African Youth Charter: adoption; Approval of International Agreements Subject to Reservations

Meeting report

Approval of international agreements subject to reservations: briefing by Parliamentary Legal Office
The Chairperson reminded Members that two weeks previously the Office of the President and the Department of Foreign Affairs briefed the Committee on the African Youth Charter. Due to some concerns raised by the Committee, the Parliamentary Legal Advisor had been invited to explain reservations regarding the Charter and provide guidance on the options available for incorporating those reservations.

Mr Mukesh Vassen, Parliamentary Law Advisor said that in terms of Section 231 of the Constitution, an international agreement binds the Republic only after parliamentary approval had been received. However neither the Constitution nor other rules made allowances for Parliament to accept international agreement with reservations. This was seen as the function of the Executive, and had been the subject of debate before.

Several legal opinions were sought and the consensus received held one position: that the full legal principle was clear about the negotiation of international agreements. It was the prerogative of the National Executive to negotiate such agreements. Parliament had the power only to approve or disapprove of any agreement forwarded to it by the National Executive.

Mr Vassen said that Parliament's responsibility is to approve or disapprove an international agreement in its totality. Only the Executive can include reservations. Parliament could request or insist that the Executive included a reservation in respect of an international agreement; or refer the matter back to the Executive.

The reservation should actually have been noted during the negotiating stage when the Executive was negotiating a treaty or charter. Parliament has two options available. It could either express displeasure about certain provisions in its report on the treaty or charter, or reject the treaty or charter. Which option it chose would depend on how strongly the parliamentary committee felt about the provisions in the document.

African Youth Charter
The Chairperson said that the section on Disability in the Charter mentioned only physically and mentally challenged persons. The concern raised in the Committee meeting two weeks previously, was that reference to the UN Convention on People with Disabilities should be included in this Charter. It must make mention of this Convention in the Charter so as to cover all Disabilities.

The legal advisor had advised that the Committee could write a report stating that it was referring this matter back to the Executive or register an acceptance of the charter. However the Committee were noting the reservation that they would prefer to have Disability as more inclusive in the Charter. This would allow the Committee to put their concerns as wells as state the reasons for the reservation.

Mr Vassen said that the issue of Disability was the same as that of Age, where South African law already had a wider ambit. This charter would not restrict South African law. However in their first meeting on the charter, it was mentioned that as an matter of principle that the wider definition should be included. Regarding both the issues of Age and Disability, there would not be any legal consequences for South African law because the UN Convention had been adopted and had broader provisions, just like the Constitution. So this was merely a matter of principle that the Chairperson wanted taken to the Executive.

Mr T Setona (NCOP ANC) asked for clarity regarding International and Continental law, and if anyone of these two legal instruments superseded the other.

The Chairperson asked if all African countries had not signed the UN Convention on Disabilities, would this have had an effect on the African charter.

Mr Vassen responded that an international agreement acted very much like a contract between the contracting state parties. If it were viewed in terms of it being a human rights document, it would be the minimum of what was agreed to. The fact that South Africa had broader legislation would not limit this, and there was no specific hierarchy that existed to allow the UN to override this. The Constitution prevailed over any other law, even if international law was in conflict with South Africa law. Mr Vassen noted that the Chairperson was merely raising an issue of principle, that Disability was not mainstreamed through the whole of the Charter.

Mr Setona expressed his satisfaction with the advice from the Parliamentary Legal Advisor.

Mr L Nzimande (ANC) said that what needed to be noted was that the United Nation’s system, and the African Union, its protocols, instruments, and charters could be exclusive and discriminatory in nature, and the Committee’s concerns should be recorded, as an instrument such as this had broader implications, and their concerns should be a matter of record. However, he suggested that they should go ahead and “awkwardly” adopt the Charter.

The Chairperson said that what should be noted is that the Committee should be involved in such approval processes from the beginning. They had an important role to play right from the start when conventions were drafted.

Adoption of recommendation that Parliament ratify African Youth Charter
The Committee then adopted the recommendation that the African Youth Charter be ratified by Parliament:

‘The Joint Monitoring Committee on Improvement of Quality of Life and Status of Children and Disabled Persons having considered the request for approval by Parliament , of the African Youth Charter referred to it, recommended that the House and Council in terms of Section 231, Subsection 2 of the Constitution approve the said Charter.’

All Members accepted this report.

Meeting was adjourned.