ATC130909: Report of the Portfolio Committee on International Relations and Cooperation on the workshop held on the role of Parliament in treaty-making processes, dated 14 August 2013
International Relations
Report of the Portfolio
Committee on International Relations and Cooperation on the workshop held on
the role of Parliament in treaty-making processes, dated 14 August 2013
1.
Background
The Portfolio Committee on International
Relations and Cooperation (the Committee) held a workshop on the role of
Parliament in treaty-making processes on 9 May 2012 at the 15 On Orange Hotel,
Cape Town. The Committee has been entrusted to oversee issues relating to the
mandate of the Department of International Relations and Cooperation (the
Department). It was mandated to scrutinise foreign policy issues including
those pertaining to international treaties. The power to negotiate and sign treaties,
on the one hand, and to ratify treaties, on the other, remained shared between
the executive and the legislature respectively.
The role of Parliament in the process is
stipulated under section 231(1) of the 1996 Constitution of the Republic of
South Africa. To this effect, holding of negotiations and the signing of
international agreements were within the competency of the Executive.
Nevertheless, the approval of Parliament is required so that these agreements
shall be binding. The approval should be granted by the two Houses of
Parliament (section 231(2)) thereto. Although Parliament has the power to
agree to or approve treaties, the actual ratification is undertaken by the
Executive. The latter also signs the Instrument of Ratification and deposits it
to a requisite organisation/state.
To understand these processes further, the
Committee held a workshop, in conjunction with the Select Committee on Trade
and International Relations. It invited both the legal experts in the field (in
academia and the private sector) as well as the Department.
In attendance were the House Chairperson on
International Relations, Hon F
Hajaig
, the
Chairperson of the Select Committee on Trade and International Relations, Hon D
Gamede
and members of the Select Committee. The
facilitators for the discussions were Professor H
Strydom
(University of Johannesburg), Ms Y
Dwakira
(the
Department) and Mr E
Durojaye
(Community Law Centre
University of Western Cape).
2.
Statement of objectives: Chairperson Mr
HT
Magama
MP
He stated that the workshop was held to explore
options for early involvement of Parliament in the treaty-making processes in
South Africa; and to discuss modalities for enhancing current mechanisms for
scrutinising treaties and oversight on their implementation. Members were
reminded that the issues around the role of Parliament in treaty-making had
been dealt with in previous engagements. The Committee was well aware of the
provisions of the Constitution, and also of the different responsibilities
bestowed upon the different arms of state for treaty-making processes.
Parliament was by no means laying a claim to
a negotiating mandate, nor seeking one. It remained the task of the Executive
to negotiate treaties in the international arena.
However, the 20
th
century has brought
about many global changes and multilateral cooperation. Nations were
interdependent, and international organisations have become platforms where
governments adopt decisions and treaties. The majority of parliaments were not
consulted during negotiations. Consequently, parliaments have taken the resolve
to step beyond the traditional executive prerogative in international affairs,
especially with treaties, and subject governments to the same degree of
oversight as in the domestic policy arena.
The implications of such developments to
democracy were regarded as very clear. Majority of decisions that mattered to
the lives of countrys citizens, including their security, were taken beyond
national borders, or by international institutions that were not subject to any
national democratic control or accountability. Parliaments have had to ensure
that greater national democratic accountability is maintained. There should be
adequate national dialogue on treaties that South Africa would enter into.
However, it was not clear how Parliament, as
representative of the people, related to the Executive in the process. South
Africas role in the negotiation of treaties and the domestic implementation of
treaty obligations was regarded as having aroused considerable interest in
Parliament, including civil society, business and other sectoral formations.
Parliament has no influence over the outcome of treaties, much as the desire
would be to be able to monitor the negotiations by being kept fully informed as
they unfold, and by having an opportunity to express to the Executive, their
political views. As it was, Parliament would come in at the very end for
approval needed for the ratification or otherwise of these treaties.
Parliament itself was reported to have no
framework or common approach for dealing with treaties. It was said to have an
uncoordinated system where each committee dealt with relevant treaties the way
it deemed fit. That practice in itself posed challenges for the institution
regarding how to approach and enhance oversight on treaties.
The experts were called in to make input
regarding what options the Committee would have, within the provisions of the
Constitution, in enhancing oversight on the Executive regarding obligations
created by international instruments. The constitutional mandate to approve
treaties should be complemented by some power to influence the outcome of these
treaties before they are finalised.
3.
Presentation by Professor H
Strydom
(University of Johannesburg)
The law governing treaties was mainly located in
the 1969 Vienna Convention on the Law of Treaties. They were reported to be
governed by international law, concluded between states, were binding on states
which have ratified them and should be implemented by them in good faith. The
nature of multilateral relations demanded that nations jointly address issues
affecting them, hence the need for a system of rules to regulate such
relations.
A comparative overview was made with other
jurisdictions against the situation in South Africa in treaty-making and the
role of Parliament. In the United States of America (US), the President has
power to negotiate, sign and ratify treaties; however, he/she should have
concurrence from Senate. The Senates involvement was reported not at the tail
end as the case was in South Africa, it began early. The Senate would give
negotiating mandates to negotiators and act as a council of advisors during the
negotiations. In some instances, implementing legislation was required before
Senate could concur to a ratification of a treaty.
In order to make informed decisions on whether
the US should or should not ratify a treaty, the Senate was supported by a
Congressional Research Service, which provides policy and legal advice on a non-partisan
basis. Senate could withhold approval or approve a treaty under certain
conditions. In South Africa, Parliament could propose a reservation, as long as
it was not impacting on the core objective of the treaty.
Consideration and processing of trade agreements
followed a different approach in the US. A pre-authorisation legislation would
be adopted which gives the President a negotiating mandate. That legislation
would specify national interest being pursued; provide for regular consultation
as negotiations continue and allow Senate to solicit reports from relevant
committees on the subject matter of the treaty being processed (public
hearings).
The practice in Germany required that government
should inform parliament at its earliest and comprehensively before it engaged
in treaty-making processes. With regard to the European Union (EU) matters, the
executive would seek the advice of parliament before participating in the
legislative processes of the Union. The executive would take into consideration
the position of parliament.
In Austria, treaties that would have been
approved by parliament have the full force of law without having to be
domesticated by a piece of legislation. In South Africa, approval by Parliament
of a treaty would not render it enforceable in the courts of law. It should
first be domesticated through an Act of Parliament. Austria has established a
Foreign Policy Council, comprising on a proportional basis, all political
parties and should be consulted in all foreign affairs matters. The executive
was therefore compelled to continuously consult with the Council on matters
relating to foreign policy. Parliament could formulate conditions and
interpretative explanations to be taken up in the text of a treaty.
The Committee was satisfied with the comparison
made. However, its concern was whether Parliament has the adequate capacity to
effectively deal with treaties.
4.
Presentation by Advocate YM
Dwarika
(the Department)
Treaty making
practice in South Africa was reported g
overned by the 1996 Constitution. Pursuant to section 231(1) thereto,
negotiating and signing of all international agreements was reported the
responsibility of the national executive.
There were two frameworks for concluding international agreements.
Section 231(2) was quoted to provide for
agreements which need the
approval of both Houses of Parliament before ratification or accession of such
agreements
could take place. These would
normally be
multilateral agreements,
agreements with financial obligations or legislative implications.
Provisions of section 231(3)
catered for agreements of a technical, administrative
or executive nature. This category of agreements would normally not require
ratification or accession, as they have no extra - budgetary financial implications,
and
do not have legislative implications. They should be tabled in
Parliament within a reasonable time for information only. All international
agreements have to be approved by the national executive, by means of a
Presidents Minute.
All agreements have to be tabled in Parliament. The
Department would play a coordinating role during treaty negotiations through to
the completion of the process.
4.1
Observations by the members of the
Committee
The members sought more information on the following:
§
Ratification of treaties would be effected once the contracting parties
communicate through a diplomatic note, compliance with their respective
constitutional requirements. An elaboration as to the contents of a diplomatic
note was sought.
§
The criteria for determining reasonable time within which a treaty
could be tabled in Parliament for information only.
§
The force and effect of a reservation levelled against a clause in a
negotiated treaty.
§
The manual of executive action in treaty-making processes seemed to
prescribe the role of Parliament in a way that compromised oversight functions.
§
Parliament should explore modalities for its involvement in the process
of treaty-making at an earlier stage.
§
The Committee should enhance its oversight on the implementation of
treaties.
4.2
Response by the Department
§
A diplomatic note would inform parties to an agreement that all domestic
procedures have been followed thus allowing an agreement to come into force.
§
The concept of reasonable time presupposed that Parliament should be
informed as soon as possible of the contents of a treaty by line-function
departments.
§
Some agreements would not allow reservations to be included.
§
Treaties were tabled in Parliament as negotiated texts, thus reservations
should not compromise the core objective of the agreement.
4.3
Response by Professor
Strydom
§
Parliament has ratification powers but not treaty-making powers, which
were a function of the executive.
§
South Africa has inherited the Westminster system which happened to
accord much more power to the executive on treaty-making.
§
Pre-authorisation legislation might be a useful tool South Africa should
consider.
5.
Presentation by Ebenezer
Durojaye
(Community Law Centre)
5.1
Distinguishing between treaties and human rights
treaties
Human rights
treaties, though ratified by states, could be invoked by individuals to seek
redress before regional or international human rights bodies. While most
treaties did not require a state to submit a report on progress made, human
rights treaties required states parties to submit periodic reports on progress
made regarding a particular treaty.
5.2
Nature of human rights
treaties
It was highlighted
that human rights treaties/instruments seek to protect and promote human rights
of all individuals regardless of their nationality, sex, gender, sexual
orientation, class, religion, political affiliations or other status. Sometimes
they would deal with specific groups or categories of people. They would impose
obligations on states to take adequate steps and measures, so as to ensure the
protection of individuals rights. They would provide individuals with the
avenues or means of redressing violations of human rights.
5.3
Monitoring of human
rights treaties
Most human
rights treaties would have a monitoring/supervisory body. The body would
examine States Party reports, issue General Comments/Recommendations/Guidelines
and sometimes receive individual communications.
5.4
South Africas reporting obligations to treaty monitoring bodies
South Africa was
under the obligation to submit reports to treaty monitoring bodies on the steps
it has taken, to ensure the implementation of the provisions of different
treaties it has ratified. In return, the treaty monitoring bodies were expected
to issue what was known as Concluding Observations on such reports.
5.5
Parliaments envisaged role in implementing human rights treaties
§
Encourage ratification of treaties not yet
ratified such as
:
o
The International Covenant on Economic, Social and
Cultural Rights (ICESCR) economic social and cultural rights issues;
o
Optional Protocol to ICESCR communications procedure
thereto;
o
Optional Protocol to the Convention Against Torture
(OPCAT) establishment of a National Preventative Mechanism (NPM);
o
International Convention on the Protection of
All Migrant Workers and Members of their Families (ICRMW) issues concerning
migrant workers and their families;
o
International
Convention for the Protection of All Persons from Enforced Disappearance (ICPED)
-
providing for issues relating to
enforced disappearance; and
o
3
rd
Optional Protocol to the Convention on the Rights of the Child (OP3-CRC)
communications procedure thereto.
§
Use international human rights standards and
principles (General Comments/Recommendations and Concluding Observations) as
benchmarks in drafting laws or scrutinizing legislative proposals (practices in
Finland and United Kingdom were given as examples).
§
Through ensuring public participation in law making,
it could also promote human rights.
§
Use its law making powers to increase awareness about
the Treaty Bodies.
§
Request Department of International Relations and
Co-operation and responsible government departments, to keep the Committee up
to date on the status of South Africas reporting obligations.
§
Facilitate the domestication of human rights treaties
in South Africa.
§
Publicise and drive awareness campaigns domestically,
on the proceedings before the Treaty Body and the Concluding Observations and
Recommendations.
§
Monitor the implementation by government of Concluding
Observations issued by treaty monitoring bodies.
5.6
Observations by the members of the
Committee
It was emphasised that departments should
develop a coordination mechanism for compilation of national reports regarding
implementation of treaties in the country. Efforts should be made to
collaborate with civil society on reporting. The Chairperson urged members to
apply their minds on the suggestions made by the experts and formulate their
own approach for submission to the relevant authorities in Parliament.
6.
Subsequent discussions by the Committee
On 14 August 2013, the Committee deliberated on
the suggestions made by the experts and identified the following:
6.1
Identified challenges
The following were some of the challenges facing
Parliament in general regarding processes for consideration of treaties:
§
There was a perception that Parliament is treated as a rubber stamp in
treaty-making processes.
§
Late submissions of international agreements/treaties by departments for
consideration by Parliament.
§
Parliament was not afforded enough time to duly scrutinise and consider
treaties tabled.
§
Parliament itself has no framework or common approach for dealing with
treaties. It has an uncoordinated system where each committee deals with
relevant treaties the way it deemed fit.
§
Parliament could not make changes to a negotiated treaty; can only note
concerns; it is limited to reservations whose effect is not even clear.
§
Each agreement relinquished policy space.
§
There was no definition of what constituted reasonable time within
which the Executive should be compelled to table agreements in that do not
require Parliaments approval for noting (section 231(3)).
§
There was no analysis as to which laws would be affected or impacted
upon by a treaty to be entered into.
§
The currently used Explanatory Memorandum did not give all the necessary
information; it lacked a National Interest Analysis (NIA).
§
There was inadequate capacity to deal with treaties in Parliament. The
institution was slowly building potential capacity in the form of Content
Advisers and Researchers to assist committees in these matters.
6.2
Governance issue
As a measure for enhancing capacity to
scrutinise treaties, the Committee explored whether it would be expedient for
Parliament to create a
dedicated
parliamentary/institutional mechanism such as a
Joint Standing Committee on Treaties,
a treaty sifting committee so
to say. Details such as its location, resources its modus operandi, could be
explored further. The mandate of such a committee would be to inquire and
report on:
§
Matters arising from treaties and related National Interest Analyses,
proposed treaty actions and related Explanatory Statements presented or deemed
to be presented to Parliament;
§
Any question relating to a treaty or other international instrument,
whether or not negotiated to completion, referred to the committee.
§
Such matters as may be referred to the Joint Standing committee through
requisite Parliamentary processes.
§
There should be a timeframe requiring that all treaty actions proposed
by Government are tabled in Parliament for a period of at least a number of
sitting days to allow adequate and thorough discussion before action is taken
that bind South Africa at international law to the terms of the treaty. An
exception to this trend, of tabling treaties well in advance, would be where
the Minister of International Relations and Cooperation certifies that a treaty
is particularly urgent or sensitive, involving significant commercial,
strategic or foreign policy interests.
§
The Joint Standing Committee would consider treaties which require
approval by Parliament before they bind South Africa; and those
treaties that would be tabled for
noting/information only.
6 3
National
Interest Analysis (NIA)
When tabled in Parliament, the text of the
proposed treaty is normally accompanied by an Explanatory Memorandum. This
should be enhanced to include a National Interest Analysis which explains why
the Government considers it appropriate to enter into the treaty, and other
associated documents. NIA should include information relating to:
§
The economic, environmental, social and cultural effects of the proposed
treaty.
§
The obligations imposed by the treaty.
§
How the treaty would be implemented domestically.
§
The financial costs associated with implementing and complying with
terms of the treaty.
§
The consultation that has occurred with State departments, entities,
industry and community groups and other interested parties.
7.
Recommendations
After lengthy deliberations on the above
proposals, the Committee resolved that:
§
The identified challenges in paragraph 6 above should be addressed by
Parliament.
§
The Portfolio Committee on International Relations and Cooperation
should receive and deal with all treaties and confer with other line
committees, rather than creating a dedicated committee to deal with treaties.
§
The recommendations in paragraph 6 should be communicated to the Office
of the Speaker for consideration and detail.
Report to be considered.
Documents
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