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PORTFOLIO COMMITTEE ON INTERNATIONAL RELATIONS AND COOPERATION

PORTFOLIO COMMITTEE ON INTERNATIONAL RELATIONS AND COOPERATION. The Role of Parliament in the Approval of Treaties and International Agreements L. Mosala- Content Adviser February 2015. INTRODUCTION. Since 1994, South Africa - active member of the international community

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PORTFOLIO COMMITTEE ON INTERNATIONAL RELATIONS AND COOPERATION

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  1. PORTFOLIO COMMITTEE ON INTERNATIONAL RELATIONS AND COOPERATION The Role of Parliament in the Approval of Treaties and International Agreements L. Mosala- Content Adviser February 2015

  2. INTRODUCTION Since 1994, • South Africa - active member of the international community • Party to many bilateral and multilateral treaties • Has a robust Parliament fully engaged in its role in the conduct of international relations • The issue of the role of Parliament in the approval of international agreements/treaties is on the agenda of many parliaments around the world

  3. DEFINITION OF TERMS Vienna Convention on the Law of Treaties 1969 and 1986 ‘A Treaty’: • Binding instrument • Between states and or international organisations • Governed by international law • Be in writing • One or more instruments

  4. DEFINITION OF TERMS cont. Distinction between ordinary/executive agreements (OEAs) and a Treaty (TRT) • OEAs implement clauses within existing treaty • Effective on signature by representatives of States • Does not require approval by Parliament • Treaty effective only after ratification • Requires Parliamentary approval

  5. CONSTITUTIONAL PROVISIONSRSA CONSTITUTION 1996 • Section 231(1)- International relations policy and the signing of treaties and agreements under responsibility of the Executive • Section 231(2) - legal requirement of approval by two Houses of Parliament of treaties to be binding and only of certain agreements

  6. CONSTITUTIONAL PROVISIONS CONT. Section 231(3)–international agreements of: • Technical • Administrative • Executive nature • That do not require ratification/accession Become binding without parliamentary approval, but be tabled in the two Houses within reasonable time.

  7. CHARACTERISTICS OF OEAs • Governed by section 231(3) of the Constitution • Do not require ratification or accession • Have no extra-budgetary implications • Have no legislative/legislative amendments implications • Must be tabled in Parliament within reasonable time for information

  8. CHARACTERISTICS OF TREATIES • Governed by section 231(2) of the Constitution • Require ratification or accession (if multilateral) • Have financial implications that require additional budgetary allocation from Parliament • Have legislative or domestic implications (require legislation or legislative amendments) • Where SA signed, approval for ratification is required • Where SA has not signed, to become a party, approval for accession, adoption is required

  9. CONSTITUTIONAL PROVISIONS cont. Section 231(2) -Approval • Presupposes that treaty binds SA on the international level only after its been approved by both Houses. • To apply domestically, treaty must still be enacted into national legislation as specified in section 231(4), unless it is self-executing.

  10. CONSTITUTIONAL PROVISIONS cont. Section 231(4) • Introduces concept of self-executing clauses into SA law. Provisions of a treaty approved by Parliament which has these clauses, become part of our law unless inconsistent with the constitution. • NA Rules 307-308: Tabling of treaties in Parliament for approval or information

  11. EXAMINATION OF TREATIES Examine the treaty, recommend approval or rejection • What is approval sought for • Confirm compliance with domestic law • Which outcome under govt priorities (NIA) • Strategic foreign policy/political focus • International obligations created • Implications for vulnerable groups • Self-executing clauses • Financial and Security implications • Approval or rejection

  12. OVERSIGHT ISSUES • Implementation of all agreements • Parliament approves or reject • National interest linkages-domestic priorities • Compliance with international obligations • Ensure ratification • Ensure domestication to be enforceable • Submission of OEA-executive agreements for noting • Possible framework for early involvement • Examination of periodic national reports

  13. OVERSIGHT ISSUES cont. • Committee must recommend approval or rejection in writing (Rule 307(3),NA Rules • Approval/rejection may be with concerns • Highlight concerns at initial stage • Allows for inclusion of concerns on domestication of treaty at a later stage under sections 75 & 76 bills • Discuss reasonable time for tabling for noting • Interests of vulnerable groups • Withdrawal, reservation, denunciation

  14. NATIONAL INTEREST ANALYSIS (NIA) • As opposed to Explanatory Memorandum: • Reasons why SA must become a party/foreign policy interest • Foreseeable economic, environmental, social and cultural effects of treaty • Obligations assumed • Its direct financial costs • Implementation strategy • Withdrawal, reservation, denunciation

  15. WAY FORWARD (recommendations) • Issuing mandates (how, when) • Determination of reasonable time to table OEAs • Implementation and compliance matrix • Clearing house in Parliament/committee specific • Improvements to Explanatory Memorandum (Rule 306(2) • Parliamentary diplomacy

  16. I THANK YOU

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