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South Africa: Notice of Withdrawal from the Rome Statute Revoked

(Mar. 10, 2017) On March 7, 2017, the South African government revoked the notice of withdrawal from the Rome Statute of the International Criminal Court (the Rome Statute) that it had  submitted to the United Nations Secretary-General on October 19, 2016.  (South Africa: Withdrawal of Notification of Withdrawal, C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification) (Mar. 7, 2017), United Nations website.)  The October 19, 2016, notice had been issued in accordance with the provision under the Rome Statute on withdrawal from the agreement, which states that a state party that wishes to withdraw its membership must first submit a written notification of its intention to do so to the U.N. Secretary-General.  (Rome Statute of the International Criminal Court (July 17, 1998), art. 127, International Criminal Court website.)  Unless the country provides a later date in its notification, the withdrawal is to take effect a year after the submission of the notification.  (Id.)

The decision of the South African government to issue the revocation of the notice of withdrawal complies with a February 22, 2017, decision of the the Gauteng Division of the South African High Court at Pretoria, ordering the government to rescind the withdrawal notice.  (Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening)  (83145/2016) [2017] ZAGPPHC 53 (22 February 2017), at 2, Southern African Legal Information Institute website.)  The Court issued the order upon having found unconstitutional the issuance and delivery to the U.N. Secretary-General of the notice of withdrawal by the South African government without prior parliamentary approval.  (Id. at 2.)

The Court Decision

A key issue in the case, instituted by the Democratic Alliance (DA), the largest minority party in the South African Parliament, was whether the executive’s authority to enter into international treaties included the power to withdraw from such treaties without prior parliamentary approval.  (Democratic Alliance v Minister of International Relations and Cooperation and Others …, supra, at 3 & 15.)  The roles of the executive and the legislative bodies in the conclusion and implementation of international treaties are defined under the Constitution as follows:

  1. The negotiating and signing of all international agreements is the responsibility of the national executive.
  2. An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
  3. An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
  4. Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
  5. The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.  (Constitution of the Republic of South Africa, 1996, § 231, South African Government website.)

The petitioners argued that because the Constitution stipulates that Parliament must approve international agreements before they can bind South Africa, the same is true for withdrawing from such agreements and that the executive must seek parliamentary approval before giving notice of withdrawal from an international agreement.  (Democratic Alliance v Minister of International Relations and Cooperation and Others …, supra, ¶ 36.)  The government contended that it had no legal obligation to seek prior parliamentary approval because the relevant section of the Constitution does not impose such a requirement.  (Id. ¶ 37 .)  This argument was in part based on the idea that because the Constitution puts the authority to conclude treaties squarely within the purview of the executive branch and the role of Parliament is limited to the question of whether treaties become binding, undoing such treaties is also exclusively the prerogative of the executive.  (Id.¶ 39)  In addition, the government argued that the involvement of Parliament is only required with regard to international agreements and does not relate or apply to withdrawals.  (Id. ¶  41.)

The Court disagreed with the government’s contention regarding the legal significance of the act of withdrawing from a treaty obligation and parliamentary competence over the matter, noting that:

A notice of withdrawal, on a proper construction of s 231, is the equivalent of ratification, which requires prior parliamentary approval in terms of s 231(2).  As correctly argued on behalf of the DA, the act of signing a treaty and the act of delivering a notice of withdrawal are different in their effect.  The former has no direct legal consequences, while by contrast, the delivery of a notice of withdrawal has concrete legal effects in international law, as it terminates treaty obligations, albeit on a deferred basis in the present case.  (Id. ¶ 47.)

The Court further noted,

… it is trite that where a constitutional or statutory provision confers a power to do something, that provision necessarily confers the power to undo it as well. …  In the context of this case, the power to bind the country to the Rome Statute is expressly conferred on parliament. It must therefore, perforce, be parliament which has the power to decide whether an international agreement ceases to bind the country.  The conclusion is therefore that, on a textual construction of s 231(2), South Africa can withdraw from the Rome Statute only on approval of parliament and after the repeal of the Implementation Act.  (Id. ¶ 53.)

The Court held that that the decision of the executive to deliver the notice of withdrawal from the Rome Statute of the ICC without the requisite prior parliamentary approval violated section 231 of the South African Constitution and was a breach of the principle of separation of powers.  (Id. at ¶ 57.)  The Court then ordered the government to revoke the withdrawal notice, which it did on March 7, 2017.