PORTFOLIO COMMITTEE ON INTERNATIONAL RELATIONS AND COOPERATION The Role of Parliament in the Approval of Treaties and International Agreements L. Mosala- Content Adviser February 2015

INTRODUCTION Since 1994, South Africa - active member of the international community Party to many bilateral and multilateral treaties Has a robust Parliament fully engaged in its role in the conduct of international relations The issue of the role of Parliament in the approval of international agreements/treaties is on the agenda of many parliaments around the world

DEFINITION OF TERMS Vienna Convention on the Law of Treaties 1969 and 1986 ‘A Treaty’: Binding instrument Between states and or international organisations Governed by international law Be in writing One or more instruments

DEFINITION OF TERMS cont. Distinction between ordinary/executive agreements (OEAs) and a Treaty (TRT) OEAs implement clauses within existing treaty Effective on signature by representatives of States Does not require approval by Parliament Treaty effective only after ratification Requires Parliamentary approval

CONSTITUTIONAL PROVISIONS RSA CONSTITUTION 1996 Section 231(1)- International relations policy and the signing of treaties and agreements under responsibility of the Executive Section 231(2) - legal requirement of approval by two Houses of Parliament of treaties to be binding and only of certain agreements

CONSTITUTIONAL PROVISIONS CONT. Section 231(3)–international agreements of: Technical Administrative Executive nature That do not require ratification/accession Become binding without parliamentary approval, but be tabled in the two Houses within reasonable time.

CHARACTERISTICS OF OEAs Governed by section 231(3) of the Constitution Do not require ratification or accession Have no extra-budgetary implications Have no legislative/legislative amendments implications Must be tabled in Parliament within reasonable time for information

CHARACTERISTICS OF TREATIES Governed by section 231(2) of the Constitution Require ratification or accession (if multilateral) Have financial implications that require additional budgetary allocation from Parliament Have legislative or domestic implications (require legislation or legislative amendments) Where SA signed, approval for ratification is required Where SA has not signed, to become a party, approval for accession, adoption is required

CONSTITUTIONAL PROVISIONS cont. Section 231(2) -Approval Presupposes that treaty binds SA on the international level only after its been approved by both Houses. To apply domestically, treaty must still be enacted into national legislation as specified in section 231(4), unless it is self-executing.

CONSTITUTIONAL PROVISIONS cont. Section 231(4) Introduces concept of self-executing clauses into SA law. Provisions of a treaty approved by Parliament which has these clauses, become part of our law unless inconsistent with the constitution. NA Rules 307-308: Tabling of treaties in Parliament for approval or information

EXAMINATION OF TREATIES Examine the treaty, recommend approval or rejection What is approval sought for Confirm compliance with domestic law Which outcome under govt priorities (NIA) Strategic foreign policy/political focus International obligations created Implications for vulnerable groups Self-executing clauses Financial and Security implications Approval or rejection

OVERSIGHT ISSUES Implementation of all agreements Parliament approves or reject National interest linkages-domestic priorities Compliance with international obligations Ensure ratification Ensure domestication to be enforceable Submission of OEA-executive agreements for noting Possible framework for early involvement Examination of periodic national reports

OVERSIGHT ISSUES cont. Committee must recommend approval or rejection in writing (Rule 307(3),NA Rules Approval/rejection may be with concerns Highlight concerns at initial stage Allows for inclusion of concerns on domestication of treaty at a later stage under sections 75 & 76 bills Discuss reasonable time for tabling for noting Interests of vulnerable groups Withdrawal, reservation, denunciation

NATIONAL INTEREST ANALYSIS (NIA) As opposed to Explanatory Memorandum: Reasons why SA must become a party/foreign policy interest Foreseeable economic, environmental, social and cultural effects of treaty Obligations assumed Its direct financial costs Implementation strategy Withdrawal, reservation, denunciation

WAY FORWARD (recommendations) Issuing mandates (how, when) Determination of reasonable time to table OEAs Implementation and compliance matrix Clearing house in Parliament/committee specific Improvements to Explanatory Memorandum (Rule 306(2) Parliamentary diplomacy

I THANK YOU