1. 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

2. 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

3. 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

4. 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

5. 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

6. 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.

7. 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

8. 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

9. 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.

10. 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 : Tabling of treaties in Parliament for approval or information

11. 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

12. 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

13. 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

14. 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

15. 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

16. I THANK YOU