Convention on Privileges & Immunities of UN; Convention on Privileges & Immunities of Special Agencies; Agreement of Privileges

Meeting report

FOREIGN AFFAIRS & JUSTICE PORTFOLIO COMMITTEES: JOINT MEETING
30 May 2001
CONVENTION ON PRIVILEGES & IMMUNITIES OF UN; CONVENTION ON PRIVILEGES & IMMUNITIES OF SPECIAL AGENCIES; AGREEMENT OF PRIVILEGES & IMMUNITIES OF INTERNATIONAL ATOMIC ENERGY AGENCY

Chairpersons: Mr Sithole (Foreign Affairs acting chair); Adv de Lange (Justice)

Documents handed out
Presentation on the Conventions on Privileges and Immunities of the UN, Specialised Agencies and IAEA (International Atomic Energy Agency)

SUMMARY
The Justice Portfolio Committee and the Foreign Affairs Portfolio Committee agreed that SA should enter into the Conventions. As soon as the Department of Foreign Affairs drafts the resolution (together with reservations) then the two committees will pass them.

MINUTES
Adv Schneeberger (from the Department of Foreign Affairs) made the presentation to the Justice and Foreign Affairs Portfolio Committee.

Summary of presentation
There are three conventions that SA is requested to agree to. The three are virtually identical. The Conventions do nothing new, in fact they are already part of customary international law.

The immunity and the privileges of the organisations relate to various matters. These include the legal capacity to contract in SA, exemption from direct taxes, and property and assets immune from legal process.

There is also immunity and privileges of representatives of member states. These include immunity from arrest or detention and immunity from seizure of personal baggage. The immunities do not apply to representatives of a Member State in their home states. Also, the Member States have a duty to waive the immunity if it would impede the course of justice.

There is also immunity and privileges of officials of the organisations. These include tax exemptions in respect of their salaries, and immunity from all legal process in respect of official acts.

Three reservations will be entered. These include reservations on the holding and selling of gold, and a reservation on the compulsory jurisdiction of the International Court of Justice.

Discussion
Adv de Lange asked if the Department had drafted the resolutions for the committee to look at.

Adv Schneeberger replied that they have not done this yet but they do have the wording for the reservations.

Adv de Lange said that the resolution is very important in terms of Section 231 of the Constitution. The Committee must see the resolution so that it knows what it is recommending to Parliament.

Mr Mzizi (ANC) asked for an explanation of the reservation regarding the compulsory jurisdiction of the International Court of Justice.

Adv Schneeberger replied that the reservation is entered so that the SA government will not be obligated to refer disputes to the International Court of Justice. If the reservation is not entered then disputes must be referred to that Court (there will be no discretion) and the decision of that court will be binding. With the reservation the SA court does not consider itself bound.

Ms Hajjaj (ANC) asked if the compulsory jurisdiction of the International Court of Justice has been discussed with the State Law Advisors.

Adv Schneeberger replied that the International Court of Justice has its own statute.
In terms of the statute SA can decide to recognise the Court or not. SA is not unique in not recognising it. There has been a move away from compulsory jurisdiction. Only the UK (from the P5 regions) accepts compulsory jurisdiction. SA is ratifying with the reservation in order to play it safe.

Adv de Lange agreed with Adv Schneeberger. He added that this issue was examined in relation to the African Court (where this debate arose). SA must think carefully about the effect on the sovereignty of the SA Constitutional Court.

Ms Camerer (NNP) asked who the other members of the P5 are.

Adv Schneeberger replied that the other countries are Russia, China, the United States and France. All of these have not recognised the compulsory jurisdiction.
Each Convention builds in a reservation clause for member states to enter a reservation if they so wish. The reservations must be entered when one accedes. It is not possible to go back at a later stage and enter a reservation.

He continued that there are two other reservations that SA is entering. One relates to the holding and selling of gold (this is a limited reservation). The other one relates to the National Atomic Energy Agency - virtually all states have entered that reservation.

Adv Schmidt (DP) asked what the difference between a Convention and an Agreement is.

Adv Schneeberger replied that usually a convention is multilateral and an agreement is bilateral. However there is no legal distinction between the two.

Adv de Lange said that they see nothing wrong with passing this as soon as possible. The Justice Committee would like to see the resolution and the reservations then they can organise a final meeting to pass the resolution.

This marked the end of the joint meeting. The Foreign Affairs Committee proceeded to discuss the matter.

Mr Sithole (ANC, Acting Chairperson) said that the Conventions did not signify a policy shift or change. They were simply about aligning the protocols to SA law.

Mr Ramgobin (ANC) commented that it is within Parliament's constitutional requirement to enter into such Conventions. Entering into the Conventions will also facilitate the smooth running of upcoming conferences such as the Conference on Racism. It is imperative that SA enters into the agreements.

The committee agreed that they would wait for the resolutions and then pass the Conventions. The meeting was adjourned.