This section provides information on international treaty making and the process for international treaty papers, including:
- the difference between international treaties and arrangements
- an outline of when Cabinet’s approval is required during the international treaty process
- requirements for international treaty papers, including information that should be provided to Cabinet or Cabinet committees, consultation with the Minister of Foreign Affairs and the Ministry of Foreign Affairs and Trade (MFAT), the need for a National Interest Analysis (NIA), application to Tokelau, and an example template of an international treaty action paper
- the key features of the parliamentary treaty examination process.
MFAT must be consulted on papers seeking approval for treaty action, as well as on any proposal to enter into an arrangement. MFAT can also provide advice on the nature of a particular instrument.
What is the difference between international treaties and arrangements?
The government concludes a range of international instruments with other countries and international organisations. The two types of instrument that the government may conclude are:
- international treaties, which are instruments that are legally binding under international law
- Arrangements, which are instruments of less than treaty status, i.e. not legally binding, but have moral or political weight. Arrangements (sometimes also known as 'Understandings') may require Cabinet's approval, depending on their significance and whether they involve new policy (see paragraph 5.11 of the Cabinet Manual).
International treaties can have a variety of different titles, as follows:
- Treaty is used to refer to all binding international agreements but, when used in the title of an international treaty (e.g. the Treaty of Versailles), it generally denotes a major agreement of political importance
- Agreement is the most common term, usually used for agreements regulating trade, transport, fisheries, etc
- Exchange of Notes/Exchange of Letters involves two documents, with the second responding to, and accepting, the agreement proposed in the first
- Convention is a term commonly used for multilateral agreements
- Protocol describes agreements that supplement a principal treaty.
It is not always possible to tell from the instrument’s name whether it is of treaty status or is an arrangement (a “Memorandum of Understanding” can, for example, be either). New Zealand’s treaty-making practice is that all instruments of less than treaty status should be called “Arrangements” (and to avoid using the term “Memorandum of Understanding” to describe any arrangement-level instrument).
The status of an instrument does not only depend on its title – it must be inferred from the instrument as a whole and, in particular, the language that is used throughout. The Ministry of Foreign Affairs and Trade can provide advice on the nature of a particular instrument if it is unclear.