Enhancing parliamentary oversight of treaty-making and implementation in South Africa

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International Relations

27 May 2010
Chairperson: Mr T Nxesi (ANC)
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Meeting Summary

The Committee was briefed on the role of Parliament in treaty-making and implementation by a senior lecturer from the University of Cape Town’s Department of Public Law. The briefing focused on the role of treaties and their significance to the people of South Africa and argued for a greater role in treaty-making and implementation by Parliament.

South Africa’s constitutional framework and the practice of other nations around the globe were instructive on how Parliament could enhance its oversight of treaty-making and implementation without usurping the prerogative of the Executive.

The Committee was also briefed on important legal principles in the field of international law to aid Members’ understanding of the process whereby a treaty became binding in terms of treaty negotiation, adoption and signature, ratification or accession and entry into force.

The Chairperson suggested that the high quality of the briefing necessitated another meeting where other Members who were absent would be present so that the entire Committee could benefit from the presentation as it gave Members a new perspective on their role in treaty-making and implementation.

Meeting report

The Committee had invited both the University of Cape Town’s Department of Public Law and the Department of International Relations to brief the Committee on the treaty-making process in South Africa focusing on the role of Parliament. The Chairperson explained that the Department had sent a letter of apology stating that the only people available that week were junior people. There would therefore be a single presentation only.

University of Cape Town’s Department of Public Law briefing on prospects for enhancing parliamentary oversight of treaty-making & implementation
Mr Salim Nakhjovani, senior lecturer at UCT’s Department of Public Law, said that he had been requested to prepare a briefing paper on the role of treaties and their significance to South Africa and to address the prospects of enhancing the role of Parliament in treaty-making and implementation. The briefing considered the international law framework that governed treaty-making to familiarise the Committee with the language and processes of international law in the formation of treaties. It also looked at the South African constitutional framework in terms of section 231. It gave comparative examples of parliaments in other parts of the world to see the role that they were playing in treaty-making and implementation in ways that respected fully the rights and prerogatives of the Executive but that also allowed for participation by representatives of the people.

Lessons could be drawn from these comparative examples about what South Africa could do if it wished to do so. The briefing paper did not make any recommendation. It only spelt out options because it was really for the Committee to decide what it wanted to do.

Treaties were international agreements that were written down and were governed by international law. Informal agreements were not treaties. Treaties had to be written and they had to be governed by international law. Political agreements between states were not usually treaties. There had to be an intention to create legal obligations. One could think of a treaty as a contract between two countries, between many countries or between a country and an international organisation or sometimes between two international organisations. Although it was often felt that international law was a customary legal system based on customary legal practices, those practices were supplemented by a huge volume of treaties that laid down written rules in every area of international life, from the environment to crime control, human rights and many other areas.

It was for this reason that scholars referred to international treaties as the “workhorse” of international law. They referred to these as an indispensable tool of international diplomacy and as the most important instrument for regulating international affairs. Since the establishment of the United Nations in 1948 there had been about 54 000 treaties that had been registered with the United Nations.

Such an explosion in the number of treaties had occurred because there had been awareness in the world that certain problems were too complex for one country to deal with alone and that there was a need for concerted international action. The model of the world that saw states as having unrestrained and unfettered sovereignty and sitting alone and doing their own thing, no longer suited the needs of the current generation of states. Problems like climate change, transnational criminal activity and human security, for example, required cooperation among nations. Treaties were a tool for achieving that cooperation.

Treaties offered more certainty, predictability and perhaps more fairness in international relations than the existing customary rules of international law that were unwritten and fluid. Treaties allowed powerful and weaker states to write down the rules. It was of course challenging for weaker states to make sure that those rules were fair and that they were sufficiently precise to protect their rights. Something to bear in mind was that at times in treaty negotiations, state parties had an interest in keeping the rules vague.

The South African Parliament had to take an interest in treaty-making because South Africa’s treaty practice was a significant part of its international relations practice. According to publicly available information from the Department of International Relations and Cooperation (DIRCO), South Africa had since 1994 entered into some 261 multilateral treaties and 1 694 bilateral treaties. When one examined these treaties one would see that increasingly, treaties in the area of crime control, human rights and trade especially affected the day to day lives of the people of South Africa. This was because they required the State to give certain rights or to criminalise certain conduct and to adopt rules that were standard across many countries. These rules could be different to any rules that South Africa had for itself. These affected the lives of people, for instance, in terms of what they could trade, what they could export and what they could import.

The briefing stressed the importance of treaty-making and implementation in view of the impact it had on the people of South Africa. It also spoke on the division of responsibility between the Legislature and the Executive in that regard. It focused on what the Constitution said about the role of Parliament and the role of the Executive. The Constitution required Parliament to do more than it was doing at present in the field of treaty-making and implementation. Basic international law definitions were also given to the Committee.

Concepts such as the process of how a treaty becomes binding under international law through stages that include treaty negotiation, adoption and signature, ratification or accession and entry into force were explained to the Committee. The 1969 Vienna Convention on the Law of Treaties contained rules on how treaties were formed, how they were interpreted, how they were modified and how they could be terminated. South Africa was not a party to the Vienna Convention possibly because of the apartheid government’s isolation from the international arena. However it was generally accepted that the rules of the Vienna Convention reflected customary international law and were thus applicable to all states including South Africa.

Information on the treaties that had been ratified by South Africa was available on the internet and could be accessed by any member of the public. However, this information did not include the content but only the name of the treaty, when the treaty was signed and when each had entered into force. There was no information on the legal obligations that South Africa had under these treaties. There was a need to enhance the availability of such information to the general public of South Africa.

The briefing outlined the process by which treaties came into force. This usually began by negotiations that typically took place behind closed doors. This was usually a secret process where there was trading of interests. The authentic text of a treaty was adopted and opened for signature. This would be followed by a process of ratification or accession and finally the treaty would enter into force.

The relevant constitutional framework governing treaties in South Africa was found under section 231 of the Constitution. Of particular importance was section 231(4) which provided that an international agreement became law in the Republic when it was enacted into national legislation. The section also provided that a self-executing provision of an agreement that had been approved by Parliament would become law in the Republic unless it was inconsistent with the Constitution or an Act of Parliament.

The briefing gave a comparison between South Africa and other democracies around the globe including Canada, European states and the Americas. The parliaments in these jurisdictions had an informal process in which the Executive consulted with the leaders of Parliament. In most instances, Parliament could override the self-executing character of a treaty in domestic law by adopting inconsistent legislation. In the Canadian constitutional order which was more closely related to that of South Africa, its Parliament had been granted a louder voice in the pre-ratification phase by its Executive. All treaties between Canada and other states would be tabled before the House of Commons before ratification. The House had the power to debate the treaty and to pass a motion recommending action to the Executive.

Mr Nakhjovani pointed out that it was important to know that signature did not mean that a State was bound by a treaty. States would usually sign treaties - subject to ratification. It was possible for a treaty to become binding on signature if it said so. Ratification was the process by which a State became bound by a treaty and accepted its obligations. This distinction or delay existed because most treaties required some adjustment in the domestic legal system before they could come into force. This required time. When states agreed to a treaty and signed, they would then take it back to their parliaments and adopt implementing legislation and assess their readiness to comply with the treaty, train their staff and conduct public education campaigns.

The question was often asked whether ratification meant that South Africa was giving up its sovereignty. The answer to that was that it did not. Ratification expressed a state’s consent to be bound by a treaty. That consent was an exercise of sovereignty and not a sacrifice of sovereignty.

The word accession when talking about treaties was often used and questions were often asked about what it meant. Most of South Africa’s treaties had been treaties that had been made before 1994. South Africa had therefore acceded to them and not ratified them. This was a small technical difference. When a treaty was open for signature, it was usually for a fixed period of time. After that, the signature period would close and it would not be possible to sign the treaty any longer. Accession was the process whereby a State that had not signed a treaty could become bound by it anyway.

Discussion
Mr K Mubu (DA) noted that the briefing spoke about the fact that all countries that signed a treaty would observe a common standard. His question therefore was why certain states had to negotiate differently compared to others. He commented that at times those negotiations tried to protect certain national interests. At the end of the day the treaty would not be uniform in its implementation.

Mr Nakhjovani responded that negotiation happened before the final text of a treaty had been written. The negotiation was the process by which states agreed what the content of the treaty would be in terms of what would be the obligations. Only when this was done, would the treaty then be signed. The final agreement would therefore be uniform. However in treaty negotiations, before states had agreed what the content would be, there was a lot of “horse trading”. Certainly the voices of some countries were heard more loudly than others in the negotiations. South Africa had played a significant role in the climate change negotiations where perhaps Angola or Botswana had not. This was because South Africa was a regional leader.

The Chairperson thanked the presenter for the briefing. It had gone right to the heart of the Committee’s work on international agreements and had given Members a new perspective on their role in treaty-making and implementation. The presentation had enlightened the Committee on many issues that they had not been aware of even from their induction into the Committee such as the difference between signing a treaty and ratification and the difference between ratification and accession. He said that the Committee was so impressed with the briefing that they wanted him to come again with the same presentation before a larger audience of Members of the Committee so that they too would benefit from it. The Committee Secretary would arrange with the presenter for an appropriate date for the briefing to take place in conjunction with the Department of International Relations and Cooperation.

The Committee considered and adopted outstanding minutes of the Committee with amendments.

The meeting was adjourned.

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