Legality of Te Kaha deployment

23 July 1999



Kia ora,

the following is the reply from Simon Upton to John Urlich regarding the legality of the proposed deployment of Te Kaha to the Gulf in September to enforce the blockade of Iraq.

23 July 1999

FROM : MINISTER OF FOREIGN AFFAIRS AND TRADE

TO : John Urlich, President, Peace Council of Aotearoa New Zealand Incorporated

Dear John Urlich

My colleague Rt Hon Don McKinnon is abroad at present, and I am replying on his behalf to your letter of 1 July concerning the deployment of HMNZS TE KAHA with the Multinational Interception Force (MIF) in the Gulf.

Your letter questions the legality of the TE KAHA deployment from two perspectives. First, you assert that by deploying with a nuclear-weapon state (the United States of America) beyond our territorial waters, there is a breach of the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987. I do not agree. Section 5 (2) (b) of the Act prohibits any New Zealand citizen or resident who is a servant or agent of the Crown from aiding, abetting, or procuring any person, anywhere outside the New Zealand Nuclear Free Zone, to manufacture, acquire, possess or have control over any nuclear explosive device. This does not mean, and cannot be interpreted as meaning, more than it says. The provision does not say that any association, whether jointly or otherwise, with other forces, whether for training or exercises or for other purposes, is prohibited. Mere association in any force where neither the association nor tbe force exists for the purpose of promoting the possession of or control over nuclear weapons, is not an offence.

Second, your letter asserts that the sanctions on Iraq are unilateral, and that our Government's action in participating in the MIF disowns New Zealand's obligations under the UN Charter. Again, I disagree. I refer you to UN Security Council Resolution 665, which calls upon states to use measures as necessary to halt inward and outward maritime shipping in order to inspect and verify cargoes and destinations to ensure strict compliance with Security Council sanctions. While the United States is the primary contributor and has operational control of the MIF, it is constituted to meet the obligations of Resolution 665, which remains in effect. New Zealand takes its United Nations obligations seriously, and hence has contributed on three occasions in the past to the MIF and with the TE KAHA deployment later this year. France, the United Kingdom, Australia, Canada, Belgium, the Netherlands, Bahrain, and Kuwait are others which have done so too.

PARLIAMENT BUILDINGS, WELLINGTON, NEW ZEALAND

TELEPHONE +64 4 4~ 9971, FACSIMILE +64 4 471 1444

Your letter also requested, under the Official Information Act, responses to a series of questions. My responses to your questions are as follow:

• Did the Minister of Defence seek advice from the Attorney-General on the legality of sending our navy to the Gulf? If not, why not?

  No. There was no need to do so, as there was adequate legal advice already at hand from officials of the Ministry of Defence and the New Zealand Defence Force.

• Which department provided the legal interpretation to the Attorney-General?

  See my reply above.

• Could we please have a copy of the legal interpretation provided from the Crown Law Office?

  The Crown Law Office did not provide a legal interpretation for Cabinet in its decision to deploy TE KAHA later this year. However, the following is an extract from a Cabinet paper in November 1998 when Ministers were alerted collectively to the likelihood of the frigate deployment occurring:

  "Given our Nuclear Free legislation, our ability to operate militarily with other forces which might be nuclear armed was considered in the context of New Zealand's response to Iraq's invasion of Kuwait in 1990. It was concluded that our participation would not contravene the Act, even if it were established that the Coalition did have nuclear weapons. This conclusion remains unchanged, and would apply equally to NZDF involvement in MIF operations with US Navy vessels."

  This advice underpinned Cabinet's subsequent decision to deploy TE KAHA to the MIF.

• Was the US nuclear deterrence policy taken in to account before the decision was taken?

  No, except in respect of ensuring that the deployment complies fully with New Zealand and international law.

• Where in the budget estimates is the money for the Gulf operations to come from?

  Cabinet agreed that the cost of this deployment should be met from within the financial baseline of Vote: Defence Force. This will be effected through a change in appropriation from Output Class D2 Naval Combat Forces to Output Class Dl 6 Operationally Deployed Forces.

• Will Parliament be allowed to debate the decision of Mr Bradford?

  Parliament regularly has opportunities to discuss New Zealand's foreign affairs, defence, and trade policies including our commitments to international peacekeeping efforts such as the MJF.

• What process is there to con test the decision of the Attorney-General under Section 15 of the Nuclear-free Act, which is contrary to the rule of law and natural justice in allowing the Attorney-General the powers of judge and jury? Will this proviso be removed? If so, when?

  Section 5 of the Nuclear Free Zone Act gives New Zealand authorities jurisdiction over certain offences committed outside New Zealand territory. Because of the unusual nature of this, the Attorney-General is given a discretion to authorise or to block the prosecution of all alleged offences under the Act. Such a provision is common to all legislation which creates an extraterritorial jurisdiction. As with any power exercised by the Executive branch of Government, a decision of the Attorney-General's under section 15 of the Act would be amenable to judicial review.

• Did Mr Bradford seek advice from the Select Committee of MFAT, or the Defence Secretary, or both and whose advice did he take on this matter?

  Mr Bradford sought the advice of officials from the New Zealand Defence Force, Ministry of Defence, and Ministry of Foreign Affairs and Trade. The Treasury was also consulted before a decision was taken to deploy TE KAHA for this assignment.

Yours sincerely
Hon Simon Upton
Acting Minister of Foreign Affairs and Trade
cc: Attorney-General
Minister of Defence
Secretary, Foreign Affairs, Defence and Trade Select Committee

For further information, please see the following resources available on our website.....

Military alliances and spending (Aotearoa/NZ)
F16s, frigates and other follies
Stop killing the people of Iraq
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