Wed Dec 6

NZ First fears over WHO regulations are misplaced – robust checks and balances already exist

Written by: Claire Breen, Professor of Law, University of Waikato

When the new government lodged an urgent “reservation” against adopting amendments to World Health Organization regulations, it baffled some expert observers ^[1] but signalled an early win for the NZ First party.

Under the heading “Strengthening Democracy and Freedoms” in its coalition agreement ^[2] with the National Party, NZ First negotiated to:

Ensure a “National Interest Test” is undertaken before New Zealand accepts any agreements from the UN and its agencies that limit national decision-making and reconfirm that New Zealand’s domestic law holds primacy over any international agreements.

Why any of this should be needed is not clear – other than to support the implication New Zealand is being dictated to by the United Nations and is not in control of its own destiny.

In fact, detailed rules and processes governing how New Zealand applies international laws and treaties already exist, as does the requirement for a national interest analysis.

It’s important to remember, too, that New Zealand participates in creating new international legal rules because some of its (or any nation’s) most pressing problems cannot be solved unilaterally.

Winston Peters with Christopher Luxon at parliament

The price of coalition: NZ First’s Winston Peters with National leader and prime minister Christopher Luxon. Getty Images

Domestic versus international law

The need for a collective response to contagious and dangerous diseases was one of the earliest examples of global cooperation. Today, the International Health Regulations ^[3] of the World Health Organization (WHO) set out how this should happen. But individual governments are primarily responsible for implementing those regulations.

The COVID pandemic has triggered the negotiation of a new WHO treaty on pandemic prevention, preparedness and response. New Zealanders can participate in the process ^[4] being run by the Ministry of Foreign Affairs and Trade.

New Zealand governments have a long history of negotiating the wording of international treaties. They can also control the local impact of international agreements or treaties by entering “reservations ^[6]”.

These mean a country will not be bound by specific parts of an agreement. This mechanism can make it more likely that countries will agree to a treaty overall, but it can also run the risk of creating different rules for different countries.

Many legal agreements have built-in mechanisms that allow for regulatory changes without requiring a formal revision of the entire treaty. The WHO’s International Health Regulations are a good example.

And ultimately, governments – including New Zealand’s – have the power to enter into, or withdraw from, any treaty.

Parliament debating chamber almost empty

Checks and balances: parliament’s debating chamber during a COVID lockdown, 2020. Getty Images

Measuring the national interest

Of course, no government should sign up to anything not in its country’s best interests. But New Zealand has already developed clear, detailed rules ^[7] governing how and to what extent international agreements become part of domestic law.

Cabinet must approve any proposal ^[8] to sign or take binding action under a treaty. Significant changes in the operation of a treaty are also subject to careful oversight, with members of parliament playing an important role.

But even before such scrutiny, a treaty must undergo a “national interest analysis” (NIA), with the Cabinet Manual ^[10], parliament’s Standing Orders ^[11] and the Ministry of Foreign Affairs and Trade ^[12] providing guidance.

The NIA process considers the reasons for becoming a party to the treaty, the advantages and disadvantages to New Zealand, and how the treaty will be implemented. Cabinet can then authorise the signing of the final text of the agreement, thereby approving it.

Signed agreements – either multilateral or bilateral – and their NIAs then go to the House of Representatives. From there they are referred to the Foreign Affairs, Defence and Trade Committee, which can look at the treaty itself or send it to a more appropriate select committee.

Affirming New Zealand sovereignty

The requirement to send the agreement and the NIA to select committee acts as a further brake. The government can’t do anything for 15 sitting days or until the select committee responds, whichever happens first.

The select committee can make recommendations, including asking for more time to examine the treaty and the NIA, and seek public submissions. The government has 60 working days to respond to the select committee’s recommendations.

It’s also open to MPs to debate the treaty. While the government may decide no action is required ^[13], sometimes the proposed new treaty obligation means new laws ^[14] are needed, or existing ones amended or repealed.

New or changed laws give a government and parliament plenty of scope to influence if and how a treaty forms part of domestic law.

After these international and domestic processes are concluded, ratification can take place. Formal documents confirm that domestic procedures have been completed and the treaty is in force, along with any reservations that have been adopted.

The entire process affirms New Zealand’s sovereignty.

New Zealand has always been an active global citizen. It is party to over 1,900 ^[16] treaties with multiple countries.

From direct participation in the formation of new agreements, through to assessing their impact, New Zealand has robust systems in place – all of which confirm domestic law holds primacy over any international agreements.