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Endnotes

^[1]See Heath, "A Legal Infrastructure for Electronic Commerce?", Paper for the Asia Pacific Economic Law Forum, Christchurch, 6 December 1997. As that paper indicates the Law Commission has in 1997 started a project on electronic commerce and international trade.

^[2]1990-1999.

^[3]See Ministry of Foreign Affairs and Trade, Report of the Ministry of Foreign Affairs and Trade for the year ended 30 June 1997, 1997 AJHR A.1, 10-13.

^[4]The outstanding example is New Zealand's founding document, the Treaty of Waitangi. See also the Ministry of Foreign Affairs and Trade recent publications, as part of the New Zealand Treaty Series: New Zealand Consolidated Treaty List as at 31 December 1996: Part One (Multilateral Treaties) 1997 AJHR A.263, and New Zealand Consolidated Treaty List as at 31 December 1996: Part Two (Bilateral Treaties) 1997 AJHR A.265.

^[5]The focus of the report upon the treaty making process requires discussion of both international and domestic law. It is therefore useful to distinguish the two. International law is created outside New Zealand and governs the relations between international persons such as states and international organisations. Domestic law on the other hand (which may also be referred to as national or municipal law) is created within a state and regulates the relations of its citizens with each other and with the executive. It may apply to foreign states acting in a non-governmental capacity. Many domestic statutes give effect to treaty provisions or empower the government to give effect to them. This might be through the adoption of standard setting instruments such as United Nations resolutions or declarations, or through the adoption of legally binding instruments. Treaties are the primary medium for the creation of rights and the assumption of obligations by states: Brownlie, Principles of Public International Law (4th ed, Clarendon Press, Oxford, 1990), 33. (See the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), appendix C, "Statutes with possible implications for New Zealand treaty obligations".) This expression of two legal systems, international and domestic, is the dualist theory of law. The monist theory of law, that contends there is just one system of law containing international and domestic elements and in which the international law is supreme even within the domestic sphere, is not recognised by New Zealand courts. See also Higgins, Problems & Process: International Law and How We Use it (Clarendon Press, Oxford, 1994), chapter 12.

^[6]Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347-348 (a Canadian case often referred to as the Labour Conventions case).

^[7]See Perry, "At the intersection - Australian and International Law" (November 1997) 71 ALJ 841. See also the International Law Commission's "Draft Articles on State Responsibility with Commentaries Attached" (1997).

^[8]See detail in chapter 7. See also A New Zealand Guide to International Law and its Sources, and the Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (Report 6, Wellington, 1991) appendix E, "Treaties: what are they, what do they do, how are they made and how are they given effect?".

^[9]The formalisation of the role of the Sovereign and of the separation of powers in New Zealand can be seen in the provisions of the Constitution Act 1986 ss 6-24.

^[10]Joseph, Constitutional and Administrative Law in New Zealand (Law Book Company Limited, Sydney, 1993), 5. See para 11 of this report for detail of who may have treaty making powers.

^[11]Joseph, 5. The debate over how far these functions of Parliament should extend can be seen in paras 79-98. The Constitution Act 1986 reaffirms constitutional principles about parliamentary control of public finance, in that the Crown may not levy taxes, raise loans, or spend public money except by or under an Act of Parliament.

^[12]Parliament is very rarely involved in the second, acceptance, stage of treaty making - see paras 25-32.

^[13]Joseph, 5; the role of the courts is considered further in paras 37-42 of this report.

^[14]For an historical perspective on New Zealand's treaty making ability and process see appendix 2 "Treaties, Conventions and Trade Agreements" in Ringer, An Introduction to New Zealand Government (Hazard Press, Christchurch, 1991), 320. Much of the material in this and the following paragraphs has already been published in the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), paras 27-33, and in the Legislation Advisory Committee's Legislative Change: Guidelines on Process and Content, Report 6, Wellington, 1991, appendix E, "Treaties: What are they, What do they do, How are they made, and How are they Given Effect?" (Law Commission 1991).

^[15]The Vienna Convention on the Law of Treaties 1969 is reproduced in appendix A in A New Zealand Guide to International Law and its Sources. It is also available on several Internet websites - see appendix B of this report. New Zealand is a party to the Vienna Convention and is therefore bound by the rules it established.

^[16]This latter authority is usually conferred under a formal written authority called an instrument of "full powers" - which may also be issued on occasion to persons who have the intrinsic authority mentioned above: Small, correspondence, 20 October 1997. Article 2(1)(c) of the Vienna Convention defines full powers as "a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty". Further, article 7(1) (Full powers) states that a person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if he produces appropriate full powers, or it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes. Article 7(2) lists those considered as representing their State without having to produce such full powers. It should be noted that "in international practice these days full powers really refers only to the instrument that states issue authorising a named representative to sign a treaty. It does not have anything to do with the negotiation or authentication of treaty texts": Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[17]Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347-348. The case concerned the limitation of the federal power to implement international obligations in areas of provincial jurisdiction without provincial co-operation. It is considered further in paras 81-86.

^[18]J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 476. See also Maclaine Watson & Co Ltd v International Tin Council [1988] 1 Ch 1; Maclaine Watson & Co Ltd v International Tin Council (No 2) [1989] 1 Ch 72, 253, 286; Re International Tin Council [1989] 1 Ch 309; Keith, "The Treaty of Waitangi in the Courts" (1990) 14 NZULR 37, 44.

^[19]McNair, The Law of Treaties (Clarendon Press, Oxford, 1961), see in particular part 1, "The Conclusion of Treaties".

^[20]New Zealand Consolidated Treaty List as at 31 December 1996: Part Two (Bilateral Treaties) 1997 AJHR A.265, 10.

^[21]Report of the Ministry of Foreign Affairs and Trade for the year ended 30 June 1997, 1997 AJHR A.1, 36-41.

^[22]Comment from meeting between the Law Commission and the Deputy Secretary, Ministry of Foreign Affairs and Trade, Don MacKay. The Ministry of Foreign Affairs and Trade does not have a formal manual on treaty making processes (eg, negotiation processes). The Legal Division has, however, set out various `general instructions' on treaty making for staff. (The Law Commission was not able to obtain copies of these general instructions as MFAT advised that the instructions were in the process of being rewritten, September 1997).

^[23]Attaching the text of the treaty to the Cabinet paper is a recent requirement of the Cabinet Office rather than a practice of long standing, and is apparently not, for practical reasons, followed in the case of large treaties: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[24]See further Chinkin, "Global Summits: Democratising International Law-Making?" (1996) 7(4) Public LR 208.

^[25]"Signature has as one of its functions that of text authentication, but a text may be authenticated in other ways, for example . . . by initialling": Brownlie, Principles of Public International Law (4th ed, Clarendon Press, Oxford, 1990), 606.

^[26]Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[27]See article 18 of the Vienna Convention on the Law of Treaties detailed in para 24.

^[28]Legislative Change: Guidelines on Process and Content, appendix E; MFAT, New Zealand Consolidated Treaty List as at 31 December 1996: Part One (Multilateral Treaties) 1997 AJHR A.263, 17.

^[29]New Zealand Consolidated Treaty List: Part One (Multilateral Treaties).

^[30]One exception is customary international law derived from a treaty which is binding on all nations: North Sea Continental Shelf Cases (Denmark and The Netherlands v Germany) [1969] ICJ Rep.1; Paramilitary Activities Case (Nicaragua v USA) [1986] ICJ Rep.14. International practice may have initially developed under the auspices of a (multilateral) treaty but as the custom develops the obligation eventually applies to non-signatory parties as well. Article 38 (1)(a) and (b) of the Statute of the International Court of Justice states that the court shall, in determining disputes in accordance with international law, apply international conventions, and international custom as evidence of a general practice accepted as law. A further exception is that a state may have an actual right arising from a treaty to which it is not a party - see Articles 36-38 of the Vienna Convention; for example, New Zealand was not a party to but enjoyed third party benefits under the 1972 `Protocol 18' (EEC and butter imports to the UK). Brownlie, Principles of Public International Law (4th ed, Clarendon Press, Oxford, 1990), 3; Higgins, Problems & Process: International Law and How We Use it (Clarendon Press, Oxford 1994), 210; Davidson, correspondence, 16 October 1997; Small, correspondence, 20 October 1997.

^[31]Legislative Change: Guidelines on Process and Content, 79-80.

^[32]See article 19 of the Vienna Convention on the Law of Treaties.

^[33]MacKay (Deputy Secretary, MFAT), "Treaties - A Greater Role For Parliament?" (1997) 20(1) Public Sector 6. The Ministry of Justice has noted in relation to this practice, however, that Parliament rarely takes legislative action contrary to Cabinet's expectations and that the practice is not always followed: Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997), 25; see also paras 94-98 on related issues.

^[34]This presumes that it is clear that the legislation implements a treaty and the precise nature of the treaty obligations involved.

^[35]In effect, such treaties may be described as self-executing, although not in the strict legal sense. See further paras 130-131 and material in appendix A.

^[36]Except that is for legislative amendments focused on two specific issues.

^[37]MacKay, 6.

^[38]Gobbi and Barsi, 30-31.

^[39]But the assumption is increasingly challenged - see discussion of issues concerned with the role of the courts in paras 87-93.

^[40]See description of this term in paras 129-131.

^[41]See detail on implementation in chapter 6.

^[42]Higgins, 210.

^[43]Hoani Te Heuheu Tukino v Aotea District Mäori Land Board [1941] AC 308; [1941] NZLR 590. See also Keith, "The Treaty of Waitangi in the Courts" (1990) 14 NZULR, 37, 44-45, which notes that the New Zealand courts have adopted this position specifically in respect of the Treaty of Waitangi with Myers CJ in the Court of Appeal in Tukino ([1939] NZLR 107, 120) stating "[a] treaty only becomes enforceable as part of the municipal law if and when it is made so by Legislative authority". The article further notes that on appeal in that case the Privy Council (AC 308, 324; NZLR 590, 596-597) was persuaded by Mr AT Denning KC that "[i]t is well settled that any rights purporting to be conferred by such a treaty of session cannot be enforced in the Courts, except in so far as they have been incorporated in the municipal law". This statement is cited in later cases, notably New Zealand Mäori Council v A-G [1987] 1 NZLR 641, 655, 667-668, 691, 715.

^[44]JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418.

^[45]See Perry, "At the intersection - Australian and International Law" (1997) 71 ALJ 841. Teoh has been cited in the following New Zealand cases: Attorney-General v Transport Accident Investigation Commission (unreported, HC, Wellington, 18 December 1996 CP 164/96 CP 180/96); Lawson v Housing NZ [1997] 2 NZLR 474; Patel v Chief Executive of Department of Labour [1997] 1 NZLR 102 (see also unreported, 5 March 1997, CA 220/96); Puli'uvea v Removal Review Authority [1996] 3 NZLR 538; New Zealand Mäori Council v Attorney-General [1996] 3 NZLR 140; and Elika v Minister of Immigration [1996] 1 NZLR 741.

^[46]See Mortensen v Peters 1906 SLT 227. See also Bennion, Statutory Interpretation (2nd ed, Butterworths, London, 1992), 564. It should be noted that liability for failure to comply with or give effect to New Zealand's international obligations is at the international level in relation to the other parties to the treaties: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[47]The full text of which appears in 67 ALJ 67. It has since been reaffirmed in the Bloemfontein Statement of 1993 (in turn followed and reaffirmed by the Georgetown Statement).

^[48]Tavita considered the import of the UN Convention on the Rights of the Child. This Convention was also considered in the United Kingdom case R v Sec of State, ex p Venables [1997] 3 All ER 97 where Lord Browne-Wilkinson stated that

the United Kingdom (together with 186 other countries) is a party to the UN Convention on the Rights of the Child. . . . The Convention has not been incorporated into English law. . . . But it is legitimate in considering the nature of detention during Her Majesty's pleasure . . . to assume that Parliament has not maintained on the statute book a power capable of being exercised in a manner inconsistent with the treaty obligations of this country. Article 3.1 requires that in the exercise of administrative as well as court powers the best interests of the child are a "primary consideration".

See also Puli'uvea v Removal Review Authority [1996] 3 NZLR 538; Rajan v Minister of Immigration [1996] 3 NZLR 543, 551; Wellington District Legal Services Committee v Tangiora (unreported, 10 September 1997, CA 33/97).

^[49]Unreported, 16 June 1997, CA 300/96; 301/96; see also Butler v Attorney-General & Refugee Status Appeals Authority (unreported, 13 October 1997, CA 181/97).

^[50]See A New Zealand Guide to International Law and its Sources, paras 65-73. See further Bennion, 564-569. Issues related to the role of the courts are discussed in paras 87-93.

^[51]Small, correspondence, 20 October 1997. Note, however, that in one day of 1938 the Government ratified 22 conventions of the International Labour Organisation which was "an intervention on the co-operative treaty front which we have never subsequently equaled".

^[52]Keith, "Governance, Sovereignty and Globalisation" paper presented at the 1997 5th Biennial Conference of the New Zealand Council of Trade Unions, 3.

^[53]"Open covenants of peace openly arrived at", Address to Congress, 8 January 1918. First of Fourteen Points.

^[54]Palmer and Palmer, Bridled Power: New Zealand Government Under MMP, (3rd ed, Oxford University Press, Auckland, 1997), 301. The obligation to register treaties with the United Nations is contained in article 102 of the United Nation's Charter and article 80 of the Vienna Convention on the Law of Treaties; Davidson, correspondence, 16 October 1997. The Parliamentary Library in Wellington, as an official repository of international documents, holds copies of all treaties registered with the UN; see further detail on finding treaties in the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), paras 74-107.

^[55]The emphasis in this report on formal treaty making should not obscure the other ways in which international rules and practices get established.

^[56]Cabinet Office Manual, (Cabinet Office, Wellington, 1996), 7.

^[57]Boutros-Ghali, An Agenda for Peace (United Nations, 1992), paras 17, 19 - a report of the Secretary-General pursuant to the statement adopted by the summit meeting of the Security Council on 31 January 1992. There is a 1995 2nd edition.

^[58]Bolger, address to the Institute of International Affairs Annual Dinner, Wellington, 6 June 1997, 3 and 7.

^[59]Held and McGrew, "Globalisation and the Liberal Democratic State" in Sakamoto (ed), Global Transformation: Challenges to the State System (United Nations University Press, Tokyo, 1994), 58-59; Alston, "Reform of Treaty-Making Processes: Form Over Substance", Alston and Chiam (eds), Treaty-Making and Australia, (Federation Press, Sydney, 1995), 3.

^[60]See appendix B for a list of some of the internet websites relevant to treaties and treaty making.

^[61]Cited in Keith, "Governance, Sovereignty and Globalisation", 3.

^[62]Burmester, "National Sovereignty, Independence and the Impact of Treaties and International Standards" (1995) 17 Sydney LR, 127, 132. "Traditional" in this context would refer to a period only up to mid 19th-century: Small, correspondence, 20 October 1997. It should also be realised that this statement reflects Western preoccupations, as developing states are still very much concerned with territory and state building: Davidson, correspondence, 16 October 1997. See also Sunday Star Times "Trade puts Nigeria in the background" 26 October 1997 which reports the Malaysian Prime Minister at CHOGM, Edinburgh, October 1997, accepting globalisation but calling for a properly legislated code of behaviour to protect the weak from the strong. In relation to freeing up world trade he stated "[m]any of us have struggled hard and even shed blood in order to be independent. When borders are down and the world becomes a single entity, independence can become meaningless".

^[63]Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, 1997), 3. It can be noted, however, that the old practices were superior in one respect (the Parliamentary role) than the present ones: Keith, correspondence, 14 October 1997.

^[64]Small, correspondence, 20 October 1997.

^[65]Stephen, "The Expansion of International Law - Sovereignty and External Affairs", Sir Earl Page Memorial Trust Lecture, 15 September 1994, 3, noted in Australian Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (AGPS, Canberra, 1995), 240.

^[66]Keith, "Sovereignty? A Legal Perspective", Wood and Leland (eds), in State and Sovereignty: Is the State in Retreat? (University of Otago Press, Dunedin, 1997).

^[67]Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[68]Gobbi and Barsi, 14.

^[69]Burmester, 131.

^[70]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 178-179.

^[71]The term "democratic deficit" was reportedly coined in the context of European Community institutions, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 229.

^[72]Gobbi, "Participating in the Treaty-Making Process", paper presented to the United Nations Association of New Zealand, 29 July 1997, 1.

^[73]Stephen, "Making rules for the world", (1995) 30(2) Australian Lawyer 14. This statement highlights the connection of "democratic deficit" issues to those concerning consultation.

^[74] In New Zealand Mäori Council v Attorney-General [1994] 1 NZLR 513, 517 the Privy Council notes the Crown's obligation under the Treaty of Waitangi to protect täonga such as the Mäori language by "taking such action as is reasonable in the prevailing circumstances". The preamble to the Mäori Language Act 1987 recognises Mäori language as täonga guaranteed by the Treaty of Waitangi.

^[75]Law Commission, Intellectual Property: The Context For Reform, (nzlc r13, 1990), 3.

^[76]On the 12-18 June 1993 in Whakatane, Aotearoa New Zealand, the 9 tribes of Mataatua in the Bay of Plenty convened the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples. Over 150 delegates from 14 countries attended and on the final day the Declaration was passed by the Plenary. The Declaration is reproduced as appendix E in Mana Tangata: Draft Declaration on the Rights of Indigenous Peoples (Te Puni Kokiri, Wellington, 1994).

^[77]Mead, "Misappropriation of Indigenous Knowledge: The Next Wave of Colonialisation", (1994) 3(1), Otago Bioethics Report 4-7; Lenihan, (Ngai Tuahuriri, Ngai Tahu Whanui) "A Time For Change: Intellectual Property Law and Mäori", (1996) 8(1) AULR 212.

^[78]Thrush, Indigenous Flora and Fauna of New Zealand, Waitangi Tribunal Research Series 1995/1 (WAI 262, Wellington, 1995). This Tribunal report includes discussion of intellectual property law and indigenous peoples issues, relevant legislation and possible responses. Further, the Waitangi Tribunal began in September 1997 hearing the Intellectual Property Claim proper (WAI 262), otherwise known as the Flora and Fauna Claim lodged by six iwi in 1991. The claim seeks Mäori guardianship of native flora and fauna and intellectual property rights over their culture. It is also supported by GATT Watchdog groups who focus upon foreign control of domestic resources under GATT and APEC trade agreements. See also Mana News, Morning Report, National Radio, 15 September 1997; Morning Report, National Radio, 16 September 1997; Dominion, 16 September 1997, 2.

^[79]See Mäori Trade Marks Focus Group, Mäori and Trade Marks: A Discussion Paper (Ministry of Commerce, Wellington, 1997), which discusses intellectual property laws, and Mäori words and symbols, plus trade and trade mark matters.

^[80]Jones, "Indigenous Peoples and Intellectual Property Rights", (1996) 4(2) Waikato LR, 117. Of relevance is the Member's Bill currently before the House, the Täonga Mäori Protection Bill 1996. As the long title indicates, it seeks to "make provision for the preservation of the Mäori cultural heritage in Aotearoa, New Zealand, and for related purposes".

^[81]Lenihan, 214.

^[82]See further discussion on consultation in paras 99-108.

^[83]Jackson (Ngati Porou, Ngati Kahungunu), Mana News, Morning Report, National Radio, 4 June 1997.

^[84]Jackson (Ngati Porou, Ngati Kahungunu), Kia Hiwa Ra, June 1997, 18. See also paras 74-77 on concerns over the Multilateral Agreement on Investment and paras 193-194 for discussion on possible solutions.

^[85]Repealed in 1966. It appears, however, that the wording and workings of this section may not have been the model of parliamentary approval for treaties it first seems, with treaty ratification being a power that belongs to the executive and not the legislature. In practice the stipulation has been treated as relating to domestic customs law and not to the power of the executive to accept treaty obligations. See further Keith, "New Zealand Treaty Practice: the Executive and the Legislature" (1964) 1 NZULR 272, 289-290, for detailed explanation and discussion of the practice surrounding s 10.

^[86]Keith, "New Zealand Treaty Practice: the Executive and the Legislature", contains detailed and extremely useful discussion on the convention and the role of Parliament in treaty making generally.

^[87]McGee, Clerk of the House of Representatives, "Treaties and the House of Representatives", Annex D, Report of the Standing Orders Committee On its Review of the Operation of the Standing Orders, 1996 AJHR I.18B. See paras 150-160 for further detail on the possible use of select committees.

^[88]See para 165 for details of the Select Committee's report and recommendations.

^[89]See paras 169, 171 and 192. As at November 1997, neither of these draft Bills had been successful in the ballot.

^[90]"Investment treaty nears completion", Herald, 7 April 1997. There is also discussion of the reservations countries might make against certain provisions of this treaty, for example, by New Zealand to protect the position of the Overseas Investment Commission. Opposition members of Parliament, and the Clerk of the House, have commented in the media upon the need for treaties such as this one to be put before Parliament.

^[91]Kelsey, "New treaty poses cost worry to business", National Business Review, 11 July 1997, in reference to the January 1997 draft of the treaty. See also: NZLJ editorial "Law By Executive Decree?", July 1997, 221; "Too many pacts for Parliament", Independent, 5, 23 May 1997 and editorial (Berryman), "The executive is selling our sovereignty - in secret", 8, 6 June 1997; "Secret plottings on foreign investment", Herald, A15, 9 May 1997 and "Foreign deal for cabinet eye only", 1, 21 May 1997; "Secrecy concerns Anderton", Dominion, 2, 22 May 1997. The Ministry of Justice is also developing a research paper examining New Zealand's treaty making process: Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997). Also, in late 1996 the Director of the Legal Division at MFAT spent some time at Cambridge University, UK, studying other countries' treaty making practices; James, "In spring an old politician's thoughts rise with the sap", National Business Review, 17, 24 October 1997.

^[92]Mana News, Morning Report, National Radio, Friday 19 September 1997. (This is a continuing issue - see also Mana News, Morning Report, National Radio, Wednesday 17 September 1997 and Thursday 2 October 1997.)

^[93]Like the other draft Member's Bills on similar subject matter, as at November 1997 this draft Bill had not been successful in the ballot. The government has since made public a draft of the MAI.

^[94]See appendix A.

^[95]Keith, "New Zealand Treaty Practice: the Executive and the Legislature", (1964) 1 NZULR 272, 279.

^[96]See paras 57-58 for an explanation of "democratic deficit".

^[97]Attorney-General of Canada v Attorney-General of Ontario [1937] AC 326. See paras 12-13.

^[98]Rayfuse, "Treaty Practice: The Canadian Perspective", in Alston and Chiam (eds), Treaty-Making and Australia (Federation Press, Sydney, 1995), 253.

^[99]Although this internal distribution of legislative powers is essentially of no interest to New Zealand, it is of relevance to the position of the Cook Islands, Niue and Tokelau: Keith, correspondence, 14 October 1997. We include the Labour Conventions case discussion for completeness.

^[100]Strom and Finkle, "Treaty Implementation: The Canadian Game Needs Australian Rules" (1993) 25(1) Ottawa LR 39, 47 and 60.

^[101][1932] AC 304, 312. While this was not the only reason given for the decision it did seem to be part of the ratio decidendi: Hogg, Constitutional Law of Canada (3rd ed, Carswell, Toronto, 1992), 293.

^[102]Johannesson v West St. Paul [1952] 1 SCR 292, 303; Francis v The Queen [1956] SCR 618, 621; Re Offshore Mineral Rights of BC [1967] SCR 792, 815-817; MacDonald v Vapor Canada [1977] 2 SCR 134, 167-172; Schneider v The Queen [1982] SCR 112, 134-135; see also Rand, "Some Aspects of Canadian Constitutionalism" (1960) 38 Can Bar Rev 135, 142-143; Hogg, 294, note 49.

^[103]Lederman, Continuing Canadian Constitutional Dilemmas (Butterworths, Toronto, 1981), ch 19. See also Hogg, 295.

^[104]Hogg, 296.

^[105]Keith, "New Zealand Treaty Practice: the Executive and the Legislature", 279.

^[106]Naylor, "Australia's Treaty Making Process: Democracy in Action?" (Winter 1995) Australia Law Reform Commission 67 Reform 40.

^[107]Palmer, correspondence, 30 September 1997. See chapter 7 on how reforms to the treaty making process might be shaped.

^[108]Office of the Clerk of the House of Representatives, correspondence, 17 October 1997. See further on self-executing treaties in paras 130-131.

^[109]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; see paras 39-40.

^[110]Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[111]Harris, "The Law-Making Power of the Judiciary", in Joseph (ed), Essays on the Constitution (Brookers, Wellington, 1995), 270.

^[112]McGee, "Treaties - A Role For Parliament?", (1997) 20(1) Public Sector, 3.

^[113]See paras 40-41.

^[114]Critical for meeting and overcoming neglect of international treaties and their effect is the education and general culture of the legal profession, law schools, government lawyers, officials, Ministers and others as indicated by Higgins, Problems & Process: International Law and How We Use it (Clarendon Press, Oxford 1994), chapter 12, and Jennings, "An International Lawyer Takes Stock" (1990) 39 ICLQ 513. One significant element in that process of education in one area is the series of human rights conferences of senior Commonwealth judges, most recently at Bloemfontein, 19 CLB 1644. See also Kirby, "The Australian Use of International Human Rights Norms: From Bangalore to Balliol - or A View from the Antipodes" (1993) 16 UNSWLR 363.

^[115]Higgins, 213.

^[116]See Cooke, "Fundamentals" [1988] NZLJ 158.

^[117]Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997), 3. See also Higgins, 216; People's Union for Civil Liberties v Union of India (1997) 3 SCC 433, 441-442. See para 204 of this report on possible options concerning the role of the courts.

^[118]See paras 57-58 for an explanation of "democratic deficit".

^[119]The conclusion that this treaty is binding without limit of time is supported by the omission of an express withdrawal provision compared with the frequent inclusion of such provisions in other human rights treaties. For instance, express withdrawal provisions apply to the declarations under article 41 of

the International Convention on Civil and Political Rights, the first optional protocol, and the genocide, apartheid, torture, racial discrimination, children's, slavery, freedom of information, statelessness, refugee, and Geneva conventions. For the general legal rule see article 56 of the Vienna Convention on the Law of Treaties (also articles 54(b) and 62), and Jennings and Watts, Oppenheim's International Law (9th ed 1992) vol 1, para 647. See also Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law (Clarendon Press, Oxford, 1994).

^[120]Inquiry into Parliament's Role in the International Treaty Process: Report of the Foreign Affairs, Defence and Trade Committee, 1997 AJHR I.4A, 5.

^[121]Te Puni Kokiri is currently updating its 1995 publication Consultation with Mäori: A Guidebook which covers the role of Te Puni Kokiri in facilitating consultation with the Crown and provides a guide to successful consultation with iwi and hapu. See paras 59-69 for detail of Mäori concerns with the internationalisation of law.

^[122]Coll-Bassett, correspondence, 7 October 1997.

^[123]See the Cabinet Office Manual (Cabinet Office, Department of the Prime Minister and Cabinet, Wellington, 1996) in relation to departmental consultation.

^[124]"The GATT Uruguay Round 1984-1994: 10 Years of Consultation and Cooperation", address to Senior Executive Service Conference, Wellington, 19 August 1994, 3(3) MFAT Record, 17-21. The speech goes on to outline a further six principles of consultation: effective consultation requires leadership and commitment; understanding the priorities and interests of stakeholders; flexibility of consultative structures; using appropriate communication tools; developing staff consultation skills; and dealing with expectations raised during consultation.

^[125]See, for example, the commentary on GATT practice in New Zealand Consolidated Treaty List as at 31 December 1996: Part One (Multilateral Treaties), 1997 AJHR A.263 367-369.

^[126]By, for example, the use of parliamentary committees - see chapter 7.

^[127]O'Brien, correspondence, 23 October 1997.

^[128]See paras 150-160 and paras 176-177.

^[129]An example mentioned to the Commission by Don MacKay, Deputy Secretary, MFAT, is the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Commission understands that it is relatively common in New Zealand for there to be a long gap between signature and ratification - an extreme example is the 1875 Convention respecting the Creation of an International Office of Weights and Measures to which New Zealand became a party 115 years after its adoption: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[130]A more complete list of New Zealand treaty actions than treaties tabled (which are confined to treaties that have entered into force for New Zealand but do not include treaties signed subject to ratification, or definitively signed but not yet in force, or treaties from which New Zealand withdraws) is to be found in an appendix to each annual report of MFAT: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997. See also New Zealand Consolidated Treaty List Parts One and Two, and the statistics in para 14 of this report.

^[131]See Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (Report 6, December 1991), para 114.

^[132]See Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), paras 24-25 on the range of treaty subject matters.

^[133]Agreement in the Form of an Exchange of Letters Adjusting the Quantities provided for in the Voluntary Restraint Agreement Between New Zealand and the European Community on Trade in Sheepmeat and Goatmeat as a Result of the Enlargement of the Community (B1995/14).

^[134]Although of course for interested or affected groups the former "minor" arrangement would be of interest and the Meat Export Control Act 1921-1922 provides for strong industry involvement in implementing sheep meat quota: McLean, correspondence, 9 October 1997; re GATT see Sigma Agencies Ltd v Collector of Customs (Northern Region) [1997] 1 NZLR 467.

^[135]Consider, for example, opinions expressed on the defence arrangements between New Zealand and Indonesia. Note also paras 113-115 on the subject matters of the 109 sampled treaty actions.

^[136]Davidson, correspondence, 16 October 1997.

^[137]Gobbi, correspondence, 31 October 1997; Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

^[138]See the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), appendix C, "Statutes with possible implications for New Zealand treaty obligations".

^[139]Malachtou v Armefti (1987) 88 ILR 199, 212-213.

^[140]Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (Report 6, rev ed 1991), para 114.

^[141]Lord Howe has recently recorded the throughput of Community legislative instruments at between 650 and 800 a year, "Managing the Statute Book" [1992] St L R 165, 173.

^[142]Keith, "Governance, Sovereignty and Globalisation", paper presented at the 1997 5th Biennial Conference of the New Zealand Council of Trade Unions, 12.

^[143]See appendix B for the website address.

^[144]"Open covenants of peace openly arrived at." Address to Congress, 8 January 1918. First of Fourteen Points.

^[145]Foreign Affairs, Defence and Trade Select Committee, Inquiry into Parliament's Role in the International Treaty Process: Report of the Foreign Affairs, Defence and Trade Committee, 1997 AJHR I.4A, 7; Small, conversation, 13 November 1997; Keith, correspondence, 14 October 1997.

^[146]Te Puni Kokiri's publication (presently being updated), Consultation with Mäori: A Guidebook (Wellington, 1995), will be instructive in the development of formal consultation processes with iwi and hapu in relation to imminent treaty actions.

^[147]Palmer, correspondence, 30 September 1997.

^[148]For a description of parliamentary committees, function and membership see chapter 9, "Parliamentary Committees" in Ringer, An Introduction to New Zealand Government (Hazard Press, Christchurch, 1991), 127.

^[149]Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997), 30; Australian Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (AGPS, Canberra, 1995), para 16.65.

^[150]See para 165 of this report for further detail.

^[151]Palmer, correspondence, 30 September 1997. The Australian DFAT's internet website has a list of all treaties being negotiated in a 12-month period and the person to contact in the relevant department - see appendix B.

^[152]Report of the Standing Orders Committee on its Review of the Operation of the Standing Orders Committee, 1996 AJHR I.18B, annex D. See further detail of the paper by the Clerk of the House in paras 172-174 of this report.

^[153]Gobbi and Barsi, 30; Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.15-15.29.

^[154]Small, comments at an International Law Association (New Zealand Branch) Seminar on Treaty Making, Wellington, 13 May 1997.

^[155]Gobbi and Barsi, 31; Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.15-15.29.

^[156]Naylor, "Australia's Treaty Making Process: Democracy in Action?" (1995) Australia Law Reform Commission 67 Reform 42. See further appendix A of this report, paras A20-A22, on the Australian Committee on Treaties, and Principles and Procedures.

^[157]Gobbi and Barsi, 30. See also para 146 of this report.

^[158]See New Zealand Consolidated Treaty List as at 31 December 1996: Part Two (Bilateral Treaties), 1997 AJHR A.265, 49.

^[159]Article 102 of the Charter states: "Every treaty and every international agreement entered into by any Member of the United Nations . . . shall as soon as possible be registered with the Secretariat and published by it".

^[160]Gobbi and Barsi, 30-31; Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.1-15.5, 15.8-15.10. The UK Ponsonby Rule denotes a similar process - see appendix A of this report.

^[161]See the Canadian criteria at para A93 for a useful although general starting point. (Further criteria may need to be added to identify more clearly treaties having implications for human rights, rights secured under the Treaty of Waitangi, or the customary rights of Mäori); Dawson, correspondence, 15 October 1997. See the broader criteria used by France at para A39.

^[162]As at November 1997 this draft Bill had not been successful in the ballot.

^[163]Coll-Bassett, correspondence, 7 October 1997.

^[164]As at November 1997 this draft Bill had not been successful in the ballot.

^[165]Report of the Standing Orders Committee on its Review of the Operation of the Standing Orders Committee, 1996 AJHR I.18B, annex D.

^[166]Dawson, correspondence, 15 October 1997.

^[167]Dawson, correspondence, 15 October 1997.

^[168]Such statements are also referred to as National Impact Statements or Explanatory Memoranda, although the Law Commission favours the term "treaty impact statement".

^[169]Gobbi and Barsi, 32-33.

^[170]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.47-15.52, 15.77; Inquiry into Parliament's Role in the International Treaty Process, appendix 2, 12.

^[171]O'Brien, correspondence, 23 October 1997.

^[172] Cabinet Office Manual (Cabinet Office, Department of the Prime Minister and Cabinet, Wellington, 1996).

^[173]Inquiry into Parliament's Role in the International Treaty Process, 8.

^[174]Gobbi and Barsi, 32; Templeman, "Treaty-Making and the British Parliament" (1991) 67 Chicago-Kent LR 461.

^[175]Coll-Bassett, correspondence, 7 October 1997.

^[176]Palmer, correspondence, 30 September 1997.

^[177]Palmer, correspondence, 30 September 1997.

^[178]See paras 73, 77, 169, 171. See also para 175 for a possible model.

^[179]These proposals include: the improvement of intellectual property law regimes to incorporate cultural heritage property (including indigenous flora and fauna, te reo): Jones, "Indigenous Peoples and Intellectual Property Rights" (1996) 4(2) Waikato LR, 140; Lenihan (Ngai Tuahuriri, Ngai Tahu Whanui), "A Time For Change: Intellectual Property Law and Mäori" (1996) 8(1) AULR, 213-214; the establishment of a Mäori Intellectual Property Commissioner, responsible to hold property in trust that has not been identified as belonging exclusively to individual iwi, and amongst other tasks to advise government and the Commissioner of Copyrights, Patents, etc on policy: Lenihan, 213-214; the widening of the copyright law regime: Jones, 140; the development of practical measures to uphold article 29 of the draft Declaration on the Rights of Indigenous Peoples concerning cultural and intellectual property; the establishment of legislative measures to protect täonga, such as making the protection of tangible täonga Mäori the domain of the Ministry of Mäori Development Te Puni Kokiri, establishing a register to record Mäori täonga held offshore, and establishing a charitable trust to administer that register (as included in the member's Bill currently before the House, the Täonga Mäori Protection Bill 1996); constitutional change to provide a framework in which Mäori täonga are adequately protected and which Mäori control: Lenihan, 214.

^[180]This is as distinct from a treaty being self-executing - see the discussion of option A in chapter 6, para 128.

^[181]James Buchanan and Co v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, 152.

^[182]Those provisions are discussed in the reports of the Law Commission: A New Interpretation Act (nzlc r17 1990), paras 38, 54, 106, 109 and appendix D; and The United Nations Convention on Contracts for the International Sale of Goods: New Zealand's proposed acceptance (nzlc r23 1992), paras 42-50; see also the report on Arbitration (nzlc r20 1991), paras 205-208.

^[183]See, for example, DPP v Pete [1991] LRC (Const) 553 (Tanzania CA); R v Keegstra [1991] LRC (Const) 33 (SCC).

^[184]Report of the Standing Orders Committee on its Review of the Operation of the Standing Orders Committee, 1996 AJHR I.18B, annex D. For further detail see paras 172-174 of this report.

^[185]As suggested by Palmer, correspondence, 30 September 1997.

^[186]The ILC internet website address is http://www.un.org/law/lindex.htm - see appendix B.

^[187]Keith, correspondence, 14 October 1997. See article 26 of the Statute of the International Law Commission concerning opportunities for consultation between the ILC and national law reform bodies. Also note the discussion by the American Society of International Law on the need for a hard look at the treaty making process, with plans for a "Forum Geneva" in 1998 to discuss "Multilateral Treaty-Making: The Current Status of Challenges to, and Reforms Needed in, the International Legislative Process" (ASIL Newsletter, "Notes From the President Charles N Bower", September-October 1997, 1, 8, 21).

^[188]Keith, "The International Law Commission's Work and the Shaping of International Law", paper for Colloquium on Progressive Development and Codification of International Law, October 1997.

^[189]See the proposed Australian legislation to counter Teoh in appendix A, paras A25-A26. Contrast Perry, "At the intersection - Australian and International Law" (November 1997) 71 ALJ 841.

^[190]See appendix A, paras A65-A81, on the American practice.

^[191]Nottage, "New Zealand's foreign and trade policy: past and present" (1997) XXII(1) NZ Int Rev 18, 20.

^[192]Article 26 of the Vienna Convention requires New Zealand to fulfil a treaty in good faith once it has entered into force for this country: Small, correspondence, 29 October 1997. See also the International Law Commission's "Draft Articles on State Responsibility with Commentaries Attached" (1997).

^[193]Coll-Bassett, correspondence, 7 October 1997.

^[194]Palmer and Palmer, Bridled Power: New Zealand Government Under MMP (3rd ed, Oxford University Press, Auckland, 1997), 304.

^[195]Gobbi and Barsi, ii.

^[196]Jean-Marie Guehenno quoted in Keith, "Governance, Sovereignty and Globalisation", paper presented at the 1997 5th Biennial Conference of the New Zealand Council of Trade Unions, 15.

^[197]Only those countries considered to be politically, culturally and constitutionally comparable to New Zealand have been examined. A number of federal states are discussed, but it should be noted that issues which arise in the context of the distribution of power between the federal and state legislatures are not included since they are not relevant to New Zealand as a unitary state. The treaty law and practices of France, Germany, India, Switzerland, Thailand and the United Kingdom have recently been collected in a valuable American Society of International Law volume: Lee and Blakeslee (eds), National Treaty Law and Practice (1995). The Commission acknowledges the work of Kersti Hanson, a vacation researcher, who gathered much of the material presented in this appendix.

^[198]Australian Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (AGPS, Canberra, November 1995), 171-172. The table was prepared by the Australian Department of Foreign Affairs and Trade. The Department noted that amongst those countries classified as requiring some form of parliamentary approval, the types of treaties to which this applies vary markedly, and that the table does not cover European or Australian regional treaties.

^[199]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 106-117.

^[200]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 3.

^[201]Australian Federal Parliamentary Debates (Reps) 23rd Plt, 3rd session, vol 11 of R 31 1693; see similarly Senator Gorton in the Senate, vol S8, 857-858.

^[202]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 98-99.

^[203]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 101.

^[204]The Australian Department of Foreign Affairs and Trade has also contributed to the debate by publishing Australia and Treaty Making: Information Kit (AGPS, Canberra, 1994) which, among other things, shows a lower treaty acceptance rate by New Zealand compared with other OECD countries.

^[205]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 186-199.

^[206]Sir Ninian Stephen, a former member of the High Court of Australia and Governor-General, has also addressed the issues in a March 1995 public lecture, "Making Rules for the World" (30(2) Australian Lawyer 13 - extracts from his Sir Earle Page Memorial Trust Lecture).

^[207]For a more recent discussion of Teoh and the developing role of international law in the Australian judicial process see Perry, "At the intersection - Australian and International Law" (1997) 71 ALJ 841.

^[208]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 5.

^[209]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 92.

^[210]Australian Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee "Administrative Decisions (Effect of International Instruments) Bill 1997" (AGPS, Canberra, 1997).

^[211]House of Representatives, Hansard, 2 May 1996, 231-235; Joint Standing Committee on Treaties, The Parliament of the Commonwealth of Australia, First Report (AGPS, Canberra, 1996), 2.

^[212]Joint Standing Committee on Treaties, First Report, 2.

^[213]The Government Response to the Senate Legal Constitutional References Committee Report, 13 May 1996.

^[214]Joint Standing Committee on Treaties, First Report, 2; COAG Communique, 14 June 1996, 4, attachment C, 24-31.

^[215]The Government Response to the Senate Legal Constitutional References Committee Report, 13 May 1996.

^[216]Council of Australian Governments, Editor's Note, "Principles and Procedures for Commonwealth-State Consultation on Treaties" (1997) 8 Public LR 116.

^[217]The Joint Standing Committee on Treaties considers that the NIA should also include a discussion of the legal effects and potential areas of conflict with state and territory laws, and should identify the Commonwealth department or agency with primary carriage for a particular treaty along with relevant contact details: Joint Standing Committee on Treaties, First Report, 3.

^[218]By resolutions in both Houses in the 38th Parliament on 17 June 1996: Joint Standing Committee on Treaties, Treaties Tabled on 10 &11 September 1996, Second Report (AGPS, Canberra, 1996), v.

^[219]"Reform of the Treaty Making Process", statement delivered by the Hon Alexander Downer, Minister for Foreign Affairs, 2 May 1996; Council of Australian Governments, Editor's Note, "Principles and Procedures for Commonwealth-State Consultation on Treaties" (1997) 8 Public LR 116.

^[220]The Government Response to the Senate Legal Constitutional References Committee Report, 13 May 1996.

^[221]Joint Standing Committee on Treaties, First Report, 3-4. By June 1997, the Joint Standing Committee had published its eighth report.

^[222]"Reform of the Treaty Making Process", statement delivered by the Hon Alexander Downer, Minister for Foreign Affairs, 2 May 1996; Council of Australian Governments, Editor's Note "Principles and Procedures for Commonwealth-State Consultation on Treaties" (1997) 8 Public LR 117; COAG Communique, 14 June 1996, 4, attachment C, 26-27.

^[223]Piotrowicz, "Unincorporated treaties in Australian law: the official response to the Teoh decision" (1997) 71 ALJ 506.

^[224]The United Kingdom is a constitutional monarchy with a parliamentary system of government. The constitution is unwritten. The Parliament consists of the House of Commons, with 650 members, and the House of Lords, with 1200 members. The House of Commons is elected by universal suffrage. Most of the legislative power is vested in the House of Commons, while the House of Lords has limited power, but can review, amend, or temporarily delay any bill, except those relating to the budget. After referendums in 1997 limited Scottish and Welsh directly elected Parliaments are to be assembled.

^[225]Templeman, "Treaty Making and the British Parliament" (1991) 67 Chicago-Kent LR 459, 461.

^[226]Hudson, "Treaties and Parliament" (1996) 146 NLJ 341, 341.

^[227]Saunders, "Articles of Faith or Lucky Breaks?" (1995) 17 Sydney LR 150, 170.

^[228]Hudson, 341.

^[229]Hudson, 466.

^[230]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 103.

^[231]Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 72-73.

^[232]The Parliament consists of delegates elected by each Member State and can be considered a democratic body. It is, however, the least powerful of the Union's institutions. The Council, which has no formal legislative powers, is made up of ministerial representatives of the governments of the Member States. Its actual composition varies according to the business under consideration. The Council does play an important advisory role and exercises influence over Union policy. The Commission is the executive institution of the Union, and is made up of appointed Commissioners who are bound to be completely independent in the performance of their duties. The Commission initiates policy proposals and puts legislative proposals before the Council.

^[233]Hudson, 472-480.

^[234]Downey, "Sovereignty, the Common Law, and the Treaty of Rome" (1992) NZLJ 185, 186.

^[235]Hudson, 341.

^[236]Clause 2 of the Treaties (Parliamentary Approval) Bill 1995/96.

^[237]Clause 3 of the Treaties (Parliamentary Approval) Bill 1995/96.

^[238]Clause 3 (2) of the Treaties (Parliamentary Approval) Bill 1995/96.

^[239]Clause 4 of the Treaties (Parliamentary Approval) Bill 1995/96.

^[240]Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey), Written Answers, Hansard, House of Lords, 16 December 1996.

^[241]An explanatory memorandum is not required for treaties which enter into force upon signature nor for Double Taxation Conventions. Guidelines for Explanatory Memoranda for Treaties Note by the Foreign and Commonwealth Office, December 1996.

^[242]France is a constitutional republic with a parliamentary system of government. The President is the head of state and the Prime Minister is the head of government. The executive branch consists of the President and the Council of Ministers, which is headed by the Prime Minister. The President is the dominant element in the French system of government, ensuring regular functioning of the public powers and the continuity of the state. The President appoints the Prime Minister and, on the advice of the Prime Minister, appoints the other members of the government (Council of Ministers). The Council of Ministers, presided over by the President, determines the policy of the nation and controls the agenda of Parliament. The Prime Minister is responsible for the operation of the government, the execution of laws and national defence. The legislative branch consists of a bicameral Parliament: the Senate and the National Assembly. Parliament's legislative power is restricted to specified questions which constitute the domain of law. Parliament has authority to establish fairly detailed rules in the following areas: civil rights, the determination of crimes and misdemeanours, taxes, electoral laws, and the nationalisation of industries. On other questions, such as the general organisation of national defence, the administration of local communities, education, property rights, and national economic planning, Parliament may only establish the "fundamental principles", leaving the details to be filled in by executive decrees.

^[243]Article 52 of the Constitution. Luchaire, "The Participation of Parliament in the Elaboration and Application of Treaties" (1991) 67 Chicago-Kent LR 341, 342.

^[244]Luchaire, 341.

^[245]Luchaire, 342-347.

^[246]Luchaire, 342-343.

^[247]Luchaire, 344.

^[248]Examples include the decision to participate in the military operations to liberate Kuwait in 1991 and the France-Germany Treaty of 1963.

^[249]Luchaire, 355-356.

^[250]The Constitutional Council decides jurisdictional disputes between Parliament and the government: Luchaire, 350-351.

^[251]The Kingdom of the Netherlands comprises two territories in the Caribbean, the Netherlands Antilles and Aruba as well as the territory in Europe. Only the kingdom has legal capacity in international law and therefore the power to conclude and become party to treaties. The Charter which unites and determines the relations between the separate parts of the kingdom is the highest national legal instrument in the kingdom, and the Constitution of the Netherlands is subordinate to it. Due to slight differences in constitutional arrangements, the discussion here is restricted to the treaty making practice of the European territory of the Kingdom of the Netherlands. The Netherlands Parliament or "States-General" (Staaten-Generaal) comprises two chambers: the Lower House with 150 members elected by universal suffrage, and the Upper House or Senate with 75 members elected by directly elected members of the Provincial Councils: van Dijk and Tahzib, "Parliamentary Participation in the Treaty Making Process of the Netherlands" (1991) 67 Chicago-Kent LR 413, 413 and 425.

^[252]Klabbers, "New Dutch Law on the Approval of Treaties" (1995) 44 International and Comparative LQ 629, 629.

^[253]Klabbers, 629.

^[254]van Dijk and Tahzib, 424-425.

^[255]Klabbers, 629.

^[256]Where a submission of this information would be against the interests of the kingdom, this requirement is relaxed, ie, where a prospective treaty partner is adamant that negotiations are to be kept secret: Klabbers, 631.

^[257]van Dijk and Tahzib, 425.

^[258]van Dijk and Tahzib, 424-425.

^[259]van Dijk and Tahzib, 426.

^[260]More than 75% of treaties to which the kingdom is a party have been approved under the tacit procedure: Klabbers, 634.

^[261]van Dijk and Tahzib, 428.

^[262]van Dijk and Tahzib, 428.

^[263]van Dijk and Tahzib, 424-425.

^[264]van Dijk and Tahzib, 425-426.

^[265]This exemption is contained in paragraph (a) of Article 7: Klabbers, 630.

^[266]Parliament still has the option of requiring a treaty to be subjected to parliamentary approval by virtue of Article 8 of the State Law: Klabbers, 631.

^[267]Klabbers, 632-633.

^[268]Klabbers, 632-633.

^[269]Klabbers, 635.

^[270]Schemers, "Netherlands" in Jacobs and Roberts (eds), The Effect of Treaties in Domestic Law (Sweet and Maxwell, London, 1987), 109.

^[271]van Dijk and Tahzib, 419.

^[272]Some commentators have noted that the State Law neglects to define exactly what a treaty is, and predict problems as a result. Whether clear distinctions can be drawn between treaties and policy and administrative agreements is yet to be established: van Dijk and Tahzib, 422.

^[273]The United States of America is a constitutional republic with a democratic system of government. Powers are divided between the federal and state governments. The President is the head of state and together with the Cabinet constitutes the federal executive branch. The federal legislature consists of a bicameral Congress: the Senate, with 100 members and the House of Representatives, with 435 members.

^[274]Fisher, "Congressional Participation in the Treaty Process" (1989) 137 Univ of Penn LR 1511, 1511-1512.

^[275]Although this has been a long standing practice, it was increasingly employed after the Second World War because among other reasons, the Senate's attachment of conditions to ratification unacceptable to President Wilson and the subsequent failure of the US to ratify the Treaty of Versailles were partially attributed to the absence of Senators on the American delegation: Reisenfeld and Abbott, "The Scope of the US Senate Control Over the Conclusion and Operation of Treaties" in Reisenfeld and Abbott (eds), Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (Martinus Nijhoff, Dordrecht, 1994), 266.

^[276]Reisenfeld and Abbott, 266.

^[277](1972) 11 ILM, 1117 as noted in Jennings and Watts (eds), Oppenheim's International Law, vol 1, Parts 1-4 (9th ed, Longman, London, 1992), 77.

^[278]Reisenfeld and Abbott, 266.

^[279]Reisenfeld and Abbott, 267.

^[280]The Senate may also give its consent subject to an "understanding" or "declaration" as to the interpretation of certain treaty provisions, or subject to a proviso concerning the internal implementation of the treaty: Reisenfeld and Abbott, 268.

^[281]Glennon, "The Constitutional Power of the United States Senate to Condition its Consent to Treaties" (1991) 67 Chicago-Kent LR 533, 569-570.

^[282]Between 1932 and 1982 the United States entered into 608 treaties pursuant to the advice and consent of the Senate and 9548 executive agreements: Reisenfeld and Abbott, 302.

^[283]Reisenfeld and Abbott, 302.

^[284]Reisenfeld and Abbott, 302.

^[285]Fisher, 1511-1512.

^[286]Jackson, "United States", in Jacobs and Roberts (eds), The Effect of Treaties in Domestic Law, (Sweet and Maxwell, London, 1987).

^[287]This was done in the case of the International Covenant on Civil and Political Rights: Reisenfeld and Abbott, 205, 263.

^[288]Donaghue, "Balancing Sovereignty and International Law: the Domestic Impact of International Law in Australia" (1995) Adel LR, 213, 236.

^[289]Switzerland is a constitutional republic with a democratic system of government. Parliament consists of the Council of States, with 46 members, and a National Council, with 200 members. The two Houses have equal authority and can veto any legislation passed by the other House. All federal statutes are subject to a referendum vote, if initiated by 50 000 citizens. Also, 100 000 citizens have the right to initiate amendments to the Constitution on any subject matter as they see fit.

^[290]Wildhaber, "Parliamentary Participation in Treaty Making, Report on Swiss Law"(1991) 67 Chicago-Kent LR 438-442.

^[291]Wildhaber, 442-443.

^[292]Wildhaber, 443-444.

^[293]Wildhaber, 445-446.

^[294]Wildhaber, 445-446.

^[295]Canada is a federal parliamentary democracy, modelled on the Westminster system. The bicameral Parliament is formed under the Crown. The Constitution grants certain legislative powers to the Federal Parliament and certain legislative powers to the provincial parliaments. The Canadian Constitution Act of 1867 grants the provinces specific powers, with the balance of powers exercised by the Federal Parliament.

^[296]Hogg, Constitutional Law of Canada (3rd ed, Carswell, Toronto, 1992), 282-283.

^[297]Hogg, 282-283.

^[298]Lee (ed), "Canadian Practice in International Law During 1974 as Reflected in Correspondence and Statements of the Department of External Affairs", excerpts from a memorandum of June 11, 1974, written by the Bureau of Legal Affairs (1975), reproduced in The Canadian Yearbook of International Law, vol XIII, 367; noted in Prowse, "New Zealand Treaty Practice: A Reappraisal", LLB (Hons) dissertation, University of Otago, Dunedin, 1996, 45.

^[299]Hogg, 285.

^[300]Prowse, 44.

^[301]The approach taken by the Privy Council has been criticised and since the abolition of appeals to the Privy Council, the Supreme Court of Canada has indicated the possibility that it will reconsider the reasoning in the Labour Conventions case: Hogg, 294.

^[302]In 1998 the Law Commission itself will be establishing an internet website where its publications, such as A New Zealand Guide to International Law and its Sources (nzlc r34 1996), and this report will be available.

^[303]Some of the major "treaty" website addresses were noted in a review by Mark Gobbi (1996) 19(4) Public Sector 26.