Ratification/accession procedure

As far as the procedures for concluding of international agreements are concerned, there are two types of processes involved, namely where the agreement is to be signed (section 231(3)) and/or where it is to be ratified or acceded to (section 231(2)).  There are also instances where agreements will only be signed, or signed and ratified, or only acceded to.  These processes require adherence to different constitutional procedures.  However, the approval of the National Executive (President and Cabinet Ministers) is always required.  The following procedures need to be followed:

 

Agreements to be signed

 

The President’s approval must be obtained in order for the agreement to be signed. The President’s approval needs to be obtained before the agreement can be signed.

 

As a President’s Minute must be obtained regardless of whether or not the agreement falls within the ambit of section 231(2) or 231(3) of the Constitution, the procedure for obtaining approval of the National Executive, must be complied with. This entails:

 

  • the text of the agreement must be submitted to the State Law Advisers at the Department of Justice and Constitutional Development for scrutiny to ensure that it is consistent with domestic law
  • the text of the agreement must be submitted to the State Law Advisers (IL) at the Department of International Relations and Cooperation, through the relevant political desk, for scrutiny to ensure that it is consistent with international law
  • The text of the agreement must be certified by the State Law Advisers (IL) at the Department of International Relations and Cooperation.

 

In order for the agreement to be certified for signature by the President, the following documentation must be submitted to OCSLA (IL):

 

  • two copies of the President’s Minute
  • two copies of the Explanatory Memorandum setting out the purpose of the agreement and proposed date of signature
  • two copies of the finally agreed text of the agreement
  • two copies of the legal opinions from the State Law Advisers at the Department of Justice and Constitutional Development and this Office
  • completed certification checklist (attached herewith) and
  • all documentation in folder Z137.

 

The same procedures are applicable if the agreement is concluded by way of an Exchange of Notes.

 

Agreements that require ratification or accession fall within the ambit of section 231(2) of the Constitution of the Republic of South Africa of 1996. 

 

Parliament must approve that South Africa ratifies or accedes to the agreements.  All agreements that require parliamentary approval must be submitted to Cabinet for consideration and approval.

 

Agreements requiring parliamentary approval are agreements which:

 

    • require ratification or accession (usually multilateral agreements)
    • have financial implications which require an additional budgetary allocation from Parliament
    • have legislative or domestic implications (e.g. require new legislation or legislative amendments).

 

Agreements to be ratified or acceded to are the following:

 

  • agreements that have been signed, sometimes requires ratification
  • agreements that have not been signed, sometimes requires accession.

 

If agreements are to be ratified, the process for signature should have been followed.  The same procedure to obtain approval for ratification or accession needs to be followed namely:

 

  • the agreement must be submitted to the State Law Advisers at the Department of Justice and Constitutional Development for scrutiny to ensure that the agreement is consistent with domestic law
  • the agreement must be submitted to the State Law Advisers (IL) at the Department of International Relations and Cooperation, through the relevant political desk, for scrutiny to ensure that the agreement is consistent with international law who also need to indicate whether or not the agreement can be considered self-executing
  • Cabinet memorandum prepared in the normal manner and submitted through the relevant ministry to the Cabinet Secretariat
  • the various Cabinet committees may have their own requirements.

 

Once Cabinet recommended that the agreement should be approved by Parliament, the agreement needs to be tabled in Parliament:

 

  • Tabling is the authority of the Presiding Officers.
  • Letters requesting tabling should be addressed to the Speaker of the National Assembly and Chairperson of the National Council of Provinces.
  • The letter must clearly indicate that the tabling is done in terms of section 231(2) of the Constitution.
  • The requesting letter must be signed and dated by the responsible Minister.
  • An explanatory memorandum and a draft resolution must accompany the tabling of an international agreement that has to be approved by Parliament.
  • The explanatory memorandum must:
    • Briefly set out the history, objective and implications of the agreement.
    • Indicate recommendation of the cabinet.
    • Include the legal opinions of the State Law Advisers of the Department of Justice and Constitutional Development and of the State Law Advisers of the Department of International Relations and Cooperation.
    • State whether the agreement has self-executing provisions that will become law in the Republic upon the approval of the agreement in Parliament.
    • Give account of the projected financial and other costs of the agreement for the state and contain all information needed by Parliament to make an informed decision.

 

Upon receipt of the request for tabling, the Clerk of the Papers immediately refers the request to the Presiding Officers for approval.

 

  • The paper (agreement) is tabled on the day in which it is recorded in the Announcements, Tablings and Committee Reports.
  • The agreement so tabled is referred to the relevant committees of parliament for debate;
  • The agree­ment is considered by the relevant portfolio committees of both houses of Parliament.
  • The committees will report on their decisions and the reports will be printed in the Announcements, Tablings and Committee Reports.
  • The reports are then placed on the Order Paper for consideration in the National Assembly and the National Council of Provinces.
  • The reports of the committees are considered by the National Assembly and National Council of Provinces sitting separately.
  • Both the National Assembly and the National Council of Provinces must adopt the reports.  This approval is printed in the Minutes of Proceedings.

 

A copy of the Minutes of both houses reflecting the decision of the houses must be submitted to the Department of International Relations and Cooperation and a draft Instrument of Ratification or Accession with the request that the Minister of International Relations and Cooperation should sign the Instrument.

 

The line-function department to approach DIRCO / OCSLA(IL) with request for assistance with ratification or accession:

 

  • An Instrument of Ratification or Accession is prepared by the line-function department in consultation with the Department of International Relations and Cooperation.
  • Arrangements are made by the line-function desk of the Department of International Relations and Cooperation for the binding of the Instrument before being submitting it for signature to the Minister of International Relations and Cooperation.
  • The Instrument of Ratification or Accession is deposited by the relevant line-function desk of the Department of International Relations and Cooperation with the depository as prescribed in the agreement.
  • A copy of the Instrument of Ratification or Accession must be deposited with the Treaty Section.

 

Important notes

  • At least an eight-week period must be allowed for agreements to be processed through Parliament.
  • Departments must work through their parliamentary offices and officers in Cape Town.
  • Departments must ensure that the correct title of the agreement is clearly written to avoid confusion.
  • A copy of the originally signed copy of the agreement is to be tabled, and in the case of a multilateral treaty, a copy of the certified text.
  • Departments, through their parliamentary officers, should liaise with the committee chairperson and secretary to ensure that the agreement is considered and reported on by the committee.
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