Think before you sign
Legal expert says drafting of international agreements must be more than just a paper exercise
“The regulation of international trade and the promotion of deeper integration are vital for development. The pursuit of their benefits and the execution of the tasks involved depend on the skills of statecraft and the demands of good governance. Success requires sound policies, the ability to negotiate and implement well-designed agreements, the availability of technical capacity in domestic institutions, and respect for rules-based arrangements.”
In a recent edition of the Tralac newsletter, Prof Gerhard Erasmus draws attention to the problems encountered when bilateral and multi-lateral treaties are signed without due consideration for the complexity and the outcome of the intended agreement.
Prof Erasmus was one of three lawyers that assisted the Constitutional Assembly in 1989 to draft the document that became the Constitution of Namibia.
Discussing the practical shortcomings of international agreements, the Associate Professor at the Trade Law Centre for Southern Africa, Tralac, at the University of Stellenbosch, said the negotiations on international trade and regional integration are not easy. The greater the number of participating governments, the more complex the issues and the more complicated the process to reach consensus.” The law professor emphasised that compromises must be made on a wide spectrum of issues and must bring into consideration all relevant offensive and defensive national interests. Since this principle applies to both negotiating partners, it complicates the process and it influences the outcome.
As a first step, Erasmus cautions that the task of drafting an international agreement must not be underestimated. “Negotiators must be well prepared and must remain well prepared. They should understand the substance matter on the agenda. Specialists must be used, and should come from all the relevant disciplines. An old hand with years of experience in tariff negotiations might not be the right person for negotiating services. And do not leave the lawyers back home,” he said warning that the “appointed negotiators must remain part of the team. Do not bring in “fresh legs” every time a new round starts; it will result in loss of time, of memory and of focus.”
Turning his attention to practical outcomes, the professor said “In recent cases before the SADC Tribunal involving claims for human rights violations, Zimbabwean officials discovered that the judges deciding the matter based their decisions on the text of the Treaty. They ignored subsequent explanations about what was in the minds of their politicians when they signed and ratified the Treaty. In this instance the Tribunal ruled that Articles 4 and 6 of the SADC Treaty are to be given the effect that the chosen formulation conveys: “/The Member States shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill health,
disability… and …. shall act in accordance with human rights, democracy and the rule of law.” Referring to the dismissal of the SADC Tribunal, Erasmus said “if a specific state is not serious about honouring their written commitments, then it should not become a party to the agreement.”