Meet the lawyers who represent New Zealand’s interests on the international stage. LawTalk checks in with MFAT’s legal team and the work they are doing in international courts and tribunals.
It has been a tumultuous year for international law, and New Zealand has remained in the thick of it.
Last year was an exceptional year for New Zealand in the international dispute settlement arena. In 2023, lawyers from the Ministry of Foreign Affairs and Trade (MFAT) appeared in three different international cases within a period of a few months: in The Hague, Hamburg and Ottawa. Three MFAT lawyers who participated in the litigation – Jane Collins, Charlotte Skerten and Claire Brighton – report on their experience of advocating for New Zealand.
It is well known that international courts often lack jurisdiction, especially over powerful countries, as states generally must consent to international dispute settlement. However, sometimes there are surprises.
Two days after Russia launched its invasion, Ukraine filed a claim in the International Court of Justice (ICJ) on grounds that Russia had violated the Genocide Convention by falsely alleging Ukraine was committing genocide as justification for its ‘special military operation’. Ukraine was seeking a ruling that no acts of genocide occurred and that Russia had no lawful basis to invade. Ukraine was able to do this, because the Genocide Convention, which both Ukraine and Russia are parties to (along with 151 other countries), contains a compulsory dispute settlement clause for disputes “relating to the interpretation, application, or fulfilment” of the Convention. A month later the ICJ issued a ‘provisional measures’ order for Russia to withdraw its troops and refrain from actions that might aggravate or extend the dispute until the claim was resolved. Those orders continue to be in place and ignored by Russia today.
New Zealand’s Acting Chief Legal Adviser Andrew Williams addressing the International Court of JusticeNew Zealand was the third country to join the case, drawing on our experience of successfully intervening in Australia’s Whaling case against Japan in 2010. States are able to intervene in disputes on matters of law provided they are a contracting party to the relevant treaty. The decision to do so is not one taken lightly as intervening states agree to be bound by the ICJ’s decision.
From 18-27 September 2023 the Court heard oral arguments on whether a legal dispute under the Genocide Convention exists, and thus whether jurisdiction is conferred on the Court, in order for it to determine the full merits of the case. New Zealand’s oral intervention focused on the implications of Russia’s refusal to comply with the Court’s provisional measure order. We argued that this is relevant both to the ICJ’s determination on jurisdiction, as well as being a substantive breach of the Convention itself. We highlighted the duty on states to cooperate and comply with all aspects of the dispute procedure reasonably and in good faith, the critical role provisional measures play in the maintenance of international peace and security, and the broader real world implications of non-compliance.
MFAT’s Jane Collins said, “Appearing in the World Court on behalf of New Zealand before a 16 panel bench was an absolute ‘pinch me’ moment and career highlight. Witnessing litigating states peacefully present their legal views before a range of perspectives highlighted for me the Court’s unique and important role in accomplishing the purposes and principles of the United Nations.”
Charlotte Skerten and Victoria Hallum at the TribunalOn 2 February 2024 the Court found it had jurisdiction to hear Ukraine’s case. The ICJ will now move to determining the merits of Ukraine’s case.
Also in September, the International Tribunal for the Law of the Sea heard the first in a series of international legal proceedings regarding states’ climate change obligations.1
This case was an initiative of the Commission of Small Island States on Climate Change and International Law (COSIS), an international organisation spearheaded by Tuvalu together with Antigua and Barbuda. COSIS requested that the Tribunal issue an advisory opinion on how states’ obligations under the United Nations Convention on the Law of the Sea (UNCLOS) apply with respect to climate change, including the question of whether greenhouse gases amount to pollution of the marine environment.2 The case raises important questions around the relationship between UNCLOS, the enduring international legal framework for the oceans, and other international law – not least the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement.
New Zealand was one of 34 states parties to UNCLOS that made written submissions on this question in June 2023, together with a range of international, inter-governmental and non-governmental organisations. We also participated in the oral hearing before the Tribunal in Hamburg, Germany in September.
MFAT’s Charlotte Skerten said, “It was a really unique experience to present New Zealand’s case to the Tribunal’s 21 Judges. While we saw different perspectives on some of the legal questions, the countries appearing before the Tribunal were united in their commitment to UNCLOS and their concern about the impact of climate change.”
New Zealand’s legal team and team of experts at the CPTPP Panel hearingNew Zealand’s submissions supported the Tribunal issuing an advisory opinion on the question posed and agreed that states’ obligations under UNCLOS with respect to the marine environment apply to anthropogenic greenhouse gas emissions. We encouraged the Tribunal to take a coherent approach to international law that acknowledges the importance of UNFCCC and the Paris Agreement. Our oral submissions focused in particular on the duty of cooperation under customary international law. We argued that meaningful cooperation through the Paris Agreement and other legal frameworks is the most effective way for states to fulfil our collective obligation under UNCLOS to protect and preserve the marine environment.
The Tribunal is expected to issue its advisory opinion in the first half of this year.
Often with trade agreements the devil is in the detail of implementation. Countries need to be prepared to take a stand to ensure that that hard won trade access actually delivers for exporters.
While New Zealand has taken a number of successful cases to the World Trade Organisation (WTO), this was the first dispute brought under one of our free trade agreements. It was also the first dispute to be brought by any Party under CPTPP (a major plurilateral trade agreement that entered into force in 2018). Australia, Japan, Malaysia, Singapore, Mexico and Peru joined as third parties and participated in the proceedings.
The CPTPP agreement allows for tariff-free entry for certain dairy products, up to set volumes, into the Canadian market. New Zealand argued that Canada’s administration of these dairy quotas is protectionist, and encourages chronic underfill. New Zealand argued that Canada’s use of a system of quota ‘pools’ impermissibly favours its own domestic dairy industry. By reserving the lion’s share of import quota for domestic dairy processors (who produce the same goods that would be imported under the quotas), Canada was effectively making them gatekeepers of their own competition. This was denying importers the opportunity to utilise quotas, and was clearly inconsistent with CPTPP rules.
New Zealand’s legal team at the International Court of JusticeCanada argued that it had a largely unfettered discretion to choose how it allocated quota, and that in any case the quotas were underfilled because there was no demand for New Zealand dairy products in Canada. Those arguments were not successful.
A two-day hearing was held in Ottawa in June 2023. New Zealand was represented by counsel from the Ministry of Foreign Affairs and Trade, supported by technical experts from the Ministry for Primary Industries. The Panel was chaired by former WTO Appellate Body Member, Jennifer Hillman, with Petros Mavroidis and Coleen Swords sitting as the other two panellists. MFAT’s Claire Brighton described the hearing as ‘lively’ with robust exchanges between the Panel and Parties. “The hearing was the culmination of a huge amount of work by a great team. To walk away feeling that we had presented our case in a way that did justice to that was an awesome feeling.”
The Panel’s report was issued in September. It was a decisive win for New Zealand. The Panel found unanimously that Canada was in breach of its obligations under CPTPP. In broad findings, the Panel found that Canada was not allowing importers the opportunity to utilise quota amounts fully, and was impermissibly limiting access to quota to its own domestic dairy processors.
Canada now has until 1 May 2024 (the ‘reasonable period of time’ agreed between the Parties) to overhaul its quota administration and comply with the Panel’s findings. Canada is expected to commence public consultation on its proposed implementation in February. New Zealand has made its expectations regarding implementation clear, and will continue to do so in the lead-up to the 1 May deadline.
New Zealand’s dispute sits alongside two disputes brought by the US under the United States, Mexico, Canada free trade agreement (USMCA) challenging Canada’s administration of its USMCA dairy quotas. The US won its first dispute in early 2022, but brought a second dispute after Canada failed to comply in a manner that resulted in meaningful market access. The Panel report in the second case was released in December. The US was unsuccessful on all 13 claims it brought. USTR Katherine Tai has expressed her disappointment at the outcome, and stated in response to the decision that the US “will not hesitate to use all available tools to enforce our trade agreements”. What that means in practice is yet to be seen.
MFAT is the government’s specialist international legal adviser. The division is made up of four units: General International Law (including security, human rights and international criminal law), Environment and Resources Law, Trade Law, and Sanctions. The Ministry maintains a ‘lawyer-diplomat’ model. This means that the legal division is staffed primarily with rotational foreign policy officers with law degrees, who spend time in the legal division but also work in regional and thematic divisions, as well as taking up diplomatic postings overseas. There are also a handful of specialist non-rotational roles. As well as engaging on international litigation, the division also negotiates treaties, advises on international law compliance and implementation, and analyses policy proposals for international legal risk.