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

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Presentation on theme: "PC ON INTERNATIONAL RELATIONS AND COOPERATION JUNE 2010 The Role of Parliament in the Approval of International Treaties and Agreements Part One L. Mosala."— Presentation transcript:

1 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

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 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.

5 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

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 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.

8 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

9 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

10 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

11 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

12 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

13 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.

14 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

15 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

16 THANK YOU


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