The Treaty making process in New Zealand

The Legal Division of the Ministry of Foreign Affairs and Trade oversees the process by which the New Zealand Government enters into, and withdraws from or denounces, treaties (see Guide to treaty making process in New Zealand under Related Resources).

In New Zealand the power to take binding treaty action (that is, ratification, accession, acceptance, approval, withdrawal or denunciation or, in the case of bilateral treaties, signature) rests with the Executive. Within this context, Cabinet has decided that certain international treaties (essentially multilateral treaties and major bilateral treaties of particular significance) will be presented to the House of Representatives for select committee consideration, before the Executive takes binding treaty action.

The procedure for presenting treaties to the House is set out in paragraphs 7.112 to 7.122 of the Cabinet Manual and in the Standing Orders of the House of Representatives (see the section entitled “International Treaties” in the chapter on non-legislative procedures). Guidelines about what constitutes a "major bilateral treaty of particular significance" were approved by the Minister of Foreign Affairs and Trade and issued in 2002.

The key features of the treaty making process are:

• Negotiation: New Zealand officials are involved in the negotiation of all bilateral treaties and many multilateral treaties to which New Zealand is interested in becoming party. New Zealand negotiating positions reflect established government policy or specific mandates endorsed by Cabinet. Officials endeavour to consult with interested parties and stakeholders in the course of treaty negotiations, to ensure that New Zealand’s wider interests are taken into account.
• Cabinet approval of the text: Once the text of a treaty is finalised, the appropriate Minister (in consultation, or jointly, with the Minister of Foreign Affairs and Trade) must seek Cabinet approval for the formal steps involved in taking the proposed treaty action (these steps differ depending on the nature of the treaty). Cabinet will also be asked to approve a National Interest Analysis, which sets out the advantages and disadvantages for New Zealand in becoming or ceasing to be a party to the treaty.
• Signature: The treaty making process for some multilateral treaties requires non-binding signature before binding treaty action (e.g. ratification) is taken. Non-binding treaty action may be taken after Cabinet has approved the text of a treaty.
• Minor bilateral treaties: Binding treaty action can be taken on minor bilateral treaties once Cabinet approval is given. Only major bilateral treaties of particular significance are required to be presented to the House.Information on the criteria for tabling bilateral treaties in the house can be found at Bilateral Treaties: Criteria to determine submission to the parliamentary treaty examination process.
• Presentation to the House: The parliamentary treaty examination process, introduced in 1997 and made permanent in 2000, requires all multilateral treaties and major bilateral treaties of particular significance to be presented to the House before binding treaty action is taken. In accordance with the process, once Cabinet has approved the proposed treaty action, the Legal Division of the Ministry of Foreign Affairs and Trade is responsible for presenting the treaty and the National Interest Analysis to the House of Representatives.
• Select committee consideration: Once a treaty has been presented, it stands referred to the Foreign Affairs, Defence and Trade Committee of the House. This committee may inquire into the treaty, or may refer the treaty to another more appropriate committee. Except in very rare and urgent circumstances, the government refrains from taking any binding treaty action in relation to a treaty that has been presented to the House until the relevant committee has reported, or 15 sitting days have elapsed from the date of the presentation, whichever is sooner. The select committee may indicate to the government that it needs more time to consider the treaty, in which case the government may consider deferring taking binding treaty action. The select committee may seek public submissions. In addition, the House itself may sometimes wish to have a further opportunity for discussion of the proposed treaty action, for example by way of a debate in the House.
• Government response: The Minister of Foreign Affairs and Trade may wish to discuss the content of a select committee report on an international treaty with his or her Cabinet colleagues before the Executive takes binding treaty action. If the select committee report contains recommendations to the Government, a Government response to the recommendations must be tabled within 90 days of the report.
• Implementing legislation: Legislation necessary to implement a treaty in New Zealand’s domestic law (if any) should not be introduced into the House until the treaty has been presented to the House and the time for reporting back has expired. The Government will not take binding treaty action until the treaty is implemented in New Zealand’s domestic law.
• Binding treaty action: Formal treaty action (such as ratification or accession) binds New Zealand to the obligations in a multilateral treaty. The Government completes the treaty making process by depositing the appropriate formal instrument with the treaty depositary. For bilateral treaties, the binding step is usually definitive signature, or an exchange of diplomatic notes confirming the completion of the domestic procedures (e.g. legislation) necessary to bring the treaty into force.

The treaty register is the New Zealand government’s official record of New Zealand’s binding legal obligations at international law. The Ministry of Foreign Affairs and Trade, as the New Zealand repository of all treaties, is responsible for maintaining records of all treaties to which New Zealand is party or to which New Zealand is eligible to become party. It is also responsible for responding to enquiries about treaties. The Legal Division of the Ministry is responsible for the administration of the register. The treaty register is not yet publicly available, but work is currently being undertaken to this end.

The Ministry published the New Zealand Consolidated Treaty List in 1996. This publication contains information about all treaties to which New Zealand was party to at that date. A copy of the Consolidated Treaty List can be obtained from the Ministry, together with a supplement from 1996-2007. Further enquiries about treaties should be sent to treatyofficer@mfat.govt.nz.

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