Consistency with Aotearoa New Zealand’s obligations, commitments and policies regarding fundamental principles of international law, as well as international human rights law and international humanitarian law.
Guidance on Criterion 2
Under Criterion 2, an export and its intended use is assessed against Aotearoa New Zealand’s obligations and commitments regarding fundamental principles of international law, international human rights law and international humanitarian law. Relevant policies will also be taken into account to confirm an export or intended use is consistent with Aotearoa New Zealand’s policy positions to these issues.
Legal obligations
Legal obligations relevant to Criterion 2 include a wide range of international legal instruments that Aotearoa New Zealand is party to, principles of customary international law; related domestic legislative or regulatory requirements; and obligations contained in resolutions of the United Nations Security Council. They include obligations covered by the broad framework of international law, as well as international human rights law and international humanitarian law (which establishes rules around the conduct of war to limit the effects of armed conflict).
Assessment under Criterion 2 can include the country or public authority’s stability, and where relevant, the success of any previous mitigation efforts applied by Aotearoa New Zealand or close international partners when cooperating with the country or authority.
An assessment under Criterion 2 will consider whether a proposed export would, or would be likely to, be used in the commission of breaches of Aotearoa New Zealand’s primary obligations under general international law. It will also consider whether it is lawful or appropriate to provide support to the end user (regardless of what the proposed export is). This criterion will also assess secondary obligations which place Aotearoa New Zealand at risk of being complicit in other states’ intentionally wrongful acts or breaches of international law. This assessment can include the state or end user’s stability and human rights record.
Difference between primary and secondary legal obligations
Aotearoa New Zealand, like all states, has primary legal obligations which derive from signing up to treaties or through customary international law (general practice accepted as law). These obligations apply directly to Aotearoa New Zealand. They can range in nature from requiring action, to prohibiting conduct or recognising rights. Primary legal obligations are vital to ensuring consistency with international law, as all states, not just Aotearoa New Zealand, are expected to comply with and fulfil their international legal obligations in good faith.
Secondary legal obligations are intended to reinforce primary legal obligations by ensuring that states do not aid or assist another state to breach its primary international legal obligations. In the context of export controls, the concern as it is sometimes expressed is whether a state, by permitting an export, could be in breach of its international obligations because the ultimate recipient of that export may engage in unlawful acts. The allegation is sometimes put that a state is “complicit” in that unlawful act. Complicity is a very serious allegation. In order to be complicit, a state must have:
- Done something (e.g. issued a permit) which materially facilitated the unlawful act by the other state; and
- Done so with the intention to materially facilitate that act, or knowledge to a virtual certainty that issuing the permit would materially facilitate the unlawful act.
Examples of primary and secondary legal obligations in the export controls space
Primary legal obligations
- Aotearoa New Zealand has primary legal obligations under United Nations Security Council resolutions not to export goods in breach of sanctions, or deal with particular entities or states in certain ways. Contravening these sanctions would be a breach of Aotearoa New Zealand’s primary obligations under international law.
- The prohibition on genocide is what is known as a peremptory norm of international law, and so is binding on all states whether or not they are parties to the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) (1948). This status means that states must:
- cooperate to bring to an end through lawful means any serious breach of the prohibition; and
- not recognise as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation. This prohibition places a primary legal obligation on Aotearoa New Zealand to act as outlined, even if Aotearoa New Zealand is not the state engaging the prohibition.
- International humanitarian law, also known as the law of armed conflict, regulates the conduct of parties engaged in an armed conflict. Under international humanitarian law, there is a range of obligations that apply to states involved in an armed conflict, including that parties to the conflict must take all feasible precautions to minimise harm to civilians and must not carry out indiscriminate attacks. Aotearoa New Zealand would be in breach of international humanitarian law by knowingly issuing a permit for an export where this would be encouraging, aiding or assisting in violations of international humanitarian law by a party to a conflict.
Secondary legal obligations
- The International Covenant on Civil and Political Rights (ICCPR) (1966) and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984) provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Aotearoa New Zealand would likely be complicit and in breach of its secondary legal obligations by issuing a permit for an export where:
- This would materially facilitate the unlawful act by the other state; and
- There was an intention to materially facilitate a foreign state breaching its obligations under the ICCPR or CAT.
- Aotearoa New Zealand has a range of international obligations in respect of gender equality and women’s empowerment, and in respect of the prohibition of sexual and gender-based violence in armed conflict (This includes United Nations Security Council, Resolution 1325 on women, peace and security (2000) – the landmark resolution which recognises the disproportionate and unique impact of armed conflict on women and girls). Aotearoa New Zealand would likely be in breach of its secondary legal obligations by issuing a permit for an export where:
- This would materially facilitate an unlawful act by the other state; and
- There was an intention to materially facilitate a foreign state breaching its obligations in these areas.
The Arms Trade Treaty (2014) discussed in the Guidance to Criterion 1 is also relevant to the assessment of consistency with international human rights law and international humanitarian law under Criterion 2.
Non-legally binding commitments
Aotearoa New Zealand has signed up to a number of non-legally binding commitments in the field of international human rights. These include:
- Universal Declaration of Human Rights (1948)
- United Nations Declaration on the Rights of Indigenous Peoples (2007)
- Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict (2008)
Policy considerations
Assessments under Criterion 2 will consider whether the proposed export is consistent with Aotearoa New Zealand’s broader policies and commitment to promoting and protecting human rights.
For example, Aotearoa New Zealand's position is that the death penalty is the ultimate form of cruel, inhuman and degrading treatment. Aotearoa New Zealand has a long-standing and strong opposition to the use of torture, cruel, inhuman or degrading treatment or punishment, including the death penalty, in all cases and under all circumstances, including in response to threats to national security. This reflects Aotearoa New Zealand’s position that the use of torture, cruel, inhuman and degrading treatment and punishment is prohibited under the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).
The New Zealand International Human Rights Action Plan 2019-2023: Advocacy Priorities sets out our international human rights engagement priorities. An assessment under Criterion 2 will consider whether a proposed export would be consistent with Aotearoa New Zealand’s commitment to these human rights priorities. The United Nations’ Guiding Principles on Business and Human Rights recognise that businesses have a responsibility to respect human rights and should work with states to ensure they comply with international human rights principles in the course of their business activities. An assessment under Criterion 2 will consider whether a proposed export would be consistent with Aotearoa New Zealand’s commitment to ensuring businesses and other private sector actors promote and respect human rights.
Relevant policy documents, include but are not limited to, the following: