Author Robert Ayson
A week ago New Zealand’s Foreign Minister Nanaia Mahuta and her Australian counterpart Marise Payne issued a joint statement citing “clear evidence of severe human rights abuses” in Xinjiang. The two Foreign Ministers also lent their support to the efforts of leading western partners: “New Zealand and Australia welcome the measures announced overnight by Canada, the European Union, the United Kingdom and the United States”, their statement continued.
But it did not take long for the penny to drop that there were limits to this solidarity. Wellington and Canberra were not joining in on travel bans and asset freezes on specified officials and on the Xinjiang Production and Construction Corps Public Security Bureau. “Australia and New Zealand welcome sanctions over Uighur abuses,” one headline read, “but impose none of their own.”
A week ago New Zealand’s Foreign Minister Nanaia Mahuta and her Australian counterpart Marise Payne issued a joint statement citing “clear evidence of severe human rights abuses” in Xinjiang. The two Foreign Ministers also lent their support to the efforts of leading western partners: “New Zealand and Australia welcome the measures announced overnight by Canada, the European Union, the United Kingdom and the United States”, their statement continued.
But it did not take long for the penny to drop that there were limits to this solidarity. Wellington and Canberra were not joining in on travel bans and asset freezes on specified officials and on the Xinjiang Production and Construction Corps Public Security Bureau. “Australia and New Zealand welcome sanctions over Uighur abuses,” one headline read, “but impose none of their own.”
Readers of that article were met by an explanation that the two Australasian countries lacked the legal means to be part of that action: “The Guardian understands this is because Australia and New Zealand lack Magnitsky-style laws that would allow the swift rollout of targeted sanctions against individuals for human rights abuses.” A similar explanation was offered in the South China Morning Post: “Australia and New Zealand – unlike the US, Canada, Britain and the EU – do not have Magnitsky legislation designed for applying targeted sanctions against individuals suspected of human rights violations or serious corruption.”
That there is no TransTasman version of Magnitsky is a fact. But since 2011 Australia has had an autonomous sanctions law in place which has already been put to use. The parliamentary Human Rights Sub-Committee has recommended that Australia move to adopt its own version of Magnitsky which would deal specifically with human rights issues. As one piece of analysis suggests: “A Magnitsky act which provides specifically for sanctions against human rights abusers will arguably be more effective and its use more politically acceptable, than adapting any of our current regimes for this purpose.” But this means that Australia’s existing legislation could be adapted to human rights problems if a government so wished. And this also means that even if Canberra decided it did not want to replicate the latest Xinjiang measures taken in Brussels, London, Washington and Ottawa, it would still have other unilateral sanctions options available.
New Zealand’s situation is different. A short time ago we nearly had no bananas. And today we certainly have no autonomous sanctions legislation. In what may count as the Ardern government’s most counterproductive foreign policy decision, long delayed efforts in that direction were abandoned just a few months ago. The Prime Minister ran with that explanation on Tuesday when asked whether New Zealand would join in on the EU-led effort on Xinjiang: “We don’t have an autonomous sanctions regime,” she explained. And, so it would seem, Wellington is legally restricted to raising concerns about China’s behaviour. In which case, we would have no choice but to rely on moral suasion.
So it would seem! Actually New Zealand does have at least some unilateral sanctions options even in the absence of specific legislation.
When the ill-fated autonomous sanctions bill was being prepared for parliament in 2017, the Legal Division of the Ministry of Foreign Affairs and Trade put together a regulatory impact statement which included these very pertinent reflections:
“At present, New Zealand can apply a limited range of sanctions and sanction-type measures in an ad hoc way within existing policy and legal frameworks. These include the refusal of entry visas, diplomatic sanctions such as the expulsion of diplomats, the suspension of official visits and the suspension of aid and cooperation. Measures of this nature have been applied in the past against countries like Zimbabwe and Fiji.”
From here we can just follow the dots. In 2007, when he was Foreign Minister under Helen Clark’s Labour-led government, Winston Peters announced that New Zealand was extending travel bans to members of Robert Mugabe’s family and supported “similar restrictions imposed by Australia and the United States in recent months.” By that time, New Zealand had put in place a more extensive range of sanctions on Fiji following the 2006 military coup. Clark and Peters announced that New Zealand was adopting “a wide range of measures which will affect high level contacts between the two countries: immigration; defence and sports links; and development assistance links of an inter-governmental character.” After Russia’s annexation of Crimea and campaign against Ukraine, the Key government’s response was comparatively modest. Nonetheless in 2014 Murray McCully announced that “New Zealand will join with our partners to implement travel bans against specific Russian and Ukrainian individuals involved in the crisis. Applying sanctions will position New Zealand alongside other members of the international community who have condemned the breach of Ukraine’s sovereignty and territorial integrity.”
The Ardern government recently added another example to this list. Following the recent military coup in Myanmar, Mahuta announced that “New Zealand is suspending all high-level political contact” and that she had “directed that New Zealand’s aid programme to Myanmar should not include projects that are delivered with, or benefit, the military government.” In addition the Foreign Minister indicated that the Ardern government “has also agreed to implement a travel ban, to be formalised in the coming week, on Myanmar’s military leaders.”
This record is at odds with the mythology that has recently grown up around New Zealand and sanctions. That mythology holds that New Zealand is technically unable to impose any sanctions whatsoever on China beyond those which the Security Council wishes to adopt (which means zero because of China’s veto power). But the record suggests that in response to the Xinjiang situation, New Zealand could, if it so wished, impose restrictions on visits by Chinese officials and restrict governmental interaction with specific parts of China’s official system.
It seems that Wellington simply does not want to make that choice, perhaps because it estimates that the costs of doing so are too high. Whatever the rationale, the Ardern government has been in no rush to clarify the situation about the options that it actually has at its disposal. The prevailing sanctions mythology is just too convenient.
Robert Ayson is Professor of Strategic Studies at Victoria University of Wellington
That there is no TransTasman version of Magnitsky is a fact. But since 2011 Australia has had an autonomous sanctions law in place which has already been put to use. The parliamentary Human Rights Sub-Committee has recommended that Australia move to adopt its own version of Magnitsky which would deal specifically with human rights issues. As one piece of analysis suggests: “A Magnitsky act which provides specifically for sanctions against human rights abusers will arguably be more effective and its use more politically acceptable, than adapting any of our current regimes for this purpose.” But this means that Australia’s existing legislation could be adapted to human rights problems if a government so wished. And this also means that even if Canberra decided it did not want to replicate the latest Xinjiang measures taken in Brussels, London, Washington and Ottawa, it would still have other unilateral sanctions options available.
New Zealand’s situation is different. A short time ago we nearly had no bananas. And today we certainly have no autonomous sanctions legislation. In what may count as the Ardern government’s most counterproductive foreign policy decision, long delayed efforts in that direction were abandoned just a few months ago. The Prime Minister ran with that explanation on Tuesday when asked whether New Zealand would join in on the EU-led effort on Xinjiang: “We don’t have an autonomous sanctions regime,” she explained. And, so it would seem, Wellington is legally restricted to raising concerns about China’s behaviour. In which case, we would have no choice but to rely on moral suasion.
So it would seem! Actually New Zealand does have at least some unilateral sanctions options even in the absence of specific legislation.
When the ill-fated autonomous sanctions bill was being prepared for parliament in 2017, the Legal Division of the Ministry of Foreign Affairs and Trade put together a regulatory impact statement which included these very pertinent reflections:
“At present, New Zealand can apply a limited range of sanctions and sanction-type measures in an ad hoc way within existing policy and legal frameworks. These include the refusal of entry visas, diplomatic sanctions such as the expulsion of diplomats, the suspension of official visits and the suspension of aid and cooperation. Measures of this nature have been applied in the past against countries like Zimbabwe and Fiji.”
From here we can just follow the dots. In 2007, when he was Foreign Minister under Helen Clark’s Labour-led government, Winston Peters announced that New Zealand was extending travel bans to members of Robert Mugabe’s family and supported “similar restrictions imposed by Australia and the United States in recent months.” By that time, New Zealand had put in place a more extensive range of sanctions on Fiji following the 2006 military coup. Clark and Peters announced that New Zealand was adopting “a wide range of measures which will affect high level contacts between the two countries: immigration; defence and sports links; and development assistance links of an inter-governmental character.” After Russia’s annexation of Crimea and campaign against Ukraine, the Key government’s response was comparatively modest. Nonetheless in 2014 Murray McCully announced that “New Zealand will join with our partners to implement travel bans against specific Russian and Ukrainian individuals involved in the crisis. Applying sanctions will position New Zealand alongside other members of the international community who have condemned the breach of Ukraine’s sovereignty and territorial integrity.”
The Ardern government recently added another example to this list. Following the recent military coup in Myanmar, Mahuta announced that “New Zealand is suspending all high-level political contact” and that she had “directed that New Zealand’s aid programme to Myanmar should not include projects that are delivered with, or benefit, the military government.” In addition the Foreign Minister indicated that the Ardern government “has also agreed to implement a travel ban, to be formalised in the coming week, on Myanmar’s military leaders.”
This record is at odds with the mythology that has recently grown up around New Zealand and sanctions. That mythology holds that New Zealand is technically unable to impose any sanctions whatsoever on China beyond those which the Security Council wishes to adopt (which means zero because of China’s veto power). But the record suggests that in response to the Xinjiang situation, New Zealand could, if it so wished, impose restrictions on visits by Chinese officials and restrict governmental interaction with specific parts of China’s official system.
It seems that Wellington simply does not want to make that choice, perhaps because it estimates that the costs of doing so are too high. Whatever the rationale, the Ardern government has been in no rush to clarify the situation about the options that it actually has at its disposal. The prevailing sanctions mythology is just too convenient.
Robert Ayson is Professor of Strategic Studies at Victoria University of Wellington
RSS Feed
