Content Advisor's Briefing on Role of Parliament in Approval of International Agreements

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International Relations

01 June 2010
Chairperson: Mr T Nxesi (ANC)
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Meeting Summary

The Committee was briefed on the role of Parliament in the approval of international agreements as a prelude to a planned workshop on prospects for enhancing parliamentary oversight of treaty-making and implementation in South Africa scheduled for early August 2010.

The August workshop would be a follow-up to the initial 28 May 2010 briefing by Mr Salim Nakhjovani, Senior Lecturer at the University of Cape Town’s Department of Public Law. A wider range of participants was envisaged for the workshop that would include the Department of Justice and Constitutional Development, Members of the National Council of Provinces (NCOP) Committees and the NCOP Chairperson.

The Committee’s Content Advisor highlighted the measures that could be taken by Parliament to deal with self executing provisions in international agreements and treaties. Mechanisms such as a national interest analysis (NIA) and the establishment of a joint standing committee were suggested as ways of centralising treaty consideration with respect to foreseeable economic, environmental, social and cultural effects of treaty action; obligations imposed; direct financial costs, how the treaty would be implemented domestically; what consultation had occurred; and whether the treaty provided for withdrawal or denunciation.

Members responded to the briefing with comments welcoming the concept of the need to conduct an NIA especially considering the disproportionate bargaining power in treaty-making between richer and poorer nations. Members also discussed the role of Parliament from the purview of Parliament as an institution vis-à-vis Portfolio Committees in terms of scope and jurisdiction of the Office of the Speaker and Committee Chairpersons.

A Member asked if there were any punitive measures for failure by a State to honour an obligation of a treaty or international agreement. The example was used of Zimbabwe’s refusal to comply with a SADC tribunal ruling that white commercial farmers receive compensation for their seized properties. Another Member expressed concern at the backlog of treaties that had not been ratified by Parliament yet.

Meeting report

The Committee approved their minutes of the 28 May 2010 meeting with amendments.

In reply to a query from Mr K Mubu (DA), the Chairperson said that it had indeed been agreed by the Committee that there had to be a repeat of the 28 May 2010 presentation on the role of Parliament in treaty-making and implementation. They were still in the process of setting an appropriate date that would enable wider participation including the Department of Justice and Constitutional Development due to the role they played in international agreements. It was also important that the National Council of Provinces’ (NCOP) Committee, the Office of the Speaker and the NCOP Chairperson of the NCOP attend so that everybody could benefit. A date had been set tentatively for 2 or 4 August 2010.

Briefing
on the Role of Parliament in the Approval of International Agreements
Ms Lineo Mosala, Committee Content Advisor, was currently took place in Parliament to provide a background to the workshop in August. Since 1994 South Africa had become an active member of the international community and was now a party to many bilateral and multilateral treaties. The role of the parliament in the approval of international agreements/treaties was on the agenda of many parliaments around the world.

The South African Parliament could approve a treaty with a reservation for certain parts of the treaty but this could not be done with respect to the principles of the treaty. A national interest analysis (NIA) could also be done to give the reason for  South Africa becoming a party to an international agreement; foreseeable economic, environmental, social and cultural effects of  treaty action; obligations imposed; direct financial costs, how the treaty would be implemented domestically; what consultation had occurred; and whether the treaty provided for withdrawal or denunciation.

The establishment of a parliamentary Joint Standing Committee (JSC) on Treaties was recommended to consider tabled treaties and to conduct an NIA. This would centralise treaty consideration and the JSC could consider any other question relevant to treaties or international instrument referred to it.

Ms Bulelwa Bottoman, Content Advisor Unit Manager, presented on the actual procedure in terms of National Assembly Rule 307 (see document).

Discussion
The Chairperson commented that part of the workshop in August 2010, the Department of International Relations and Cooperation (DIRCO) would provide a list of all the agreements that had been ratified by South Africa since 1994. The last point in the presentation spoke about other departments consulting with the Committee. He wanted to add that this did not only happen with the Department but also happened with provincial and local government as well - they sometimes entered into agreements with other countries. The Committee wanted DIRCO to make a presentation on a document that had been submitted to Cabinet that spoke about the coordination of International Relations and the structures that had been put into place for such coordination to occur.

Ms B Gxowa (ANC) commented that it was important for Members to be informed about the definition of a treaty. International agreements could be thick and voluminous and they were often crafted in highly technical language that was beyond the understanding of Members. In the past Third Term of Parliament the Committee had once been required to approve an agreement “at gunpoint” - they had not even seen and it had to be approved urgently. Such occurrences were not empowering to Members. It was not helpful for Members to approve agreements that they did not understand and yet they had a huge impact on the people of South Africa.

Mr B Skhosana (IFP) commented that treaty-making had been treated in an ad hoc fashion in previous Parliaments. Parliament had taken the principle of separation of powers beyond reason. This went beyond what was practised in the English Parliamentary system, on which South Africa’s Parliament was modelled.

Mr Skhosana said that the input from the content advisor was important as it was an element of what almost all the Portfolio Committees were required to do. He suggested that the Speaker of Parliament had to play a greater role in planning the workshop and assisting the Committee to coordinate.

Mr Skhosana commented on the issue of national interest. He noted that in previous Parliaments there had been no analysis of national interest. He feared that just as in the United Nations Security Council where rich nations advanced their own national interests, treaties and international agreements were similar kinds of instruments where nations pursued their selfish national interests. If South Africa was not careful and blindly entered into treaties, they would find themselves bound by treaties where other nations were simply expanding their national interests and powers.

Mr Skhosana gave the example of the rise of the China and agreements with Brazil and India that were all nations that expanded their national power and interests in international agreements. This made it necessary for South Africa to firstly analyse its national interest so that they could interpret treaties on the basis of national interest. Parliament had to question the objectives of a treaty and how they would be able to implement them in South Africa.

Mr Mubu agreed with the Members that some of the agreements were very technical and bulky. The language used in the agreements could be daunting to Members who did not have legal training. This made it difficult for Members to get a full understanding of what the implications were of a given treaty. He agreed it was undesirable for Parliament to simply endorse agreements without having time to apply their minds to them. This reminded him of times in the ancient past when African Kings signed away their territories to colonialists by inserting their thumb prints on agreements for which they had no knowledge or understanding about the implications.

Mr Mubu asked if there were any punitive measures taken against States that reneged on treaties to which they were a party. For example, the Southern African Development Community (SADC) had a tribunal that had been set up to arbitrate on legal agreements between State parties and SADC. The tribunal had taken a number of decisions on the compensation for properties taken away from white commercial farmers in Zimbabwe. The tribunal had stated in a number of cases that Zimbabwe was bound by its ruling that these farmers had to be compensated. The government of Zimbabwe had however repeatedly denied that it was bound by the tribunal’s ruling and that they did not recognise it, so it could not be implemented in Zimbabwe.

Mr Skhosana responded that the SADC tribunal was probably not recognised by Zimbabwe’s Parliament because they possibly had not been involved in the agreement.

Ms Mosala responded that an important principle in treaty formation was that such agreements were made in good faith. This was the case with the SADC tribunal and any award they made would not be legally binding on State parties. Adherence to the agreement was therefore voluntary and not compelled by force.

Mr Mubu asked about the fate of treaties that had been signed under an international organ that was now defunct such as the Organisation for African Unity (OAU). He asked whether the agreements under the OAU had been transferred to the new body, the African Union (AU). He wanted to know if the obligations of OAU agreements had been transferred to the new organ, the AU.

Ms Mosala responded that the new AU had transferred the obligations of Member States from the old OAU agreements.

Mr G Koorhnoff (ANC) expressed concern about the number of outstanding agreements with several countries that had not been ratified over a long period of time. There had been several agreements with at least four countries that had no parliamentary status over the past four or five years. He was not sure how many agreements in total had no status. There was a huge backlog in Parliament of treaties that had not been ratified. Attention had to be given to cleaning up that backlog.

Mr S Mokgalapa (DA) commented that the Chairperson was on the verge of making history in terms of coordinating Parliament to converge on treaty-making and implementation.

Meeting adjourned.


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