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8 THE TREATY MAKING PROCESS involves three stages: negotiation; acceptance; and implementation. The way these three stages function is connected to the constitutional separation of powers in New Zealand.9 Treaty making stages one and two, negotiation and acceptance, have been and at present remain the task of the Executive, the organ of government which “embraces the administrative powers and functions of central government and includes all the government departments under ministerial control”.10
9 Under the separation of powers Parliament is the second organ of government, exercising its dual “functions of law-making and holding to account the political Executive”.11 Under the first function – lawmaking – Parliament is involved in the final stage of the treaty making process, that of implementation.12 When the implementation of treaty obligations involves the passage of domestic legislation, Parliament’s role is readily apparent.
10 The third organ of government, the judiciary, which “exercises powers for adjudicating disputes according to the law including disputes between individuals and the state”,13 is increasingly involved in the construction of statutes which fulfil or may fulfil New Zealand’s international obligations and in developing the common law, and in that capacity is involved in the third stage of treaty making – treaty implementation.
11 Various representatives of the state (such as the Head of State, Head of Government, Minister of Foreign Affairs and Trade, heads of diplomatic missions, and representatives accredited to international conferences or organisations) have an authority at international law (recognised by article 7 of the Vienna Convention on the Law of Treaties 1969)15 to negotiate and adopt or authenticate the text of a treaty. Other officials may also be given specific authority to undertake a negotiation or to agree to a treaty text.16 Such conduct, and the resulting treaty, does not have effect in the domain of domestic law until incorporated into it by Parliament.
12 The established doctrine is stated by the Privy Council in the 1937 case Attorney-General for Canada v Attorney-General for Ontario as:
It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States. 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. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. . . .
Parliament, no doubt, as the Chief Justice points out, has a constitutional control over the Executive: but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the Executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. In a unitary State whose Legislature possesses unlimited powers the problem is simple. Parliament will either fulfil or not treaty obligations imposed upon the State by its Executive. The nature of the obligations does not affect the complete authority of the Legislature to make them law if it so chooses.17
13 The House of Lords has recently reaffirmed this proposition, that:
The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty.18
14 As the Privy Council made clear, the making of a treaty is an executive act. One model of treaty negotiation and conclusion can be seen in Lord McNair’s The Law of Treaties.19 The reports of the Ministry of Foreign Affairs and Trade for the period 1990–1995 now show the New Zealand Government as engaging in an average of 13 multilateral and 17 bilateral treaty actions per year, encompassing a great diversity of subjects.20 The Ministry’s report for the year 1996–1997 shows 20 bilateral and 15 multilateral treaty actions.21
15 In practice in New Zealand the basic model of treaty making involves a mixture of Ministry of Foreign Affairs and Trade (MFAT) standard practice and convention as follows:22
Some treaties, however, are negotiated by Ministers or officials from Ministries other than Foreign Affairs, for example, the Ministry for the Environment concerning global environmental standards or the Ministry of Justice concerning criminal justice matters.
16 The convention of Cabinet approval of terms negotiated is detailed in the Cabinet Office Manual which notes:
Cabinet is the central decision-making body of Executive government. Its role is to take decisions in a wide range of areas including . . . ratification of international treaties and agreements . . . (para 3.1)
and
Any action to sign, ratify or accede to a treaty also must be submitted to Cabinet for approval. The text of the treaty must be attached to the Cabinet paper. (para 3.11)23
17 In practice a treaty may be negotiated in a number of ways:
18 In some circumstances the representatives may be those not only of governments but of international organisations – NGOs (non-governmental organisations) – or of countries which are not yet fully independent.24 The International Labour Organisation is unique in providing for tripartite representation at its conferences, involving representatives of employers and unions as well as governments.
19 As a matter of international law treaties come into force and take effect according to their own terms. There is a distinction between two types of treaties. First, there are treaties which become binding as a result of signature affixed at the completion of the negotiation. These take effect simply on signature, and are commonly more simple bilateral agreements. The effective date is sometimes postponed to enable appropriate administrative or legislative steps (especially by way of subordinate instrument) to be taken. Secondly, there are treaties which require a further step to be taken after the text has been established (by signature in the case of a bilateral treaty or by adoption by a conference of a multilateral text) and before the treaty will take effect. These treaties are in general more important: they often require legislative implementation; and many are multilateral.
20 It is only rarely the case in New Zealand that a treaty is signed upon the conclusion of the negotiations since this step requires some detached consideration of the text and Cabinet approval. Bilateral treaties may be initialled25 upon conclusion of negotiations and prior to Cabinet approval being obtained for signature. In the case of multilateral treaty negotiations, it is common for a Final Act to be prepared which records the results of the treaty negotiations and will generally be signed by delegations. Signature of the treaty itself (usually subject to subsequent ratification) will follow later.26
21 Because the final acceptance of more important or complex treaties may require substantial changes in governmental policy or in national law, they may be signed as a means of ensuring the treaty’s authenticity and demonstrating New Zealand’s intention to be bound by the treaty. The treaty does not become binding until the state in question takes the further step, most commonly referred to as ratification. In other words, in some cases signature may represent no more than a concrete expression of an intention to ratify the treaty in the future. Signing does, however, imply the obligation to refrain from acts which would defeat the object and the purpose of the treaty.27 Ratification is one name given to action that states may take to bind themselves legally to a treaty text, other actions are named acceptance or approval. For example, multilateral treaties fairly routinely offer ratification for those who have signed the treaty and accession or acceptance for those who have not. The term ratification should not be used for implementation in national law.28
Ratification, acceptance, approval and accession are accomplished by passing to the other party (or to the depositary of a multilateral treaty) a formal instrument to that effect, generally under seal, and executed, in New Zealand’s case, by the Minister of Foreign Affairs who is also responsible for the execution of formal Instruments of Full Powers authorising the signature of treaties on behalf of the Government of New Zealand. All such actions (including signature whether or not subject to ratification, etc) require prior Cabinet approval.29
22 In general, treaties create binding obligations only between or among states which become parties to them.30 Article 34 of the Vienna Convention on the Law of Treaties, for example, makes it clear that “[a] treaty does not create either obligations or rights for a third State without its consent”. Those states which have not become parties to a treaty by original signature followed by ratification or acceptance, but which wish to become party to it, may have the right accorded under the treaty to accede or adhere to the text and thereby become bound by it.31 A state becoming a party to a multilateral convention may be able to formulate reservations, indicating that it will not be bound by one or other of the provisions.32 (A complex regime regarding and controlling the lodging of reservations is set out in Articles 19–23 of the Vienna Convention.)
23 All the actions just mentioned are actions at the international level. Whether they also make any change to domestic law is a matter for the national constitutional system. In some countries they do. In others, including New Zealand, they do not – as the Privy Council in Attorney-General for Canada v Attorney-General for Ontario made clear.
24 The post-negotiation stage, acceptance, is also controlled by the Vienna Convention on the Law of Treaties. For example, Article 18 of the Convention details that
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
25 The decision in Attorney-General for Canada v Attorney-General for Ontario outlines the conventional doctrine that it is the Executive’s role to govern and to enter into treaty negotiations/creation, and Parliament’s role to monitor the executive with appropriate checking, reporting and approval processes. In addition the performance of treaty obligations, if they involve changes to the existing domestic law, will require action by the legislature.
26 A senior MFAT official has described this latter action in New Zealand as follows:
It is suggested that Parliament has no choice but to pass the necessary legislation or it will leave New Zealand in default of its treaty obligations. This is not so. The executive does not take binding treaty action until the necessary legislation has been passed. The legislation comes first, not the treaty action. Indeed, competing pressure on the legislative programme can prevent the Executive becoming party to treaties within the time frame it might prefer. In practice, therefore, Parliament can constrain the Executive’s power by refusing to pass any necessary legislation. If it refuses to pass the legislation, then the Executive cannot take action to bind New Zealand to the treaty.33
27 There is a further consideration in respect of the treaties subject to additional steps such as ratification. They are more likely to require legislative implementation than those which become binding as a result of signature. One reason for such legislation may be that the treaty’s substantive provisions would affect the rights and duties of individuals or entities under the law of New Zealand in a way not currently provided for with compliance unachievable by other than legislative means (such as by instructing a Government Department to act in a way conforming with the undertakings given in the treaty).
28 If the implementing legislation is to be considered by Parliament (which is not always the case, as appears from the bilateral examples – some of which can be implemented by Order in Council), the House thereby receives an opportunity to scrutinise the proposed executive action of accepting the treaty.34 The Cabinet Office Manual (1996) requires Ministers when proposing new legislation to Cabinet and its committees to report on the proposal’s compliance with New Zealand’s international treaty obligations. The process of checking draft legislation against the provisions of the New Zealand Bill of Rights Act 1990 (with the s 7 reports to the House) also often raises treaty compliance issues since that Act closely follows the International Covenant on Civil and Political Rights.
29 But for some very significant treaties the opportunity for the House to scrutinise the proposed executive action will not arise. Often the assessment is made that the domestic law already complies with the treaty or that the government can enter certain reservations to the acceptance. Such reservations can cover any situations of domestic non-compliance with the treaty obligations.35
30 That lack of opportunity for the House to scrutinise proposed action occured with the two human rights covenants (the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights).36 It was also the case with the two Optional Protocols to the latter Covenant, and also to the Convention on the Rights of the Child (where rather than no legislation being assessed as necessary to implement the Convention, reservations were used to meet the legislative deficiencies).
31 As stated by a senior MFAT official:
Not all treaties, however, require legislation for their implementation. Many treaties can be implemented without any change to existing law, because domestic law is already consistent with obligations in the treaty. Quite often, too, treaties can be implemented through regulations or by administrative action. In such instances the treaties concerned do not go to Parliament before the treaty action is taken, although Parliament is subsequently informed of the action.37
32 Treaties are also tabled in the House of Representatives. As the Ministry of Justice has noted:
Currently, the executive, approximately twice a year, tables in the House the treaties that it has executed. They are tabled in bulk without any explanatory material. The government of the day rarely sets aside time to discuss any of these treaties.38
33 The role of Parliament is clear in relation to the third stage of the treaty making process – implementation through domestic legislation. It is to be noted that Article 27 of the Vienna Convention stipulates that states cannot excuse non-compliance by reference to inadequate national law.
34 Implementation begins with the conventional proposition that a treaty, when accepted by the Executive, does not by that fact alone become part of the domestic law of New Zealand. It is assumed that legislation is required if the treaty is to become part of that law and, in particular, if it is to directly affect the rights and duties of individuals.39
35 Legislative change is performed in the constitutionally appropriate ways, by Parliament or one of its delegates, and not by the prerogative or other executive action. The matter then becomes one of choice of legislative method and techniques; for example, how is the legislation to be drafted – by giving direct effect to the treaty text or using another form of drafting?
36 Legislative practice and the relevant commentary indicate four broad approaches to legislation in the context of treaty implementation: no legislation is required; the statute gives direct effect to the treaty text using the “force of law” formula;40 the statute uses some of the wording of the treaty; or the substance of the treaty is incorporated into the body of the law. A further option is for primary legislation to authorise the making of subordinate legislation (regulations or rules) which is to give effect to identified treaties.41
37 While the courts are not involved directly in the treaty making process, they are increasingly involved in the results, for example, in the construction of and decisions concerning statutes which fulfil or may fulfil New Zealand’s treaty obligations. In that sense the courts can become part of the general process of treaty implementation.
The extent to which treaty obligations may be examined or analysed in domestic courts, or give rise to claims in domestic courts, is a matter for domestic law. The existence of the treaty obligations as a commitment between the state parties thereto is a matter for international law.42
38 It is established in New Zealand that treaties do not, as in the United States of America, have direct effect upon our domestic law43 – recall the House of Lords statement:
International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty’s Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation.44
39 Nor have New Zealand courts followed the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 27345 and held that the execution of a treaty gives rise to a legitimate expectation that administrative decisions will take into account the international treaty obligations.
40 It is well settled that to the extent that New Zealand domestic law may be uncertain, that uncertainty should be resolved in a way that avoids contravention of New Zealand’s international obligations.46 In Tavita v Minister of Immigration [1994] 2 NZLR 257, which related to a binding provision in the Convention on the Rights of the Child unincorporated in domestic law, Cooke P (as he then was) observed that
[t]he law as to the bearing on domestic law of international human rights, and instruments declaring them, is undergoing evolution. For the appellant Mr Fliegner drew our attention to the Balliol Statement of 199247 . . . with its reference to the duty of the judiciary to interpret and apply national constitutions, ordinary legislation and the common law in the light of the universality of human rights. . . . A failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them.48 [footnote added]
The court was critical of any suggestion which might imply that New Zealand’s adherence to international instruments was at least partly “window dressing”.
41 More recently the Court of Appeal in New Zealand Airline Pilots’ Association Inc v Attorney-General49 considered a relevant provision in the Chicago Convention on civil aviation. Although the particular convention provision was not binding (expressed in “may” rather than “shall” terms) and did not form part of domestic law, the court held that so far as the wording of legislation allows, the legislation should be read in a way consistent with New Zealand’s obligations. Further, such an interpretation applies whether or not the legislation was enacted with the purpose of implementing the relevant text.
42 In summary, when considering the treaty making process, it should not be thought that a treaty which has not been the subject of legislation is irrelevant to the New Zealand legal system.50
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