International treaty paper requirements

Cabinet Approvals

Cabinet approval is required at a number of points in the treaty-making process:

a. approval of a negotiating mandate: where a treaty will break new policy ground, officials should seek policy guidance from Cabinet before commencing negotiations. It may be necessary to seek updates of that negotiating mandate, if new policy issues arise in the course of the negotiations. If, for any reason, there has been a significant delay in negotiations, or a change of government, it may be appropriate to seek confirmation of the original negotiating mandate before proceeding.

b. approval for signature: the treaty-making process for both bilateral and multilateral treaties may be two stage: first, they may be signed, then (following certain domestic processes) they may be ratified or brought into force. Signature of a treaty is not usually a binding treaty action. Signature represents, however, the government's political commitment to the treaty and creates an obligation to refrain from acts which would be inconsistent with the object and purpose of the treaty. Cabinet's approval of signature of a treaty is therefore required.

c. approval to submit a National Interest Analysis (NIA) to the House: this will begin the process of parliamentary treaty examination.

d. approval for implementing legislation: sometimes New Zealand's legislation must be changed to  implement the provisions of a treaty domestically before that treaty can be brought into force. Legislation requires Cabinet approval in the usual way (see the CabGuide section on Legislation and Regulations). If changes to legislation are required, this must be completed before binding treaty action is taken. Legislation should not be introduced into the House until after the treaty and NIA has been presented and the time for reporting back has expired. Departments may, however, initiate the legislative process before that time by seeking a place on the legislation programme for the Bill and issuing drafting instructions to parliamentary counsel (on a conditional basis).

e. approval for binding treaty action: Cabinet must authorise the actions that bring a treaty into force. Entry into force may be effected in a number of ways, e.g. through ratification, binding signature, through an exchange of diplomatic notes etc. The process required will be set out in the text of the treaty (usually at the end).

Not all treaties will require each of these steps to be followed. For instance, a minor bilateral treaty negotiated in accordance with an existing policy, which comes into force on signature and does not require legislation, will only require one approval under step (e). A significant multilateral treaty that requires signature and ratification, and implementing legislation, will require approvals under steps (a), (b), (c), (d) and (e). Departments would normally seek approval of a negotiating mandate before negotiations. They would then seek approval to sign, to submit a NIA (if required), and to complete necessary binding treaty action (subject to satisfactory completion of the parliamentary treaty examination process or the enactment of implementing legislation if required), in one Cabinet paper.

Information that should be provided to Cabinet

Papers seeking a negotiating mandate should follow the guidelines relating to general policy papers, and may need to be accompanied by a provisional extended NIA or a provisional Regulatory Impact Statement.
Where a policy decision to become party to a treaty, or a formal treaty action, is proposed, particular information needs to be provided to Cabinet:

  • the exact nature of the instrument (eg whether it is legally binding or of less than treaty status);
    whether it is bilateral or multilateral;
  • the background to and rationale for entering into the treaty - costs and benefits etc;
    an explanation in plain English of the effect of the treaty and its implications for New Zealand;
    the stage of the process that is being considered (e.g. non-binding signature? binding treaty action?);
  • whether the instrument is required to be presented to the House for treaty examination;
  • if it does need to be presented, whether the NIA is attached for approval or whether it will be submitted to Cabinet for approval at a later stage;
  • whether domestic legislation will be required to incorporate the treaty into New Zealand law, and the proposed process for managing that;
  • any timing issues;
  • what consultation has taken place with departments and stakeholders;
  • when it is proposed to bring the treaty into force and whether approval is required for that now (subject, perhaps, to the satisfactory completion of domestic procedures);
  • whether or not the treaty action will apply to Tokelau.

The full text of the treaty and the NIA must be attached to a Cabinet paper seeking approval to sign or enter into a treaty or present an NIA to the House. If the treaty is very large, it may instead be made available in the office of the relevant Minister or in the Cabinet Office, and an accurate summary of its contents should be annexed to the Cabinet paper.

Consultation with the Minister of Foreign Affairs

The Minister of Foreign Affairs must either:

  • be consulted on a Cabinet paper approving a treaty action; or
  • be a signatory of a Cabinet paper approving a treaty action.

This consultation is a Cabinet Manual requirement for all treaty actions (see paragraph 5.14(c) of the Cabinet Manual). Consultation with the Ministry of Foreign Affairs and Trade, or confirmation by the Minister of Foreign Affairs that a treaty is or is not a major bilateral treaty of particular significance, does not automatically satisfy this requirement. Consultation with the Minister of Foreign Affairs must be noted in the appropriate section of the CAB 100 form.