From Empire to Globalization: The New Zealand Experience

Introduction

What does nationhood mean, what do national courts do and what effect have the pressures of globalization had on the meaning of nationhood and the role of national courts? I want to bring a small commonwealth country perspective to these questions in order to suggest that the experiences of empire and globalization may share important elements in common.

Nationalism is not, of course, an incontrovertible good. Some of the worst atrocities of our recent history have been visited on peoples in its cause. For small countries in the commonwealth such as New Zealand, becoming a fully self- governing nation was held out as something to aim for, a glittering prize for proving oneself as loyal, responsible, and having learnt well the art of British government. In the colonial context, nationhood has been portrayed as an idealized goal. By the time New Zealand achieved the formal goal of nationhood, however, the very meaning of nationhood had changed—as it had to do to accommodate the expanded number of states. At the turn of the twentieth century, the British Empire covered one-fifth of the earth's surface: some 11,400,000 square miles and 410 million people.¹ Acknowledged states numbered only fifty. Now there are nearly 200 states. 'Nationhood' for newcomers to the "family of nations" could not but be shaped by the history of the Empire itself.

I begin by tracing New Zealand's (often ambivalent) progress from Dominion to nation-state status during the course of the twentieth century. I go on to suggest that the increasing impact of international human rights and economic agreements on New Zealand's legislature and courts means there is no "national law" meant in a discrete and autonomous sense. How much "international" law is adopted rather than imposed is more difficult to assess. What is clear is that the early twentieth century version of the nation-state has evanesced.

I. The British Empire and New Zealand

Nationhood needs to be understood not only in relation to what national courts do but also by reference to how much autonomy executive governments and legislatures enjoy. Under the law of the British Empire, there was only one sovereign and its citizens shared a single nationality—that of British subjects.² When Britain engaged in war, New Zealand joined under British Command (up until World War II). The conceptual unity of the British Crown also encouraged economic interdependence. The British Empire was one large trading bloc. Dominions and former colonies produced food and other commodities to the specifications of the home country.³

As Dominions such as Canada, Australia, and New Zealand proved themselves in war, administration, and politics, the concept of a separate and divisible Crown eventually emerged. This was only recognized legislatively in the Royal Titles Act of 1953 (U.K.), which allowed the Queen to hold separate titles in right of different territories. Until that time all the countries in the Commonwealth were represented by a single head of state unified in both a single person and a single office. After 1953, although the person of the sovereign was the same, the office could be considered distinct in relation to the distinct territories. Of course, as with much of British constitutionalism, the formal legal position did not necessarily reflect the actual political position. The single sovereign of the self-governing dominions received separate advice from local advisors through her representative Ministers. The executive and prerogative powers were very real measures of independence and the common law constitution still recognizes this—a point to which we shall return.⁴

Neither were the legislatures of the various colonies fully sovereign. The New Zealand Constitution Act of 1852 (U.K.) established the New Zealand General Assembly (later the House of Representatives), which was empowered to make laws for "peace order and good government" of New Zealand.⁵ However, such laws were void if found to be...