NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Yearbook of International Law

University of Canterbury
You are here:  NZLII >> Databases >> New Zealand Yearbook of International Law >> 2007 >> [2007] NZYbkIntLaw 11

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Nielsen, Claire --- "The Executive Treaty-making Prerogative: A History and Critique" [2007] NZYbkIntLaw 11; (2007) 4 New Zealand Yearbook of International Law 173

the executive treaty-making prerogative: a history and critique

Claire Nielsen[*]

I. Introduction

For centuries as a matter of English constitutional law the Executive - be it Monarch, Crown or Government - has exercised the prerogative power to enter into treaties. Is this appropriate in New Zealand today? That is the question this paper explores. Much has been written in recent years about a possible increased role for Parliament in the treaty-making process – that is an important debate. But this paper seeks to explore a relatively neglected aspect of the debate; the historical and conceptual justifications of the executive treaty-making power. The aim is to challenge the veracity of the long-held assumption that the Executive ought to hold the treaty-making prerogative in the modern New Zealand context. This paper suggests that it is time to shift the framework and starting point from which we analyse the locus of the treaty-making power in New Zealand, so that it can be reconciled with norms of democracy and accountable government, and divorced from those historical links preventing a modern, critical analysis of this key power.

In order to challenge the assumption of an exclusive executive treaty-making power, by which is meant a position in which the Executive alone has the ultimate power to enter into treaties, the current position of the treaty-making prerogative in New Zealand, as inherited from the United Kingdom, is outlined. The history of the treaty-making prerogative, its theory and practice, is then traced in order to show that the practice and nature of the power are contextual and that its history deeply affects its modern conception. The aim is to critique the assumptions on which the status quo is based, using fundamental changes in context to show that the traditional justifications underpinning the status quo are no longer pertinent. Thus, the starting point of an exclusive executive treaty-making power is undermined. Given that in the modern context the justifications for an exclusive executive treaty-making power have been undermined, the paper considers potential ways to move beyond the historical constitutional position, looking at the possibility of designing a treaty-making process from a starting point of democratic ideals that takes into account any practical elements justifying an executive treaty-making power, in order to strike a balance justifiable in a modern representative democracy.

Before embarking on the discussion it is important to outline the limits of this paper. The aim of the paper is not to argue the merits or otherwise of parliamentary involvement in the treaty-making process.[1] The focus is not the practical and incremental ways in which Parliament can fill the democratic deficit in the treaty-making process. Rather the aim is to transform the starting point from the status quo of an exclusive executive power to one consistent with democratic norms, through acknowledging the extent to which history has affected our modern conceptions of the power and the need to accept such a power as contextual. The focus is distinctly historical and conceptual, designed to open the way for challenging the traditional starting point rather than to necessarily take the treaty-making power out of the hands of the Executive.

II. The Need to Question the Status Quo

Why question the status quo? The executive treaty-making prerogative has always been seen as a unique aspect of government, so that: [2]

[e]ven after Parliament had effectively asserted its practical day-to-day control of domestic policy… the belief lingered on that the conduct of foreign affairs was a thing apart, something of an esoteric mystery, not appropriate for detailed intervention or constant scrutiny.

This conception of foreign affairs as a ‘special’ area of government and the historical links, which are outlined in a later section, have resulted in an attitude of protectiveness and entitlement to the power by the Executive, and a consequent failure to justify it in context. These attitudes are a threat to democratic ideals and notions of accountability in a time when international treaties have pervasive effects, allowing the Executive to make pragmatic concessions while warding off fundamental change, and are no longer appropriate in the modern context unless they can be justified.[3] A contemporary example of this protective attitude are the guidelines issued by the New Zealand Ministry of Foreign Affairs under which the Minister decides which bilateral treaties are considered important enough to be tabled in Parliament.[4] These guidelines are worded to clearly reserve the power for the Executive and are at pains to emphasise the discretion of the Minister in making this determination; they reveal “the care the Executive has taken to ensure that the trigger remains in its hands”.[5] Events surrounding the negotiation and ratification of the Singapore Agreement also show the extent to which the Executive sought to ensure that its prerogative was unaffected despite choosing to submit it to Parliament for a vote of support.[6] Since the beginning of 2000 alone, New Zealand has signed or entered into over 70 multilateral and around 100 bilateral treaty actions on a wide range of subject matter;[7] the realities of the impact of international law cannot be ignored in the way we conceive of the treaty-making power today. On this basis it is necessary to challenge the assumption, both in order to ensure the power matches its context, and to remove the basis for an executive attitude that has the potential to lead to abuse in an area of law which is increasingly important and pervasive. This does not mean that there may not be practical and conceptual reasons for the Executive to be the dominant player in treaty-making specifically and foreign affairs generally, only that the power must be justified rather than presumed.

III. The Status Quo and Recent Reforms

This is not to say that there have been no challenges to the status quo. There have been challenges in New Zealand, but these have focused on Parliament not the Executive, and have maintained an exclusive executive treaty-making power as their starting point. This part sets out these challenges and the current constitutional position in New Zealand.

A. The Status Quo

In New Zealand the power to enter into treaties rests with the executive branch of government as part of its foreign affairs prerogative.[8] Only the Executive has the power to bind New Zealand at international law. This constitutional allocation of power is inherited from the British constitutional system and the role of the Crown in that system. In Westminster systems the Executive has traditionally dominated treaty-making,[9] and New Zealand, having the closest adaptation of the Westminster system,[10] is no exception. The orthodox statement of the position in the United Kingdom, and former Dominions such as New Zealand, can be found in the Privy Council case of Attorney-General for Canada v Attorney-General for Ontario:[11]

Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action.

This Executive act is carried out by virtue of the royal prerogative, which in New Zealand is exercised by the Crown on the advice of ministers and therefore in reality is exercised by Cabinet. The royal prerogative was inherited from Britain by virtue of the doctrine of the indivisible Crown.[12] The foreign affairs prerogative, including the power to make treaties, was one of the last prerogatives to be delegated from the Imperial Executive to the Dominion executives, and was only done in response to the circumstances of the First World War, with New Zealand only really exercising an independent power in this area during the Second World War.[13]

B. Recent Reforms

In recent years in New Zealand, as well as in other Westminster systems, there have been strong calls for a shift towards greater parliamentary involvement in the treaty-making process.[14] These calls have ranged from a desire for greater parliamentary scrutiny and transparency, to a fundamental shift in the constitutional allocation of power by giving Parliament a power of approval. Reforms have fallen short of giving Parliament a power of approval,[15] but reforms to increase transparency, accountability and consultation have been instituted.

Changes have been implemented through the Standing Orders which require that the Executive table all multilateral treaties, and important bilateral treaties, in the House, 15 sitting days before intended ratification, along with a National Interest Analysis which includes the advantages and disadvantages and many of the consequences of becoming a party to a particular treaty. The treaty then goes to select committee for consideration and public consultation, and can be debated in the House.[16] Importantly, Parliament does not have the power to prevent the Executive ratifying the treaty.[17] The impetus for these reforms was the perceived democratic deficit in the treaty-making process and a perception that the courts were exacerbating this deficit by bringing unincorporated treaties directly into domestic law.[18] These calls increased with the introduction of Mixed Member Proportional representation (MMP) and the possibility that minority governments would control the treaty-making power.[19] The implementation of these changes to the treaty-making process, as well as situations where it has been practically necessary to involve Parliament in treaty-making decisions, has lead some to identify the emergence of a constitutional convention restraining the Executive from taking treaty action until a treaty has been debated in Parliament.[20] In this way the power is said to shift from the Executive to Parliament, although not extending to an actual approval role, and thus the Executive is practically restrained and a compromise reached. For the purposes of this paper, practical restraint of the Executive does not undermine the need to question the status quo, as the conceptual basis of such a constitutional convention still assumes that the Executive is justified in having this power as a matter of constitutional law, but merely restrained from using it on a practical level. Such a position fails to counter the protective attitude of the Executive discussed above and does not answer the need to critically assess this power in a modern context.

What is important here is that these reforms and calls for change have, as their starting point, the Executive control of the treaty-making power. This starting point is unchallenged. Instead, the process is incrementally made more democratic, accountable and transparent by increasing the role of Parliament.[21] This is a very important element of the debate over the treaty-making prerogative. However, this paper attempts to shift the focus of the debate by questioning the starting point of an exclusive executive power so that the process can be a more balanced one and the Executive will not appear justified in protecting their exclusive power to enter into treaties. The question then becomes, why is this assumption held so uncritically? To answer this we need to turn to the past.

IV. An Historical Sketch

The history of the treaty-making prerogative is largely a history of British royal power and the nature of government under the Westminster constitution, both of which have clearly informed the contemporary New Zealand constitutional structure.[22] The aim of this section is to sketch the broad themes and patterns in the source, concepts and practice of the treaty-making power. This gives rise to two important themes. First, that the executive treaty-making prerogative is tied intrinsically to historical notions of monarchical, discretionary and personal power through its source in the royal prerogative and the historical practice of treaty-making. Second, it reveals the executive treaty-making power to be a creature of context, historically contingent, and adaptable to changing circumstances despite the appearance of continuity in its legal position. Understanding this helps to isolate contextual elements and concepts surrounding the power that have endured and assist in assessing whether or not it is still justifiable today. This is crucial in rebutting the notion, implicit in discussions of the power, that an executive power to enter into treaties is self-evident and correct on the basis that it has historically been so. The source of the executive treaty-making power in the royal prerogative is considered, then the movement from personal to impersonal government on an internal and external level. Finally, the historical practice of treaty-making is discussed, focusing on the involvement of Parliament and the disjuncture between law and practice in the context of treaty-making.

A. The Treaty-Making Power as a Prerogative Power

The source of the Executive treaty-making power is the royal prerogative, which has a long and chequered history. It has been notoriously difficult to define at any given point in time.[23] The royal prerogative is inherently contextual and tied to notions of royal authority. This can be seen in the oft cited definition by Sir William Blackstone, which emphasises “the special pre-eminence which the King hath… in right of his regal dignity”,[24] and A. V. Dicey’s definition, which stresses the residual and discretionary nature of the royal prerogative “which at any given time is left in the hands of the Crown”.[25] The importance of these definitions for the purposes of this paper is to highlight the way in which they link the royal prerogative to context and the monarch, and have contributed to the associated difficulty of trying to define the prerogative at any given point in time. This difficulty defining the prerogative power stems, in part, from the fact that “the prerogative powers can never be a legal question pure and simple but also a matter of political theory”.[26] This reflects the notion that the royal prerogative was tied to the relative power of the Crown and its extent justified by political realities.[27] It is clear that the prerogative powers existed in the Middle Ages, at which point they were largely tied to their feudal origins, and associated with various proprietary doctrines, reflecting the position of the monarch as feudal lord rather than central governmental authority.[28] As royal power was used more actively and government centralised under the Tudors, and as notions of the prerogative and the Crown came to be discussed and justified, more expansive and inalienable prerogative powers were claimed.[29] These claims reached their peak under the Stuarts in the 17th century who, along with the theory of divine right, claimed absolute and inseparable prerogatives as existing beyond the law.[30] The Revolution Settlement settled this issue, making it clear that the royal prerogative was defined and limited by law, but it still left a wide range of powers in the hands of the monarch.[31] By the 18th century the prerogatives had developed into powers suited to the Executive of a modern State.[32] This brief sketch shows the shifting content of the royal prerogative as the power of the Crown and the nature of government adapted to context, while remaining formally tied to notions of the personal monarchy.

There are two aspects of the history of the prerogative powers that are relevant to this discussion. Firstly, there is the royal nature of the prerogative and its inherent attachment to ideas of monarchical power. And secondly, the extent to which problems of definition and justification over time reveal the nature of the prerogative powers as historically contingent, reflecting the relative power of the Crown at any given time, and being justified by political realities. These elements show that the definition of the treaty-making power as part of the royal prerogative has had a significant impact on the way in which it is conceived at present.

As a category of prerogative power the foreign affairs prerogative, including the treaty-making power, is adaptable and historically contingent. It is also, as with other prerogative powers, tied to notions of monarchy and inherent monarchical powers. However, the foreign affairs prerogative in particular has been seen as a ‘special’ category, in which, even after the Revolution Settlement, the monarch retained a seemingly more absolute discretionary power. We can see this in Blackstone’s description of the ability of the King to conduct foreign affairs, which echoes the concept of inseparable and absolute prerogatives which otherwise did not really survive the Revolution.[33] The link of foreign affairs and treaty-making to a more absolute sovereign has had long-standing effects in the way foreign affairs has been conceptualised, tying it to royal power and discretion.[34] This was enhanced by seeing treaty-making in the past as an extension of the prerogatives of war and peace.[35] This was unsurprising given the traditional content of most treaties, but it also served to tie all treaty-making to powers that were seen as fundamentally monarchical and part of the monarch’s role of defending the realm.[36] While there may be reasons for a modern Executive to retain a dominant role in foreign affairs it is important to acknowledge that the status quo is deeply coloured by such historical links.

B. The Nature of Treaty-Making

Just as the royal prerogative is contextual and a product of circumstance, so is the nature of treaty-making and the role of the sovereign in this process. Over the course of history we can see fundamental shifts and continuities in the concepts that inform the treaty-making process today. Prior to the rise of the State in the 16th and 17th centuries, the making of treaties was essentially a personal endeavour. “In medieval times and before the establishment of constitutional monarchy, relations with foreign States were no more, or less, that the personal relationship of the English king or queen and the foreign sovereign”.[37] Treaties were seen as personal contracts between sovereign monarchs, resting on their personal sovereignty over a particular territory, and were often only binding for the duration of the signatory monarch’s life.[38] For example, the Treaty of Richmond between Henry VII of England and James IV of Scotland in 1501 contained a provision that the agreement would terminate one year after the death of both monarchs.[39] This conception of treaty-making changed as concepts of the State and sovereignty changed. The sovereign ceased to act with personal sovereignty and began exercising sovereign authority as the representative of the nation as a whole, binding the nation to treaties.[40] Here we can see that the treaty-making prerogative, while still focused on the person of the monarch, adapted to changing conceptions of the State and sovereignty. The original links to personal sovereignty and the role of the monarch as representative have had an enduring influence, and can be seen today both in the Executive protectiveness of their exclusive treaty-making power and the continued distinction of foreign affairs as a world apart from the ordinary business of government.

C. From Monarch to Ministers

This movement to more impersonal mechanisms was mirrored in a shift from personal monarchy to governmental power on the domestic level in the 18th and 19th centuries. This was not a formal constitutional change but rather the product of changing practices within the executive branch of government as power was gradually transferred from the personal power of the monarch to be exercised by his or her ministers.[41] We gradually see the development of a constitutional convention whereby the monarch still formally exercised power, but this was done on the advice of his or her ministers and Cabinet.[42] The extent to which the monarch was involved in governmental matters still depended on the individual monarch and the circumstances, but over time it clearly became less and less acceptable for monarchs to involve themselves personally.[43] A good example of this shift in the area of foreign affairs is Queen Victoria, who, while very interested and active in foreign relations, recognised that, as a matter of convention, powers needed to be exercised on the advice of her Foreign Secretary. This was so much the case that even the Queen and Prince Consort’s private correspondence with foreign monarchs was presented to the Foreign Secretary where foreign affairs matters were implicated.[44] It is important to understand the historical gap that opened up between the formal constitutional position and the real exercise of power as the Executive changed to reflect new circumstances, and to note the continuation of the formal tie to the monarchy in the exercise of power.

D. The Treaty-Making Power in Practice

In looking at the prerogative powers, the nature of treaty-making, and the move to a less personal form of constitutional monarchy, it is evident that these concepts, along with many elements of the Westminster constitution, are defined by their context and amenable to changing circumstances. The same can be said of the historical exercise of the treaty-making power by the executive branch of government. A survey of this practice reveals that the static constitutional position belies the reality of a power exercised in accordance with the relative powers of the Executive and representative institutions at any given point in time.[45] It also reveals the tendency of the co-operation between the Crown and representative institutions to be framed in terms of royal or executive discretion, reflecting the historical dominance of the view that as a matter of law the treaty-making prerogative is exclusively an executive power.

This static constitutional position is the constitutional allocation of the treaty-making power to the Executive, which has a long historical and conceptual pedigree. In accordance with this constitutional position it is not uncommon to come across statements such as, “it may be said that under British constitutional law… the authority to make treaties is vested absolutely in the crown as the unquestioned prerogative of sovereignty”.[46] This, in fact, may be a reason why there has been a failure to assess critically the position in the modern context.[47] It is clear that even in Saxon times the King represented the nation in making treaties.[48] For hundreds of years this has remained the case in Britain and throughout the British Empire, with the proviso that, as stated above, there have been various shifts in the power of the Crown, its prerogatives and its role in government. In addition to this legal position, the treaty-making power has long been viewed as an executive one.[49] Such eminent thinkers as John Locke and Jean-Jacques Rousseau, among others, have viewed the power as an essentially executive one.[50] It is suggested that this was the case because they were conceiving of the power in terms of monarchy.[51] This is supported by the fact that de Vattel in looking beyond a pure monarchical system was able to conceptualise representative institutions as playing a role in the treaty-making process.[52] This reveals the extent to which treaty-making has been conceptually linked to personal monarchy, and thus the need to reconsider it in a context where personal monarchy is no longer the norm.

It is the role of representative institutions that reveals a gulf between the legal position in the constitution and the reality of exercising the treaty-making power in various contexts. The actual practice of entering into treaties is a far more nuanced and contingent process than is suggested by the constitutional position attributing the sole power to make treaties to the Executive. The aim of considering this practice is not to establish historical requirements or duties to consult Parliament,[53] but rather to show that an exclusively executive treaty-making power is not as axiomatic as the law might suggest, and that its exercise in reality is determined by context, and the relative power of the Crown and Parliament in that context. In addition, it will highlight the extent to which such a practice continued to be seen as at the Crown’s discretion, where it was considered politically expedient.

It was noted above that Saxon kings acted as the representative of the community in conducting foreign relations.[54] The reality was that while the king had a wide discretion in this area, it was limited by the necessity of acting with the Witan, who represented the wisdom of the community, in matters of government, including foreign affairs.[55] Practice in the Middle Ages also reflected degrees of popular participation in the treaty-making process.[56] Kings and princes in England and Europe would usually not make important treaties without consulting the community,[57] and Parliament in England was seen as free to debate on all matters including foreign policy.[58] For example, in 1416 a treaty with Sigismund was submitted to Parliament by Henry V, and Parliament duly approved ratification.[59] So, while the power was quite centralised on the monarch, representative institutions played a role and monarchs were interested in getting the assent of the community to encourage greater support and compliance, especially with regard to sensitive treaties.[60] This need to consult with Parliament during the Middle Ages can be seen as reflecting the relative power of the Crown at the time. It seems that as the power of the Crown and the Crown’s claims to power increased under the Tudors, and even more under the Stuarts, Parliament played less of a role in the making of treaties.[61] James I was particularly hostile to the participation of the Commons in foreign affairs “except occasionally and at his discretion”.[62] Parliament was not completely excluded; its rights to ask for information and offer advice were accepted, and the submission to Parliament of treaties such as the Treaty of Utrecht reveal the perceived political importance of parliamentary sanction in these matters.[63] The important point to note is that it was seen as discretionary, and was relative to the power of the Crown in the context of how politically necessary parliamentary support was perceived to be, with the formal constitutional position maintained as being the reality.[64] It is interesting to note that following the Revolution Settlement and the establishment of constitutional monarchy in England when the Crown’s prerogatives were limited by law, the treaty-making prerogative retained its absolute nature in theory, and that this theory was defended rigorously by the Crown and Parliament.[65] However, it is once again clear that while the Crown maintained a significant amount of discretion and theoretical power, and the discourse was always framed in these terms, Parliament did play a real political role in treaty-making in the 18th century.[66] This role varied in degree with individual monarchs, for example during Anne’s reign only one treaty was submitted to Parliament before ratification,[67] and consultation remaining discretionary with the Triple Alliance entered into in 1717 but not submitted to Commons until 1730.[68] However, it was evident that the Crown accepted the political necessity of going beyond the requirements of the constitution in consulting Parliament and keeping it informed – “there was a considerable difference between what was permissible in theory and what was tolerated in practice”.[69]

This was the landscape of treaty-making practice when monarchs exercised real executive power. The trend persisted, however, as government underwent the shift away from personal monarchy, with the Executive continuing to assert the orthodox constitutional position while consulting Parliament to varying degrees where politically necessary. A 20th century example of this is the peace treaties following both the First and Second World Wars. These treaties were submitted for parliamentary approval in both the United Kingdom and the Dominions, including New Zealand.[70] The parliamentary debates in New Zealand on the issue reveal the clear separation between theory and practice. In approving the ratifications by resolution, which was clearly politically desirable, Members of Parliament and the Executive were aware that this approval was constitutionally unnecessary and that the Executive could legally ratify without any word from Parliament.[71] In this continued gap between law and practice outside of the context of a system of personal monarchy, we can see the retention of the link to historical concepts of treaty-making and foreign affairs and the extent to which constitutional continuity disguises the realities of a power amenable to context.

It would be false to assume that because the allocation of the treaty-making power to the Executive has dominated constitutional history that there have not been any challenges to the orthodox position. The extent of such challenges reveal a response to circumstances, and a developing desire to ensure that effective checks were placed on executive power even in the foreign affairs context. In the 18th century there were calls by individuals for Parliament to have a more formal role in treaty-making.[72] For example, in 1738 Sir William Wyndham proposed that treaties be communicated to Parliament before ratification, and an anonymous pamphlet in 1760 advocated the debate of a peace treaty in Parliament.[73] However:[74]

[s]uch calls were rare, and pressure for a constitutional change in Parliament’s position was slight. Instead, the emphasis was on the value to government of parliamentary support, and therefore an extension of parliamentary competence by permission; rather than any alteration of the royal prerogative in this field.

By the early 20th century, however, calls for a parliamentary approval power of treaties were strong. These were precipitated by the perception that World War I had been caused by numerous secret treaties entered into by the Executive, of which Parliament and the people had no knowledge.[75] Major proponents of this position were Arthur Ponsonby and the Union of Democratic Control, of which he was a member, who felt that democracy and peace required a transparent process in which Parliament approved treaties.[76] Ponsonby suggested a special parliamentary committee be formed and that no treaties ought to be entered into without the approval of Parliament.[77] The Executive’s claim to an exclusive power prevailed and he did not effect this constitutional change. He did introduce what is known as the Ponsonby Rule in 1924 requiring the tabling of treaties in the House of Commons 21 sitting days before ratification.[78] This reform reflected a new, more systematic degree of parliamentary involvement that was desirable in the context. However, it originated from a starting point of executive discretion and entitlement to an exclusive treaty-making power, with a concession to democratic ideas.

This historical sketch reveals a number of crucial trends and themes. The first is the extent to which the royal prerogative has tied the treaty-making power to notions of personal monarchy, and revealed it to be historically contingent. Tied into this is the notion that foreign affairs are something apart from ordinary governmental affairs, once again linked to absolute and personal sovereignty. This attitude has endured, and can be seen in the attitude of the courts to foreign affairs matters.[79] This is despite significant changes in context affecting the fundamental nature of foreign affairs and treaties that will be discussed below. In addition, the persistence of a gap between the staunchly guarded constitutional position and the political realities of the way the treaty-making prerogative has been exercised has obscured the true nature of the power, making the constitutional position seem self-evident rather than one that depends in reality on circumstances, politics and relative power balances. This has allowed the power to obtain an aura of mythic continuity and emphasised executive discretion in consulting Parliament, rather than real political necessity. Overall the theme running through this historical sketch is that the treaty-making prerogative, as with much of the Westminster constitution, is contextual, adaptable and historically contingent. Definitions of the prerogative, the nature of government, the nature of foreign affairs and the exercise of the treaty-making power are clearly defined in relation to their circumstances, despite appearances, and ought to be understood as such. Once we accept this reality of historical contingency, it becomes clear that the allocation of the treaty-making power must be justified in context, it cannot merely be accepted as axiomatic and ahistorical, and must be read in light of its circumstances. It is to this context that the paper now turns, in order to assess the extent to which there has been a further change in context undermining the enduring historical links and traditional counter-balances and justifications associated with the treaty-making prerogative.

V. A Critique of the Status Quo

A. Contextual Change

The historical sketch of the treaty-making prerogative reveals a long-held assumption that the legal power to enter into treaties is the exclusive preserve of the Executive, be it the monarch personally or the government of the day. This legal assumption is challenged by the political realities of a shift away from personal, monarchical rule and a tension between Parliament and the Executive in the exercise of foreign affairs. This potentiality for change and adaptation to context reveals a need to justify the Executive retention of this power in a contemporary New Zealand context. The argument in this section will revolve around the notion that the nature of international law, its relationship to domestic law and its content, and the nature of government, have fundamentally changed from when an assumption of an exclusive executive treaty-making prerogative may have been justified. In some ways it is an extension of the historical sketch to encompass modern circumstances, however, it is discussed separately in order to highlight the fundamental nature of the change in context and the extent to which historical conceptions of the treaty-making power no longer fit in this context.

1. The Nature of International Treaties

The changed nature of international treaties has been fundamental in many ways, one of the most important being a shift in their content which undermines the conceptual links to monarchical power and matters of high state that have dominated treaties in the past, coupled with a huge increase in the number of international treaties.[80] From at least the Peace of Westphalia right through to the 20th century, treaties and international relations were largely concerned with matters of war, alliances and peace and the effects flowing from these actions.[81] The royal prerogative to enter into treaties was often intrinsically associated with the powers of the Crown to make war and peace, and foreign affairs as a whole maintained the image of being the exclusive preserve of the sovereign,[82] despite its exercise in practice. This balance has been fundamentally altered today. While these matters are still very important, most treaties are now concerned with issues such as international human rights, the environment, international trade, regulatory harmonisation, to name a few, and “there are few facets of our lives that are not touched in some way by international law”.[83] In the post-World War II era large numbers of legislative and normative treaties, rather than political, contract-like treaties have been entered into.[84] This means that to a large extent treaties are no longer solely concerned with the rights and obligations of sovereign States vis-à-vis other States, but often regulate the rights and duties of individuals within States, or have a direct impact on their day-to-day lives.[85] A classic example of this are the human rights instruments negotiated under the auspices of the United Nations, such as the International Covenant on Civil and Political Rights (ICCPR), which explicitly regulate the relations between States and individuals.[86] In addition, in areas such as international environmental law, treaties are less concerned with protecting the interests of States, and more concerned with co-operation to solve global problems.[87]

The reality is that treaties are no longer personal alliances between sovereign monarchs; they are complex regimes that have a significant effect on the lives of individuals. This huge shift in the nature and content of international treaties means that international law is increasingly encroaching on domestic legislative and policy space, and the relationship of international law to domestic law and institutions is changing.[88] Treaties often bind States as to the future, can be difficult to withdraw from, and are increasingly implemented through mechanisms outside the scope of Parliament’s control.[89] A number of examples serve to illustrate these trends. The ICCPR commits New Zealand to the guarantee of certain fundamental civil and political rights. Some of these rights have been codified in the New Zealand Bill of Rights Act 1990, others have not, but as a matter of international law New Zealand is still bound to observe them. The treaty has no withdrawal provisions and it has been held not to be the type of treaty into which such provisions can be implied.[90] It is, in effect, permanent law. In the arena of international trade, most agreements have withdrawal provisions but the nature of the system means that the reputational damage, compensation payable and the detriments of being outside the system effectively nullify this avenue.[91] In the environmental sphere the Kyoto Protocol provides an example of a treaty that binds New Zealand as to the future without future parliamentary involvement. Under section 51 of its implementing legislation, the Climate Change Response Act 2002, future agreements, modifications and decisions related to the treaty will come into New Zealand law as regulations having the force of law.[92] Similarly the bilateral treaty setting up a trans-Tasman scheme for the regulation of therapeutic products is an example of a regulatory harmonisation scheme with significant domestic impacts being implemented largely through delegated legislation and policy outside of Parliament.[93] As well as these constraints imposed by specific treaties, New Zealand as a small nation has a significant interest in complying with and taking part in multilateralism, so as to appear as a good international citizen.[94] Once the Executive has signed a treaty it is almost a fallacy to say that Parliament could refuse to pass the implementing legislation given New Zealand’s strong compliance interest – “the consequences of infringing international obligations are unthinkable”.[95] These examples serve to show the extent to which international law now constrains the ability of Parliament and the Executive to exercise internal sovereignty, and will be considered in the following section in terms of the extent to which this change undermines the traditional justifications for an exclusive executive treaty-making power.

2. The Norms of Modern Government

The shift in international treaties into domestic matters and their impact on the internal sovereignty of States represents a threat to the democratic values that are considered the norm in New Zealand society today. In New Zealand today it is largely expected that government will conform to democratic norms, and that it will be transparent and accountable.[96] Should we expect anything less of the treaty-making power? Mark Gobbi believes that: [97]

Democracy is evolutionary. Social, political, economic, and technological changes have generated pressure for greater participation in governmental decision-making. As a result of the growing influence of international law on the content of domestic law, the treaty-making process is not immune to this development.

It is clear that in the Westminster constitution, particularly in the area of foreign affairs, “[a]ncient notions of the Crown have not kept pace with the needs and realities of modern government”.[98] The structures around which the executive treaty-making power is built do not conform to our democratic expectations. For our purposes this serves to highlight the extent to which the attachment to historical notions of the Crown and monarchy have impeded the subjection of the executive treaty-making prerogative to critical assessment in light of democratic norms that are relevant today. It is self-evident to say that there has been a shift away from personal monarchy and more arbitrary forms of government to a constitutional monarchy in which representative government is the norm. It is, however, important to state this in order to reveal the anachronism of an executive that jealously guards its prerogative in a modern era, giving Parliament only a role as far as it considers necessary, rather than starting from the point that treaty-making, like all other forms of government, ought to be subjected to ordinary democratic processes. It must be said that:[99]

In a parliamentary democracy… all Government policy and decision-making has to be subject to parliamentary scrutiny which is carried out on behalf of the general public and in the light of public opinion… Policies and decisions in the realm of foreign affairs are no different, despite the British constitutional traditions which urge otherwise.

This should be our starting point.

B. Justifying the Status Quo

This contextual survey sets the scene for evaluating the extent to which an exclusive executive treaty-making power is still justified in a modern representative democracy, in which international treaties have pervasive and far-reaching effects. Given the historical sketch set out above and the extent to which this reveals the historical contingency of these constitutional arrangements, the thrust of this paper is that history alone is an insufficient justification for maintaining the status quo. This section, therefore, will consider the extent to which the changed context has undermined the traditional counter-balances to allowing the Executive an exclusive treaty-making power; namely the theory of dualism, notions of the separation of powers and the effectiveness of traditional accountability mechanisms. This will be followed by practical and conceptual justifications that potentially weigh in favour of an exclusive executive power. Ultimately it will be concluded that while there are practical reasons for the Executive to exercise the treaty-making power, they are insufficient to justify maintaining the power outside ordinary democratic processes and can sufficiently be taken into account in designing a process which has as its starting point norms of democracy and accountability, and aims to make these workable in practice.

1. The Theory of Dualism

The New Zealand Law Commission considers that “treaty making practice and the functioning of traditional doctrines of national constitutional law… must be re-examined… in light of an increasing number of activities which are conducted on a transnational basis”.[100] One such ‘traditional doctrine’ is the theory of dualism. This theory sees the systems of international law and domestic law operating on two separate planes, with an act of incorporation through legislation necessary in order to give a treaty effect in domestic law. In other words, unless Parliament passes legislation a treaty has no effect in domestic law.[101] This is in contrast to monist systems where treaties have, to varying degrees, a direct effect in domestic law and parliaments often play a role in the treaty-making process.[102] The theory of dualism has been, and continues to be, accepted as explaining the relationship between international and domestic law in the United Kingdom and New Zealand.[103] In conjunction with the doctrine of separation of powers it has justified the Executive having the exclusive power to enter into treaties. This is based on the notion that the Executive ratifying a treaty only has effect at international law, the treaty having no effect in domestic law until an Act of Parliament is passed to that effect. The Executive is only carrying out an executive function and in no way infringing on the legislative competency of Parliament, which still has the sovereign authority to decide whether or not to enact the treaty into domestic law - thus the separation of powers is preserved.[104] In theory Parliament is still sovereign and the Executive is not overstepping its traditional role: “[c]hanges to domestic law are made by Parliament, not by executive fiat”.[105]

As with so many other aspects of the treaty-making power, however, the theory does not match the practice, and we seem to be moving towards a more monist conception of the relationship between international treaties and the domestic law in practice.[106] This is evidenced both by the changed nature of international law and its relationship to domestic law discussed above, and an increasing willingness on the part of the courts to consider ratified but unincorporated treaties. With regards to the nature of modern international treaties, it is clear that the Executive in practice is effectively exercising a legislative function and the ratification of some treaties is having a direct impact on domestic law with little or no effective Parliamentary involvement. For example, some treaties do not require legislation to be implemented.[107] Others, as mentioned above, admit no right of withdrawal thus binding future Parliaments to international law obligations made by a past Executive.[108] In addition, once the Executive has ratified a treaty, Parliament is effectively robbed of the choice of whether or not to pass legislation given the strong compliance interest discussed above, which seriously impacts the notion of parliamentary sovereignty.[109] Adding to the failure of dualist theory with regards to international treaties in the modern context is the willingness of courts to take a more active role in using international instruments ratified by the Executive but not incorporated by Parliament. This can be seen with regards to the presumption that statutes will be interpreted in accordance with international law and the use of such treaties in the administrative law context, most notably in Tavita v Minister of Immigration.[110] These contextual elements have undermined the constitutional checks and balances placed on an exclusive executive treaty-making power, meaning “that it is insufficient to continue discussion of treaty making issues solely in terms of traditional separation of powers”.[111]

2. Effective Accountability

In addition to the theoretical checks placed on the Executive by the notions of dualism and the separation of powers, there is the issue of effective control over the treaty-making prerogative. Traditionally, this control has been exerted by Parliament through the convention of ministerial responsibility. Blackstone was happy to attribute to the Executive an almost absolute treaty-making prerogative on the basis that ministers could be held to account for its misuse through ministerial responsibility and the now outdated mechanism of impeachment.[112] In light of our norms of democratic governance and accountability in the modern New Zealand context, we expect that all executive power will be subjected to effective checks and balances, be they legal or political. It is clear that at present the courts are not prepared to find the treaty-making prerogative justiciable, seeing it as a high policy matter not suitable for legal control.[113] The implication of this is not only that the treaty-making prerogative is more amenable to political control, but also that there is a duty for Parliament to exercise such control effectively. The traditional mechanism of ministerial responsibility does not in the present context provide such an effective control.[114] The main reason for this ties back to the nature of international treaties and the often onerous and permanent obligation that they entail. Ministerial responsibility is by definition ex post facto, it only allows Parliament to call the Minister to account after the prerogative power has been exercised,[115] thus only after a treaty has been signed or ratified. This is unacceptable in a modern representative democracy as it not only fails to effectively check a key executive power, but it also fails to acknowledge the realities of modern treaties. This means that if we are to bring the treaty-making process in line with norms of democracy and accountability, another mechanism of control must be defined. Once again a traditional counter-balance to the Executive having the sole power to enter into treaties has been undermined in the modern context.

3. Practical and Conceptual Justifications

In spite of the extent to which the traditional counter-balances to the executive treaty-making prerogative have been undermined by contextual change it is important, and necessary, to look at potential justifications for maintaining the status quo. Such justifications are considered for the extent to which they support the maintenance of the constitutional status quo, that is an allocation to the Executive of the sole power to bind New Zealand at international law, rather than the extent to which they negate a parliamentary role in the treaty-making process.

Implicit in the history of the treaty-making power and the current constitutional position is the sense that there is something in the nature of foreign affairs and treaty-making that justifies it being under the exclusive purview of the Executive. The practical element of this justification lies in the perceived need for expedience, flexibility, secrecy and unity in matters related to foreign affairs and the negotiation and conclusion of treaties.[116] On a conceptual level an exclusive executive treaty-making power appears to be in line with the role of the State as the primary actor in international law, acting through the proxy of its Executive.[117] The Executive in this sense is the focal point through which the State exercises its external sovereignty and foreign affairs is conceived of as an exclusively executive function.[118] There is certainly truth in these claims; however, they are not as fundamental as some might suggest. They have suffered from continued links to historical notions of the monarch’s role in foreign affairs and from the nature of foreign policy as a matter of high state, allowing them to justify executive control over treaty-making. However, it is clear that when we assess this justification in context it has been overstated given the nature of international law in the modern context and our expectations that all government policy will be subject to effective mechanisms of accountability and transparency. While it is true to say that some matters of foreign affairs and some treaties need these requirements to a significant degree, for example in relation to national security, international treaties today go far beyond these matters of state, and increasingly have a direct impact on individuals. In such circumstances in a modern, representative democracy we expect that people will have a say in decisions that affect their lives through some form of consultation or representative institution. For example, international trade law under the auspices of the World Trade Organisation has been an arena in which large amounts of flexibility and secrecy have been claimed as necessary. However, this has proven unacceptable to many people who believe that they are excluded from decisions directly affecting their lives and livelihoods.[119] While this does not remove the need to preserve these elements in the power to enter into treaties, it means that this justification is insufficient to support a claim that the Executive is entitled to an exclusive treaty-making power in the modern context, rendering them factors to be taken into account in designing a modern treaty-making process, rather than decisive and inherent elements of any foreign affairs power.

VI. Ways Forward: Balancing Democracy with Practicality

It is to the design of such a modern treaty-making process that I now turn. Concluding that it is not justified by history, practice or constitutional theory to assume that the treaty-making power is best reposed in the Executive, it is important now to explore a potential process for making treaties that aims to balance democracy, accountability and transparency, with practicality and efficiency.[120] In undertaking this exercise it is crucial that we work from a starting point of principles of democracy, accountability and transparency and attempt to construct a process that makes these principles workable in practice, rather than starting with the assumption that the Executive holds the power and that it can give small concessions to the democratic process as it pleases. This is important in countering the culture of Executive protectiveness of its insufficiently accountable treaty-making power. This section of the paper explores some suggestions for a reformed treaty-making process and assesses the balance they strike between democracy and practicality. For reasons of space it by no means claims to be a comprehensive account of a way forward in the area but rather to signal potential starting points. The intention is to explore how different options might reconcile two competing sets of requirements, looking at options for consultation, at what point in the process Parliament should play a role and the importance of giving Parliament a power of approval.

In looking at a new process from the starting point of democratic norms against the background of a long history of executive power, it is crucial to recognise that it is possible to strike a balance involving the Executive and representative institutions and that such processes exist in many other parts of the world. For example, the United States has a very complex but shared treaty-making power, in most European States parliament plays some formal role in the treaty-making process, and in South Africa the former Westminster position has been replaced, giving Parliament the right to approve treaties under section 231(1) of the Constitution.[121] Thus, we can see a spectrum of parliamentary involvement in the treaty-making process dictated by the State’s particular constitution. This spectrum stretches from the position in the United States where under the Constitution the Senate must approve treaties by a two-thirds majority,[122] to the almost identical positions in the United Kingdom and New Zealand, with conventions of consultation and debate in Parliament at the legislative stage, but with the Executive retaining the power to enter into treaties as a matter of constitutional law.[123]

If we start from the position that treaty-making ought to be democratic, accountable and transparent, it is clear that some degree of public consultation is necessary. There are a number of practical issues that arise with regards to consultation that need to be touched upon. Firstly, it is possible to have consultation at the Select Committee stage, as we currently have in New Zealand. Alternatively, it would be possible to have some form of direct consultation between the body negotiating the treaty and interested parties outside of the parliamentary process. There is a precedent for such action in the consultations surrounding the negotiations of the Rome Statute on the International Criminal Court.[124] In order to ensure that such consultation is effective it is necessary to ensure that the public being consulted is not determined by the agenda of the negotiating body, so that consultation only involves those with a favourable view-point.[125] A practical way of ensuring this does not happen may be to set up a database of interested parties on particular issues that the Ministry undertakes to accept submissions from in the event of relevant treaty negotiations. In order for this to be effective it is also important that interested parties are adequately informed and that independent assessments of treaties can be undertaken.[126]

The issue of consultation also raises the question of at what point in the process it is both practical and effective to have democratic involvement. It is clear from the discussion of the need for effective accountability mechanisms above, that any democratic involvement through parliament or consultation after ratification denies the real impact of modern international treaties, and denies Parliament or the people any real say in the process. Involvement post-signature may be more effective given that New Zealand would not yet be bound at international law, however there is a good faith obligation under the Vienna Convention on the Law of Treaties 1969 upon signature, so this is not necessarily desirable. The most effective from a democratic standpoint is clearly involvement in the formulation of the negotiating position and at the negotiation stage. This, however, must be made workable in practice given the flexibility and give-and-take often required in the negotiation of treaties. This could be achieved by consultation and debate in the formulation of a negotiating position prior to the start of negotiations, and it has also been suggested that a workable position could be allowing Parliament to debate on negotiations once a draft text has been negotiated.[127]

Many of these processes could potentially be assisted by a dedicated committee for the consideration of treaties along the lines of the Joint Standing Committee on Treaties (JSCOT) in Australia. In Joanna Harrington’s view “a national parliamentary committee comprised of representatives from all parties… specifically dedicated to the task of treaty scrutiny is the best means to achieve greater public awareness as well as democratic accountability”.[128] The benefit of such a body is that it institutes a regular scrutiny process and if effectively constituted can become a repository of treaty information, cultivate effective relationships and carry out wide-ranging consultations.[129] It potentially serves a more efficient and constructive means of scrutiny than detailed debate in Parliament.

If we are to give Parliament a direct role in the approval of treaties prior to ratification, it is necessary to consider how such a procedure can be made effective and practical. Requiring a positive resolution on every treaty may be too onerous a requirement, and it has been suggested that a negative resolution procedure through which Parliament could express its disapproval could strike the best balance.[130] Alternatively, a mechanism for positive or tacit approval as is used in the Netherlands could be used.[131] In addition to the question of how Parliament should express its approval, there is the question of whether only certain treaties should be submitted to Parliament for approval to ensure efficiency. For example, in the Netherlands the Parliament has the right to approve treaties, but to enhance efficiency and flexibility for the Executive there is a list of types of treaties in legislation which are exempted from the requirement of parliamentary approval.[132] The South African Constitution also includes in section 231(3) a provision exempting treaties of a technical and administrative nature from the parliamentary process.[133] An important protection for democracy and accountability here is to ensure that determination of which treaties fall into any such exception is not left to executive discretion,[134] so that Parliament has a true say.

This merely provides a snapshot of some of the possibilities that could be used in order to ensure that we have a treaty-making process reflective of our modern context, showing that there are workable options available.

VII. Conclusion

“New Zealand continues to be locked in an era where kings and queens controlled foreign policy”.[135] This comment by the late Rod Donald in 2003 encapsulates the anachronistic position of the treaty-making power in New Zealand today. The aim of this paper has been to challenge the assumption that an exclusive executive treaty-making power is still justified in a modern context. This assumption needs to be questioned to rebut an unhealthy protective attitude on the part of the Executive towards their power in foreign affairs, a power which in the modern context increasingly affects the lives of individuals. An historical perspective on the treaty-making power has revealed that its history has tied it to notions of personal monarchy and historical conceptions of foreign affairs, which have persisted and coloured our modern view of the treaty-making power. History also reveals that the source, concepts and practice of the treaty-making prerogative are historically contingent, defined by context and amenable to changing circumstances. Acknowledging that our conceptions of the treaty-making power are inherently conditioned by historical concepts and that the constitutional position is contextually defined, allows us to accept that the status quo is not set in stone.

Once we have accepted that the historical constitutional position is not timeless and immutable we can begin to assess whether or not it is justified in a contemporary New Zealand context. The fundamentally altered nature of international law and its relationship to domestic law, and the norms that govern modern government, provide the context in which the treaty-making prerogative must be assessed. International treaties now relate to every area of modern life, they have a significant impact on domestic law and policy and their effect cannot be ignored. We now expect that government and executive power will be subject to democracy, accountability and transparency, and that the Executive will be controlled through effective checks and balances. This context effectively undermines the traditional counter-balances of dualism, the separation of powers and ministerial responsibility, forcing us to consider new mechanisms to reflect the new context. Valid considerations of practicality must be taken into account in designing a process reflective of the modern context, but practicality tied to history is not enough to maintain an exclusive executive treaty-making power as the starting point in the treaty-making process. Having shifted the framework in which we consider the power, we must balance democratic norms with practicality in order to achieve a process which reflects modern international law and government, while allowing it to function effectively. Our constitutional tradition of pragmatism and adaptability means we ought not to justify the present solely by an appeal to the past. The Executive may always have held the treaty-making power but this is not sufficient justification for it to retain it in the present.

[*] Faculty of Law, University of Auckland. The author wishes to thank Professor Bruce Harris and Treasa Dunworth for all their encouragement and input in the researching and writing of this paper, and the anonymous reviewers for their helpful comments. Any errors remain the author’s alone.

[1] There has been extensive consideration of this point. See, for example, Joanna Harrington, ‘Scrutiny and Approval: The Role For Westminster-Style Parliaments In Treaty-Making’ (2006) 55 International and Comparative Law Quarterly 121; for a comparative perspective see Stefan A Riesenfeld and Frederick M Abbott, Parliamentary Participation In The Making And Operation Of Treaties: A Comparative Study (Dordrecht Publishing, 1994).

[2] Charles Carstairs and Richard Ware (eds), Parliament and International Relations (Milton Keynes, 1991) 3.

[3] See Christopher Vincenzi, Crown Powers, Subjects and Citizens (Continuum, 1998) 3, for the view that this attitude is appropriate in the modern context and is particularly pervasive where the source of a power is the royal prerogative. This has meant that in the United Kingdom there is much less accountability and openness in foreign affairs than in other Western democracies.

[4] Ministry of Foreign Affairs and Trade Legal Division, ‘Bilateral Treaties: Criteria for Tabling in the House’, online: < html> (last accessed on 24 August 2006): “These criteria are intended to help the Minister exercise his discretion. They do not replace that discretion”.

[5] Treasa Dunworth, ‘Public International Law’ [2004] New Zealand Law Review 411, 413.

[6] See Mai Chen, ‘A Constitutional Revolution? The Role of the New Zealand Parliament in Treaty-Making’ (2001) 19 New Zealand Universities Law Review 448, 454.

[7] Ministry of Foreign Affairs and Trade Legal Division, ‘Recent Treaty Actions (Since 1 January 2000)’, online: <> (last accessed on 24 August 2006).

[8] Philip A Joseph, Constitutional and Administrative Law in New Zealand (Brookers, 2001) 625-626. The foreign affairs prerogative is expressly saved under s13 of the Foreign Affairs Act 1988.

[9] Brian R Opeskin, ‘Constitutional Modelling: The Domestic Effect Of International Law In Commonwealth Countries: Part 2’ (2001) Public Law 97, 100.

[10] Joseph, above n 8, 1.

[11] Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347.

[12] Noel Cox, ‘The Control of Advice to the Crown and the Development of Executive Independence in New Zealand’ (2001) Bond Law Review 166, 169.

[13] Joseph, above n 8, 106.

[14] See, for example, David McGee, ‘Treaties – A Role for Parliament?’ (1997) Public Sector 2; Harrington, above n 1; New Zealand Law Commission, The Treaty Making Process Reform and the Role of Parliament, Report 45 (Law Commission, 1997); Senate Legal And Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (2005) especially Chapter 14; House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, HC Report 422 (2004).

[15] Keith Locke’s International Treaties Bill which would have instituted this was defeated at second reading, see Dunworth, above n 5, 411.

[16] New Zealand Parliament, Standing Orders of the House of Representatives 387-390 (2005).

[17] For a summary of the reforms see Treasa Dunworth ‘Public International Law’ [2000] New Zealand Law Review 217.

[18] See generally ibid.

[19] Ibid 218; Chen, above n 6, 451.

[20] Ibid.

[21] See, for example, Lord Templeman, ‘Treaty-Making and the British Parliament’ (1991) 67 Chicago-Kent Law Review 459.

[22] See generally Joseph, above n 8, 1-3.

[23] See generally Sebastian Payne, ‘The Royal Prerogative’ in Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford University Press, 1999) 77-110.

[24] William Blackstone, Commentaries on the Laws of England, 111, cited in Payne above n 23, 83.

[25] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Education, 10th ed, 1960) 424.

[26] Payne, above n 23, 101.

[27] Ibid 81-82.

[28] Sir William Holdsworth, A History of English Law, Volume X (Methuen, 1938) 340.

[29] Sir David Lindsay Keir, The Constitutional History of Modern Britain Since 1485 (Black Publishing, 8th ed, 1966) 135-153, discusses the nature of Tudor monarchy and government.

[30] Sir William R Anson, The Law and Custom of the Constitution, Volume II The Crown (Clarendon Press, 4th ed, 1935) 42-46.

[31] Payne, above n 23, 97-98.

[32] Holdsworth, above n 28, 340.

[33] Vincenzi, above n 3, 16.

[34] See, for example, the discretion ascribed to the sovereign in Rustomjee v R (1876) 2 QB 69.

[35] Peter Haggenmacher, ‘Some Hints on the European Origins of Legislative Participation in the Treaty-Making Function’ (1991) 67 Chicago-Kent Law Review 313, 318.

[36] This was unsurprisingly the view of Charles II, see quote in E R Turner, ‘Parliament and Foreign Affairs, 1603-1760’ (1919) 34 English Historical Review 172, 180.

[37] Vincenzi, above n 3, 142.

[38] Arthur Nussbaum, A Concise History of the Law of Nations (Macmillan Co, revised ed, 1954) 95; Wilhelm Georg Grewe, The Epochs of International Law (Walter de Gruyter Publishers, 2000) 196.

[39] Ibid 196.

[40] Ibid 361.

[41] Turner, above n 36, 189-190.

[42] Anson, above n 30, 52-54.

[43] Ibid.

[44] Ibid 56.

[45] G C Gibbs, ‘Laying Treaties before Parliament in the Eighteenth Century’ in Ragnhild Hatton and M S Anderson, Studies in Diplomatic History (Archon Books, 1970) 116-137, 119, comments upon this paradox in the context of the 18th century.

[46] Robert B. Stewart, ‘Treaty-Making Procedure in the United Kingdom’ (1938) 32 American Political Science Review 655, 655. But see J Atherley-Jones, ‘The Treaty-Making Power of the Crown’ (1918) 4 Transactions of the Grotius Society 95, which strongly asserts the view that the treaty-making power was an usurpation by monarchs with absolutist pretensions. This is certainly a minority view, but an interesting one none the less, especially if we consider the difficulty of trying to assess the extent of prerogative powers in any given context, particularly with the hindsight of 19th century positivist conceptions.

[47] See Part V “A. Contextual Change” and “B. Justifying the Status Quo” below.

[48] Anson, above n 30, 21.

[49] Haggenmacher, above n 35, 315-316.

[50] Ibid 314-316.

[51] Ibid 325.

[52] Ibid 327-328.

[53] For discussion of possible constitutional conventions requiring consultation see Chen, above n 6; K J Keith ‘New Zealand Treaty Practice: The Executive and the Legislature’ [1964] New Zealand Universities Law Review 272.

[54] Anson, above n 30, 21.

[55] Ibid 22, although the Witan did not really represent the general community; this shows the Crown having to consult outside its own power for reasons of political necessity. See Atherley-Jones, above n 46, 102, for the suggestion that the control of the Witan over all public acts was very significant at this time.

[56] Theodor Meron, ‘The Authority to Make Treaties in the Late Middle Ages’ (1995) 89 American Journal of International Law 1, 2.

[57] Ibid.

[58] Ibid 4.

[59] Ibid.

[60] Ibid 20.

[61] Turner, above n 36, 172-173.

[62] Ibid 174.

[63] Ibid 185.

[64] Jeremy Black, Parliament and Foreign Policy in the Eighteenth Century (Cambridge University Press, 2004) 3-4.

[65] Gibbs, above n 45, 117.

[66] Ibid 118-119.

[67] Ibid 130.

[68] Ibid 131.

[69] G C Gibbs, ‘Parliament and Foreign Policy in the Age of Stanhope and Walpole’ (1962) 77 English Historical Review 18, 20.

[70] New Zealand Parliamentary Debates, 1919, 29 (Sir Francis Bell).

[71] New Zealand Parliamentary Debates, 1919, 29-30 (Sir Francis Bell; Sir W Hall-Jones); New Zealand Parliamentary Debates, 1947, 566 (Fraser); see generally Keith, above n 53.

[72] Black, above n 64, 3.

[73] Ibid, cites pamphlet entitled Reasons Why the Approaching Treaty of Peace should be debated in Parliament; As a Method most Expedient and Constitutional.

[74] Ibid 3-4.

[75] Arthur M Ponsonby, Democracy and Diplomacy: a plea for popular control of foreign policy (Meuthen & Co, 1915) 1-9.

[76] Ibid; Marvin Swartz, The Union of Democratic Control in British Politics during the First World War (Clarendon Press, 1971) 25.

[77] Ponsonby, above n 75, 118.

[78] This rule is still observed today. See Harrington, above n 1, 127-129, for the origins of the rule, its merits and limits.

[79] See, for example, Blackburn v Attorney-General [1971] 2 All ER 1380.

[80] It has been calculated that over 30,000 are registered with the United Nations and two new treaties are made every day: Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand Government under MMP (Oxford University Press, 3rd ed, 1997) 301-302. See generally New Zealand Law Commission, above n 14.

[81] Jane Kelsey, Reclaiming the Future: New Zealand and the Global Economy (Bridget Williams Books, 1999) 47.

[82] Theodore F T Plucknett, Taswell-Langmead's English Constitutional History, from the Teutonic Conquest to the Present Time (Sweet & Maxwell, 11th ed, 1960) 596.

[83] Opeskin, above n 9, 617.

[84] Riesenfeld and Abbott, above n 1, 1.

[85] Ibid xi and 1.

[86] International Covenant in Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 14668, (entered into force 23 March 1976) (“ICCPR”).

[87] Simon Hollander ‘A Greater Role for Parliament’ (book review) [1998] Auckland University Law Review 962, 963.

[88] This is particularly so with regards to international trade and the extent to which it restricts sovereignty: see Kelsey, above n 81, 40-52.

[89] See Joanna Harrington, ‘Redressing the Democratic Deficit in Treaty Law Making: (Re-) Establishing a Role for Parliament’ (2005) 50 McGill Law Journal 465, 468.

[90] Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 2nd ed, 2004) 819-820.

[91] Kelsey, above n 81, 40.

[92] Janet McLean, Institute for International Law and Justice, ‘Divergent Legal Conceptions of the State: Implications for Global Administrative Law’ (2005), online: < papers/2005.2McLean.htm> (last accessed on 24 August 2006) 172-173.

[93] Raewyn Wakefield, ‘New Zealand’s Treaty Process’ [2004] New Zealand Law Journal 381.

[94] Janet McLean, ‘From Empire to Globalisation: The New Zealand Experience’ (2004) 11 Indiana Journal of Global Legal Studies 161, 180.

[95] New Zealand Law Commission, above n 79, 2.

[96] See generally Mark Gobbi ‘Enhancing Public Participation In The Treaty-Making Process: An Assessment Of New Zealand's Constitutional Response’ [1998] Tulane Journal of International & Comparative Law 57.

[97] Ibid 108.

[98] ‘Introduction’ in Sunkin and Payne, above n 23, 5.

[99] Carstairs, above n 3, 176.

[100] New Zealand Law Commission, above n 14, 24.

[101] See Eileen Denza, ‘The Relationship Between International and National Law’ in Malcolm D Evans (ed), International Law (Oxford University Press, 2003) 415-442, 421.

[102] Ibid.

[103] See NZ Airline Pilots’ Association v A-G [1997] 3 NZLR 269, 280; JH Rayner Ltd v Dept of Trade [1990] 2 AC 418, 476.

[104] Templeman, above n 21, 460, sets out the separation of powers theory.

[105] McGee, above n 14, 4.

[106] Dunworth, above n 17, 225-226.

[107] Joanna Harrington, ‘The Role For Parliaments in Treaty-Making’ in Hilary Charlesworth et al (eds), The Fluid State: International Law and National Legal Systems (Federation Press, 2005) 34-56, 36.

[108] Harrington, above n 89, 468.

[109] Ibid.

[110] Tavita v Minister of Immigration [1994] 2 NZLR 257.

[111] New Zealand Law Commission, above n 14, 22.

[112] See Holdsworth, above n 28, 367, 373-374.

[113] Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935.

[114] Brigid Hadfield, ‘Judicial Review and the Prerogative Powers of the Crown’ in Sunkin and Payne, above n 23, 203.

[115] Ibid 205.

[116] For a historical description of the power as such, see Blackstone’s conception of the power as cited and discussed in Holdsworth, above n 28, 363.

[117] The discussion in this paper is really focused on the constitutional allocation of power within a State, and is less concerned with who actually acts on the international stage, as even if Parliament has the power to approve treaties it is likely that as a matter of practicality the Executive would carry out the will of Parliament on an international level.

[118] For discussion of philosophical conceptions of foreign affairs as an exclusive executive area see Haggenmacher, above n 35. For discussion of the concept of ‘the State’ and its relationship to the Crown in English law and constitutional history see ‘Chapter 1’ in Sunkin and Payne, above n 23.

[119] See Kelsey, above n 81, 41-43.

[120] Lord Templeman recognised the need to strike such a balance: Templeman, above n 21, 483.

[121] For examples of other jurisdictions see Riesenfeld and Abbott, above n 1; Monroe Leigh, M R Blakeslee and B L Ederington (eds), National Treaty Law and Practice No 27 (Washington DC, ASIL, 1995); National Treaty Law and Practice No 30 (1999); Monroe Leigh, National Treaty Law and Practice No 33 (Washington DC, ASIL, 2003).

[122] The United States position very much reflects its particular historical and constitutional context and the particular nature of the United States Executive. For discussion of a number of the complexities associated with the treaty-making process in the United States see Riesenfeld and Abbott, above n 1, 205-382.

[123] For discussion of the involvement of the British Parliament in treaty making see Lord Templeman in Riesenfeld and Abbott, above n 1, 153-176.

[124] Thank you to Treasa Dunworth for bringing this point to my attention. See Ministry of Foreign Affairs and Trade Legal Division, ‘Statute of the International Criminal Court National Interest Analysis’, online: < icc.html> (last accessed on 24 August 2006).

[125] Kelsey, above n 81, 47 and 50, highlights the dangers in this regard with international trade.

[126] Jane Kelsey, Submission To The Standing Orders Select Committee On The Review Of Standing Orders (30 November 2000) [3.6]-[3.7], noted these issues in assessing the current process in New Zealand.

[127] Riesenfeld and Abbott, above n 1, 8.

[128] Harrington, above n 1, 158.

[129] Ibid.

[130] Ibid.

[131] J G Brouwer, ‘The Netherlands’ in Leigh Monroe, M R Blakeslee and B L Ederington (eds), National Treaty Law and Practice No 30 (1999) 141-142.

[132] Ibid 134-139.

[133] Neville Botha, ‘South Africa’ in Leigh Monroe, M R Blakeslee, and B L Ederington (eds), National Treaty Law and Practice No 33 (2003) 202.

[134] Ibid 204.

[135] New Zealand Parliamentary Debates, 2003, 10731 (Rod Donald).

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback