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
negotiation of treaty texts by the Minister of Foreign Affairs or officials from MFAT;
Cabinet approval of the terms negotiated; and
signature by New Zealand’s representative.
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)
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:
between the representatives of the two states immediately concerned;
at a conference of the interested states for the purposes of negotiating that particular text (as in the aftermath of a war); or
within an established international framework which may be regional (such as the South Pacific Forum), or universal (as with the United Nations and its agencies).
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.