PC ON INTERNATIONAL RELATIONS AND COOPERATION JUNE 2010 The Role of Parliament in the Approval of International Treaties and Agreements Part One L. Mosala and B Bottoman

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

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 DEFINITION OF TERMS CONT.

CONSTITUTIONAL PROVISIONS SA 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.

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

EXAMINATION OF TREATIES Committees must examine the treaty in order to recommend approval or rejection  What is approval sought for  Confirm compliance with domestic law  Adequacy of Explanatory Memorandum  Strategic political focus  International obligations created  Implications for vulnerable groups  Self-executing clauses  Security implications  Financial implications  Approval or rejection

JOINT STANDING COMMITTEE ON TREATIES  To consider tabled treaties and National Interest Analyses  To centralise treaty consideration  Consider any other question relating to treaties or international instrument referred to it

NATIONAL INTEREST ANALYSIS As opposed to explanatory memorandum, it requires:  Reasons why SA should become a party  Foreseeable economic, environmental, social and cultural effects of treaty action  Obligations imposed  Its direct financial costs  How the treaty will be implemented domestically  What consultation has occurred  Does treaty provide for withdrawal or denounciation

CONCLUSION  Committee must recommend approval or rejection in writing (Rule 307(3),NA Rules  Approval/rejection may be with concerns  Approval may be with reservation to certain parts of treaty, not principle  Highlight concerns at initial stage  Allows for inclusion of concerns on domestication of treaty at a later stage  Introduction of NATIONAL INTEREST ANALYSIS(NIA)  Introduction of JOINT STANDING COMMITTEE ON TREATIES(JSCOT)  Actual procedure follows in my colleague’s presentation

PROCEDURE FOLLOWED BY COMMITTEES  In terms of the Const. Parliament has to from time to time ratify or approve these agreements.  These agreements are referred to the Committees through the ATC.  A copy of the agreement and an explanatory memorandum with objectives and implications of the agreement should be submitted by the Department.

PROCEDURE FOLLOWED BY COMMITTEES  The Portfolio/Select Committee under which the subject of the agreement falls, invites the relevant Department for a briefing. (NA Rule 307)  After the briefing the Committee must report and recommend to the relevant House whether to approve or reject the agreement.  The Committee cannot amend an international agreement but may register their concerns by means of a raider to its report.  The Committee report must be placed on the ATC for the decision of the House

CONCLUSION  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

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