Parliament's role in making of treaties: Workshop

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International Relations

09 May 2012
Chairperson: Mr T Magama (ANC)
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Meeting Summary

The Department of International Relations and Cooperation (DIRCO) outlined what had been done in preparation for the African Diaspora Summit, which was to be held on 25 May in Johannesburg, with separate meetings on the preceding two days.  The Summit was to be attended by Heads of States and Government from Africa and her Diaspora, and was the first Summit of that kind on the African continent. About 1 000 guests were expected at the opening ceremony. R80 million had been budgeted for the Summit. The state of readiness was good, and security had been arranged at OR Tambo and the venues. Members of the Committee asked who would be attending the Summit, whether political parties would be invited, whether sessions were closed or open, and what contribution had been made by the African Union, and how the request by the AU to enlarge the opening ceremony had affected the budget. They called for further documentation, and asked about public buy-in for the event.

The Committee held a workshop on the role of Parliament in the treaty-making process. Professor Hennie Strydom from the University of Johannesburg presented an informative overview, comparing the situation in South Africa to the United States, Germany and Austria. In earlier debates, it had been highlighted that although the South African Constitution provided a role for Parliament in treaty-making, Parliament only in effect came in at the end of the process, and was asked to ratify treaties negotiated, agreed and signed by the executive, without any input into that process. In addition, different Parliamentary committees would deal with different kinds of treaties, and there was little cooperation or even discussion between them. Some treaties did not require ratification, self-executing treaties were seen as a problem, and Parliament seemed not to have the option to suggest amendments. There were problems of interpretation with section 231 of the Constitution, as well as differences of opinion, locally and internationally, on self-executing treaties, with little guidance from even the Constitutional Court. . There was confusion with regard to the terms used in some treaties and the role of the intention of the parties.

The US Constitution set out that the President could, with advice and consent of the Senate, make treaties, provided that a two thirds majority of Senate concurred, as a check against the President taking undesirable decisions. However, that was no longer done in practice, since treaties were now submitted in completed form, and Senate’s role was limited to deciding on their ratification; it could approve a treaty without alterations, give approval under certain conditions, or withhold approval and prevent it coming into force. The Congressional Research Service provided round-the-clock policy and legal advice to Congress, on a non-partisan basis, through a staff of 800 and an annual budget of $100 million.

In Germany, the growing importance of international and European law to the formation and application of national law had caused the traditional distinction between external and internal affairs to become obsolete. Treaties regulating the political affairs of the Federal Republic or relating to matters subject to federal legislation required the consent and cooperation of Parliament. Government was being increasingly forced to disclose the grounds and reasons for its international relations, and to seek internal approval for these. The executive would seek the advice of Parliament before participating in the legislative processes of the European Union, and would take its views into account.

In Austria, Parliamentary cooperation was part of the treaty-making process. The Parliamentary control was, however, more in the nature of a formal legitimating of the treaty-making process, than real control over the executive’s treaty-making powers. The Foreign Policy Council, established in 1976, was a far more effective control mechanism. It had proportional representation of all political parties, and had to be consulted in all foreign matters, resulting in permanent dialogue between the executive and the Council. The Council had to be informed about all European Union matters, and had an absolute veto if anything impacted upon Austrian constitutional law. Because of the regional integration, the distinction between foreign relations, and the division between executive and Parliamentary functions was becoming blurred.

Members asked what the position would be if a treaty required changes to the local law, pointed out that Members of Parliament may not currently have capacity to deal with treaties, and asked about the situation in other European Union member states, and whether international or local laws around the treaty-making process wee being followed. The distinction between European regional politics and traditional foreign affairs matters was highlighted, and the ability of countries to conduct bi-lateral processes outside the European Union was also discussed. Members agreed that there was a need to engage with the executive on how treaties should be handled in future.


Meeting report

Parliament’s role in Treaty-Making process: Workshop
Logistical Preparations for the African Diaspora Summit: Department of International Relations and Cooperation briefing
Mr Asogan Moodley, Deputy Director-General, Department of International Relations and Cooperation, said that the African Diaspora Summit (the Summit) was scheduled for 25 May in Johannesburg, and would be preceded by a Ministerial Meeting on 24 May 2012 and a Senior Officials Meeting on 23 May 2012. It was expected that the Summit would be attended by delegations led by Heads of States from Africa and her Diaspora, including countries in the Caribbean, and the Americas.

Mr Moodley noted the steps South Africa had taken to prepare for the Summit. The African Union Committee (AUC), which was headed by Mr Amb Shinkaiye, had visited South Africa between 02 and 05 May 2012. There was a general satisfaction from the AUC with the state of readiness, but it had  requested that the opening ceremony cater for 1 000 people, rather than the 500 originally planned and budgeted. Some construction was still needed of offices to register guests, but there was no difficulty anticipated there. Venues, accommodation and transport arrangements had also been finalised. There had been discussions with the South African Police Services (SAPS) around security arrangements at OR Tambo Airport and around the area of the Convention Centre, and all areas would be under the control of the SAPS for all security requirements.

Mr Moodley said that the request by the AUC to cater for another 500 people at the opening ceremony raised budgetary challenges. The total budget for the Summit was R80 million. Responses were still awaited from Heads of State or government officials, as well as from Eminent Persons / Special Invited Guests, as to whether they would attend.  

Discussion
The Chairperson noted that the total budget of the Summit was R80m from DIRCO. He asked how much contribution the AUC had made to the event. He also asked what the budgetary implications were of the increase of 500 to 1000 persons.

Mr Moodley responded that there were no budget implications from the increase of 500 to 1000 persons because it had already been budgeted for prior to the request by AUC.

Ambassador Rakwela explained that the AU had made a $140 000 contribution towards the pre-Summit of 17 and 18 May. The AU had said that it would try to find more money, but that had not been realised.

Mr A Nyambi (ANC) asked for clarity in terms of role of Parliament. He noted that the role of the Portfolio Committee on International Relations was covered in more detail than that of the Select Committee on Trade and International Relations.

Mr Moodley apologised if the role of the Portfolio Committee on International Relations seemed to have received more emphasis than that of the Select Committee on Trade and International Relations.

Mr D Gamede (ANC) asked whether there were any plans for those who may have struggled to get visas.

Mr Moodley responded that nobody who was attending the Summit would be turned away because of visa problems. Countries attending had been asked to provide the Department of International Relations and Cooperation (DIRCO) with a list of their delegates, which would be sent to Department of Home Affairs for verification. The Department of Home Affairs would have a dedicated spot at the Airport so that when delegates arrived it would be easy to immediately verify them.

Mr S Ngonyama (COPE) asked who the political parties were, especially the opposition parties participating in the Summit.

Ambassador Rakwela, DIRCO, responded that the Summit was a Head of State/Government Summit and by its definition it was restricted. Only Heads of States would participate in a closed session, but apart from that there would be other events with more open participation. The 49th Africa Day would be celebrated, as an open event, and South African Government dignitaries would be invited to participate, as well as other members of society. They would also participate in the opening of the event as well as the closure of the Summit. Those invited included representatives of political parties, government in its various forms, ministers, representatives of Parliament, Chapter 9 institutions, the judiciary, representatives of business and civil society. There had been an attempt to include as many stakeholders as possible from South African society, without prejudice to any organisation or individual.

Mr Ngonyama asked that Members be provided with a concept document of the Summit, which would clarify the aims and objectives of the Summit.
 
The Chairperson assured Mr Ngonyama that the document would be made available to him. He noted that there was a document which explained the historical background of the Summit, its aims and objectives and it also dealt with political issues.

Ms E Van Lingen, (DA) asked whether the situation was under control, and why there was a concern about public rejection.

Ambassador Rakwela noted that there were certain problems around communications in DIRCO, and it had not done as much outreach as would have been ideal at this stage. However, the Summit must be seen not so much as an event as a process, and DIRCO would continuously try to ensure buy-in to Diaspora matters by all South Africans. The African Diaspora discourse was a new discourse, and this was the first Summit being held in Africa, which made it all the more important to get public buy-in.

Ms L Jacobus asked whether countries attending would carry their own accommodation and travelling expenses, or whether DIRCO was expected to pay.

Mr Moodley responded that DIRCO was providing for the costs of accommodation and travelling for Head of States/Government within South Africa. The SAPS was responsible for the security of all Ministers visiting the country and DIRCO would provide ground transport. All delegates coming to the Summit would pay for their own air travel, and accommodation and internal transport. DIRCO would, however, be paying for guests invited by the President, or Specially Invited Guests, and Eminent Persons.

Parliament’s Role in the Treaty-Making Process
The Chairperson gave a brief background, reminding Members that the Portfolio Committee had discussed the treaty-making process, and noted that the role of Parliament was defined in this process, particularly in terms of the Constitution. Members had considered the classification and definition of treaties, noting the difference between administrative and purely technical treaties, and treaties with self-ratification clauses, and those that required a different ratification process. However, there was not a clearly defined framework around treaties in Parliament. Over the years, the various committees tended to work in silos, and there was not necessarily any correlation between what was happening in the NA and the NCOP, save that a treaty would be referred to the NCOP after being approved in the NA.

He further made the point that different committees would receive different treaties for comment – for instance, the Department of Justice and Constitutional Development would deal with treaties around legal rights or human rights, but did not consult with other committees.

Another problem was that Parliament had literally no influence over the treaty-making process. Instead, it was merely called upon to ratify treaties for which the Executive was primarily responsible in terms of negotiations, agreement and signature. Parliamentary approval or ratification was necessary before the treaty would become binding, but Parliament often found itself in the position where it had no option but to approve a whole treaty even if it was not entirely happy with certain clauses.

The Chairperson felt that Members needed to find a way to influence the process. It was necessary to see how Parliament and the Executive related to each other in the treaty-making process, and for Parliament to be able to discuss substantive issues with regard to the treaty-making process. These issues would be examined during the workshop session.

Options available to Parliament in Treaty-Making Process: Prof Strydom briefing
Prof Hennie Strydom, University of Johannesburg, noted that he had selected the three jurisdictions of United States, Germany and Austria, for the purposes of giving a comparative overview of the treaty-making process. The context was founded on the Vienna Convention on the Law of Treaties. Article 1 stated that “treaty” meant an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Article 14 stated that the consent of the State to be bound by the treaty was expressed by ratification, when; (a) the treaty provided for such consent to be expressed by means of ratification, or (b) it was otherwise established that the negotiating States agreed that ratification should be required. Article 26 stated that every treaty in force was binding upon the parties to it, and should be performed by them in good faith.

Prof Strydom outlined the role of the US Senate in the treaty-making process. The US Constitution stated that the President had the power, with the advice and consent of the Senate, to make treaties, provided that a two-thirds majority of the Senators present concurred. Most evidence suggested that the Constitution intended the sharing of the treaty power to begin early, so that Senate would help to formulate instructions to negotiators and would act as a council of advisors during the negotiations. The function of the Senate was to protect the rights of the states, and to serve as a check against the President taking excessive or undesirable actions. The President was entitled to ratify treaties, but only after receiving advice and consent of Senate.

Over time, that practice had been abandoned, and now treaties were submitted in completed form, and Senate’s role was limited to the question of whether completed treaties should be ratified. The Senate could now decide whether to approve a treaty as it was written, but could also prevent its entry into force by withholding approval, or give approval only under certain conditions. The Senate was assisted by the Congressional Research Service, which provided round-the-clock policy and legal advice to Congress on a non-partisan basis. The Research Service was almost a century old, had a staff component of 800 and an annual budget of $100 million.

Prof Strydom the outlined the position in Germany. The growing importance of international and European law for the formation and application of national law had caused the traditional distinction between external and internal affairs to become obsolete. Germany now had a reciprocal penetration of internal and external affairs, as a result of which external affairs often assume predominance in a growing number of areas, and had increasingly become the subject of national decision-making processes. Government was being increasingly forced to disclose the grounds and reasons for its international relations, and to seek internal approval for these. That development increased tension between the need for democratic legitimating of international affairs, and the prerogative of the Executive to conduct foreign policy. In addition, the increasing importance of international and European law for the German national legal order required the further development of Parliamentary cooperation in the exercise of foreign affairs powers.

Section 23 of the German Constitution stated that, in EU matters, the cooperation of the executive and the legislature was required. Government should inform Parliament, at its earliest convenience and in a comprehensive manner about matters. The executive would seek the advice of Parliament before participating in the legislative processes of the EU, and would take its views into account. Section 58(2) also stated that treaties regulating the political affairs of the Federal Republic of Germany, or relating to matters subject to federal legislation, required the consent and cooperation of Parliament.

Prof Strydom outlined the position in Austria, noting that here treaties approved by Parliament applied automatically in the national legal order, and required no special enactment. They had the force and effect of legislation as soon as they were approved. Parliamentary approval meant that Parliamentary cooperation was part of the treaty-making process. However, Parliament only became involved after the political decision-making process had run its course in the executive. In the case of multi-lateral treaties, that did not prevent Parliament from formulating conditions and interpretative explanations to be taken up in the text of the treaty. In general, Parliamentary control was more in the nature of a formal legitimating of the treaty-making process than real control over the executive’s treaty-making powers. By contrast, the Foreign Policy Council, established in 1976, was a far more effective control mechanism. That Council comprised proportional representation of all political parties, and it should be consulted in all foreign matters. The executive was therefore forced into a permanent dialogue with the members of the Council in matters relating to foreign affairs. Since the 1990s the Austrian Parliament had strengthened its control over foreign affairs matters, to the extent that it currently played a far more self-standing role in foreign affairs.

Prof Strydom noted that on EU matters, the National Council should be informed at the earliest possible stage. The Council had an absolute veto in cases where the EU legislative process impacted on Austrian constitutional law. In general, Parliamentary control over European regional politics took place in a totally different context than traditional foreign affairs matters. In a case of regional integration, the cooperation of Parliament was not only more freely allowed, but also was actively sought for the democratic legitimating of the regional legislative processes. Consequently, the member states’ involvement in European politics could not be explained any more with reference to the traditional understanding of foreign relations and the division between executive and Parliamentary functions.

Prof Strydom finally outlined the South African context and confirmed that international agreements were governed by section 231 of the Constitution. Section 231(2) provided for the distinction between formal treaties requiring Parliamentary ratification, and the less formal treaties (such as technical, administrative and executive agreements) that did not require ratification. There was confusion with regard to the terms used in some treaties and the role of the intention of the parties.

Prof Strydom concluded that self-executing treaties were problematic. The US law jurisprudence was divided on their adoption, and there was also difference of opinion amongst South African scholars. Judicial decisions were also unhelpful, and even in the Constitutional Court matters of Quagliani and Goodwin, the Constitutional Court had failed to bring clarity to the issues. There were problems with section 231, but answers were needed on how this could be addressed.

Discussion
The Chairperson thanked Prof Strydom for an insightful presentation, saying that it raised some serious questions. There was always an inherent tension between the Executive and Parliament when it came to the treaty-making process.

Mr B Elof (DA) asked what would happen if a treaty required a change in existing local laws.

Prof Strydom responded that whatever change might be made, the state had to comply with the requirements of the treaty, once ratified. The Constitution stated that South Africa should comply with international rules.

Ms Jacobus wondered if Members of Parliament had capacity to look at treaties.

Prof Strydom stated that the more MPs became involved international arrangements, the more this raised and addressed issues of capacity. In the US, the Research Service provided information on policy and legal advice to the Congress.

Ms F Hajaig (ANC) asked what the situation was with EU member countries other than those already outlined. In particular, she asked if they tended to follow the EU treaty-making process procedure, or were following their own national laws around the treaty-making process.

Prof Strydom responded that all states that joined EU had cross-sovereignty to the EU, but that did not mean that their national treaty-making powers had been ceded to the regional body. States in or outside the EU could have international relations with each other, and international law would apply.

Ms Van Lingen asked whether there were mechanisms to control intervention of Parliaments in E\U states intervening in certain situations in the treaty-making process.

Prof Strydom responded that if the issue was an EU matter, Parliamentary intervention over European regional politics took place in a totally different context than with traditional foreign affairs matters. In matters around regional integration, the cooperation of Parliament was not only more freely allowed, but also actively sought for the democratic legitimating of the regional legislative processes. Parliament should be informed in advance, and it became a partner in the whole process.

Ms W Newhoudt-Druchen (ANC) asked whether matters discussed country to country in a treaty-making process would still be discussed in Parliament.

Prof. Strydom responded that they would, even if they were part of the regional set up. Countries were allowed to conduct treaty-making processes on a bi-lateral basis, outside their EU regional body, but the moment something became an EU matter then it fell within the EU treaty-making process, and those discussions would come before the states’ Parliaments. For example, section 59 of the German Constitution stated that treaties regulating the political affairs of the Federal Republic, or relating to matters subject to federal legislation, required the consent and cooperation of Parliament.

The Chairperson again thanked Prof Strydom and DIRCO and said that there still seemed to be a lot of uncertainties around the treaty-making process. There had been lack of cooperation between Parliament and the executive in the past and there was a need to engage with the executive on how treaties should be handled in future. Mechanisms were needed to find common ground in the treaty-making process.

The meeting was adjourned.

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