Treaty-making and approval of treaties in South Africa: Workshop

Meeting report

Treaty-making and procedure for ratifying treaties
Professor Salim Nakhjavani, Senior Lecturer, Department of Public Law, University of Cape Town briefed the Parliamentary Committees, sitting jointly, on the prospects for enhancing Parliamentary oversight of treaty-making and implementation in South Africa. He firstly described treaties as binding international agreements, in written form, which were governed by international law. The legal rights created by treaties could be enforced through diplomatic means as well as the 'limited judicial mechanisms' that were presently available under international law.

He noted that bilateral treaties applied between two countries, and multi-lateral treaties imposed similar obligations on a number of countries. According to information on the Department of International Relations and Cooperation’s (DIRCO) website, South Africa had, since 1994, undertaken to be bound by 261 multilateral treaties and 1 694 bilateral treaties.

Professor Nakhjavani highlighted what the international legal framework was regarding treaties. Emphasis was placed on the Vienna Convention on the Law of Treaties (VCLT), which in itself was a treaty. The VCLT had opened for signatures in 1969 and had come into effect in January 1980.

South Africa was not a party to the VCLT, but the VCLT subscribed to customary international law applicable to all states, including South Africa.

Treaties became binding under international law through a multi-stage process, involving treaty negotiation, adoption and signature by the representatives of the country, ratification by the legislature or other body as required by the country’s domestic law, or accession, and entry into force.

South Africa's Constitutional framework was highlighted, as well as the elements relating to the present South African treaty making process. The presentation concluded with an emphasis on the comparative perspectives on an advanced role for Parliament (see attached presentation for full details).

Briefing by the Department of International Relations and Co-operation on the Conclusion of International Agreements
Mr Sivu Maqungo, Principal State Law Adviser, Office of the Chief State Law Adviser, briefed the Portfolio Committees on the procedure followed in the conclusion of international agreements. He firstly defined an international agreement, and highlighted why these were considered necessary and the kind of areas that they covered. International Agreements were noted as sources of international law and an indispensable part of the architecture of international relations. He highlighted how the international agreements were of benefit to South Africa (see attached presentation for details).

Mr Maqungu said that considerable energy has been invested in areas related to South Africa's foreign policy priorities, and that these were in turn linked to its national interest. He said that the decision to enter into these agreements lay with the relevant line function government departments. Mr Maqungu noted that practices would vary between departments

Mr Maqungu dealt briefly with the interplay between treaties and State sovereignty, and issues relating to Executive authority. He described the step-by-step process of treaty making. He noted that DIRCO would play a coordinating role. South African positions were to be developed by line function departments who were responsible for the subject matter regarding international agreements. They would be concluded on the basis of consensus and sometimes adopted by majority voting.

He noted how South Africa could influence the terms of treaties, and also noted that countries were able to note reservations to treaties.

Mr Maqungu then tabled the procedure for ratifying the treaties, which was done in terms of Sections 231(2) and 231(3) of the Constitution. He highlighted the requisite legislation and tabled information regarding access to treaties. He concluded with an analysis of bilateral and multilateral treaties that were in force, as well as those that had been signed but were not in force as yet.

He confirmed that there were 1 572 bilateral treaties in force and 334 multilateral treaties in force, comprising a total of 1 906 in force. 683 bilateral treaties had been signed but were not in force as yet, and 229 multilateral treaties had been signed but were not in force yet, making a total of 912 treaties that still had to be put into force.

Discussion
Several Committee members sought clarity on the references to the stakeholders.

Mr Maqungu noted that sometimes there were agreements where the agreement in itself would require Parliament to be a part. In these cases the Executive, who signed, would ensure that Parliament could not reject the treaty by making sure that Parliament was one of the stakeholders.

A Member questioned what the declaratory of interpretation was.

Mr Nakhjavani noted that the approval of a treaty by Parliament amounted to ratification.

A Member noted the reference to the Intranet, and questioned why this was used instead of the Internet, as treaties should surely be available to the public.

A Member sought clarification as to how many treaties in South Africa had been signed but were not ratified.

A Member wanted to know what the actual act was that brought a treaty about, or if it could be seen as a gentleman's agreement.

A Member enquired as to the highest punitive measure that could be imposed on a country that was in breach of an international treaty.

Mr Nakhjavani said that this would largely depend on which treaty was being breached. The most serious instance would be that if a country breached the United Nations (UN) Charter was that the UN Security Council could order that military force be used against that country. If a country violated a multilateral trade treaty, the most serious sanction would be that sanctions would be imposed against that country, thus affecting its exports. If a State were to breach the Rome Statutes of the International Criminal Court, the country would be reported.

Mr S Mokgalapa (DA) sought clarity on who defined matters of national interest.

Mr Maqungu and Mr Nakhjavani confirmed that the line function departments played a pivotal role in defining matters of national interest.

Mr Nakhjavani added that he thought that matters of national interest should be discussed and debated in Parliament.

A Member requested clarity on issues relating to sovereignty, as well as the issues pertaining to the presented sections of the Constitution.

Mr Nakhjavani noted that, in essence, the era of exclusive national sovereignty had ended, and that it would be foolish for South Africa not to accept international obligations. Globalisation was a fact that South Africa had to face head-on, especially when it came to international agreements being beneficial to problem solving in the country. Climate change issues were a prime example. South Africa could not act alone in this matter, particularly since pollution moved. If problems affecting not only individual states, but also the world, could be resolved through international collaboration, it would be better for South Africa to take on that accountability and agreement.

Mr B Skosana (IFP) wanted to know why issues relating to provincial and local government levels had not been mentioned in the presentations.

Co-Chairperson T Nxesi (ANC) sought clarity on pages 14, 15 and 18 of DIRCO's presentation, which referred to sections of the Constitution.

Mr A van der Westhuizen (DA) noted that resources were limited and that most of the international agreements had been initiated by other countries. He wanted to know how the South African government could ensure that there were enough resources and innovation to allow it to look also at creative new agreements that would not simply be forced upon the country.

A Member made reference to a case study in Namibia and questioned whether Parliament should be involved in the formulation of foreign policy or not. She referred to increasing globalisation and suggested that Parliament should get involved with the appointment of ambassadors.

The meeting was adjourned.