1 In the lifetime of adult New Zealanders the world has shrunk. Our oceans no longer insulate us from other states. Our traders have instant electronic communication with business partners across the world.1 Our economy and way of life are dependent on decisions and events remote from our shores concerning international bio-safety, international crime, multilateral trade negotiations, conflict resolution and much else. We are citizens of the world community of nations, playing our part in achieving a secure future for New Zealand and the other inhabitants of this planet. This is the United Nations Decade of International Law.2
2 As a small player in a global game we are acutely affected by events elsewhere.3 Prominent among these is the great number of international treaties by which nations regulate their affairs and which increasingly pre-empt the opportunity for inconsistent conduct by states.4 Such treaties are created as a matter of international law, but have effect as part of our domestic law through domestic legislation.5 It is unlawful at international law for a state to legislate domestically in a manner inconsistent with the international obligations it has assumed under treaties.
3 As yet our institutions have failed to adapt to these changes. We maintain the practice stated definitively by the Privy Council 6 decades ago:
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.6
By such practice we leave foreign affairs to the executive, and maintain the theory that our Parliament is supreme and if necessary can through legislation override any executive decision. In fact if the executive binds New Zealand by treaty there is little that Parliament can do – the consequences of infringing international obligations are unthinkable.
4 We also adhere, for the most part, to the view that creation of public policy is properly the function of Parliament rather than the courts. But while the courts must give effect to the statute law enacted by Parliament there are wide tracts in which Parliament has not spoken, and in which the courts in order to decide the case must make a decision as to what principles should guide them. To do so without reference to international law and New Zealand’s obligations would be unwise.7 Yet the result may be the creation of law in an important sphere which Parliament, representing the people, has not properly considered.
5 It is therefore unsurprising that there is currently much debate as to the role that Parliament and others in New Zealand should play in the treaty making process, and that in New Zealand, Australia and elsewhere there have been calls for a review of existing law and practice. The debate encompasses elements of globalisation, sovereignty, the separation of powers (among the executive, Parliament and the judiciary) and, in New Zealand, the importance of the Treaty of Waitangi. The nub of the debate is:
Given the increasing amount of treaty making, and the interests of the democratic process, should New Zealand adapt its practices to allow Parliament and others more involvement in the treaty making process?
6 This report first outlines the three stages of the current treaty making process. It then looks at the current significance of treaty making given the forces of globalisation. The report then mentions some of the current calls for change in the treaty making process and considers the issues involved. The final chapter contains the Law Commission’s recommendations. In addition, appendices detail overseas treaty making practice and relevant internet websites.
7 The Hon Justice Sir Kenneth Keith, in his 1993 draft of this report The Making, Acceptance and Implementation of Treaties: Three Issues for Consideration, made three major proposals which are the three main recommendations in this report. In addition to endorsing and reasserting those proposals the Commission expands upon these main recommendations with further subsidiary recommendations as follow:
recommendation 1 – That the value of notification and consultation with Parliament and interested or affected groups at the negotiating stage of the treaty making process be recognised, with the purpose of developing and formalising such practices.
recommendation 1a – That consideration be given to the establishment of a Treaty Committee of Parliament.
recommendation 2 – That consideration be given to the introduction of a practice of the timely tabling of treaties so that the members of the House of Representatives can determine whether they wish to consider the government’s proposed action.
recommendation 2a – That consideration be given to the preparation of a treaty impact statement for all treaties to which New Zealand proposes to become a party.
recommendation 3 – That, so far as practicable, legislation implementing treaties or other international instruments give direct effect to the texts (that is, use the original wording of the treaties), and that when that is not possible, the legislation indicate in some convenient way its treaty or other international origins.8
2 What is the current treaty making process? The three stages
THE TREATY MAKING STAGES AND THE SEPARATION OF POWERS
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.