In a virtual meeting, the Select Committee convened to receive a briefing from the Department of International Relations and Cooperation on international agreements and twinning agreements. The presentation focused on processes that need to be followed when ratifying bilateral and multilateral agreements and explains the international agreements that provinces and municipalities can enter into. The new Foreign Service Act will enable the Department to make an assessment of all the international agreements South Africa has entered into and will establish a consultative forum on international relations between all three spheres of government.
Members asked for clarity on Section 231 of the Constitution which governs who can sign international agreements. They also asked about inter-governmental relations between the Department and provinces as well as municipalities and whether the Department assists provinces and municipalities when they enter into international agreements. A Member also asked when the Department will conclude its assessment on all international agreements and whether there is a need to design new legislation which would help regulate international agreements entered into by provincial and local governments.
Deputy Minister’s Remarks
The Deputy Minister of International Relations and Cooperation, Ms Candith Mashego –Dlamini, thanked the Committee and said this is an opportunity for Committee Members to familiarise themselves with some of the functions performed by DIRCO. The Committee’s invitation is indeed welcomed at a time where international cooperation among states is more important than ever as the world moves to a post-Covid era. The pandemic has reminded states that they need each other for support and rebuilding their economies. Close cooperation between states will be essential in order to assist each other in their efforts of rebuilding and international agreements will be important in this regard.
International agreements are the tool through which international relations are given substance and create legally binding obligations between states. These agreements form the basis of the international rule base system which is necessary to ensure peace, security and prosperity for all nations. Multilateral and Bilateral international agreements play a strategic role in the advancement of South Africa’s national priorities and foreign policy objectives as set out in the National Development Plan- Vision 2030 an African Union Agenda 2063.
The terminologies used to describe international agreements are varied and cover a wide spectrum including titles such as treaty, convention, protocol, and memorandum of understanding. These are all international agreements and are binding upon parties that sign them. Bilateral agreements which are concluded between two states deal with a wide number of subjects , for example cooperation in the area of health, education , mutual legal assistance , extraditions , double taxation and defence to name a few. Multilateral agreements establish legal obligations amongst a broad spectrum of nations, and some are binding on all states.
These types of agreements are used to achieve various objectives. Some establish international organisations such as the United Nations (UN), African Union (AU), Southern African Development Community (SADC), European Union (EU) and the Pan-African Parliament. Others create a regulatory regime to regulate specific matters such as international trade, human rights and disarmament. All international agreements regardless of the name are legally binding in terms of international law. The international agreements that provincial and local government concludes with their counter parts abroad are not considered to be legally binding in terms of international law. These arrangements are also described in a variety of ways including cooperation agreement, city to city agreement and twinning agreements. These are focused on local needs and are directed at establishing and promoting partnership between South African provinces and municipalities and provinces and municipalities across the world, in order to create an environment for closer cooperation on provincial and local government level. Some of these arrangements also constitute private law-governed contracts that are enforceable by both parties.
The competency to conclude international agreements is regulated in terms of the Constitution. It is important to recall that there are three spheres of government in South Africa and the Constitution empowers national government with the mandate to conclude matters of international relations. The Constitution provides in Section 231, that negotiation and concluding of international agreements rests with the National Executive. The National Executive exercises this responsibility on behalf of the whole of South Africa. Parliament also has an important role to play in respect of ratifying these agreements. It is only Parliament that can approve that South Africa ratifies or accede to an international agreement.
The Constitution does not give provinces and municipalities the competency to conclude international agreements. The arrangements concluded by provinces and municipalities are not governed by international law. Provincial and local governments can only conclude arrangements where a particular competency has been assigned to provincial and local governments under schedule 4 and 5 of the Constitution. South Africa is a unitary state, and it is essential that all efforts in international relations are focused to attain and support the foreign policy objectives of government. This must be done through close coordination between the three spheres of government to lessen the negative effect of fragmentation of South Africa’s international relations as such fragmentation leads to lesser effectiveness and impacts negatively on what South Africa as a country would like to achieve internationally.
It is thus essential, that when provinces and municipalities pursue international agreements, it is done with synergy and in support of South Africa’s national interest and developmental goals. The Department of International Relations and Cooperation (DIRCO) is responsible for the implementation of South Africa’s foreign policy and the conduct of international relations. The Department is the entry point for all matters relating to international engagements by national, provincial and local government as well as by other institutions of state. South Africa has a responsibility to comply with all its international obligations that come with international agreements and customary international law.
The consideration and conclusion of international agreements cannot be done lightly as this might have implications for South Africa. South Africa often finds itself lagging in the area of implementation of international agreements already concluded, which creates problems with countries with whom South Africa has signed these agreements with. South Africa also does not always capitalise on benefits and opportunities that can flow from international agreements. South Africa has over the years concluded 2 419 bilateral agreements and 744 multilateral agreements; national government is currently making an assessment of the benefits that are derived from these existing agreements and whether the benefits are optimally utilised. Provinces and local government should focus their efforts to establish cooperation with their counter parts on existing international agreements concluded by South Africa, through which they can localise the implementation of the agreements and the opportunities that are available. In order to achieve this, improved communication and coordination is key. The lag of proper coordination was recognised and has now been addressed in the new Foreign Service Act that was passed by the National Assembly earlier this year. The Act established a permanent consultative forum on International Relations. This forum will provide focus, direction, and cohesion among all three spheres of government to identify where international relation and cooperation is needed. The South African Treaty Section within the Department is the official custodian of all treaties and international agreements signed. It also includes a list of all international agreements provinces and municipalities have agreed on, however, this list is not complete as it is compiled based on the information given by provinces and municipalities to the Department.
DIRCO’s Chief State Law Adviser, Ms Sandea de Wet, gave the presentation on behalf of DIRCO. She said international agreements play a strategic role in the advancement of the country’s national priorities and foreign policy objectives. In terms of the three spheres of government , negotiation, and conclusion of international agreements rests with the national Executive. She said the Department of International Relations and Cooperation is the custodian of all international agreements that South Africa has signed.
Provincial and Municipal Agreements
Provincial and local governments do not have the competency to conclude international agreements in their own right. Provincial and local governments conclude a memorandum of understanding, arrangements, contracts, and twinning agreements not governed by international law. These must be in areas where provinces and local governments have competency provided for in schedules 4 and 5 of the Constitution.
Types of Agreements
These agreements are not international and not governed by international law.
- Cooperation Arrangements
- Memoranda of Understanding on Cooperation
- Contracts governed by South African law of the province involved
A Twinning Agreement is an informal arrangement indicating mutual intentions and goodwill but which does not entail a legally binding document.
Procedures to Follow Before Signing of Arrangements
Provincial and local governments must adhere to the following procedures before signing any arrangements:
- Provide Directorate of International Provincial Protocol in DIRCO with the draft document.
- The Directorate will obtain a legal opinion from the Office of the Chief State Law Adviser.
- The Chief State Law adviser will scrutinise the draft text of the arrangements from an international law point of view to ensure that it is non-binding.
Registry for Provincial Arrangements
The South African treaty section manages a consolidated electronic registry of all arrangements, memoranda of understanding and twinning agreements concluded by provincial and local governments. As per Consolidated Framework and Implementation Research (CFIR) guidelines, provinces and local governments must deposit copies of all arrangements with the South African Treaty Section for record-keeping. This registry is a tool for planning, coordinating, harmonising and improved service delivery.
Ms M Bartlett (ANC, Northern Cape) asked for clarity on Section 231 of the Constitution and how it deals with the conclusion of international agreements.
Ms Z Ncitha (ANC, Eastern Cape) asked what the relationship is between DIRCO’s Inter-governmental Provincial Directorate and provinces as well as municipalities. She asked whether the Directorate interacts with municipalities and gives them guidance when municipalities are signing these arrangements as some municipalities are not adhering to protocol when they are signing international agreements. She asked whether the DIRCO monitors these arrangements.
The Chairperson said the Committee is more interested in the impact of these arrangements and the Deputy Minister mentioned that national government will be doing an assessment on these arrangements. She asked if the Deputy Minister could give the Committee an indication of how far the Department is in completing the assessment process. She also asked if there is a need for new legislation to govern the international agreements concluded by provincial and local government.
The Deputy Minister said on the issue of the assessment, there is no timeframe at the present moment as to when the assessment will be concluded. The process for the assessment has just started with the passing of the Foreign Services Act which compels provinces and municipalities to account directly to DIRCO when entering or signing these arrangements. The situation is also the same on Inter-governmental Relations. Before the Foreign Service Act, there was no coordination or relationship between DIRCO, provinces and municipalities. The Foreign Service Act will allow DIRCO to form a consultative forum that will allow engagement between DIRCO, provinces and municipalities. The process of monitoring and evaluating the benefits of arrangements is also a process that has just started, and details will be given to the Committee at a later stage once the process has been concluded.
Ms de Wet said Section 231 of the Constitution explains who can sign international agreements on South Africa’s behalf; which are the President and Members of Cabinet. Specific Cabinet Ministers will sign agreements that are of interest to their departments. All agreements must also have the President’s minute, which is when the President confirms in writing that South Africa will become a party to a specific agreement.
The Chairperson asked if there is a need for new legislation to guide provinces and municipalities when entering into arrangements.
Deputy Minister Mashego-Dlamini said there is no need for new legislation as the Constitution and the new Foreign Service Act has clear guidelines that are available to provinces and municipalities. The new Foreign Service Act will make it easier for DIRCO to assist provinces and municipalities in entering arrangements.
The Chairperson thanked the Deputy Minister and her team. She said the Committee is interested in what is happening in provinces and would like to get more information on provinces and hopes DIRCO will be able to assist them once this information becomes available. This will help the Committee in its oversight duties in the provinces.
Meeting was adjourned.
- DIRCO: International Agreements and Twinning Arrangements
- Bilateral Agreements Signed by South Africa as on 25 June 2020
- Provincial and Local Government Arrangements as recorded in SA Treaty Section 12 October 2020
- Multilateral Agreements Signed, Acceded to or Ratified by South Africa as on 25 June 2020
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