looking outwards, a
word about sovereignty in international law. Can we sensibly think
of states being sovereign in relation to one another? Does not the
standard meaning of sovereignty incorporate within it supremacy,
of ruling over or from above? How does that fit with the
coexistence and cooperation of 191 or more states in the world
community?
As Professor J.L. Brierly, Chichele Professor of International
Law and Diplomacy at the University of Oxford, warned us
seventy-five years ago, we must be careful to ensure that words are
our servants and not our masters. This is not simply a matter of
semantics. Writing between the World Wars, he said :
Since Hegel, the belief in the state as a superperson has
remained until our own time as practically unshaken with
disastrous effects not only on the clearness of our thought on
political affairs, but [also] on action.68
He condemns political theory as generally treating the State—unlike
the individual—as if it existed in a vacuum. After a lengthy
meticulous study, he reaches a conclusion which I find compelling:
So long ... as political theory clings to sovereignty, and
therefore holds that the state consists in the subjection of a
nation to a sovereign lying outside the law, the coordination of
international with national law cannot be effected. For
sovereignty misrepresents the true character of international
law in three ways: it leaves no basis for its validity, since there
is no sovereign in the international community; it makes its
own content depend upon what the state has drawn into the
circle of its own functions, because it denies any direct
connection between the international community and the
international interests which have somehow to be evaluated,
and claims that they can be provided for only indirectly, and
through the state; and since only states can be subjects of
international law, it makes of the international community
nothing but an association of sovereigns. But the system that
we can see in operation around us actually contradicts all these
67 Clive Parry (ed.), A British Digest of International Law vol. 2b (London 1967), pp. 321–338. 68 ‘‘The Basis of Obligation in International Law’’, in Sir Hersch Lauterpacht and C.H.M.
Waldock (eds.), The Basis of Obligation in International Law and Other papers by the late
James Leslie Brierly (Oxford 1958), pp. 1, 29. This is the original English text of Brierly’s
Hague lectures, ‘‘Le fondement du caracte`re obligatoire du droit international’’ (1928) 23
Hague Recueil 467; see also Eli Lauterpacht, ‘‘Sovereignty—Myth or Reality’’ (1997)
International Affairs.
C.L.J. Sovereignty 595
three conclusions, and shows us that international law has the
same foundation, the same content, and the same subjects as
national law. It differs only in being effective for a larger
community, and in being less developed in its organisation.69
His conclusion is reflected in the Charter of the United Nations
which, contrary to an assertion commonly made, does not include
State sovereignty within its purposes and principles. Rather its first
principle is that the organisation is based on the principle of
sovereign equality of all its members. That principle was elaborated
in the Friendly Relations Declaration adopted by consensus by the
United Nations General Assembly on the 25th anniversary of the
United Nations at the end of 1970:
All States enjoy sovereign equality. They have equal rights and
duties and are equal members of the international community,
notwithstanding differences of an economic, social, political or
other nature.
In particular, sovereign equality includes the following elements:
(a) States are juridically equal;
(b) each state enjoys the rights inherent in full sovereignty;
(c) each state has the duty to respect the personality of other
States;
(d) the territorial integrity and political independence of the
State are inviolable;
(e) each state has the right freely to choose and develop its
political, social, economic and cultural systems;
(f ) each State has the duty to comply fully and in good faith
with its international obligations and to live in peace with
other States.70
That text incorporates real tensions. It is a text prepared through a
testing political-legal diplomatic process which required wording
acceptable to all United Nations members. What, for instance, are
‘‘the rights inherent in full sovereignty’’, given the emphasis on
duties, international obligations and equality? That emphasis shows,
as John H. Jackson has explained in his Lauterpacht lectures, that
attention is now better given to the allocation of power rather than
the arid details about sovereignty or its disappearance.71
I leave these questions and return to the role of national
parliaments and courts. Again, we should pay greater attention
than often happens to the facts—among them the legislation
responding to the great array of international obligations which
69 Ibid., at pp. 62–63. 70 G.A. Resn 2625 (XXV). 71 ‘‘Sovereignty—Modern: a New Approach to an Outdated Concept’’ (2003) 97 A.J.I.L. 782.
596 The Cambridge Law Journal [2004]
have to be brought within our legal system. Over twenty years ago,
a Senior Lecturer in Law at the University of Adelaide, now the
Whewell Professor of International Law at this University, prepared
an outstanding paper on ‘‘The International Law Standard in the
Statutes of Australia and the United Kingdom’’. In it he made
passing reference to Canada and New Zealand.72 He provides a
valuable indication of the extent of the impact of treaties on
national law and the range of techniques used by legislatures to
give effect to treaties in national law. The Australian, British and
Canadian Yearbooks of International Law continue to provide
valuable additional material on the many statutes enacted year by
year in those jurisdictions concerning matters of international law.
New Zealand surveys of the Statute Book have concluded that
about 200 of the approximately 600 public statutes appear to raise
issues concerning New Zealand’s international rights and
obligations. In alphabetical terms, the list begins with the Abolition
of the Death Penalty Act 1989 and ends with the Weights and
Measures Act 1987.73
But we are in need of further studies along the lines of that
done by James Crawford all those years ago. So too are we in need
of more scholarly studies of the steps that have been taken in a
number of countries, through Parliament and more broadly, to
exercise control or influence over the executive’s prerogative of
treaty making.74 The relative absence of such studies probably
matches the relative neglect of legislation to be found generally in
academic writing on the law. Cases and courts still get the lion’s
share of attention, but should they?
I should nevertheless say something about the place of
international law in national courts, first to emphasise from a
judicial perspective the range of roles it can and does play in
national legal systems, second to provide further evidence of
practical restraints on national legislative absolutism, third to
suggest the value of thinking differently, and finally to stress the
need for all parts of our profession to see things steadily and to see
72 James Crawford, ‘‘The International Law Standard in the Statutes of Australia and the
United Kingdom’’ (1979) 73 A.J.I.L. 638. 73 See e.g., the categories of treaties reproduced from a New Zealand Law Commission Report
in ‘‘Freedom of Information and International Law’’, in Jack Beatson and Yvonne Cripps
(eds.) Freedom of Expression and Freedom of Information: Essays in Honour of Sir David
Williams (Oxford 2000), pp. 361–362. Legislation Advisory Committee Guidelines on Process
and Content of Legislation (2001) Appendix 3 provides a catalogue of legislation expressly
implementing or reflecting international obligations. 74 See e.g., A. Bracegirdle, ‘‘Domestic procedures for international treaty actions: Description of
New Zealand procedures’’ (2003) 14 Public Law Review 28, also S. A. Riesenfeld and F. M.
Abbott (eds.), Parliamentary Participation in the Making and Operation of Treaties: A
Comparative Study (Dordrecht 1994).
C.L.J. Sovereignty 597
them whole.75 I make the points summarily. Much more can be and
has been said about each.76
The first is that it is ‘‘well established that while the making of a
treaty is an Executive act, the performance of its obligations, if
they entail alteration of the existing domestic law, requires
legislative action. The stipulations of a treaty duly ratified by the
Executive do not, by virtue of the treaty alone, have the force of
law’’.77
Second, a treaty may have a national constitutional role. For
instance, the Chicago Convention on International Civil Aviation
recognises that States have sovereignty over the airspace above
their territory and territorial sea. Those provisions ‘‘incorporate
principles of customary international law [which] are reflected in
fundamental constitutional arrangements and leave States parties
free to exercise their authority recognised by international law’’.78
Third, treaties may be evidence or declaratory of customary
international law which is part of national law without distinct
legislative incorporation. One recurring instance is the use by
Courts of the provisions of the Vienna Convention on the Law of
Treaties relating to good faith compliance with treaties and their
interpretation. Treaties and proposals for treaties have also been
among the material drawn on in decisions about foreign state
immunity and high sea freedoms.79
Fourth, treaties may be relevant to the determination of the
common law, as in a recent major defamation case in New
Zealand,80 but not in a recent privacy case in the House of Lords.81
Fifth and finally, courts may interpret legislation by reference to
international law and treaties. Over a long period in the United
Kingdom and in New Zealand, the Courts have stated and applied
the presumption or principle of statutory interpretation that, so far
as its wording allows, legislation should be read in a way which is
consistent with the country’s international obligations.82
Much will turn on the drafting of the legislation and of the
treaty. And here as elsewhere, much will depend on the attitudes,
75 Compare Matthew Arnold, ‘‘To a Friend [Sophocles]’’. 76 ‘‘The Impact of International Law on New Zealand Law’’ (1998) 6 Waikato L.Rev. 1, 20–31,
on which I draw in this part of the article, provides further detail and references. 77 New Zealand Airline Pilots’ Association v. Attorney General [1997] 3 N.Z.L.R. 269, 280–281,
citing the Privy Council in Attorney-General for Canada v. Attorney General for Ontario [1937]
A.C. 326, 347. 78 Ibid., at pp. 284–285. 79 On the former see Governor of Pitcairn and Associated Islands v. Sutton [1995] 1 N.Z.L.R. 426
and on the latter see Sellers v. Maritime Safety Inspector [1999] 2 N.Z.L.R. 44. 80 Lange v. Atkinson [2000] 3 N.Z.L.R. 385. 81 Wainwright v. Home Office [2003] 3 W.L.R. 1137. 82 R v. Keyn (1876) 2 Ex. D. 63, 85; Mortensen v. Peters (1906) 8 F. (J) 93; R v. Dodd (1874) 2
N.Z.C.A. 598; New Zealand Airline Pilots Association v. Attorney-General [1997] 3 N.Z.L.R.
269.
598 The Cambridge Law Journal [2004]
education and knowledge of the Bench and the Bar. Professional
culture may indeed have a greater significance than technical
aspects of the treaty and legislation.83 For instance, is a finding that
the legislation is ambiguous a prerequisite to access to the treaty?
The answer to that question may be reflected in the very structure
of the judgments interpreting the legislation. The House of Lords
not long ago required a showing of ambiguity.84 New Zealand
courts on the other hand have not required that. In this you may
see a difference in national as well as legal culture.
Two sharply contrasting judgments given in 1982 relating to
Western Samoa—one given by the Privy Council presided over by
Lord Diplock, the other by the Western Samoan Court of Appeal,
consisting of New Zealand judges and presided over by Sir Robin
Cooke—may be seen as illustrating the significance of culture and
approach.85
In the former case the Privy Council, reversing the New Zealand
Court of Appeal and overruling an earlier decision of that Court,86
held that persons born in Western Samoa between the enactment of
the British Nationality and Status of Aliens (in New Zealand) Act
1928 and its repeal and replacement by the British Nationality and
New Zealand Citizenship Act 1948 were natural born British
subjects in terms of New Zealand law and became New Zealand
citizens under the 1948 Act when that status was first established.
For the great bulk of that time Western Samoa was a mandated
territory under article 22 of the Covenant of the League of Nations.
In terms of that provision it had ‘‘ceased to be under the
sovereignty’’ of Germany and in application of ‘‘the principle that
the well-being and development of such peoples form a sacred trust
of civilisation’’ it was to be under the ‘‘tutelage’’ of New Zealand
as Mandatory. That tutelage was subject to scrutiny by the League.
Western Samoa did not come under British or New Zealand
sovereignty. It moved to trusteeship status under the United
Nations in 1946 and became independent in 1962.
After setting out the procedural history of the case and a related
case, Lord Diplock mentioned that a formidable argument based
on the terms of the 1928 Act had unfortunately not been brought
to the attention of the Court of Appeal and had emerged for the
first time in the closing stages of plaintiff ’s counsel’s opening
83 E.g. R. Higgins, Problems and Process: International Law and how we use it (Oxford 1994), ch.
12. 84 E.g. R v. Secretary of State for the Home Department, Ex parte Brind [1991] 1 A.C. 696. 85 Lesa v. Attorney-General [1982] 1 N.Z.L.R. 165 and Saipa’ia Olomalu v. Attorney-General
(1982) reported in (1984) 14 V.U.W.L.R. 275 (I was a member of the Samoan Court). 86 Levave v. Immigration Department [1979] 2 N.Z.L.R. 74 (CA) relating to an Act of 1923
replaced by the 1928 Act in issue in the Lesa case.
C.L.J. Sovereignty 599
address. ‘‘Their Lordships will accordingly go straight to the Act of
1928 and first consider its construction independently of the Act of
1923 which it repealed’’. That focus on the particular wording and
in particular on the proposition that the Act was to apply to
Western Samoa in the same manner in all respects as if it were part
of New Zealand led the Privy Council inexorably to the conclusion
that in the present context Western Samoa was part of His
Majesty’s dominions and within His allegiance and that birth there
conferred natural born British subject status. It was only in the last
substantive paragraph of the judgment that the Privy Council
moved away from the legislation and referred to the ‘‘strongest
argument’’ to the contrary—certain resolutions about nationality in
mandated territories adopted by the Council of the League of
Nations shortly before the enactment of the 1923 Act. Those
resolutions (which the Privy Council did not set out) provided:
(i) that the status of native inhabitants is distinct from that of
nationals of the Mandatory power;
(ii) that native inhabitants are not invested with the nationality
of the Mandatory Power by means of the protection
extended to them;
(iii) that it was not inconsistent with (i) and (ii) that individual
inhabitants should voluntarily obtain naturalisation from
the Mandatory Power under its own law; and
(iv) that it was desirable that native inhabitants who received
the protection of the Mandatory Power should be
designated by a descriptive title specifying their status
under the Mandate.
Consistently with those resolutions ( particularly the third) and in
accordance with Imperial legislation agreed to by the
representatives of the United Kingdom and the Dominions at
Imperial Conferences, the 1923 and 1928 Acts provided for
voluntary naturalisation. The dispute was whether the Acts had any
wider effect. The Privy Council agreed with the Court of Appeal
that, although the resolutions did not impose obligations binding
on New Zealand under international law (although resolutions (i)
and (ii) could be seen as authoritatively declaring the position
under the Covenant and Mandates and interpreting existing
obligations),87 they would be relevant in resolving any ambiguity in
the meaning of the legislation. But the Privy Council was unable,
for the reasons it had already stated, to find any ambiguity or lack
of clarity in that language. The New Zealand Court by contrast
87 See article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties.
600 The Cambridge Law Journal [2004]
had thought that the legislative provisions so far as they related to
Western Samoa could ‘‘not be sensibly considered without a
reference to the general background of the relations between that
territory and New Zealand up to the time of the passing of the
[1923] Act’’. It began with the German renunciation of right and
title to Western Samoa in the Treaty of Versailles and traced the
various international, imperial and national measures that were
taken to set up the mandate, recording two propositions that were
not disputed by counsel for the person claiming citizenship : the
mandate did not cause the inhabitants of the territory to become
British subjects and they could not be naturalised under the law in
force before 1923. The Court then set out the League resolutions
mentioned above, and commented that
In the absence of unequivocal language it is not to be
supposed that the New Zealand Parliament would intend to
legislate in a manner inconsistent with moral, if not legal,
obligations in this sphere ....
88
The difference between the two courts can be put in terms of the
emphasis each placed on particular legislative words and their
‘‘unambiguous meaning’’, on the one side, and, on the other, their
context (not just the Mandatory system but also the Imperial one
given the exclusive control exercised at that time by the Imperial
Parliament over the general grant of British subject status and the
still subordinate position of Dominion legislatures) and purpose
(relevantly here ‘‘to make special provisions for the naturalisation
of persons resident in Western Samoa’’ in accordance in fact with
agreements reached at the Imperial conferences). While the Privy
Council went ‘‘straight’’ to the 1928 Act, the New Zealand Judges
looked at it, like its 1923 predecessor, in its broader contexts.89
While not denying that they were confined by the words of the
statute they did not see themselves as confined to them.90
At least in part as a result of adopting that different approach,
the New Zealand Judges were able to give what many—including
the two governments—considered was a more accurate account of
the relationship between the mandated territory and the mandatory
power than that given by the Privy Council which on the basis of
an incomplete reference to one provision of the Mandate (and no
88 [1979] 2 N.Z.L.R. at 79. 89 See the surprising comment by the Privy Council that the 1923 resolution appeared to be
inconsistent with the provision in article 2 of the Mandate ‘‘that Western Samoa was to be
governed as an integral part of the Dominion of New Zealand’’, [1982] 1 N.Z.L.R. at 176. I
say surprising since when the article is read as a whole and in context the resolution appears
to present no inconsistency at all; and the Council of the League might not be expected to act
inconsistently with its own constitution and the mandates which it had agreed to. 90 E.g. F. Frankfurter, ‘‘Some Reflections on the Reading of Statutes’’ (1947) 47 Columbia L.
Rev. 527, 543.
C.L.J. Sovereignty 601
other part of the international and imperial background) saw no
difficulty in a mandated territory being in essence under the
sovereignty of the Mandatory power.91 The more comprehensive
contextual approach of the New Zealand judges might be thought
more appropriate where constitutional and international elements
are central.92
The structure of the judgment of the Western Samoan Court of
Appeal is similar to that of the New Zealand Court of Appeal in
the citizenship case. The question was whether provisions of the
Western Samoan Electoral Act which limited the suffrage and
candidacy to matai (chiefs) were unconstitutional, as the Chief
Justice had held, because they breached constitutional guarantees of
equality before the law and equal protection under the law. After
setting out the constitutional and statutory provisions and noting
that the suffrage had been restricted to the matai when Western
Samoa was still administered by New Zealand, the judgment
reproduced substantial passages from the 1961 report of the United
Nations Plebiscite Commissioner which summarised discussions of
the limited suffrage which had occurred in 1954 and 1959. Those
extracts made clear the strong wish of those involved to maintain
that system notwithstanding strong recommendations to the
contrary from the United Nations.93 The Court then summarised
the Chief Justice’s judgment, commenting on some of the reasoning
and noting that he had given weight to United States decisions on
the guarantee of equal protection of the laws.
Under the heading Comparisons with other Constitutions, the
Court said that there was no close analogy with the United States.
But help could be gained from the Universal Declaration of
Human Rights and the constitutions of other countries in the
region which had obtained their independence since 1945. The
Declaration provided for universal suffrage separately from the
guarantees of equality. The omission of an explicit suffrage
91 The Governments of New Zealand and Western Samoa found the Privy Council decision
unacceptable, and within a month negotiated an agreement which substantially reversed its
general effect; see the Protocol of 21 August 1982, A.J.H.R. A56, and the Citizenship
(Western Samoa) Act 1982. The Privy Council judgment and the governmental and legislative
responses were the subject of extensive commentary. For James Crawford ‘‘the real difficulty
with the decision is that it undermines the assumptions of all parties concerned over a long
period of time, assumptions which formed the basis of transactions such as the establishment
of the independent State of Western Samoa and the administration (from 1959 onwards) of its
separate citizenship legislation’’ (1982) 53 B.Y.I.L. 268; see also Alison Quentin-Baxter, ‘‘The
independence of Western Samoa—some conceptual issues’’ (1987) 17 V.U.W.L.R. 345, 363–368
and 371–372. 92 That broader approach is also to be seen in Lord Hoffmann’s discussion of constitutional
interpretation for the Privy Council in a recent Mauritius case, Matadeen v. Pointu [1999] 1
A.C. 98. 93 Judge Lauterpacht called attention to this disagreement in his separate opinion in the
International Court of Justice in the South West Africa—Voting Procedure case, 1955 I.C.J.
Reps p. 67, at p. 117.
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provision in the constitution must be seen as significant given that
it was a United Nations Visiting Mission in 1959 which
recommended that the Constitution should have added to it human
rights provisions on the lines of the Declaration and the
constitutions of other newly independent states. The omission of a
universal suffrage provision must be seen as deliberate. It was also
significant that eight Pacific Island constitutions all provided
separately for both equality and universal suffrage.
The next passage in the judgment, headed The Meaning of the
Constitution, begins by recalling the Court’s agreement that the
Constitution should be interpreted in the spirit counselled by Lord
Wilberforce in Minister of Home Affairs v. Fisher [1980] A.C. 319,
329:
He speaks of a constitutional instrument such as this as sui
generis; in relation to human rights of ‘‘a generous
interpretation avoiding what has been called the austerity of
tabulated legalism’’; of respect for traditions and usages which
have given meaning to the language; and of an approach with
an open mind. This involves, we think, still giving primary
attention to the words used, but being on guard against any
tendency to interpret them in a mechanical or pedantic way. In
this spirit we turn to the provisions of the Constitution now
relevant.
The Court began with the preamble, including its reference to
Samoan custom and tradition; it then noted that the rights of
particular political value listed in the bill of rights part did not
include the right to vote. It was a well settled principle of
interpretation, the Court continued, that momentous constitutional
changes are not brought about by a side wind. Against that
background, universal suffrage would have been introduced and
entrenched by plain and specific terms. It would never have been
left to general language such as that in the equality guarantee.
Further, the pattern of the electoral provisions in the Constitution
supported that interpretation, as did the debates and decisions of
the Constitutional Convention which the Court used to confirm the
conclusion it had already reached on the meaning of the
Constitution.94
94 There was reason for the caution in the use of debates. By 1982, New Zealand judges had not
adopted a clear position on the use of Hansard; compare Cooke J. in Marac Life Assurance
Ltd. v. CIR [1986] 1 N.Z.L.R. 694, 701–702; and in constitutional cases the Australian
practice of the time was not to consider the convention debates e.g., Gregory Craven,
‘‘Convention Debates’’, in Tony Blackshield, Michael Coper and George Williams (eds.), The
Oxford Companion to the High Court of Australia (Melbourne 2001), p. 150. The debates at
the Convention would be given a much more prominent position now.
C.L.J. Sovereignty 603
Cardiff Arms Park and its Challenge
I should end where I began, with that remarkable young group of
New Zealanders who were left to figure out things for themselves
and with the game, near the end of the tour at Cardiff Arms Park.
At full time the scoreboard read Wales 3, New Zealand 0. I have
two reasons for mentioning that result.
Again the first is personal, for Sir David would never talk to me
again unless I did mention it.
The second more general reason relates back to the earlier
discussion of ways of thinking and of space. I should put it into
context by mentioning the Test matches with Ireland and England.
In the first the New Zealanders saw the paddock as an everchanging pattern of lines, the Irish saw it as a kind of steeple
chase, covered with low barriers and walls which so far as they
were concerned were to smash into. They believed in luck. They
were like children taking it in turn to kick a pebble down a bumpy
road.95
The story of the English match was much the same. They had
not thought of the blind side where the New Zealanders scored
four identical tries. ‘‘You would think they’d know by now’’ was
the comment after the second.96
But back to the Welsh. They had learned. The New Zealanders
had stopped being original. Wherever they looked they saw a
mirror image of themselves. The Welsh won.97
The lesson of all this? Beware of slogans. Look past the familiar
words and formulas. Look for new spaces and new linkages.98 And
ask yourself—is your reference to sovereignty, whether of
Parliament or of the State, correct? Is it helpful? Do you
understand what it means in the proposed context?99 Careful
questioning of words may mean greater clarity of thought and lead
to a new way of thinking to add to the established ways.100
95 Lloyd Jones, The Book of Fame, pp. 89–90. 96 Ibid., at p. 98. 97 Ibid., at pp. 115–119. 98 Compare Professor Philip Allott’s expression of hope in the preface to his The Health of
Nations : Society and Law Beyond the State (Cambridge 2002), pp. xii–xiii., and his emphasis
on interdisciplinary study. 99 See e.g., Gummow and Kirby JJ. in Commonwealth v. Mewett (1997) 191 C.L.R. 471, 541
quoting Joseph Story writing 170 years ago: the terms ‘‘sovereign’’ and ‘‘sovereignty’’ are
used in different senses leading ‘‘to a confusion of ideas, and sometimes to very mischievous
and unfounded conclusions’’. 100 The art of walking upright here is the act of using both feet.
One is for holding on.
One is for letting go.
Glenn Colquhoun, ‘‘The Trick of Standing Upright Here’’, in The Art of Walking Upright
(Aotearoa 1999), p. 32.
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