Back to Blog Posts
BINDING & NON-BINDING ( HARD LAW & SOFT LAW) KNOWING THE DIFFERENCE…DO NOT LET THE STATE PULL THE WOOL OVER YOUR EYES. The UNDRIP (UN Declaration For The Rights Of Indigenous Peoples. AND THE UN GLOBAL COMPACT OF MIGRATION ( 2 EXAMPLES OF SOFT LAW.)
Carol Sakey December 10, 2025
LEGISLATIONS AND LAWSUncategorized

BINDING & NON-BINDING ( HARD LAW & SOFT LAW) KNOWING THE DIFFERENCE…DO NOT LET THE STATE PULL THE WOOL OVER YOUR EYES. The UNDRIP (UN Declaration For The Rights Of Indigenous Peoples. AND THE UN GLOBAL COMPACT OF MIGRATION ( 2 EXAMPLES OF SOFT LAW.)

The UNDRIP adopted under a Veil Of Secrecy at the UN in 2010. However in 2007 NZ Govt objected to the UNDRIP for very good reasons namely it gave Iwi/Maori Veto Rights other NZrs do not have. Control – Management of all Natural Resources * Incompatible with NZ’s Constitutional Arrangements – 2 Classes of Citizenship.,

There is no Single Universal Agreed Upon Definition of the coined phrase ‘Indigenous People’ The Core Principles of the UNDRIP (UN Declaration on the Rights of Indigenous Peoples) Focuses on – Indigenous Peoples being that of ‘Self Identification’. An affirming Right to Self Identification. The UNDRIP is a Declaration of Aspiration (Non Legally Binding officially classified as Soft Law).. An International ‘Cooperative’ framework  (Soft Law) for Managing  International Migration whilst fostering global cooperation.

The UN Global Compact Of Migration (Non-Legally Binding) Classified officially as Soft Law. The UNGCM was Winston Peters Portfolio. It was adopted in December 2018. Crown Law made a point of stating that the UNGCM is Non-Binding (Did not make the public of NZ aware that there would be ongoing Reviews at a Global and Regional Level.  (Don’t Worry Be Happy its Non Legally Binding)

BUT. ACT Party David Seymour and Mark Cameron publicly reported they had some real concerns about the Govt adopting the UNGCM. Namely- (The Compromising of NZs Sovereignty * NZs ability to determine its own Immigration Policy * That this should be a matter for Sovereign States themselves                                    *The UNGCM could Impact on Freedom Of Speech and National Values.

Foreign Affairs Spokesman Todd McClay’s article in the Spinoff 11/12/2018 states “The UN Compact is riddles with Problems *Is Ill-suited for NZs shaping sensible Policy * Signing the UN GCM whether a Declaration * Agreement or a Compact- this is a serious decision that affects our Country. We should not take this lightly.. We do not thinks we should sign this at all”

He added “Countries should only sign the UNGCM if they are committed to putting it in place (the terms of the document that they are signing). Those governments that don’t sign the document – won’t lose face internationally. (Such as the 3 Party Coalition more recently will not rid itself of the UNDRIP because of losing Face on the International Stage)

Todd McClay stating that NZ’s own Courts maybe more willing to uphold the commitments to the UNGCM than National Party is. Saying that National does not believe Migration Policy should be governed by a UN Migration Governance, but solely by Sovereign States themselves. As the highly circumstantial nature of Migration makes it a difficult Poly area to apply a ‘Global Framework to’- Outside the basic Tenants of Human Rights. Therefore National stated they oppose the UNGCM. Having even more specific concerns about it.

. Each country must respond dynamically to the circumstances it finds itself in. The highly circumstantial nature of migration makes it a difficult policy area to apply a global framework to, outside of the basic tenants of human rights. For that reason alone we felt justified in our position to oppose this agreement, though as I will outline here, we have more specific concerns with this agreement as well.

Todd McClay stated “Kiwi’s have a good basis to consider ourselves Good Global Citizens when it comes to Immigration. Encouraging talent to move to our country, welcoming those who come here to call NZ ‘Our Home’. National remains committed to that principle” He said. Adding that National will not be a party that goes to Election calling for a dramatic reduction of migrants, or calling for discriminatory policies or banning people from Housing Market based on the sound of their name”

He added that the UNGCM does not make us better Global Citizens or create migration policies. It’s a Non-binding – non entity that will have no effect, therefore should not be signed. At the worst it will move NZ towards a Global Standard For Migration that does not Reflect the True Circumstances countries find themselves in, therefore the UNGCM should not be signed

THE UNGCM outlines 23 Principles of Action * Calling on Countries to Commit to Policies that Uphold these Principles. McClay stated that National believe that Migration is not well suited to a UN Framework. *As each country has individual contexts – circumstances * its impossible to form Principles to suit all of them * This would increase * Unintended consequence Eg:- “we do not want to face the pressures that we are seeing in countries like Australia & the US or Europe”

Remember -This is an International UN  Non Legally Binding Document but Todd McLay reports that there are emerging issues in this UN Migration Compact *The Failure to Distinguish between Legal & Illegal Migration *Specifics around what looks likely to amount to ‘Free Expression Limitations’ * The lack of Awareness of the ‘finely tuned Immigration settings of Individual countries

UN GCM Objective 17 – Calls for a Commitment to Eliminate Discrimination towards Migrants (Whan could be possibly wrong with that?). The document explains types of Policies that could be used to do this which includes ‘Sensitizing & Educating Media Professionals on Migration Related Issues & Terminology * Stopping allocation of Public Funding or Material Support to Media Outlets that systematically promote Intolerance’ (Eeem  at the same time the documents states ‘we must respect the Freedom of the Media’ (Double Speak)

Restricting speech * Refusing to support Media based reporting – that’s limitations of Basic Rights.  The commitments of the UNGCM do not match the specific Policy Settings and Values of Individual countries. (The State calling for defunding of the Media as being intolerant-Freedom Of Press (Freedom Of Speech Violation) Winston Peters pointed out after seeking advice from Crown Law – ‘The text is Non-binding and affirms National Sovereignty’

But if the UNGCM is simply worth nothing in terms of legal force- why would you be bothered to even engage with it? Because the Non-Legally Binding UNGCM Classified as Soft Law) is designed to have an effect. Other Non-Legally Binding UN Documents have already been imported into NZ Domestic Legislation (Legally Binding) -Waiting in a place called Soft Law ready to be embedded into Hard Law (Legislation-Legally Binding-Hard Law)

Into the Courts as the Govt is committed to acting consistently with these Non Legally Binding -Soft Law  Documents). The UN DRIP (UN Declaration on the Rights For Indigenous People. Adopted by Peta Sharples collaborated with John Key under a veil of secrecy went to the UN and signed it). This was meant to be simple  ‘affirming a set of Principles” But “Has crept into the way we actually now ‘Interpret Law In NZ”

Don’t Worry Be Happy- Its OK- Its Non-Legally Binding. (Its sits in a place called ‘Soft Law’. That can easily be embedded into Hard Law Legislation (Domestic Laws without the public knowing it). Soft Law ‘ A Toolkit of Policy Options for UN Member States to choose from. Works alongside existing Legally Binding Treaties (Like Human Rights Conventions) Provides a comprehensive framework for filling gaps where Legislations are weak or unratified. Depends on the reliance of Political Will

Aims to establish common principles, strengthen Existing International Norms (Even without Direct Legal Force) * Has the Potential to Influence International Migration Policies in UN Member Nation States. Peters did not tell the public of NZ that there would be Sub-Regional Regional and International Reviews of the UNGCM by the UN with UN Member State leaders. High Level International Meetings at the UN Assembly. with Heads of States. (The next global review is in 2026)..Last year NZ Government introduced the Mass Migration Management Act. To expand the time for Courts and Immigration Services for a Mass Migration Entry into NZ.

Non-Binding UN International Agreements (Sit in Soft Law). What should we be-aware of when it comes to Soft Law? (1) These are referred to as Non-binding by nature = Declarations * Codes of Conduct * Guidelines * Resolutions . These lack Direct Legal Force but Carry Political Weight and Influence… Includes Standards * Guides for Behaviors * Indicate Future Legal Development * Fostering Global (International )Cooperation

Soft Law Influences Domestic Laws, whilst Non-Binding can influence NZ Legislation & Policy requiring careful considerations by Policy Decision Making.                               Non Legally Binding (Namely Quasi Binding). NZ has used terms like Quasi Binding as to International Binding  Agreements. Suggesting a Blend of Legally Binding and Non-Legally Binding elements that require Legal interpretation

Soft Law is a Bridge to Hard Law (Non legally binding to Legally Binding Law-Legislation). NZ supporting Multilateralism therefore recognizes the Value of Soft Law in protecting shared Global Interests (Eg Environmentalist-Climate Actions etc.,). In essence Soft Law Instruments though not directly enforceable as is in International Treaties – Soft Law is seen by the State as crucial in ‘Shaping NZs International Commitments & Domestic Policies that demands care & legal political consideration.

The Govt downplays ‘Non-Binding’ Agreements to the public of NZ. Avoiding Accountability  *Non Transparency. * By-passing rigorous Domestic Scrutiny & Approval Processes. (Out of the Public Eye). Greater Executive dominance & Loss of Public Transparency. Soft Law Obligations are of significant importance to the State’s Practice in Policy making decisions. But Soft Law eludes public debate. * Can be ignored by Parliament thus managing Public Perception. What the Eye don’t See and Public Ears don’t Hear the Heart does Not Grieve Over. Soft Law offers greater flexibility without rigid Legal Constraints

Constructive Silence and downplaying the Publics significance and deviating from an Agreed Upon Path. Soft Law Non-Binding International Agreements are Pervasive in Modern International Relations. But Formal  International Binding Instruments  (Legally Binding) are more difficult to achieve. UN Member States are more likely to adopt Non-Binding International Agreements.(That do not need lengthy Domestic Ratification). Common Standards of Non-Binding agreement often eventually harden into Formal Domestic Laws.

Non-Binding (Soft Law)  Can by-pass Parliamentary approval. (Eg. the Secret adoption of the UNDRIP Key * Sharples 2010). Undermines Democratic Influences. Keeping important issues of concern out of the Public Eye.   This is the  Un-Masking of what the State does not make public about International UN  Non-Binding Agreements.

FOOD FOR THOUGHT: The Non-Legally Binding UNGCM. Submission to Select Committee opposing this . As a speaker several times in Aotea Square opposing the UNGCM. Brought Police Camera’s to my face. Police Officers shouting at me- To Go Home Now. Police at the door. With a Warning Letter ‘Do Not Speak” Do Not Attend A Protest opposing UNGCM’ To Not arrange A Protest. .

Would not accept the warning letter which they dropped at my feet. Went to the Protest the nest day  (Eeem – Why So worried- It’s a Non-Legally Binding Migration Compact) Parliamentary Office stopped adding names to my Parliamentary submission of those that signed it. Response ‘A Computer Glitch’

WakeUpNZ

RESEARCHER: Cassie

 

...
Read More

LEGISLATIONS AND LAWS Blog Posts View all Categories

REFERENCES TO LAWS IN NEW ZEALAND.
Carol Sakey May 19, 2023
LEGISLATIONS AND LAWS

REFERENCES TO LAWS IN NEW ZEALAND.

SOFT LAW: The term soft law is used to denote agreements, principles and declarations that are not legally binding. Soft law instruments are predominantly found in the international sphere. UN General Assembly resolutions are an example of soft law.. For example when NZ signed the Non-Binding UN Agenda 2030 it was accepted by all political cronies in the toilet bowl of Wellington. Soft Law is a stop gap to ‘hard law’- legislations. Ardern entered the UN Agenda 2030 into Domestic Policies, it them became ‘legalized hard law’ (Note not necessarily lawful). Soft Law needs no political consensus, it is just accepted as it is and not opposed in parliament. Hence mobilises a consistent general response without consensus. (Soft law is non-binding)

CONTRACT LAW:Is common throughout the country, some specific court interpretations of a particular element of the contract may vary between the states, countries. In New Zealand there are 5 key elements of a valid contract, a clear offer, unequivocal acceptance, adequate consideration, an intention all parties enter into legal relations under certain terms. Based on the principle that agreements must be honoured

CUSTOMARY LAW:The rulings of Customary Law institutions can be inconsistent, unpredictable and discriminatory. As decisions are often not recorded, and appeals from  decisions may be difficult, there is insufficient monitoring and supervision of their operations. Customary Law: Under the doctrine of aboriginal rights, customary laws or practices of a continuous nature may be granted the force of law by the courts and an associated rights enforced if they have not been extinguished by statute. The four principles of customary law, the general principles of law are laches, good faith, res judicata, and the impartiality of judges. International tribunals rely on these principles when they cannot find authority in other sources of international law. Customary Law is consuetudinary or unofficial law) exists where: a certain legal practice is observed and. the relevant actors consider it to be an opinion of law or necessity (opinio juris).

CIVIL LAW: The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or citizens. Its origins and model are to be found in the monumen- tal compilation of Roman law commissioned by the Emperor Justinian in the sixth century CE. Civil Law covers disputes between individuals, companies and sometimes local or central government. Civil law disputes are generally the cases in court that are not about breaking a criminal law. New Zealand’s civil justice system works in such a way that cases can be resolved through a claims process. What are 4 examples of civil law? Four types of Civil Law deal with Contracts, Property, Family Relations, Civil wrongs causing physical injury or injury to property (tort). Civil law, also known as private law, regulates disputes between private individuals or entities (e.g. companies). It is thus different to cases dealing with matters between individuals and the state, i.e. public law and criminal law. The drawback of Civil Law is that even if previous cases show you should win your case, there is no guarantee a judge will interpret the code in the same way on your case,

COMMON LAW: Began in England in the 11th century with the establishment by William the Conqueror, King of England, of the Kings Courts. The courts, in deciding local disputes, applied local customs. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes. Henry 11 is recorded as being the alleged ‘Father of Common Law”.  At the centre of common law is a legal principle known as stare decisis, which is a Latin phrase that roughly means “to stand by things decided.” In practice, stare decisis is just a fancy way of saying that courts and judges need to follow earlier decisions and rulings — otherwise known as caselaw. : Much of New Zealand’s law, such as its common law tradition and constitutional framework, has been inherited from the English legal system, which was applied (so far as applicable to the circumstances of New Zealand) in 1840. Independent, fair and efficient courts are an important cornerstone in our democracy. New Zealand has common law, which means judges make legal decisions based on previous judges’ decisions as well as on statutes (written law) passed by Parliament. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common laws sometimes prove the inspiration for new legislation to be enacted. Common Law is better than Civil Law as it  allows for flexibility allows  judges to be able to respond to future cases, even those that they had not predicted. Common law is independent of political influence, ensures consistency in the legal systems and is clearer in instructions compared to civil law.  Civil law systems are codified statutes predominate.

My Rights Under Common Law:-Blackstone’s Introduction to the Study of the Law and the Constitution lists three primary common law rights: personal security, personal liberty and private property, and auxiliary rights necessary to secure them, such as access to justice.  Common Law protects Human Rights:- These rights and freedoms are protected by the common law principle that legislation should not infringe fundamental rights and freedoms unless the legislation expresses a clear intention to do so and the infringement is reasonable. ‘Firstly Do No Harm’, This harm/no–harm distinction at common law cannot be dismissed

NOTE: An interesting case -Judge Wylie (Published 12/3/2020) A High Court Judge opened the door for a new ‘Tort’ laws making corporates responsible for their greenhouse gas emissions. This is related to 2 out of 3 claims made by Climate Change Iwi Leaders Group Chair Mike Smith against Fonterra, Genesis Energy, Dairy Holdings, NZ Steel, Z Energy, NZ Refining and BT Mining. Has had a similar case against the government.

The hearing was to consider the corporates move to strike out the claim could not be reasonable argued. Wylie released a decision saying “while Smith could not proceed on already established rules of negligence and public nuisance, a new area of law could be created. He said “I am reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions is untenable. It may, for example, be that the special damage rule in public nuisance could be modified, it may be that climate change science will lead to an increased ability to model the possible effects of emissions”. Smith wanted the court to declare the corporates have caused a public nuisance through their emissions and order they move to ‘zero net’ emissions from their activities by 2030.

The Judge referred to a paper where the Supreme Court chief alongside other judges, states the problem of climate change does not adhere well to established legal doctrine.  “The Common Law method brings stability, but it can also allow for the injection of new ideas and for the creation of a new responses as required” Judge Wiley cited. The statement of claim raises three caused of action, all in tort-public nuisance, negligence and breach of an inchoate duty. Declarations are sought that each of the defendants has unlawfully caused or contributed to the public nuisance alleged or breached duties said to be owed to Smith, Injunctions are also sought requiring each defendant to produce, or cause, zero net emissions from its activities by 2030.

Judge Wylie said “Smith’s negligence claim could not go ahead because there was no proximity between Smith and the Corporates, and that if he ruled in favour, floodgates may open”. He said “”the public nuisance claim was  clearly untenable”

Judge Wylie said “ Even if Smith was successful in his wider claim it would be difficult to craft an injunction which did not clash with Parliament, Government policy and other law. It would in effect have the court acting as regulator requiring specialist no judicial expertise. Meanwhile a High Court judge had declines an application to strike down a judicial review of Thames Coromandel District Councils refusal to sign a ‘climate change’ declaration. Justice Gault also declined the councils bid for security deposit, saying it was in the publics interest for the case to go ahead and the group seeking the review could not afford it.  Justice Gault did not look at the merits of the case, but said “the bar for striking out a judicial review should be hight”. Arguments in the application looked at whether the declaration had any meaningful impact or whether it was simple binary decision for the local Mayor to sign or not. The decision on the Smith case is covered in more detail in the Energy and Environment  documentation

LINKS

https://www.scoop.co.nz/stories/HL2003/S00142/judge-leaves-door-open-on-climate-change-case-just.htm

https://energyandenvironment.net.nz/home.html

 

 

 

 

...
Read More
Back to Blog Posts