PARLIAMENT’S ROLE IN THE TREATY-MAKING PROCESS Prof Hennie Strydom Faculty of law University of Johannesburg

THE INTERNATIONAL CONTEXT 1.The Vienna Convention on the Law of Treaties Art 1: “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; Art 14: The consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating States were agreed that ratification should be required; Art 26: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. 2. From a bi-polar world to a multi-polar world: the importance of multi- lateral relations.

COMPARATIVE OVERVIEW The Role of the US Senate US Constitution: “The President shall have Power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. Most evidence suggests that the Constitution intended the sharing of the treaty power to begin early, with Senate helping to formulate instructions to negotiators and acting as a council of advisors during the negotiations; Function of the Senate was to protect the rights of the states and to serve as a check against the President’s taking excessive or undesirable actions; President entitled to ratify treaties, but only after receiving advice and consent of Senate. Over time this practice was abandoned and treaties were henceforth submitted in completed form with Senate’s role limited to the question whether completed treaties should be ratified by the US. Senate now decides whether to approve a treaty as written, can prevent its entry into force by withholding approval, or approve it under certain conditions. Senate is assisted by the Congressional Research Service, which provides 24/7 policy and legal advice to Congress on a non-partisan basis. This research establishment is almost a century old, has a staff component of 800 and an annual budget of $100 million.

COMPARATIVE OVERVIEW Germany “The growing importance of international and European law for the formation and application of national law … has caused the traditional distinction between internal and external affairs to become obsolete. What we now have is a reciprocal penetration of internal and external affairs as a result of which external affairs often assume predominance in a growing number of areas. Consequently, external affairs have increasingly become the subject of national decision-making processes. Government is increasingly forced to disclose the grounds and reasons for its international relations and to seek internal approval for it. … This development increases the tension between the need for democratic legitimation of international affairs and the prerogative of the executive to conduct foreign policy. The increasing importance of international and European law for the national legal order requires the further development of parliamentary cooperation in the exercise of foreign affairs powers“ (Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, Heft 56, 1997, 43). S 23 of the German GG: (2) In EU matters the cooperation of the executive and the legislature is required. Government must inform parliament at its earliest convenience and comprehensively about such matters; (3) The executive will seek the advice of parliament before participating in the legislative processes of the EU. The executive will take into consideration the position of parliament. S 59(2): Treaties regulating the political affairs of the Federal Republic or relating to matters subject to federal legislation require the consent and cooperation of parliament.

Comparative overview The Austrian example: Treaties approved by parliament apply automatically in the national legal order and do not require special enactment. Once approved such treaties have the force and effect of legislation. Parliamentary approval means that parliamentary cooperation is part of the treaty-making process. However, parliament only becomes involved after the political decision-making process has run its course in the executive. In the case of multi-lateral treaties, this does not prevent parliament from formulating conditions and interpretative explanations to be taken up in the text of the treaty. In general parliamentary control is more in the nature of a formal legitimation of the treaty- making process, than real control over the executive’s treaty-making powers. By contrast, the foreign policy council, established in 1976, is a far more effective control mechanism. This council comprises, on a proportional basis, all political parties and must be consulted in all foreign affairs matters. The executive is therefore forced into a permanent dialogue with the members of the council in matters relating to foreign affairs. Since the 1990’s the Austrian parliament has strengthened its control over foreign affairs matters to the extend that it now plays a far more self-standing role in foreign affairs.

Austria and the EU In EU matters the national council must be informed at the earliest possible stage. The council has an absolute veto in cases where the EU legislative process impacts on Austrian constitutional law. In general, parliamentary control over European (regional) politics takes place in a totally different context compared with traditional foreign affairs matters. In the case of regional integration the cooperation of parliament is not only more freely allowed, but also actively sought for the democratic legitimation of the regional legislative processes. As a result, member state involvement in European politics cannot be explained anymore with reference to the traditional understanding of foreign relations and the division between executive functions and parliamentary functions.

SOUTH AFRICA S 231 of the Constitution and the distinction between “formal treaties” requiring parliamentary ratification (s 231(2)) and the less formal treaties, i.e. technical, administrative and executive agreements and others not requiring ratification. Confusion of terms used. Role of the intention of the parties. Self-executing treaties – unfortunate adoption from US law where jurisprudence itself is divided. Difference of opinion also amongst SA scholars. Judicial decisions also unhelpful: Quagliani and Goodwin cases where even the CC failed to bring clarity to the issues.