Consideration of linkages between treaties and domestic outcomes; Consideration of Committee Programme

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International Relations

30 August 2011
Chairperson: Mr T Magama (ANC)
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Meeting Summary

The Content Advisor, Ms Lineo Mosala, briefed the Committee on the position in regard to treaties and international agreements. She noted that since 1994 Parliament had not given much consideration to these matters. She explained the difference between them, noting that international treaties, agreements and protocols were regarded as binding on the States entering into them, that they were governed by international law and had to be ratified by Parliament. Executive agreements mainly existed to implement clauses within existing treaties, and these did not have to come to Parliament for ratification, as they did not carry any extra legislative or budgetary implications. The Executive agreements would thus come into force as soon as they were signed.

Section 231(1) of the Constitution indicated that the signing of treaties and agreements was the responsibility of the Executive. Section 231(2) required approval from both houses of Parliament in order for the treaty to become binding. Section 231(3) noted that technical, administrative and executive agreements did not require Parliamentary approval. Most of the documents falling under these would be sectoral memoranda, protocols or bilateral commissions. The Constitution also stated that a treaty had to be domesticated in the form of national legislation before becoming enforceable in South Africa, and once that was done then Parliament would oversee the implementation of a treaty. Only a self-executing treaty could become a law without an Act of Parliament, unless it was unconstitutional. It was explained that this class of treaty would be something like the African Union (AU) Charter, or the United Nations Charter. Even if certain portions would not comply with the Constitution, South Africa could note its objection to those – and the presenter cited the example of a death penalty clause in the AU Charter. The Executive would normally submit an Explanatory Memorandum, setting out the implications of the treaty, and some Committees had asked that these should include more information on the confirmation of compliance with domestic law to ensure that South Africa did not enter into treaties containing unconstitutional self-executing clauses. There was also a question about when Parliament should have the opportunity to comment on treaties.

Members confirmed that it seemed at times that Parliament was reduced to rubber-stamping. They raised questions as to what would happen in regard to financial implications, and if there were financial implications of Executive agreements. They also enquired what would happen in the event of disagreement on interpretation or constitutionality. They raised questions on the “clearing house” proposed in 2009, and commented that some of the linkages were, at the moment, very weak and perhaps a “national interest” test should be more stringently applied. A Member wondered if it was correct in principle that a body in South Africa should be able to state that it was waiting on an international counterpart to take a decision before taking actions internally. Members were also concerned that there was no public involvement at the start of the process. Members agreed that it was necessary to arrange for a workshop in which these matters could be discussed with a view to drafting a framework.

Members then discussed the Committee programme and indicated that they believed that the classification of visits undertaken by the Committee had to be considered, and the Committee’s oversight functions clarified. Minutes from meetings on 25 May and 15 June were adopted.

Meeting report

Chairperson’s opening remarks
The Chairperson welcomed His Excellency, Chris Trott, Consul-General of Great Britain, as a guest to the Committee meeting.

He offered apologies on behalf of Mr E Sulliman, Ms C September and Mr B Holomisa who could not attend the meeting for various reasons.

The Chairperson noted that the engagement on the issues of the role of Parliament in the approval of treaties and international agreements was a continuation of work started in 2009. He introduced Ms Lineo Mosala, Content Advisor, Parliament, and asked her to brief the Committee.

Consideration of linkages between treaties and domestic outcomes
Ms Mosala stated that since 1994, Parliament had only considered, reviewed and repealed apartheid-era laws passed pre-1994. Very little time was given to the consideration of international treaties. She explained that international, treaties, agreements or protocols were binding instruments entered into by states, or were agreements between states and international organisations. They were all governed by international law and were based on a set of principles to which states agreed that they would be bound. She noted that there were also executive agreements, which did not come before Parliament, There were certain types of agreements, called Executive Agreements, which did not need to come to Parliament for ratification, and their purpose was mainly to implement clauses within existing treaties. Executive agreements did not have any extra legislative or budgetary implications, as they would fit into the strategic plan or budget of the relevant department. Once signed, executive agreements became of force immediately. All treaties, however, required to be ratified by Parliament.

Section 231(1) of the South African Constitution governed Parliament’s role in ratification of treaties. This subsection clearly indicated that signing of treaties and agreements was the responsibility of the executive. However, the principle of separation of powers also encompassed the need for checks and balances. Section 231(2) of the Constitution set out the legal requirement that both houses of Parliament must given their approval before a treaty was binding. The Executive would issue the instruments of ratification, and Parliament would approve that ratification. Section 231(3) of the Constitution tabulated what agreements did not need Parliamentary approval, and these were basically the technical, administrative and executive agreements. Most of these were sectoral memoranda, protocols or bilateral commissions. There was a requirement that said even though such agreements did not require Parliamentary approval, they needed to be tabled for information within a reasonable time. Treaties did require ratification, and needed to be tabled in Parliament as they had financial implications that required additional budgetary allocations from Parliament. Treaties also carried legislative implications because they required amendments to existing laws or a new Act in South Africa, and in this regard she pointed out that the Constitution said that a treaty needed to be domesticated into national legislation, in order for it to be enforceable in South Africa. Parliament would then provide an oversight and follow-up role.

Once signed and ratified, a self-executing treaty could become a law without the necessity for a further Act of Parliament in South Africa, unless it was unconstitutional. Parliament could deny the Executive its approval, but even if approval for a self-executing treaty was denied by Parliament, the Executive still had the power to make the final decision. Several examples of self-executing treaties were the United Nations Charter, the Southern African Development Community (SADC) treaty, and African Union (AU) Charter. Some treaties had self-executing clauses within them, and here she cautioned that Parliament needed to provide oversight to ensure that a treaty did not contain a self-executing clause that was unconstitutional and would for this reason be rejected by the courts. In such a case Parliament could ratify the treaty “with reservation” expressed on certain clauses. She gave an example that the AU Charter had a provision that sanctioned the death penalty, which was contrary to South Africa’s constitution.

Normally the Executive would send an explanatory memorandum, which accompanied the treaty and described the implications of it.  Committees had asked that these memoranda should include more information as to whether they complied with domestic law, to ensure that South Africa did not enter into treaties with self-executing clauses that were unconstitutional. Memoranda needed to also explain the strategic political focus and international obligations created by the treaty, so that the Committee could perform oversight. Some of these treaties overlooked the implications for vulnerable groups, such as provisions for wheel chair access in public places. It was up to Parliament to raise these issues. The current explanatory memoranda provided for financial and security implications, but did not go into enough detail. The most important function of Parliament was to examine the treaty and highlight concerns at the initial stages of the request for approval, as this allowed the necessary space and time for a treaty to be edited before it was implemented as an Act of Parliament.

Ms Mosala then noted that when considering the way forward, Parliament needed to indicate mandates or inputs because Parliament had the advantage of views expressed through public participation. Parliament needed to be able to determine a reasonable timeframe to table executive agreements. The Department of International Relations and Cooperation (DIRCO) strategic plan had raised the issue of an implementation and compliance matrix to illustrate what international obligations the country had, and what had been done up to this point. It would also be important to try to improve the exploratory memorandum in the future.

Discussion
Mr S Mokgalapa (DA) raised the concern that Parliament was reduced to effectively providing an official “rubber stamp” of an international treaty. If the Executive could execute, implement and evaluate an international treaty, then he questioned what the role of Parliament would really be. The Committee needed to look at the question of the legislation, when considering how much power Parliament actually had. International treaties should respond to national interest, be “domesticated” and should have tangible effects within the law. He wondered what recourse a Parliamentary Committee would have if it really felt that a treaty was unconstitutional, and also wondered about the role of the courts.

Ms L Jacobus (ANC) raised the issue of executive agreements with financial implications. Parliament would have approved a budget for the year, and he wondered what the role of that Parliament would be in respect of budget oversight. She questioned what was meant by a ‘reasonable timeframe’ to table technical, administrative or executive agreements. She pointed out that, for practical purposes, the question of a Committee being able to review and suggest changes at an early stage did not apply, since a treaty was often tabled for consideration and ratification only months after the initial processes. She proposed that the Committee should hold a workshop to take stock of what had been done since 1994, and what were the implications for matters of international relations.

Ms W Newhoudt-Druchen (ANC) asked whether the international treaties at issue were equal to the UN Convention. The Committee had only discussed and ratified the UN convention at the end of the process, and, although it did not necessarily agree on all the specific wording of certain clauses, it had to accept the Convention, because it was agreed to at UN level. South Africa needed to report to a Committee of Experts after sixteen months, but Parliament never received a report back from that Committee of Experts. She questioned why this was happening.

Mr S Ngoyama (COPE) asked if Parliament was empowered to refuse ratification, if an executive mandate if had been acceded to already. He asked what the real function of a “clearing house” would be and whether it would then convey the information to the relevant departments.

Mr B Skosana (IFP) stated that treaties were a source of international law and cooperation between nations. There would, however, be a problem if South Africa did not realise that its foreign policy should have a bearing on domestic policy. The linkages that existed were very weak. The Committee needed to apply the “national interest” analysis test. This would assist in setting parameters and principles of negotiation.

Ms C Dudley (ACDP) asked about available options for improvement of explanatory memorandums, and wondered if it was necessary to legislate in order to effect changes in reality.

The Chairperson asked what would happen in the event that the Executive agreed to a self-executing clause, and what recourse Parliament would have. She noted that in this case, there would already be an expectation, between the two state parties, that the agreement would be binding. He asked how, at a domestic level, Parliament would remedy such a situation and what instruments were available to Parliament. He also asked for clarity on self-executing clauses, and whether they could still be implemented by the Executive without an Act of Parliament.

Ms Mosala replied that self-executing treaties and clauses that were already part of South Africa’s national norms would be applicable without an Act of Parliament, so long as the treaty or clause was not unconstitutional. If, for some reason, an unconstitutional self-executing clause escaped the attention of Executive and the Parliament, the courts would not enforce such a treaty or clause.

The Chairperson asked if, in the case where there might not be any national legislation covering a self-executing clause, Parliament might be required to pass such legislation, provided that the self-executing clause was not contrary to the Constitution.

Ms Mosala replied that so long as the self-executing treaty or clause was not unconstitutional, it did not require domestication.  The UN Charter, the SADC treaty, and the AU Charter were self-executing in the sense that South Africa, as a member of these organisations, must  take the documents as they were.

Ms Mosala noted that since 1994, there had been a succession of treaties.  The new government also needed to accept the pre-1994 international treaties and here Parliament played a crucial role. For oversight purposes, Parliament needed to take stock of these treaties and say which ones were relevant to which Committees. Parliament had to check to ensure that South Africa had domesticated these treaties and had thus met its international obligations. There were many treaties that had been ratified, but not domesticated.

Ms Mosala assured Members that if Parliament rejected a treaty on the grounds that it was unconstitutional, the Executive would have no legal basis to continue with ratification of such a treaty.

Mr Ngonyama asked whether a situation could arise where there was a tension between Parliament and the Executive on interpretation of constitutionality of a clause or treaty.

Ms Mosala replied that any disputes on interpretation, between the branches of government, would be a matter for the Courts to decide upon. Parliament would raise its concerns about the constitutionality of a treaty in writing, and the Executive would negotiate the principles enshrined in the treaty. If there could be no resolution on this point, then the courts would be asked to adjudicate. Ms Mosala added that it was not usually necessary to consider financial implications of technical, administrative and executive agreements, and they did not normally come to Parliament because there were no extra budgetary implications.

Ms Jacobus asked whether such agreements would fall under the administration budget of the relevant department.

Ms Mosala replied that they would.

Ms Mosala hoped that this Committee would provide some direction on the issue of mandates. There were other possibilities for interventions by Parliament. At present, Parliament only saw these treaties at the end of the process, but she pointed out that there could be discussion on how and when inputs on international treaties could be taken into consideration.

Ms Mosala added that she would report back to the Committee on how Parliament might suggest changes and improvements on the explanatory memorandum, but it was possible to do this either through a Committee-to-Department framework, or to do it generally by Parliament.

She stressed that the domestication of treaties and national reports, this was the most important function of Parliament. After the Executive ratified or acceded a treaty, it needed to come back and be implemented as an Act of Parliament. Progress and implementation of those treaties could only be depicted in national reports. National reports allowed space and time for public participation and engagement with civil society, and the monitoring of the Executive implementation of an international treaty.

She expanded on the reference to a “clearing house”, saying that this was suggestion that emanated from previous discussions in 2009. This would, in effect, be a Committee on Treaties, where international agreements would be examined to see whether they complied with the national interest. The treaties, after examination, would then be transferred from there to the relevant Parliamentary Committee, who would engage with the relevant department on the issues.

Ms Newhoudt-Druchen raised an issue in relation to the Independent Communications Authority of South Africa (ICASA). ICASA had stated, in response to a question why certain action had not been taken, that it was still waiting on the international body to whom it was aligned to take a decision. This affected the implementation of service delivery in South Africa. She asked if it was correct that South Africa should have to wait for a decision to be taken by an international institution before being able to implement certain matters.

Mr Ngonyama raised the issue of public involvement in the whole process, and intensification and deepening of democracy. He was concerned that the process was actively disempowering the people because there was no space for their involvement. He wondered if there was any way in which Parliamentarians could get a mandate from the people on international treaties, and asked where the power really resided.

Ms Mosala stated that public participation in treaties only came at the level of section 75 and 76 Bills. The main concern was whether Parliament could intervene before this stage, or whether it was sufficient that it had to wait until the Bills came to Parliament. She suggested that this Committee might like to consider a framework that would allow for increased public engagement.

The Chairperson stated that there was concern about the process and the extent of Parliamentary engagement related to the Explanatory Memorandum. There was one concrete proposal by Ms Jacobus that there needed to be an evaluation and an engagement on Departmental progress. The proposal would be that the Committee hold a two or three-day workshop on this matter, to enable this Committee to come up with a concrete strategy as to how international treaties could be dealt with, and propose a framework for the processing of treaties within Parliament.

Members agreed.

Consideration of Committee Programme and Minutes
Ms Jacobus asked if Committee members could get the minutes a week prior to the meeting in order to have sufficient time to review the minutes before the meetings.

The Chairperson stated that often the Committee did not have a quorum.

 Mr K Mubu (DA) was concerned that much of what the Committee did was receive briefings, rather than engage in oversight activities. He believed that the Committee needed to engage in more oversight work.

Mr Skosana agreed with Mr Mubu’s point on the lack of oversight.

The Chairperson agreed with the sentiments on oversight and stated that the Committee had not conducted oversight visits, and had indeed thus far only been considering briefings. He noted that the Committee had undertaken a trip last year to the multi-and bilateral missions in Ethiopia, which the Committee had regarded as an oversight visit, but which Parliament logged as a study tour. There was a need to seriously consider this matter of classification of visits.

Ms Jacobus agreed that this issue needed to be taken up and brought to the attention of the Speaker, because at the end of each financial year the Committee would be criticised for not having used its budget, although often when the Committee did request funding it was told that there was none available for oversight.

Ms Jacobus thought it would be useful for draft programmes to be circulated in advance.

Mr Mubu stated that there was very little time and a programme for the next term needed to be agreed on in advance.

The Chairperson thanked the members for their comments and stated that he would incorporate these ideas into the programme

Mr Ngonyama asked what happened to the programme approved at Camps Bay.

The Chairperson stated that was the very programme that the Committee was dealing with, quarter by quarter. During the last meeting of the term, the Committee would discuss the programme for the next term.

Adoption of Minutes
Mr Ngonyama raised an issue that attendance should be reflected in the minutes.

The Chairperson stated the Committee should have a Committee member list going forward

The Chairperson tabled several outstanding minutes for consideration.

Members approved the minutes of 25 May and 15 June 2011.

Report back: AU Donor Conference in Ethiopia
The Chairperson stated that Mr E Suliman and Ms R Magau attended an AU donor conference in Ethiopia in the previous week. 

Mr Ngonyama asked who mandated the two Members to attend the conference

The Chairperson replied that DIRCO had extended an invitation for himself and one other person. He could not attend and thus nominated another Committee member to attend in his place.

Mr Ngonyama stated that the Committee should not adopt a partisan approach and he would have preferred to see a representative also from an opposition party. He wondered where the Chairperson received the mandate to appoint two ANC Members to attend.

 Ms Magau replied that the Committee procedure stated that when only a small delegation of two people was invited, the ruling party, being in the majority, would fill those positions. When more than two delegates were invited, another party would be entitled to attend.

The Chairperson added that sometimes decisions had to be taken outside of Committee sitting, and the mandate for that was granted to the Chairperson.

The meeting was adjourned.

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