Parliament's role in approval of international agreements: Workshop

Human Settlements, Water and Sanitation

16 August 2011
Chairperson: Ms B Dambuza
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Meeting Summary

The Committee Section of Parliament, led by the Content Advisor to the Portfolio Committee on International Relations, briefed the Portfolio Committee on Human Settlements on the process for ratification of international agreements and treaties. South Africa had been an active member of the international community since 1994, and was a party to many bilateral and multilateral treaties. A “treaty” was defined as a binding instrument between states and / or international organisations, governed by international law, and treaties had to be in writing. They also had to be ratified by Parliament before becoming binding, as distinct from Ordinary Executive Agreements (OEAs), which were sub-agreements of a general nature, which became effective between the parties signing them, but were not necessarily binding on states. The Constitutional requirements of section 231 were described, which clearly set out that the signature of treaties and agreements was an Executive function, but the treaties needed approval from both houses of Parliament before they became binding on the State. Some treaties contained self-executing clauses, that did not require ratification or accession, and Members were cautioned to be on the look out for these. Other aspects that Members must consider were the type of approval sought, the fact that the treaty must comply with domestic law, the types of international obligations created, and financial and security implications. The National Assembly Rule 307(3) was also noted, in terms of which a portfolio committee must recommend approval or rejection, in writing, and it was explained that Section 75 and 76 Bills allowed for inclusion of concerns on domestication.

The Committee asked, in particular, what would be required of this Committee in relation to the agreement between China and Mpumalanga Province, for an assisted housing project in Graskop. Members also asked if Parliament had the power to recommend amendments to provincial agreements, what the procedure was if a province wanted to sign a treaty with another country, and whether Parliament could become involved at negotiation stage. They noted that Parliament should call for a list of all treaties, and how the relevant departments were monitoring the implementation of treaties. They also asked what would have to follow if a treaty was made, but there was no domestic law covering the subject matter of that treaty, how “a reasonable time” would be interpreted, within which ratification must take place, and whether there was a backlog in regard to treaties involving the Department of Human Settlements. Members noted the need to check carefully for self-executing clauses.

Meeting report

The role of Parliament in the approval of treaties and International Agreements Workshop with Committee Section of Parliament
Mr Mkhethwa Mkhize, Unit Manager Committee Section, Parliament, introduced his colleagues from the Committee Section.

Ms Lineo Mosala, Content Advisor to Portfolio Committee on International Relations and Cooperation, Parliament, stated that South Africa (SA) had been an active member of the international community since 1994, and was a party to many bilateral and multilateral treaties. The role of Parliament in approving international agreements and treaties was being discussed by many Parliaments around the world.

Ms Mosala informed the Committee that in terms of the Vienna Convention on the Law of Treaties, acceded to in 1969 and 1986, the word”treaty” was defined as “a binding instrument between states and /or international organisations, governed by international law”. International treaties had to be in writing. She also explained the difference between treaties (TRTs) and Ordinary Executive Agreements (OEAs), saying that OEAs were sub agreements that were created from a general agreement. OEAs were effective on signature by representatives of States, but were not enforceable because there was no requirement that they be ratified by Parliament, and they carried no legislative implications.  TRTs did require ratification by the States’ own parliaments, and became effective only after ratification. However, she suggested that Parliament had to demand that all agreements, even if they did not need Parliament recommendation, should be tabled for information, to enable the Committees to devise their strategies.

Section 231(1) of the Republic of South African Constitution of 1996 stated that the International Relations Policy, and the signing of treaties and agreements, fell under the responsibility of the Executive, but Parliament could recommend that these agreements or treaties either be approved or could reject the ratification. Section 231(2) stated that it was a legal requirement that there must be approval by both houses of Parliament of treaties and certain agreements, so they could be binding. Section 231(3) stated that international agreements of a technical, administrative, or executive nature, and agreements that did not require ratification or accession did not need Parliamentary approval but these agreements had to be tabled in the two houses, within a reasonable time, for recommendations of approval or rejection by those houses.

Section 231(4) introduced a concept of self-executing clauses into South African law. This section went on further to say that provisions of a treaty approved by Parliament that had such clauses would become part of South African law unless that treaty was inconsistent with the South African Constitution. Section 231(2) further stated that in order for a treaty to apply domestically, that treaty ought to be enacted into national legislation unless that treaty was self -executing. Parliament had to be conscious of treaties that had self-executing clauses, so there was not a risk of recommending that a treaty that might be contrary to the Constitution be approved. In cases where Parliament had to recommend treaties with self-executing clauses for approval, it should recommend for approval with reservations. Ms Mosala emphasised that all treaties had to be read in their entirety before recommendations were made for ratification.

She further noted some of the things that Parliament had to take into consideration when examining the treaties. These would include the type of approval sought on that particular treaty, confirmation that the treaties complied with domestic law, the international obligations that would be created, implications for vulnerable groups, self-executing clauses, and financial and security implications.

According to Rule 307(3) of the National Assembly Rules, a Committee had to recommend approval or rejection in writing, and concerns could be noted. Section 75 and 76 Bills allowed for the inclusion of concerns on domestication of a treaty at a later stage.  South Africa should perform a national interest analysis before it could sign a treaty.

The Chairperson asked Ms Mosala to indicate what was required of the Committee in regard to the Assisted Housing Project in Graskop, following an agreement between China and the Mpumalanga Province.

Ms Mosala advised the Committee that the Committee should have asked for the Memorandum of Understanding (MoU).

Ms M Njobe (COPE) congratulated Ms Mosala on her presentation. She enquired if Parliament could recommend amendments, in cases where Parliament might not agree with the agreement that was signed by one of the provinces. She also wanted to know what measures could be taken so that Parliament could be involved in the negotiations of agreements or treaties.

Ms Mosala explained that it was high time for Parliament to be involved in the forming of agreements and treaties, as they had previously been sidelined on this aspect.

Mr A Steyn (DA) wanted clarity as to what happened to treaties that were approved, but where one of the states involved had no legislation in relation to the subject matter of the treaty. He also wanted to know if the treaty automatically applied in cases where Parliament recommended ratification, without reservation, of a treaty with self-executing clause.

Ms Mosala explained that a country could sign a treaty or agreement and then adopt legislation to deal with the issues in the treaty, before Parliament ratified the treaty. She also mentioned that if the Parliament did not approve it had to state this in writing.

Mr K Sithole (IFP) asked if the Department of Human Settlements had a backlog in regard to oversight over the implementation of international agreements. He wanted to know how long a” reasonable time” might be.

The Chairperson reminded the Members that the Committee had already arranged a meeting with the Department of Human Settlements and the Committee should ask the Department to provide the Committee with a list of all treaties, including those where there was a backlog.

 Ms Mosala informed the Committee that in terms of international law, a  “reasonable time” would be interpreted as the normal time that a country should take to meet all the requirements before Parliament could be asked to give a recommendation for approval or rejection.

Mr A Figlan (DA) wanted to know what happened to provinces who signed agreements that were not supported by South Africa, as a whole.

Ms Mosala explained that it was permissible for provinces to sign agreements with other countries, but suggested that these agreements had to be signed under an overarching structure, which should be coordinated by national Government.

Ms D Dlakude (ANC) asked Ms Mosala to advise the Committee specifically on the China Housing Project in Mpumalanga. The Committee had the impression that the houses were not user friendly.

Ms M Borman (ANC) suggested that when the Committee looked at the treaties signed in respect of human settlements, Members must look out and check for self-executing clauses, as these clauses were challenging.

Ms Mosala thanked the Committee for giving her the opportunity to present the Workshop, and apologised that she had insufficient time to answer all questions in depth, as she was required at another meeting.

The Chairperson thanked her and noted that the Committee could ask her advice on matters dealing with international agreements and treaties.

Urban Settlement Development Grant Committee Report
The Chairperson informed the Members that the Report was not ready for adoption, and this agenda item was therefore postponed.

The meeting was adjourned.


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