TREATIES: WHAT ARE THEY, WHAT DO THEY DO, HOW ARE THEY MADE,AND HOW ARE THEY GIVEN EFFECT?
(LAW COMMISSION, AUGUST 1991) A WHAT IS A TREATY?
A treaty is an international agreement between two or more states or other international persons, governed by international law. "Other international persons" include bodies such as the United Nations, the World Bank, or the South Pacific Commission.
Such international agreements have a great variety of names:
Treaty is relatively rare, generally confined to major agreements of political importance (for instance treaties of alliance, treaties of friendship and the Antarctic Treaty) but found elsewhere (such as treaties of extradition); "treaty" is also used as a generic term;
Agreement is by far the most common title, such as agreements regulating trade, air transport, fisheries, visa abolition ... especially for bilateral agreements (that is agreements between two states);
Exchanges of notes (or letters) constituting an agreement make up a large proportion of the previous category; as the title indicates, in this case there are two documents rather than just one; the second document responds to the agreement proposed in the first and accepts it;
Convention is the word commonly used for multilateral treaties (those which are open to acceptance by a large number or even all states); this usage is especially common in the United Nations and its specialised agencies;
Protocol is commonly used for agreements supplementary to a principal treaty; it might be drawn up at the same time as the principal instrument or later (as in the very extensive practice of the General Agreement on Tariffs and Trade).
Other names are used from time to time, such as charter or constitution (for major international organisations such as the United Nations, the International Labour Organisation and the Organisation of African Unity), declaration, covenant (particularly for major documents such as the constitution of the League of Nations and the human rights instruments adopted by the General Assembly of the United Nations in 1966), instrument, and regulations (particularly for supplementary instruments such as those adopted by the World Health Assembly or the International Telecommunications Conference for instance on radio and telegraphic communications).
Adjectives are sometimes also added, such as additional, special, supplementary and intergovernmental. 'Me name of the place where a treaty is signed might also be a part of the title (such as the Vienna Convention on the law of treaties).
B WHAT DO TREATIES DO?
The functions and subject matter of treaties are various. They serve the functions of distinct legal instruments available in national legal systems such as:
Constitutions, as of the international organisations;
Legislation, as with the large numbers of conventions which regulate much international and related activity;
Conveyancing documents, as in the case of land and maritime boundaries and treaties regulating the status of a particular area (such as the Panama Canal or Antarctica);
Contracts, as in the exchange of promises concerning trade, investment, air transport, taxation or loans (many often made in the context of a multilateral system), or to resolve a particular controversy or to establish an ongoing political relationship (where the national analogies might rather be to an accord between government, business and labour, or an agreement between the federal and state authorities in a federal country.
Their subject matter is wide ranging including
War and peace: the United Nations Charter, treaties of alliance, the Geneva and Hague Conventions relating to warfare and the protection of the victims of armed conflict, armistices, treaties of peace, the Statute of the International Court of Justice, the Hague Convention establishing the Permanent Court of Arbitration, regional and bilateral treaties for the resolution of disputes;
Disarmament and arms control, such as the test ban treaty, the non-proliferation treaty, the Statute of the International Atomic Energy Agency, and regional arms control measures for instance in Latin America, the South Pacific and Antarctica;
International trade, including the General Agreement on Tariffs and Trade, regional economic agreements, and a great number of bilateral agreements;
International finance, including the multilateral agreements establishing the World Bank and the related agencies, regional banks (such as the Asian Development Bank). and a great number of bilateral arrangements including loan agreements, double taxation agreements;
International commercial transactions, both concerning the relationship between states' (such as customs facilitation, common nomenclature for tariffs), and private commercial transactions (including treaties regulating carriage by sea and air, the international sale of goods and international commercial arbitration);
International communications, for example by sea and by air where many multilateral and bilateral treaties regulate traffic rights, safety and liability; international telecommunications; the recognition of qualifications for example in respect of the piloting of ships and aircraft and driving of motor vehicles;
The law of international spaces particularly the long established law of the sea, the relatively new law of the air and the much newer law of outer space; and the law relating to particular areas such as Antarctica, international canals, and areas of particular international concern;
The law relating to the environment, again a matter of relatively recent general concern but consider treaties relating to the protection of whales and other marine life and oil pollution; and more recent treaties relating to the ozone layer, wet lands, and methods of warfare threatening environmental destruction;
Human rights and related matters, including the general instruments drawn up by the United Nations (international covenants on the economic social and cultural rights and on civil and political rights), and on more particular matters (such as genocide, refugees, prostitution, the political rights of women, discrimination on grounds of race and sex, and the regional instruments especially drawn up in Europe and the Americas;
Labour conditions and relations, particularly the 150 or more conventions drawn up by the International Labour Organisation since 1919;
Other areas of international economic and social cooperation, such as the gathering and dissemination of information (health and other statistics and the work of the world meteorological organisation), and combating crimes with international ramifications (such as slavery, drug trafficking, international hostage taking, and hijacking of aircraft and ships).
That is a brief sketch of the subject matter of international treaty making. The picture can never be completed for there is no limit on the matters that states may wish to subject to international agreement, and over recent decades there has been an explosion of areas of international concern. New Zealand of course participates in this process. It is or has been party to more than 1500 treaties (including some it inherited from the United Kingdom).
C HOW ARE TREATIES NEGOTIATED AND AGREED TO?
International law and practice make it clear that various representatives of die state (such as the Head of State, Head of Government, Minister of Foreign Affairs, heads of diplomatic missions, and representatives accredited to international conferences or organisations) have authority to negotiate and adopt or authenticate the text of the treaty. Other officials may also be given specific authority to undertake a negotiation or to agree to a treaty text.
These functions are executive functions. The Privy Council made that clear in 1937 in a Canadian case from which it is convenient to quote at some length. The quotation is also relevant to the next, final heading of this paper:
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. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases before final ratification seek to obtain from Parliament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that in law it precludes the assenting Parliament, or any subsequent Parliament, from refusing to give its sanction to any legislative proposals that may subsequently be brought before it. 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. (Attorney-General for Canada v Attorney-General for Ontario [19371 AC 326, 347-348)
In practice the treaty might be negotiated simply between the representatives of the two states immediately involved, or at a conference of the interested states for the purposes of negotiating that particular text (such 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 within the United Nations and its agencies).
In some circumstances the representatives may be not only those of governments, but may include for example representatives of international organisations or countries which are not yet fully independent. The International Labour Organisation is unique in providing for tripartite representation at its conferences, involving representatives of employers and unions as well as governments. Treaty obligations sometimes arise directly through decisions of the authorities the treaty establishes, no further action by the States parties being needed.
A note on nomenclature might be useful. Treaties come into force and take effect at the international level according to their own terms. In some cases that may be simply on signature as is common with more simple bilateral agreements (although sometimes the effective date is postponed to enable the appropriate administrative steps to be taken). More important or complex treaties, the final acceptance of which may require substantial changes in governmental policy or in national law (as discussed under the next heading), may lead to the text being established by signature but not becoming binding until a further act is taken by the state in question. That further action is most commonly referred to as ratification, and accordingly it is misleading for that word to be used for implementation in national law. It is sometimes given another name such as acceptance or approval. Those states which have not signed such a treaty 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. A State becoming a party to a multilateral convention may be able to file reservations, indicating that it will not be bound by one or other of the provisions.
All the actions just mentioned are actions at the international level. Whether they also make any change to national 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 the Canadian case makes clear.
D HOW ARE TREATIES GIVEN EFFECT TO?
This question arises at two levels, the international and the national. The international methods of implementation are various: diplomatic representation, negotiation, conciliation, mediation, good offices, fact-finding, inspection, arbitration, adjudication, recourse to a relevant regional organisation, or specialised agency or universal organisation. States may also be able to retaliate, claiming that the breach or an alleged breach by the other party to a treaty frees them of their obligations towards that party. In some cases, they may also. be able to take action against individuals who allegedly breach a treaty. Treaties, especially labour and human rights conventions, may require the parties to them to report to an international body or to the other parties on the legislative and other steps they have taken to give effect to the terms of the conventions.
So far as national implementation is concerned, the passage already quoted from the Privy Council in the Canadian case provides the starting point. While the government can enter into treaties it cannot, by that action alone, change the rights and duties of individuals or of the state under the law of New Zealand. If such changes are called for then legislation will be necessary.
Many treaties do not have a direct impact on the rights and duties of individuals. They can operate without legislative support. The obligations arising under alliances or the Charter of the United Nations provide an example. For the most part those obligations are met through the powers which the government has under the prerogative and the common law to administer its foreign relations and to deploy its armed forces. But in some circumstances legislation will be called for, as in the recent instance of the trade sanctions against Iraq. The United Nations Act 1946 provides appropriate authority for the making of the regulations promulgated in that case.
In a second category of cases, New Zealand law will already conform, or largely so, with the treaty to which the government is proposing to become a party. That view was taken for instance of the International Covenants on Civil and Political Rights and on Economic Social and Cultural Rights. Some specific amendments were made to the Immigration Act 1964 to bring that law into conformity with obligations in the civil and political rights covenant, and when it ratified the Covenants in 1978 the Government filed reservations in respect of certain other provisions which New Zealand law did not comply with.
In the third case, New Zealand law is not in compliance with the proposed treaty obligations. Legislative action will have to be taken. It might be taken by the executive under delegated authority if Parliament has conferred that authority (as with UN sanctions or in the case of extradition and double taxation agreements for instance), or the action might have to be taken by Parliament.
Parliament indeed very often takes such action. The foregoing list suggests that about one quarter of the 600 or so public Acts which make up the New Zealand statute book give effect to international obligations.
Legislative provisions giving effect to treaty obligations can take one of two broad forms. They might be more or less inconspicuously woven into the texture of existing legislation. That is so for instance of that part of international criminal law which can be found in the Crimes Act 1961. In some cases that weaving is more conspicuous than in others, as appears for example from the Aviation Crimes Act 1972 which expressly refers to the hijacking and related aviation conventions which it implements.
The second method is more direct. The particular treaty provisions are set out and are given the force of law in New Zealand. Legislation relating to extradition, double taxation, and diplomatic and consular privileges and immunities uses that method for instance. It has the advantage that New Zealand courts and other agencies- which are charged with administering that area of law have direct access to the legal rules as agreed by the relevant states and to treaty interpretations given elsewhere. But in some circumstances that course will not be possible or will carry unnecessary costs. The course may not be possible since the treaty may not have been drafted with the intention that it should directly create rights and duties in national legal systems. It may not be convenient since the aim of providing a more accessible and comprehensible statement of the law might strongly suggest that the relevant legislation be more carefully integrated into the text of existing statutes or regulations.
Even if a treaty is not given direct force by legislation, it might nevertheless have significance in the operation of our legal system. For instance
(a) The treaty might be declaratory of customary international law on a particular topic. So provisions of the Vienna Convention on the Law of Treaties, while not being expressly adopted by legislation in New Zealand, Australia or the United Kingdom, have been referred to by courts in those countries on the basis that they authoritatively state the customary international law of treaties and customary international law is part of the law of New Zealand.
(b) Courts will if possible interpret statutes consistently with international obligations. But if the statute plainly contradicts the treaty, that interpretative course is not available.
The list of New Zealand statutes which appear to give effect to New Zealand's international obligations emphasises the very pervasive impact of international law on our domestic legal system. Cabinet has directed that Ministers proposing legislation are to report on the compliance of the measure with relevant international standards and obligations. (See Appendix A)