Rewriting treaties, especially treaties between nations
February 8, 2024 9:15 PM   Subscribe

We have a new (Coalition) government in New Zealand and they are everything many of us tried to warn everyone else about. Apart from their general dumspster fire they are moving towards nullifying the 1840 Treaty of Waitangi TOW was signed between the English Crown & Maori to "ensure that both parties to it would live together peacefully and develop New Zealand together in partnership" [nz govt two page, refered to other issues but has quoted text in context].

There is lots of noise in the media about this but it is mostly dis/mis-info, bad-faith, racism and foreign and local medlding by the Atlas Network and their affiliates (one of the Coalition heads in an Atlas Acolyte and the PM is a Christian Domininionist, along with much of Cabinet - when they speak they lie, very hard to know what in government is now true).

The TOW was signed to ensure peace and avoid war (treaty has been repeatedly dishonoured by government from the get go - and there were wars). But more recently (last 100 years) there has more attention to honouring it, and i the last twenty there has been real change and improvement across all society. From the start of Covid mutiple groups sought to undermine the treaty, and here we are.

My common person understanding of inter-nation treaties is that once signed they are left alone - as the risks from altering them are too likely to lead to the wars and conflicts they were written to avoid. Can someone point me to the law of international treaties (if such exist) and help me understand a little about the legality of doing this.
posted by unearthed to Law & Government (6 answers total) 3 users marked this as a favorite
Can someone point me to the law of international treaties
You probably would be interested in the Vienna Convention (VCLT), and in particular Part V, which covers various ways in which treaties can be terminated or withdrawn from.

However, it's worth mentioning that the Vienna Convention explicitly covers only treaties between sovereign states, and whether the ToW is/was such is, itself, a disputed question.
posted by kickingtheground at 10:00 PM on February 8 [1 favorite]

I subscribe to The Weekend by Spin Off and they had a couple of pieces last week on the treaty: The Principles of the Treaty of Waitangi explained, The Changing Scope, and more useful for you: A Te Tiriti reading (and watching and listening) guide.

The treaty is special in part because it is one of the very very few indigenous-invader treaties that has been observed to some degree. ATNS in Australia has some resources as well for Canada, NZ and America, and you might find a broader overview with indigenous organisations like IWGIA.
posted by dorothyisunderwood at 2:39 AM on February 9 [3 favorites]

It might be a relevant comparison to look at this document from the Bureau of Indian Affairs in the USA, on best practices for protecting tribal treaty rights. In particular, it discusses the UN Declaration on the Rights of Indigenous People, which it describes as "...while not legally binding or a statement of current international law – has both moral and political force." It does not mention any international law that has more legal binding.

All best wishes for the tenure of the current NZ govt to be both brief and ineffectual.
posted by Rhedyn at 3:58 AM on February 9 [4 favorites]

Also worth thinking about in your reading is whether NZ takes a mostly dualist (like the UK) or monist (like the US) view on the relationship between treaties and domestic law.

In a dualist jurisdiction, treaties usually have no force in domestic law and governments need to pass legislation to give them force and/or take executive actions consistent with the treaty.

In monism, treaties have force in domestic law as well, even without any domestic legislation which does this explicitly.

It's more complicated that that because for example the UK is dualist but judges have interpreted the intent of parliament (also through the domestic Human Rights Act) as wishing for them to rule in accordance with the rulings of the European Court of Human Rights. However if the government passed a subsequent law that disapplied this, there would be no legal basis for judges to block that. It is for parliament and the government to comply with treaty obligations or to withdraw from them, not for the judiciary.

Typically monist jurisdictions require ratification through the legislature to prevent the executive from back-door law making through international agreements and dualist ones do not (because the legislature has a role in passing subsequent domestic law).
posted by atrazine at 5:29 AM on February 9

The Canadian government has so many treaties! They have been updating, examining and re-writing for decades. Check out their best practices. They have been somewhat successful and recently gave the Inuit control over the Arctic, but it's a work in progress. Logging and oil extraction regularly inspire blockades and protests from natives (quite rightly).
posted by Enid Lareg at 9:22 AM on February 9 [1 favorite]

Response by poster: atrazine!, your monist:dualist mention has got me from zeo knowledge to a major advance by helping me find this:

Fault Lines: Human rights in New Zealand p "Under a monist system international norms do not need to be translated into national law. The act of ratifying an international treaty immediately incorporates that international law into national law allowing courts to enforce international law domestically. Neither approach adequately describes the situation in New Zealand"

A surface reading shows the TOW is tightly linked to a number of international treaties signed by NZ, that are themselves written into much of NZ humanitarian law.

Thanks to everyone else so far.

I'll follow your links and come back in a few days as normal life has to go on, as weird as it is here now.
posted by unearthed at 1:54 PM on February 9

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