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ECONOMIC AFFAIRS SELECT COMMITTEE
5 June 2001
CONVENTION ON PRIVILEGES AND IMMUNITIES OF UN; CONVENTION ON PRIVILEGES AND IMMUNITIES OF SPECIAL AGENCIES; AGREEMENT OF PRIVILEGES AND IMMUNITIES OF INTERNATIONAL ATOMIC ENERGY AGENCY
Chairperson: Mr M W Moosa
Documents handed out:
Presentation on the Conventions on Privileges and Immunities of the UN, Specialised Agencies and IAEA (International Atomic Energy Agency)
The Department of Foreign Affairs briefed the Committee on the three Conventions that will be ratified by South Africa. As the Conventions are similar in nature they were dealt with simultaneously. The presentation focused on the immunities and privileges of the organisations;representatives of member states; officials of the organisations;experts of the organisations.
The Department then dealt with the reservations to be entered prior to the ratification of the Conventions. These deal with:
-the holding and selling of gold,
-the compulsory jurisdiction of the International Court of Justice
-the taxation of nationals (IAEA agreement only). The Department dealt with members’ concerns that reservations would not be accepted by saying that the reservations were similar to those expressed by other countries. In addition, the reservations were within the spirit and purpose of the Conventions.
Advocate Schneeberger, the State Law Advisor on International Law, made the presentation. She explained that the Conventions had been submitted to Parliament so that South Africa could finally become a party to them. As the Conventions had been adopted in the 1940’s already, the ratification of South Africa was long overdue.
The provisions stated in the Conventions were so old that they were already a part of customary international law and had already been incorporated into South African domestic law via the Diplomatic Immunities and Privileges Act. Although the Conventions had been tabled separately, they were virtually identical in substance.
Immunities and Privileges of the Organisations
The ‘organisations’ referred to are the United Nations (UN), the specialised agencies and the International Atomic Energy Agency (IAEA). She briefly read the section of the document dealing with this and referred to the capacity of organisations to hold gold or currency of any kind and to transfer it abroad without restrictions. She stated that the Reserve Bank had recommended a reservation in this regard, which would be dealt with later in the presentation.
Immunities and Privileges of Representatives of Member States
Adv Schneeberger read through the section of the document dealing with this issue, emphasising the following:
With regard to the immunity from all legal process in respect of all official acts, she stressed that this referred to functional immunity only and therefore only applied when a person was acting in his/her official capacity.
There is never blanket immunity as member states have a duty to waive the immunity where this would impede the course of justice.
Mr S Fenyane (ANC-Northern Province) referred to the fact that member states have a duty to waive immunity where it would impede the course of justice. He asked whether member states had privileges too.
Adv Schneeberger replied that member states get the same benefits and immunities for their own representatives in other countries that are available to foreign representatives when visiting the member states themselves. The immunity granted to foreign representatives is balanced by the fact that member states may decide to waive this immunity. The fact that there is no blanket immunity has to be emphasised as it runs contrary to public perception.
Mr Fenyane asked if the duty to waive immunity is included in the text of the Conventions.
Adv Schneeberger answered in the affirmative.
Immunities and Privileges of Officials of the Organisations
As these officials are similar to diplomats they have similar immunities and privileges to diplomats. Adv Schneeberger read this section of the document, emphasising the following:
Immunity from legal process referred to functional immunity only.
The South African Revenue Service (SARS) was comfortable with the tax exemption granted to these officials, as the taxable amount could be set off membership fees payable to the UN. The same arrangement does not apply with regard to officials of the IAEA and a reservation was therefore recommended with regard to these officials.
- Tax exemptions do not apply to officials of the organisations who are SA citizens.
The Secretary General and Assistant Secretaries General do not just have functional immunity. However, this provision is not really relevant in South Africa as they usually only come to the country as visitors.
Immunities and Privileges of Experts of the Organisations
Adv Schneeberger read this section of the document, emphasising the fact that the immunities apply to all nationalities (including SA citizens). This is not problematic, as tax exemptions are not applicable to this category.
As a signatory to the Conventions SA will have a duty to recognise the UN Laissez Passer (UNLP), which is a travel document that ensures the expeditious issuing of visas to holders. SA has no objections in this regard.
All three Conventions provide for the compulsory jurisdiction of the International Court of Justice (ICJ). This implies that SA will have no discretion in the case of a dispute. A reservation will be entered in this regard.
Reservations to be entered
· Holding and Selling of Gold – This reservation applies to all three Conventions. Its wording has been recommended by the South African Reserve Bank and can be summarised as follows:
SA will not be bound by the term ‘no financial restrictions’ as stated in S7 of Article III as SA does have restrictions with regard to the holding of and trading in gold.
The reservation should contain an explanatory note, which explains the reason for the reservation. The explanatory note should also state that an organisation wishing to be exempt from this regulation may apply to the Reserve Bank.
· Dispute settlement: Compulsory Jurisdiction of the ICJ- SA has not really changed its position in this regard, but with regard to its application to the Conventions, the Department finds the lack of discretion to be problematic. No policy decision has been taken on the issue and the problem is that once one becomes a member, one cannot enter any further reservations. In the absence of such reservation, SA would have no discretion but to submit all its disputes to the jurisdiction of the ICJ. Secondly, this excludes other possible dispute settlement options e.g. arbitration or mediation, which may prove to be far less acrimonious.
· Taxation of Nationals- The tax exemption granted to officials of the organisations does not apply to SA citizens.
Why the need to ratify the Conventions when their provisions are already part of SA domestic law?
To formalise the process and provide a standard basis for including international law into domestic law.
As members of the UN and the IAEA, SA is obliged to ratify the Conventions.
To bring SA in line with international law. More than 160 states have ratified the Conventions, making SA conspicuous in its failure to ratify.
The need to facilitate administrative arrangements when large international conferences are held. In the past these were dealt with by means of bilateral agreements. This presented an administrative burden, as each agreement had to contain each specific provision.
Making SA a preferred destination for activities of the various organisations.
Encourage investment by the organisations in SA.
Specialised Agencies Operational in SA
Adv Schneeberger read the list of specialised agencies (included in the document).
Mr Fenyane asked what the status of a reservation is. Is it necessarily accepted or could SA possibly be viewed as being in violation of the Conventions by implementing reservations.
Adv Schneeberger replied that they anticipated no difficulties in the acceptance of the reservations. There are no provisions excluding the inclusion of reservations if they are within the spirit and purpose of the Convention. With regard to the reservation dealing with the holding and selling of gold, two other countries have entered such reservations.
Mr Fenyane referred to the UNLP. He asked what happens in the case where there is overwhelming evidence that the holder of such passport will endanger the national security of SA.
Adv Schneeberger responded that this document is like any diplomatic passport except that it is granted to officials and experts employed by the UN. These employees would thus have gone through the UN security vetting system (as is the case with any other diplomatic passport). Should it be discovered that the passport is in the hands of a criminal, the passport will be blocked and the person taken into custody.
Mr Fenyane referred to the holding and selling of gold by UN employees. He asked what business they have in selling gold in SA and therefore what the rationale for the inclusion of this provision is.
Adv Schneeberger answered that the provision referred to organisations and not the purchase of gold by UN officials. It would therefore refer to the purchase of gold by and organisation like the International Monetary Fund.
Dr E Conroy (NNP-Gauteng) asked if this referred to gold bullion.
Adv Schneeberger answered in the affirmative.
Mr Fenyane asked whether the tax exemption to South African employees of the UN could be extended to the foreign employees.
The Chair said that the tax exemption in fact applied to the foreigners and not local employees. The reason for this was the fact that the tax could be set off against the fee payable to the UN.
Mr Fenyane asked how the taxation of the foreigners is monitored. He asked what prevented a local from evading tax by getting one of these foreigners to enter into transactions on his behalf.
Adv Schneeberger responded that all foreign nationals are registered with the Department of Foreign Affairs. The Department therefore has a record of who is in the country and what documents each person has been issued with. Thus the Department is aware of persons who qualify for tax exemptions. In addition the person qualifying for a VAT exemption pays VAT at the time of the transaction but is entitled to have it deducted upon presentation of the receipts. In this way the transaction can be scrutinised before VAT is refunded. Also, the VAT exemption applies to official purchases only. Thus, if a person purchases a warehouse full of household goods, the transaction can be picked up and the Department will refuse to grant the exemption.
Mr Fenyane asked what was the rationale for the reservation on the compulsory jurisdiction of the ICJ. He suggested that the reservation could give the individual employee carte blanche to decide where he wants to have his case tried.
Adv Schneeberger replied that that individuals will not be interpreting this provision as individuals cannot approach the ICJ. Instead, only organisations may submit a dispute to the ICJ. The reservation would also ensure that SA is not unwillingly forced to submit to ICJ jurisdiction, which could result in a decision that violates our Constitutional law.
Mr J Theron (DP-Gauteng) asked whether the decision to adopt should take place at that meeting and whether the same had been done in the Portfolio Committee.
The Chair responded that the Committee could adopt if they were ready to do so. He added that the same process had been followed in the Portfolio Committee.
Mr Theron asked whether there are restrictions on how long the holder of a UNLP could remain within the country.
Adv Schneeberger answered that the holder still has to apply for a visa in terms of which they would have to indicate how long they intend to stay in the country. If an organisation indicates that it is sending an official the Department first decides if they will allow that person to come before granting the visa.
Dr Conroy asked what the difference is between a diplomatic passport and a UNLP.
Adv Schneeberger replied that the UNLP is exactly like a diplomatic passport but is issued to UN officials only.
The Chair asked how many countries entered reservations regarding the ICJ and indicated that he doubted that this reservation would be accepted.
Adv Schneeberger responded that with regard to any disputes compulsory jurisdiction would only apply if the member state recognised it. Initially there were a few states that recognised it while others subsequently withdrew this recognition. Of the Security Council members, only the UK recognises the ICJ’s compulsory jurisdiction. Russia and China always avoided it while the US and France subsequently withdrew. The problem with attempting to withdraw is that one cannot enter a reservation once one has already ratified the Convention. Thus, the Department feels that it is better to err on the side of caution.
The Chair asked what reservations the US and China had entered.
Adv Schneeberger answered that China had entered a reservation on the ICJ. The US had entered no reservations. The reason for this might be the fact that the US had ratified at an early stage. Almost every member state had entered a reservation on the issue relating to the taxing of nationals with regard to the IAEA.
The Chair referred to the fact that there are sixteen UN agencies listed as specialised agencies. He asked how other agencies are dealt with, especially agencies which are yet to be established.
Adv Schneeberger replied that these agencies were not arbitrarily designated by the Department. In fact the agencies had been asked to designate themselves as specialised agencies. Owing to UN politics certain big agencies are not designated as specialised agencies. These will be dealt with in separate bilateral agreements. With regard to agencies yet to be formed, the Department would probably approach parliament to add these to the list. This is unlikely since there have been no new listings since the 1960s.
The Chair indicated that the Committee would be able to adopt the Conventions the following week. He asked if there was any urgency to get this done.
Adv Schneeberger replied that the Conventions had to be adopted before the conferences are held. Additionally, the Diplomatic Immunities and Privileges Act had to be amended to include the ratification of the Conventions and this had to be done in this session.
The Chair said that he could foresee no further reservations arising. The only reason members needed more time was that many of them were seeing the documents for the first time at that meeting. He suggested that the matter could be finalised by the Committee on the following Tuesday or Wednesday and added that it was unnecessary for Adv Schneeberger to attend again.
The meeting was adjourned.
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