CONCLUSION OF INTERNATIONAL AGREEMENTS 2010 PRESENTATION TO JOINT COMMITTEES MEETING 1.

CONCLUSION OF INTERNATIONAL AGREEMENTS

2010 PRESENTATION TO JOINT COMMITTEES MEETING

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INTERNATIONAL AGREEMENTS

• Definition: International Agreements include any written agreement between South Africa and another state or international organization that is governed by international law, whatever its designation

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NECESSITY OF INTERNATIONAL AGREEMENTS

• Tool through which international relations are given substance and obligations created between parties thereto

• Expression of cooperation with other states• Increase interaction between states – increase the need for

regulation• International agreements are sources of international law• Basis for an international rule based system• Legally binding obligations established between States

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NECESSITY OF INTERNATIONAL AGREEMENTS (cont)

• International agreements are an indispensable part of the architecture of international relations

• Apply regulatory regimes to the benefit of such states, their populations and humanity in general

• Respected members of the international community participate in the regimes

• Bilateral agreements deal with a wide number of subjects, e.g. cooperation in areas such as health, sport, education, mutual legal assistance, extradition, double taxation, defence and protection of investments

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NECESSITY OF INTERNATIONAL AGREEMENTS (cont)

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• Multilateral treaties may: – establish international organisations (United Nations,

African Union, SADC Treaty, Southern African Customs Union, European Union, International Civil Aviation Organisation, the International Labour Organisation);

NECESSITY OF INTERNATIONAL AGREEMENTS (cont)

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  - create international cooperation regimes, eg. on the safety of air transport (1970 Convention for the

Suppression of Unlawful Seizure of Aircraft), telecommunications (International Telecommunications Constitution and Convention), on the conduct of diplomatic and consular relations (1961 Vienna Convention on Diplomatic Relations, 1963 Vienna Convention on Consular Relations), combating terrorism (International Convention for the Suppression of Acts of Nuclear Terrorism)

NECESSITY OF INTERNATIONAL AGREEMENTS (cont)

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  - create regulatory regimes like disarmament (Convention on the Prohibition, Development, Production and Stockpiling of Bacteriological and Toxin Weapons and of their Destruction, African Nuclear Weapon-Free Zone Treaty), human rights (International Covenant on Civil and Political Rights, Refugee Convention, Genocide Convention), the conduct of war (Hague Regulations and Geneva Conventions and Additional Protocols), the law of the sea (United Nations Convention on the Law of the Sea), air transportation (Convention on International Civil Aviation)

IMPORTANCE OF INTERNATIONAL AGREEMENTS FOR SOUTH AFRICA

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• Participates in a wide range of treaty regimes which are all directly related to its foreign policy objectives

• Enters into treaties in order to enhance its national interest

• Must be able to give effect to the international obligations contained in treaties

• Gains influence in the implementation and management of multilateral treaties by participating in the governing structures so created to advance its national objectives

IMPORTANCE OF INTERNATIONAL AGREEMENTS FOR SOUTH AFRICA

(cont)

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• Obtains the opportunity to ensure that its national values (e.g. promotion of multiculturalism and human rights) are reflected in the texts of treaties – eg. active participation in the negotiation of the Rome Statute of the International Criminal Court, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction, the UN Human Rights Council, the General Assembly of the United Nations

IMPORTANCE OF INTERNATIONAL AGREEMENTS FOR SOUTH AFRICA

(cont)

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• In the negotiation of treaties and implementation processes, South Africa builds alliances with like-minded States and States members of regional groupings like SADC, the AU, NAM, G77 and China

• Harvest the advantages of regional positions in negotiations

IMPORTANCE OF INTERNATIONAL AGREEMENTS FOR SOUTH AFRICA

(cont)

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• Considerable energy is invested in areas related to South Africa’s foreign policy priorities and inextricably linked to its national interest

IMPORTANCE OF INTERNATIONAL AGREEMENTS FOR SOUTH AFRICA

(cont)

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• Major treaties that South Africa has negotiated and became party to since 1994, include the Constitutive Act of the African Union, the Protocol relating to the Establishment of the Peace and Security Council of the African Union, the Treaty of the Southern African Development Community and the Africa Charter on Human and People’s Rights

• Decision to enter into agreements rests with the relevant line function government departments

LOSS OF SOVEREIGNTY

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• Treaties are entered into on the basis of consensus by states which have treaty-making powers

• Conclusion of a treaty by a State is therefore an act that it performs on the basis of its statehood and sovereignty

• States are legally obliged to give effect to obligations in treaties which imply a limitation of their freedom of action in the international sphere

• Voluntarily agree to limit rights in a specific area, which in itself is a sovereign act

EXECUTIVE AUTHORITY

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• International practice shows that States act in the international arena by means of the executive arms of government, as the institution representing the State

• A State’s constitutional arrangements will determine the role Parliament plays in conclusion of treaties

• In many States Parliament has no role and treaty-making is an exclusive executive prerogative

• Some constitutions assigned an oversight role to Parliament, as is provided for in Section 231 of the South African Constitution

EXECUTIVE AUTHORITY (cont)

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• By means of the provisions of Section 231, which provides in (S2) for approval of certain treaties and in (S3) that all treaties must be tabled in Parliament, it is ensured that South Africa’s treaty regime is open and transparent

• South Africa has an open and transparent foreign policy process that is interrogated in Parliament, by the media and civil society, ensuring that it is responsive to popular wishes

SOUTH AFRICAN PRACTICE:TREATY MAKING

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SOUTH AFRICAN PRACTICE:TREATY MAKING

• Line function departments determine needs depending on Government priorities

• Identify cooperation opportunities/advantages that other states may offer to meet needs, eg. health, education, etc

• Line function departments identify the need to become part of the multilateral regulatory framework in consultation with DIRCO

• Enter negotiations – sometimes protracted• DIRCO plays coordinating role

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SOUTH AFRICAN PRACTICE: TREATY MAKING (cont)

• South African positions are developed by line function departments responsible for the subject matter of the international agreements

• Consultation with stakeholders need to take place and line function departments would determine level of consultation

• In some instances Cabinet approval is obtained for positions to be taken at multilateral negotiations

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SOUTH AFRICAN PRACTICE: TREATY MAKING (cont)

• Practices vary amongst departments• Guidelines for the participation was approved by Cabinet

that set out what is required from departments during multilateral negotiations

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HOW CAN SA INFLUENCE THE TERMS OF THESE TREATIES?

• Treaties are concluded on the basis of consensus• Sometimes adopted by majority voting• Important to clear positions before conclusion• Reservations possible• Subject of reservations one of unusual, in fact baffling

complexity (Lauterpacht)• Interpretative declarations

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HOW CAN SA INFLUENCE THE TERMS OF THESE TREATIES? (cont)

• Reservations possible unless-– Prohibited by treaty– Treaty provides only specified reservations may be

made– Reservation is incompatible with object and purpose

of treaty

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RESERVATIONS (cont)

• Line departments would suggest reservations to Cabinet • When Parliament is requested to approve ratification or

accession, it should note reservations• In some instances Parliament suggested that declarative

interpretations be made• Parliament can refer treaties back for formulation of

declarations or reservations if deemed appropriate

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HOW CAN SA INFLUENCE THE TERMS OF THESE TREATIES?

• Reservations to treatieso SA has entered reservations to treaties e.g.

- Protocol Against the smuggling of Migrants by land, sea and air, supplementing the United Nations Convention against Transnational organized Crime

- Protocol to the African Charter on Human and People’s Rights on the rights of Women in

Africa

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PROCEDURE FOR CONCLUSION OF AGREEMENTS

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PROCEDURE FOR CONCLUSION OF INTERNATIONAL AGREEMENTS

• Two frameworks for concluding international agreements:– Section 231(2) of the Constitution:

agreement needs approval for ratification and accession

– executive and parliamentary approval needed– usually multilateral agreements

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PROCEDURE FOR SECTION 231(3) (NATIONAL EXECUTIVE)

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PROCEDURE FOR CONCLUSION OF INTERNATIONAL AGREEMENTS

• Section 231(3) of the Constitution: agreement of a technical, administrative or executive nature– do not require ratification or accession– have no extra - budgetary financial implications– do not have legislative implications

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LEGISLATION REQUIRED

• Not all international agreements require legislation to become binding on South Africa

• Only those that effect the rights of South Africans, have budgetary implications or have regulatory effect that need to be implemented as part of a multilateral framework need to be included in legislation

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ACCESS TO TREATIES AND RELATED INFORMATION

• The Treaty Section within the Office of the Chief State Law Adviser (IL) provides a dedicated information service. All queries are treated as high priority.

• The South African Treaty Register is available electronically on the Departmental Intranet.

• Full text pdf images of the agreements are available dating from 2005 to 2010. Agreements prior to 2005 are scanned and uploaded continuously.

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ACCESS TO TREATIES AND RELATED INFORMATION

• Lists of the bilateral and multilateral agreements containing basic information such as date of signature, title of agreement, entry into force date are available on the DIRCO web site. Full text pdf images will be made with available within this year.

• Guidelines on the conclusion of agreements and the binding practice in South Africa are available on line and are also distributed to national departments in hard copy format.

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NUMBER OF AGREEMENTS

• Bilateral treaties in force: 1572

• Multilateral treaties in force: 334

• Total: 1906

• Bilateral treaties signed but not in force: 683

• Multilateral treaties signed but not in force: 229

• Total: 912

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