INTERNATIONAL TREATIES BILL, 2019

INTERNATIONAL TREATIES BILL, 2019

Memorandum

This Bill will establish a uniform procedure for the consideration and approval of international treaties by the Cabinet and Parliament before their ratification by the President, and for their publication after their ratification or, in some cases, before their ratification. One of the main mischiefs sought to be remedied by this Bill is that many international treaties having far-reaching consequences for our domestic law are concluded without the courts or the public having due notice of those treaties by way of their official publication. Even where official publication of the treaty itself is not possible or desirable for any reason, some official notice of the fact of its existence and ratification should be made for the benefit of the public. This Bill seeks to provide a mechanism for the publication or notification of such treaties.

Preamble

The Preamble to the Bill quotes sections 34 and 327 of the Constitution which providesthatmostinternationaltreatiesrequiretheapprovalofParliament(theexceptions being those international treaties, such as peace treaties, which are made within the President’s prerogative powers in the sphere of international relations, those international treaties for which an alternative method of approval has been stipulated by Act of Parliament, those international treaties which Parliament has by resolution declared should not require approval in terms of subsection 111B(1)(a) of the Constitution, and those international treaties amending or subsidiary to any international treaty earlier approved by Parliament that stipulate that the amending or subsidiary treaty comes into operation upon signature thereof without the need of further approval by Parliament or ratification by the President).

Clause 1

This clause sets out the Bill’s short title.

Clause 2

This clause contains the definitions of terms used in the Bill.

Clause 3

This clause excludes from the scope of the Bill those international treaties for which a different method of publication or domestication is provided for under another Act of Parliament. Examples of such treaties are bilateral Trade Agreements published under the Customs and Excise Act, Double Taxation Agreements published under the Income Tax Act and One-Stop Border Post Agreements published under the One-Stop Border Posts Control Act.

Clause 4

This clause declares the Ministry of Foreign Affairs to be the principal custodian and principal national depositary of all international treaties. It also obliges the Ministry to open and maintain an official archive of all international treaties currently in force, access to which will be afforded to any interested person subject to such conditions, including the payment of any fee for access to the archive or the provision of authenticated copies of any international treaty, as may be prescribed under clause 11.

Clause 5

This clause provides for the appointment and functions of the Public Agreements Advisory Committee (PAAC), who core function it will be to consider all proposed

i(i)

InternatIonal treatIes

international treaties and make appropriate recommendations with respect to their negotiation, drafting and approval by the Cabinet and Parliament. Such a committee already exists but this clause will establish it on a statutory footing.

Clauses 6 and 7

These clauses set out the manner in which PAAC will discharge its core function as described under clause 5. In particular it empowers PAAC to publish important international treaties after their approval by Cabinet but before their approval by Parliament, as a means of ensuring public feedback and informed Parliamentary debate on the published treaty. As a rule, all international treaties approved by Parliament and ratified by the President will need to be published, with exception of international treaties which are made within the President’s prerogative powers in the sphere of international relations (these, however, may also be published at the President’s sole discretion). Where, however, publication of the treaty itself is not possible or desirable for any reason, official notice of the fact of its existence and ratification, and the place or places where it may be inspected by the public free of charge, will be published in the Gazette.