Gerhard Erasmus, tralac Associate, discusses the drafting of international agreements

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 this comment we would like to emphasize one particular aspect of this scheme of things; the drafting and implementation of international agreements.

Negotiating agreements about international trade and regional integration is not easy. The greater the number of participating governments, the more complex the issues and the more complicated the process to reach consensus. Compromises must be reached with respect to a wide spectrum of matters and against the background of all relevant offensive and defensive national interests. The other side of course approaches the process in exactly the same manner.

The first requirement is not to underestimate the task at hand. 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. 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.

The outcome of successful negotiations is a binding treaty which has to be implemented. Violations of treaty obligations result in state accountability. Great care has to be taken with respect to the language used, the inherent consistency of the text, the implications flowing from how exceptions are drafted as well as the subsequent implementation of obligations.

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 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.” If a specific state is not serious about honouring their written commitments, then it should not become a party to the agreement.

International agreements need to be implemented in order to achieve the objectives for which they have been concluded. The nature of the steps necessary for implementation depends on what the parties have agreed to. This intention is distilled from what has been written up in the text of the instrument which has been ratified. The Vienna Convention on the Law of Treaties tells us that agreements “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The implementation of agreements intended to have specific outcomes such as trade liberalization and deeper regional integration requires follow-up action from the Parties within the area of their jurisdiction. These domestic actions need to be valid in terms of national legal/constitutional requirements too, but that is a question to be answered on a different level. Once an agreement is in force a state party cannot invoke its national law or constitution as justification for not respecting its international obligations.

Lack of technical capacity will make implementation of trade and regional agreements difficult. Resources are often scarce and there are competing priorities. Unfortunately the lack of capacity cannot ex post facto be invoked as an excuse for non-compliance. Capacity should be developed or provided for. If that is not possible then the agreement in question should indicate, with sufficient clarity, what exactly the Parties will have to do in order to implement their obligations and demonstrate compliance. Their counterparts may demand that undertakings are honoured in the manner agreed to. And they will invoke the law of a written agreement to justify their demands.

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