1. Treaty making practice in South Africa PRESENTATION TO THE PORTFOLIO COMMITTEE ON INTERNATIONAL RELATIONS AND COOPERATION ON 9 MAY 2012 BY DIRCO, ADV DWARIKA

2. CONSTITUTION OF SOUTH AFRICA
The South African Constitution, 1996 provides for the
negotiation and signing of all international agreements
Section 231(1) – The negotiating and signing of all international agreements is the responsibility of the National Executive

3. There are two frameworks for concluding international
agreements:
Section 231(2) of the Constitution:
Agreement needs the approval of both houses of
Parliament i.e. National Assembly and the National
Council of Provinces before ratification or accession of
agreements can take place
usually multilateral agreements, agreements with financial obligations or legislative implications

4. Section 231(3) of the Constitution:
Agreement of a technical, administrative or executive
nature
do not require ratification or accession
have no extra - budgetary financial implications
do not have legislative implications

5. All international agreements have to be approved by the National Executive, by means of a President’s Minute
All agreements have to be tabled in Parliament. Tabling means the presentation of a paper to Parliament as means of reporting for the paper to be officially considered

6. Treaty negotiations
DIRCO plays a coordinating role during treaty negotiations
Before any treaty negotiations can commence the subject matter is studied and consultations in the format of inter governmental working groups will take place
Positions that have an impact for South Africa are then developed and ultimately approved by Cabinet
Officials need full powers or in some cases credentials to be able to take part in the negotiation process of an agreement
The Minister of International Relations and Cooperation has been delegated as the authority to approve these powers

7. In the case of multilateral agreements the agreement will be adopted by a conference after negotiations, and in the case of bilateral agreement a draft text will be compiled
The Department of Justice and Constitutional Development must be consulted
The political Desk at DIRCO must be consulted
The Office of the Chief State Law Adviser (IL) at DIRCO must be consulted
Final text of the agreement is certified by OCSLA (IL)

8. National Executive Approval is to be obtained
National Executive Approval is to be obtained. This document is known as a President’s Minute. Signed by Minister and the President
The whole process until an agreements is ready for signature can take up to six weeks to complete
The South African Treaty Section binds the agreement
The agreement is ready for signature and can be signed

9. Only Ministers may sign international agreements
After signature the agreement has to be deposited with the South African Treaty Section which is the official custodian of all international agreements and keeps record of all agreements on a central database
All documentation relating to the status of an agreement has to be deposited
After the entry into force of an agreement the Treaty Section registers the agreement with the United Nations in terms of Article 102 of the UN Charter

10. Tabling of agreements for information
If it is a 231(3) agreement and the entry into force clause states that it enters into force upon the date of signature:
- The Treaty Section can register the agreement with the UN
- The line function department can table the agreement for
information purposes
If it is a 231(3) agreement but the entry into force clause states that diplomatic notes have to be exchanged in order to meet internal or constitutional requirements:

11. - The line function department requests DIRCO to send the diplomatic note. Once the notes have been exchanged the date of entry into can be established. It is usually the date of last notification - The Treaty Section can register the agreement with the UN - The line function department can table the agreement for information purposes

12. TABLING OF AGREEMENTS FOR RATIFICATION OR ACCESSION PURPOSES
If it is a 231(2) agreement – Parliament has to approve the ratification or accession of an agreement
- Ratification is: the act undertaken whereby a State signs a treaty to confirm its consent to be bound by it. This is done by depositing an Instrument of Ratification with the depositary
- Accession is: the act whereby a State that has not signed a treaty expresses its consent to become a party. This is done by depositing an Instrument of Accession with the depositary

13. Internal process to be followed:
- Line function department prepares a ministerial submission and drafts a tabling letter
The Director-General and Minister must approve the tabling of an agreement
Once the Minister has signed the tabling letter, the Minister’s office will send all the relevant documentation with the correct amount of hard copies of the agreement to the line function department’s Parliamentary Liaison Officer

14. Departments do not deal with the Office of the Clerk directly, but liaise with its Parliamentary Officer
The agreement is tabled in the Announcements, Tabling and Committee Reports
The relevant Portfolio Committees will consider the agreement and report its decisions in the Announcements, Tabling and Committee reports. The reports will then be placed on the Order Paper for consideration by a House
Once the House has adopted the report of the committee it will be published in the Minutes of Proceedings

15. After the Parliamentary process has been completed:
- The line function department drafts an Instrument of Ratification/Accession in consultation with DIRCO, the
Treaty Section binds it and DIRCO deposits the Instrument with depositary
The agreement will enter into force as stipulated in the entry force clause of the agreement
The depositary will register the agreement with the UN

16. THANK YOU