by Kennedy Graham
Yesterday I was sworn in, for the second time, to the NZ Parliament – a solemn and significant moment in any person’s life.
The Oath (Affirmation) I took was to the Head of State of my country. I solemnly, sincerely and truly declared to be:
“…faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law.”
Thirteen years ago, on becoming Director of a UNU agency, I took the UN Oath of Loyalty:
“I solemnly affirm to exercise in all loyalty, discretion and conscience the functions entrusted to me as a member of the international service of the United Nations, to discharge those functions and regulate my conduct with the interests of the United Nations only in view, and not to seek or accept instructions in respect to the performance of my duties from any government or other authority external to the Organization.”
As a result, from 1999 to 2004 I was working as a New Zealander for the global interest as expressed, imperfectly but legitimately, through the decisions of the United Nations, and sworn not to accept instructions from the NZ Government. As a NZ citizen (stationed in the Middle East, Europe or New York), I could vote for a political party which might form a NZ government, but not to accord it ‘loyalty’.
Today as a member of the NZ Parliament, where is my loyalty to lie? What is the relationship between the two oaths? Are they intrinsically compatible or incompatible? As a student in Boston in the ‘70s, I did my master’s thesis on this question (Values in Paradox: Loyalty and the International Civil Service; Fletcher School of law & Diplomacy, 1974).
As a result of the parliamentary oath my loyalty is to the state of New Zealand, as represented by its Head of State. Is it to the NZ Government, as led by the Prime Minister? I am free to oppose his Government’s policies in parliamentary debate as a member of the loyal opposition. But am I bound to accept instructions from his Government?
The answer is in the phrase ‘according to law’. In the 21st century, law is composed of domestic and international law.
In domestic law, I am bound by the laws adopted by the Parliament of which I am a member, even though I may have voted against them.
But then there is international law, which is binding on New Zealand. The UN Charter forbids aggression by a Member State. Non-aggression is regarded as ius cogens – an obligation so fundamental to humanity as to be non-derogable and binding towards all (erga omnes).
Throughout my adult life I have perceived the global interest as being paramount and the national interest as being legitimate provided it is compatible with the global interest – see my 1999 book The Planetary Interest (UCL Press, London; ed.).
In this paradigm, there is no conflict between the NZ parliamentary oath and the UN oath.
But if a NZ government were, say, to break the UN Charter and commit aggression, then it follows that my loyalty to the global interest would over-ride my loyalty to New Zealand in the specific case of a particular decision by the Government.
In the event that the UN itself failed to make a ‘decision’ on such a matter (such as a veto in the Security Council) I would consult international legal authorities and follow my conscience.
Either way, the (legitimate) national interest would remain compatible with the global interest. I would be remaining true to New Zealand by attributing a higher loyalty to the United Nations Charter than to a NZ government decision, which I would regard as null and void, and not binding upon me.
Published in Justice & Democracy by Kennedy Graham on Wed, December 21st, 2011
Tags: NZ parliament, Oaths, UN
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on the trolls and those who are unable to keep on topic
Ah the Green Cabinet is very well stocked; with your good self, that Kevvy Hague etc etc…..we have much work to do !
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And according to law includes the right to propose
1. succession to the reigning monarch be a republic and other constitutional reform.
2. we enact UN positions on indigenous peoples, and in any area of human rights where we fall short of international norms.
3. where we are in breach of international obligations (legal or otherwise) to work to change the New Zealand position (possible on global warming).
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All this swearing allegance to the Monarch & even to God (even if you dont believe it him/her or it) sounds like we are living in the middle ages, not the 21st Century.. the age of enlightenment has long since past.. but this nonsence still remains.
I say its definatley time for a constitutional change : “The Republic of Aotearoa”.. now thats sounds more like it !
Kia-ora Koutou Katoa
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I think one of the challenges that the party is addressing (and the likes of the Nats/Labour are ignoring) is the challenge of engaging with the outside world and being a good global citizen, whilst balancing this with our identity as New Zealanders. The two don’t necessarily need to be mutually exclusive.
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Ken – this is a fantastic article. Congratulations. Your writing around international affairs is fantastic and always inspires me.
In regards to the article itself, I would question whether because of the criterion in there “according to law” whether disobeying an order from the New Zealand Government would mean not being loyal to New Zealand. New Zealand’s constitutional framework is based on the separation of powers, with the ultimate responsibility for determining what the law is lying with the courts.
If the New Zealand Government was to make an order atrocious enough to be illegal under international law, it would be illegal under domestic law due to the incorporation of international law into domestic law. Sure, there is Parliamentary Sovereignty, but as New Zealand’s greatest jurist Lord Cooke of Thorndon noted (with the later endorsement of Chief Justice Elias, I’d note), even this is limited when talking about human rights and international law. I’d like to think that the jurisprudence of international law in New Zealand, especially around core concepts like war crimes, has became developed enough that the incorporation of these rights in New Zealand’s law, based in legislation or not, is no longer of great debate.
Thus, I’d like to think that your loyalty to New Zealand as a state wouldn’t be overriden by the global interest, but rather disrespecting an order of the New Zealand Government would be within an oath to uphold the rule of the Crown “according to the law.”
It is a bit of a constitutional nicety, sure, but the recognition of the important role the judiciary plays in the New Zealand state, above the government of the day, is important.
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@Josh
Nicieties are the soul of constitutional law – especially in New Zealand with our mix of statute, tradition and common law.
However, I must disagree with your notion that the ultimate responsibility for determining what the law lies with the courts.
The judicial system simply has the ability to interpret law based on a best guess as to the ‘intent’ of Parliament when passing bills. This can later (and even retrospectively) be changed by Parliament to clarify its intent.
Despite a trend towards a more low-key approach to constutional matters alongside dilution by MMP, the absolute perogative of the legislature is still very much there.
That said, I agree wholeheartedly that we have, to a greater or lesser extent incorporated international law into New Zealand law and even with its relatively unfettered power Parliament would find it very difficult to pass and enforce a law contrary to either.
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Do we really want to abandon our whole constitutional framework?
Surely all we need to do is appoint our own GG and make the GG our Head of State and write the Crown out of the picture.
The Head of State could alternate between Pakeha and Maori if it made people more comfortable about writing the Crown out of the picture.
But where does this longing for a Republic come from?
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Owen while I tend to prefer something similar to what you suggest, but as we are not proposing to establish a New Zeland person and their genetic successors as royal sovereign, the term republic is generally used to signify this. And this of itself is a constitutional reform.
My own preference would be to refer to the person appointed Governor General as representative of our collective sovereignty, the so called head of state. But I might be open to a legal transfer of the Crown title as a term for the New Zealand peoples sovereignty and have the Governor General called the Crown Governor General.
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