AMINZ Conference

Rau rangatira mā, e huihui nei, tēnei aku mihi māhana ki a koutou. Kia ora tātou katoa.

Distinguished guests, warm greetings to you all.

I am delighted to be here in Queenstown to welcome this distinguished audience to the AMINZ-ICCA International Arbitration Day 2018 and to have this opportunity to acknowledge New Zealand’s commitment to international law, to the rule of law and the peaceful resolution of international disputes. 

For a testament to New Zealand’s commitment to an international order based on the rule of law, we need look no further than the foundation document of our country - the Treaty of Waitangi - signed in 1840 between Māori chiefs and a representative of Queen Victoria. 
The act of signing the Treaty of Waitangi was itself a vote of confidence in, and commitment to, a rules-based international order.  It is something that sets New Zealand apart from every other country in the world. 
The Treaty of Waitangi sought to balance Queen Victoria’s declared sovereignty over New Zealand with recognition of Māori ownership or guardianship over their land, and extended to Māori, the rights of British citizens. 
Central to this agreement was the promise that Māori would also be subject to the protection of the state – including the protection of the courts.
Recognition of the rule of law was thus present at the outset of New Zealand’s early legal history. Unfortunately, it was almost immediately followed by multiple breaches of that agreement by the Crown, leading to armed conflict and significant alienation of Māori from their land.
In 1975, the Waitangi Tribunal was established to investigate and make recommendations on claims brought by Māori relating to breaches by the Crown of the promises made in the Treaty. 
While the Tribunal is not a court, and its findings are not binding on the Crown, its recommendations are influential.
The hundreds of reports it has issued over the past 40 years have contributed to many formal treaty settlements between individual iwi and the Crown.  Complex and difficult reconciliation of disputes has enabled many, although by no means all, issues to be resolved.
The theme of this conference: making arbitration work in a changing world, is reflected in our evolving Treaty relationship. Substantial progress has been made in settling these historical grievances through the treaty settlement process. And the Government has recently established a Crown-Māori Relations portfolio, to enable the Treaty partners to focus on how to work together in the future, in ways that honour the original Treaty.

New Zealand’s commitment to a rules-based international order is a natural, or perhaps even a necessary, corollary to maintaining a commitment to the rule of law in the domestic sphere.  New Zealand has shown a strong commitment to international adjudication throughout its history.

Consistent recourse to international law and the pursuit of peaceful dispute resolution has been neither seamless nor without complication.  But it has remained fundamentally worthwhile—indeed, essential—in light of the challenges facing the global order today.

Perhaps the most well-known episode illustrating our commitment to peaceful dispute resolution comes from the nuclear-test cases.

In response to France’s nuclear testing in the South Pacific in 1963, New Zealand and Australia brought proceedings against France in the International Court of Justice.[1] 

The French Government’s announcement during the pendency of these proceedings, that it had completed its testing programme and would conduct no additional tests, was taken, by the ICJ, to have legal effect erga omnes. 

However, some years later France resumed testing—this time, underground rather than in the atmosphere.  

And again, New Zealand turned to international adjudication. 

We revived our claim against France in 1995, challenging their decision to resume underground nuclear tests, but by this time France had withdrawn from the ICJ’s jurisdiction, and the ICJ found it could not exercise jurisdiction under paragraph 63 of its previous judgment, which provided for making another application to the Court if France reneged.

Thereafter, the UN General Assembly ultimately requested an advisory opinion from the ICJ on the legality of the threat or use of nuclear weapons.  The infamous outcome was the ICJ’s pronouncement that the threat or use of nuclear weapons would “generally be contrary to the rules of international law”, but that the Court could not “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.[2]  France ceased nuclear testing that same year.  

The second dispute I wish to touch on concerns a matter of somewhat lesser gravity, but nonetheless a source of some irritation to our neighbours: the Australia/New Zealand apples dispute. 

Australia had banned the importation of New Zealand apples since 1921 on the grounds that the bacterial disease endemic to New Zealand’s apples – fire blight – should be kept out of Australia.  New Zealand objected strongly to Australia’s concerns, and in 2007, requested consultations and later sought the establishment of a WTO panel. 

After three years and multiple appeals, the Dispute Settlement Body adopted the Appellate Body’s report on the issue, resolving the dispute in favour of New Zealand’s position in December 2010. 

My third illustration involved a fisheries dispute.  In 1999, Japan announced that it would carry out an experimental fishing programme for Southern Bluefin Tuna – a valuable sashimi fish and a threatened species. 

New Zealand and Australia objected to the proposed increase in the Japanese catch, as a breach of the Convention for the Conservation of Southern Bluefin Tuna (CCSBT), and submitted the case to international arbitration. 

Although ultimately denying jurisdiction, the International Tribunal on the Law of the Sea, in the first case of this kind, initially issued provisional protective measures while an ad hoc tribunal was formed – calling a halt to the Japanese experimental fishing programme.[3]  The dispute was eventually resolved by negotiations between New Zealand, Australia and Japan.

These disputes and New Zealand’s efforts to resolve them have taken various trajectories through the international dispute-resolution landscape. 

What they have in common is a commitment to rule of law-based resolution of disputes, and a recognition that engaging with institutions that can provide a measure of independence and impartiality is indispensable to obtaining such a resolution.

Given New Zealand’s strong history of engagement with international adjudicatory institutions, it’s not surprising that we have produced many international judges and arbitrators.

Among them Sir Kenneth Keith, who advocated for New Zealand through the ICJ nuclear cases, and who recently completed his nine-year term as an elected judge of the International Court of Justice.

And here with us today is Sir David Williams, whose knighthood  recognised his long and distinguished service to international law and arbitration. 

Sir Geoffrey Palmer was appointed as chair of a UN panel of inquiry into the fatal Israeli raid on a Turkish ship participating in a Gaza-bound protest flotilla in May 2010.

New Zealanders have also been prominent on regional courts and tribunals.  Dame Sylvia Cartwright, a former Governor-General, served for several years as a judge on the Extraordinary Chambers of the Courts of Cambodia, beginning in 2006; and Sir David Baragwanath served as a judge on the Special Tribunal for Lebanon from 2010. 

I cannot complete a discussion of New Zealand’s commitment to the rule of law in the international sphere without a mention of the most challenging episode in our recent memory: the Rainbow Warrior dispute, following the actions of French agents in the bombing of Greenpeace’s ship, the Rainbow Warrior, while it was docked in Auckland Harbour.

It goes without saying that States have gone to war over such egregious violations of territorial sovereignty.

Of course, New Zealand went into negotiations instead.

And when negotiations failed to produce a satisfactory settlement, New Zealand and France agreed to submit the dispute to arbitration to be conducted by the UN Secretary-General, who rendered a decision with three key elements:

France was to issue a formal apology;

France was to pay compensation; and

New Zealand was to transfer the imprisoned agents who committed the bombing to French custody, to be held in a military facility for three years. 

When France failed to implement that ruling in good faith by releasing the prisoners, again New Zealand invoked a consensual dispute-resolution mechanism: the arbitration provided for in the event that disputes arose in the course of implementing the Secretary-General’s award.  And again, international adjudication provided a pathway to peaceful dispute-resolution.

The Rainbow Warrior case illustrates that recourse to international adjudication can be effective for even the most sensitive of international controversies.   It is when positions are too entrenched and passions are too inflamed, that the commitment to a rules-based international order is most necessary.  In this case, it required recognizing the need for an independent and impartial third party to step in to help resolve a seemingly intractable dispute.

Given New Zealand’s longstanding commitment to rule of law in the international sphere, and to the peaceful resolution of international disputes, it follows that we have long taken international arbitration very seriously.

Beyond our membership of the New York Convention and of ICSID, we were early adopters of the 1985 UNCITRAL Model Law, and our own arbitration statute has served as an innovative example for others to follow. 

And finally, I note the publication this February of the New Zealand International Arbitration Center’s ‘Arb-Med’ Rules. 

The Arb-Med Rules combine arbitration and mediation in a single unified process, so that the formal arbitration process will resume immediately if mediation of the dispute is not successful; and where the arbitrator acts formally as mediator – unless the parties agree otherwise – to save time and costs for both parties in a unique, commercial and common-sense dispute-resolution process.[4] 

I am sure that the arbitrators in the room today who have worked on these rules will be delighted if they are adopted by other countries or bodies.

Unfortunately my schedule prevents me from spending more time at the conference today. But I see that your programme anticipates an informative, stimulating and inspiring exchange of views and insights. I wish you well with your vital work to further the peaceful resolution of disputes around the globe.

Kia ora huihui tātou katoa