New zealand law commission



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TIMING – URGENCY, FLEXIBILITY, CONFIDENTIALITY


109 Timing issues relate to the timing of any possible intervention for parliamentary consideration and approval in the treaty making process. It might be helpful here to note that consideration of Parliament’s role is distinct from consideration of Parliament’s performance. Performance problems of overload and delay are of course of some bearing to this discussion but are addressed through internal parliamentary mechanisms such as the Standing Orders and the Business Committee of the House.

110 If a parliamentary approval procedure is timed to occur as the treaty is being negotiated/created, the executive may express concerns about confidentiality, flexibility and urgency as follows:



  • maintaining the confidentiality of potentially sensitive negotiations, for example, in relation to trade or where a requirement of non-publicity has been set;

  • maintaining the confidence of other parties to negotiations in light of possible delays while requisite parliamentary approval is being sought;

  • maintaining the confidence of other parties to negotiations in light of possible changes to the treaty text under negotiation as a result of any parliamentary approval process;

  • maintaining the flexibility to respond quickly to urgent matters when necessary, for example, to military developments in neighbouring countries;

  • for those treaties that require a further legislative step, the clogging of the already busy parliamentary timetable and legislative programme (and potentially with treaties that are of little interest to Parliament); and

  • resource implications to cover the work which may be required of those in the executive as well as in the House to deal with any approval mechanisms.

111 Timing problems associated with urgency and confidentiality are not insurmountable. For example, Parliament has the ability, through taking urgency, to deal rapidly with matters such as a form of treaty approval, and a possible role for select committees in any parliamentary approval process may protect confidentiality of sensitive treaty negotiations.128 The need for flexibility could be addressed in the design of any parliamentary approval process. (On the point of flexibility, it has already been noted in chapter 2 on the current treaty making process that for all treaties there is an existing “approval” step, involving gaining Cabinet approval for any treaty before it is signed. Suggestions of accommodating different monitoring and approval steps by Parliament are therefore not totally foreign.)

112 There are anticipated problems with parliamentary time and clogging of the legislative programme. In relation to these it should be noted that under the current process legislation is passed for any new treaty (which requires domestic implementing legislation) prior to the government signing the treaty, and that several international treaties are currently awaiting a slot in the legislative programme.129


TREATY DEFINITION/TYPE


113 As well as issues of timing, there are issues related to treaty definition. These consider the type of treaty that is being negotiated/created (eg, whether it is multilateral or bilateral)and whether that will be helpful in determining what treaties are subject to an approval process. A treaty may be, at one extreme, an exchange of letters, at the other are complex multilateral conventions; it may come into effect immediately upon the signature of the State; or it may require a further step of imple­mentation domestically.

114 It is useful to note the facts about the range of treaty actions before contemplating treaty definition as an identifier for possible parliamentary involvement. In the 4 years 1990–1994, 109 treaties were tabled in the New Zealand Parliament and published in the New Zealand Treaty Series.130 All were already binding on New Zealand. That is to say the tabling was for the record and for information; at the time of tabling the House could take no effective action (although it may have already taken action to pass necessary legislation). The treaties may provide a useful sample in relation to issues of practicability for any reform proposals. Included in the 109 treaties were multilateral treaties relating to inter­national criminal law (war crimes, hostage taking, narcotics), intellectual property and child abduction; and bilateral treaties covering extradition, double taxation, and social security that required legislative action.

115 About 70% of the treaties were bilateral and with only a few exceptions those treaties came into force as a result of signature and with no other action. A small number were subject to ratification: for example, a treaty of territorial delimitation with the United States (relating to the boundary between Tokelau and American Samoa), an extradition treaty with Fiji, an air transport agreement with Argentina, and some double tax agreements. A third small group of bilateral treaties, including double tax, social security, visa abolition, investment protection and trade agreements, entered into force following the parties notifying or confirming to one another that the necessary legislative and other steps had been taken.

116 The line between restricted multilateral treaties (of a regional nature) and general multilateral treaties is somewhat arbitrary; in the former group can be included those related to South Pacific matters and a recent agreement relating to war graves between Tunisia and five allied states. Under 10% of the 109 treaties come into that category: some came into force on signature, while others required ratification or further action.

117 The 26 multilateral treaties in the group of 109 were all subject to some further action after the text was established by the negotiation, that is, action of ratification, acceptance, or accession (the particular action depending on whether the state had signed the text or not, and on the formal requirements of the treaty). That is to say, in all those cases the text had been established some time before the government ratified, accepted or acceded to it. In almost all cases the period between the text being established and being accepted was more than 2 years – sometimes well over that (31 years for accepting the Constitution of the Centre for Cultural Property). Only rarely does ratification of a multilateral treaty follow closely on signature.

118 With the bilateral treaties subject to ratification in the group of 109, the periods are shorter – only 3 weeks in the case of the extradition treaty with Fiji (where implementation in New Zealand law was effected by an Order in Council rather than an Act) – but in other cases over a year.

119 By way of analogy, the difference between treaties subject to further action and those binding on signature or (with some important qualifications) between multilateral and bilateral treaties might be equated to the difference between primary and secondary legislation. The former are more concerned with principle and policy, the latter with detail and implementation.131 Similarly, Parliament is more likely to have an interest in the former. The equation is not exact (compare, for example, the original bilateral CER agreement with the latest multilateral adjustment to the schedules in the ozone layer treaty) but it does appear to provide a useful guide.

120 Treaty definition issues are often addressed in terms of subject matter,132 with the subject matter of some treaties, such as human rights, described as being of potential interest to Parliament while others are not. For instance, both a “minor” arrangement concern­ing our trade in sheep meat,133 and the GATT, are treaties that deal with the subject matter of trade, yet Parliament and the public at large clearly have a stronger interest in the far reaching im­plications of the latter – GATT – and treaties concerning the WTO.134

121 A further example, certain defence arrangements with other states may be thought not to affect individual rights within New Zealand and therefore to be of little interest to either Parliament or the public (through the select committee process), while important environmental agreements such as the Vienna Convention for the Protection of the Ozone Layer may be the opposite. However, some of the treaties which have been the subject of parliamentary interest and action, including approval, are in fact defence arrangements which although they may not immediately directly affect individual rights can, nevertheless, be of major importance.135 In general, the question of impingement on individual rights is not necessarily a determinant when considering possible parliamentary interest.

122 On closer examination it may be that treaty definition alone is no more than a “useful guide” to determining which treaties “require” parliamentary consideration and approval, but is not a sufficient indicator of whether or not Parliament will have an interest in a particular treaty. “The immediate effects of some treaties may be obvious while the long term effects of others are not. Consultation is more likely to elucidate the potential effects of all categories of treaties.”136 This discussion also raises the associated issues of who would be the appropriate body to determine which treaty definitions or types should go before Parliament and when. Some suggest the House to be that appropriate body.137


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