Process for International Agreements in South Africa

1. Process for International Agreements in South Africa

2. What is a treaty? • “… agreements that….only bind the parties to them (States)… that have agreed to be bound by their provisions. [Cassese, International Law, 2nd edition]

3. Treaties go by many names, including - • Convention • Declaration • Charter • Covenant • Pact • Protocol • Memorandum of Agreement.

4. International Law does not prescribe how a state exercises its treaty making power. • Each State determines the process in its own domestic law. • Pre Constitution- Common law and precedent Executive power • Interim Constitution- Legislative action required before applicable. • Constitution of the Republic of South Africa Act, 1996 Shared power

5. Constitutional provisions on treaty signing and ratification processes Section 231 provides that: • Negotiating and signing is the responsibility of the national executive; • Republic is bound only after NA and the NCOP has approved by resolution; • Treaties of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the NA and the NCOP, but must be tabled in the Assembly and the Council within a reasonable time.

6. Subsection (4) provides that any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. • International agreements which were binding on the Republic when the Constitution took effect remain binding in law.

7. From the above there appears to be 4 categories of treaties. • Those of a technical, administrative or executive nature (must be tabled within reasonable time – subsection 3); • those requiring ratification by resolution by both Houses (subsection 2); • those requiring enactment to become law (subsection 4); and • self executing (operates without any involvement of Parliament – subsection 4).

8. Respective Powers of the Executive and Legislature on Treaty - making • The power to make treaties is shared between the national executive authority and national legislative authority. • Constitution assigns power to negotiate and sign to the national executive. • Technical, administrative or executive treaties signed by executive and must be tabled in Parliament. • Where treaty does not fall into one of the above categories it binds the Republic only after it has been approved by resolution in both the NA and NCOP unless self executing.

9. For purposes of South African law it is the nature of the treaty that determines whether it needs parliamentary approval or merely tabling. (Dugard, International Law: A south African Perspective, 2nd ed., p. 329). • Iow Treaties generally indicate whether ratification is required. • If not, the intention of the parties must be ascertained.

10. Where ratification required, party not bound if signed but not ratified. • Obliged though to refrain from acts that would defeat the object and purpose of treaty until/unless it communicates its intention to not be bound by such treaty. • In practice difficult to identify when an agreement is of a technical, administrative or executive nature, thus only requiring signature. • Usually routine matters (not of policy) of operation / administration relating to specific Departments, eg urgent matters of functional procedure. • Where there is doubt usually referred to Parliament.

11. What is a self Executing Treaty • One that is effective immediately without the need for ancillary legislation. • One that provides adequate rules by which given rights may be enjoyed or imposed duties may be enforced. Conversely it is generally not self-executing when it merely indicates principles without providing rules giving them the force of law.

12. Further Powers of Parliament in terms of S231 • Save for exceptions, any international agreement becomes law in the Republic when it is enacted into law by national legislation. • To the extent that the treaty forms part of the Act, it will be published – normally in the Government Gazette-as required by section 81 of the Constitution.

13. Processes of publication of ratified international agreements • Under the article 102 of the Charter of the United Nations and the article 80 of the Vienna Convention of the Law of Treaties,all countries are obliged to register its ratification with the Secretariat of the UN. These are published in the United Nations Treaty Series