Diplomatic Immunities and Privileges Bill: deliberations; Cotonou Agreement: briefing

Meeting report

ECONOMIC AFFAIRS SELECT COMMITTEE
30 October 2001
DIPLOMATIC IMMUNITIES AND PRIVILEGES BILL: DELIBERATIONS; THE COTONOU AGREEMENT: BRIEFING

Chairperson: Mr V Moosa (ANC)

Documents handed out:
Diplomatic Immunities and Privileges Bill [B 40B-2001]
Presentation on the Diplomatic Immunities and Privileges Bill
Presentation on the Cotonou Partnership Agreement
Briefing on Cotonou Agreement (see Appendix)

SUMMARY
The Committee was briefed on the Diplomatic Immunities and Privileges Amendment Bill and on the new Cotonou Partnership Agreement. The Agreement has been renegotiated within the European Union and the ACP countries. One of the reasons cited for the renegotiation of the agreement was that the previous Lome Agreements signed between the EU and ACP countries did not effectively contribute to the poverty eradication targets and were out of line with the European Union objectives.

MINUTES
Diplomatic Immunities and Privileges Amendment Bill
Ms Rita Barnaard (Director: Diplomatic Immunities and Privileges) went through the Bill clause by clause, commenting on the changes to the proposed amendment Bill. She mentioned that they are consolidated into one text as the Diplomatic Immunities and Privileges Bill. This Bill repeals the present Act.

Clause 1 - Definitions
Clause 2 - Conventions have force of law
This clause accords the conventions the force of law. Conventions have been made part of the Bill and are given the force of law thereto and include texts of the conventions in the Bill.
Clause 2 (2)(a) defines "grave crime" as an offence for which a person may on conviction be sentenced to imprisonment for five years or more. Clause 2 (2)(b) defines who a member of the family is. The definition of a member of a family has been re-evaluated in order to fit with our own national circumstances. A member of a family would now include any other unmarried child or other family member officially recognized as a dependant member of the family by the government of the sending state, the United Nations, a specialized agency or an organization and who is issued with a special passport. The reason why a person has to be issued with a diplomatic or official passport is that South Africa does not have jurisdiction over national passports. States do, in many instances, issue passports of this kind. South Africa will regulate the family component on diplomatic or official visas. This will depend on the category of a passport.

Clause 3 - Immunities and privileges of diplomatic missions and consular posts, and members of such missions and posts
This clause essentially deals with different immunities and privileges accorded to different categories of foreign representatives, diplomatic missions and consular posts and members of such missions and posts.

Clause 4 - Immunities and privileges of heads of state, special envoys and certain representatives
This clause grants immunities and privileges to heads of state, special envoys and certain representatives. Clause 4(1) provides that heads of state are immune from criminal and civil jurisdiction of the courts of the Republic.

Clause 5 - Immunities and privileges of United Nations, specialised agencies and other international organisations
The clause lists the immunities and privileges of the United Nations, specialised agencies and other international organisations.

Clause 6 - Immunities and privileges pertaining to international conferences or meetings convened in the Republic
This is a new and important addition in regard to international conferences that are convened in this land.

Clause 7 - Conferment of immunities and privileges
The clause lists the conferment of immunities and privileges by agreement.
Clause 7(1) provides that where immunities and privileges are conferred by agreement to any person in terms of this Act, such agreement must be published in the Gazette.

Clause 8 - Waiver of immunities and privileges
Clause 8 deals with the waiver of immunities and privileges. This is a standard article or section in this Act in terms of international practice.

Clause 9 - Register of persons entitled to immunities or privileges
The clause prescribes that a Minister must see that a register is kept in which the names of all persons who enjoy immunity from the civil and criminal jurisdiction of the courts of the Republic, or privileges in accordance with the provisions of the Conventions or in terms of any agreement contemplated in Clause 7 are registered. The immunities list is published each November in the Government Gazette.

Clause 10 - Restrictions on immunities, privileges and exemptions
This clause prescribes that the Minister may restrict the specific privileges to a country if South Africa is detrimentally affected.

Clause 11 - Adjustment of loss of revenue to municipalities and statutory public utility organisations
The clause provides that the loss of revenue caused to any municipality or statutory public utility organisation by reason of this Act relating to exemptions from taxation, must be made good to such municipality or organisation out of funds provided by Parliament for that purpose.

Clause 12 - Acquisition, construction, relocation, renovation, replacement, extension or lease of immovable property in the Republic
This clause governs the acquisition of property by foreign missions in South Africa. The reason for the stipulation is that this must be approved by the Director General to ensure that there is a need to scrutinize the rezoning of properties and to see that properties are not erected in residential properties or vice versa. This is aimed at protecting South African citizens. The Deeds Registry Office cannot register diplomatic property in the name of a foreign government unless permission has been obtained for that purpose.

Clause 13 - Liability insurance requirements
The previous section only dealt with motor vehicles and vessels or aircraft in the Republic. There was a proposal made at the last meeting to make a provision for public liability. The Minister must, through regulations, prescribe liability insurance requirements which have to be met by any person who enjoys immunities or privileges under this Act or in terms of the Conventions.

Clause 14 - Regulations
The Minister may make regulations regarding any matter which must be prescribed or which the Minister deems it necessary or expedient to prescribe in order to carry out or give effect to the provisions of this Act or of the Conventions. Ms Barnard was pleased to announce that the Regulations have already been made and are currently listed on the department website: www.dfa.gov.za.

Clause 15 - Offences and penalties
This clause sets out the offences and penalties. Clause 15(1) states that any person who willfully or without exercising reasonable care sues out, obtains or executes any legal process against a person who enjoys immunity, or against a person who enjoys immunity in terms of the Vienna Conventions under this Act, whether as a party, attorney or officer concerned with issuing or executing such process, is guilty of an offence.

Clause 16 - Repeal of Laws
This clause sets out legislation that has since been repealed by this legislation.

Clause 17 - Short title and commencement
The Act is to be called the Diplomatic Immunities and Privileges Act, 2001

Discussion
Mr Moosa (ANC) based his question on Clause 9 and asked what would happen to a person who has immunity conferred in terms of this Act and then incurs civil liability in respect of a debt which he incurred in this land? For instance a diplomat purchases a fridge at Dion stores and does not pay for it, or pays with a cheque that is subsequently dishonoured. What would happen in these circumstances?

Ms Barnaard replied that there is a procedure to be followed in terms of international law if one takes this matter to the extreme.

Mr Fenyane (ANC) asked if the privileges and benefits that are extended to foreign diplomats in this land are also accorded to South African diplomats in foreign countries as a means of reciprocation.

Ms Barnaard explained that they do enjoy the privileges in other countries because foreign legislation on the protection of foreign diplomats must be based on modeled around the provisions of the Vienna Convention.

Cotonou Partnership Agreement
Mr Vic Zazery, Director: International Organisations, Department of Foreign Affairs, briefed the Committee on the Cotonou Agreement. A request was being made to Parliament to ratify the Cotonou Partnership Agreement. He gave the background to this agreement. At decolonisation, the former colonial powers and the former colonies regulated their relationship through a series of Lome Conventions; five were signed in all. These Conventions structured the relationship between the European powers and the ACP countries. In terms of the Lome Conventions, the ACP countries were granted non-reciprocal trade preferences and market access to the European Market. The Conventions also provided that substantial amount of aid was to be provided to the ACP countries.

As recently as mid 1990's it became clear that certain aspects in the relationship needed to be rectified. The non-reciprocal trade preferences were not achieving poverty alleviation targets. The trade regime as formulated in the Lome Convention was also not compatible with the World Trade Organisation. The 77 members of the ACP countries and the 15 members of the EU decided to embark on a new process to change the basis of the relationship between the developing countries and of the South and the European Union. The objective of the Cotonou Agreement is to alter the basis of the relationship. It is an attempt to convey the message that the agreement is now a relationship of equals, which the previous Lome Conventions did not provide for.

The objectives of this Agreement are to develop a common and comprehensive strategy centered on the objective of reducing and eventually eradicating poverty. This is the primary objective. To eradicate poverty consistent with the objectives of sustainable development and the integration of the ACP countries into the world economy. In defining this strategy further, the agreement emphasizes the economic, social, political, cultural and environmental dimensions of sustainable development. These are the points of departure of this new agreement.

The meeting was adjourned.

Appendix:
Briefing on the The Cotonou Partnership Agreement
Introduction
The Cotonou Partnership Agreement is a
• a partnership between 77 ACP states and the 15 member states of the EU
• it builds on 25 years of ACP - EU cooperation under four successive Lome Conventions
• it has a lifespan of 20 years and contains a clause allowing it to be revised every five years
• the financial protocol indicates the total resources that are available to the ACP though the European Development Fund (EDF) - the current Fund amounts to Euro 15.2 billion
• the central objective is to reduce and eventually eradicate poverty while contributing to sustainable development and the gradual integration of ACP countries in the world economy
• the agreement stands on three fundamental pillars - viz. Political dialogue, trade and aid
• it was signed on 23^rd June 2000 in Cotonou, Benin

South Africa's Qualified Status
South Africa has qualified membership or status in this protocol. It is the only member of the ACP that has this particular status.
• It has full membership of the ACP. It participates in all the political and other institutions of the ACP. But South Africa's membership to the agreement is governed by as special protocol
• South Africa is excluded from the trade and aid pillars of the protocol. The reason for the exclusion is that South Africa has its own alternative instruments in regard to the European Union. It has its own Trade Development and Cooperation Agreement (TDCA) with the EU. South Africa's aid arrangements is governed by the European Programme for Reconstruction and Development (EPRD)
• South Africa is included in the Political Dialogue - it is a full member of the joint institutions, such as the Council of Ministers, Committee of Ambassadors and the Joint Parliamentary Assembly

Political Dialogue
Political foundation of the partnership is based on
• equality of partners and ownership of development strategies
• participation (central government, civil society, private sector and local government)
• dialogue and mutual obligations:
issues of mutual concern
"essential elements" (respect for human rights, democratic principles and rule of law)
"fundamental element" (good governance)

Opportunities for South Africa
• Common objectives of CPA and MAP/NAI
• Coordination with the high level OAU - EU dialogue
underutilised EDF resources (some 10 billion euros unspent)
• South - South cooperation
sharing South Africa's experience of negotiating an FTA with the EU
ensuring that the so-called EPA's achieve maximum synergy with the TDCA, SADC Trade Protocol, AGOA, etc.