Any proposal to sign an international treaty, or to take binding treaty action, must be submitted to Cabinet for approval (see paragraph 5.79 of the Cabinet Manual).
The term “binding treaty action” refers not only to the conclusion of a treaty, but also amendment to, or withdrawal from, a treaty or to changes in a reservation. Anything that changes New Zealand’s international legal obligations is regarded as “binding treaty action”.
Cabinet approval is required at a number of points in the treaty-making process, as follows (bearing in mind that not all treaties will require each of these steps to be followed, and more than one step at a time can be included in a Cabinet paper):
a. Approval of a negotiating mandate: Cabinet approval is required where new policy issues arise in the course of negotiations which require an update of the previously-approved mandate, or seeking updates of the mandate if new policy issues arise in the course of negotiations, or where there has been a significant delay in negotiations or a change of government, which may make it appropriate to seek confirmation of the original negotiating mandate before proceeding.
b. Approval for signature: the treaty-making process for bilateral and multilateral treaties may be in two stages: first, they may be signed, and then (following certain domestic processes) they may be ratified or brought into force. Cabinet’s approval of the signature of a treaty is required.
c. Approval to submit a National Interest Analysis (NIA) to the House of Representatives (the House): this will begin the process of parliamentary treaty examination.
d. Approval for implementing legislation: changes to New Zealand’s legislation necessary to implement the provisions of a treaty domestically before it can be brought into force require Cabinet’s approval in the usual way. Changes to legislation must be completed before binding treaty action is taken. Legislation should not be introduced until after the treaty and the NIA have been presented, and the time for reporting back has expired. Departments may initiate the legislative process before then by seeking a place on the Legislation Programme for the bill, and issuing drafting instructions (on a conditional basis).
e. Approval for binding treaty action: Cabinet must authorise the actions that bring a treaty into force (which can include ratification, binding signature, or an exchange of diplomatic notes, as set out in the treaty’s text).