This panel was convened at 9:00 am, Thursday, April 10, by its moderator, Ruth Wedgwood of the Johns Hopkins School of Advanced International Studies, who introduced the panelists: the Honorable Kenneth Keith, Judge, the International Court of Justice; the Right Honorable Lord Jonathan Manee, Judge, the Supreme Court of the United Kingdom; and the Honorable Brett Kavanaugh, Judge, the U.S. Court of Appeals for the D.C. Circuit. *
THE APPROACH OF THE COURTS TO FOREIGN AFFAIRS AND NATIONAL SECURITY: A VIEW FROM NEW ZEALAND AND THE HAGUE
By Kenneth Keith ([dagger])
For reasons of geography, population, politics, and economics, the challenges in New Zealand in respect of foreign affairs and national security issues are fewer than in the United States and in the United Kingdom. But there is relevant material from which I can select and to which I will add related material from the experience of the International Court of Justice.
I begin with two general propositions. The first is that the New Zealand courts have, fairly consistently over the years, proceeded on the basis that international law is part of the law of the land and that legislation, if possible, should be interpreted consistently with the international obligations of New Zealand. I need to make the important qualification that the executive has no power to change national law by entering with a treaty: legislation is in general needed for that purpose. A very early instance of the positive attitude comes from 1874. A murder was allegedly committed on an American barque on the high seas. The first port it reached was Port Chalmers in the South Island of New Zealand. Did the New Zealand courts have jurisdiction over that alleged offense? Counsel for Charles Dodd, who had been convicted of manslaughter, argued that the New Zealand courts did not have jurisdiction. (1) International law gave exclusive jurisdiction on the high seas to the flag state. He referred the Court of Appeal, among other things, to leading textbook writers of the day--Vattel, Story, Wheaton, Kent, and Phillimore--all of whom supported that proposition. The Court, unanimously, read the relevant legislation in those terms. That decision, I might note, was not among the many decisions of national courts to which the Permanent Court of International Justice was referred when 50 years later it ruled in the opposite direction in the Lotus case (2)--a ruling which was reversed by treaty some years later. I might also note that the young, successful counsel in...