BRIEFING TO THE SELECT COMMITTEE ON TRADE & INTERNATIONAL RELATIONS REGARDING THE AMENDING AGREEMENT TO THE SA-EU TRADE, DEVELOPMENT AND COOPERATION AGREEMENT (TDCA)

Salient Points regarding the process

  • The 2004 mid-term review of TDCA led to the realisation that TDCA needs an update.
  • The formal negotiations were launched on 27 March 2007, led byDIRCO.
  • Negotiations included all the relevant South African Government Departments and were conducted by three thematic working groups.
  • 35 new and revised articles were initialled by the chief negotiators on 10 October 2007.
  • Revision of the trade chapters is beingconducted separately under the EPA negotiations process.
  • The Amending Agreement was signed by Minister Nkoana-Mashabane during 2nd SA-EU Summit on 11 September 2009.

Background

Following a review of the TDCA in 2004, which was conducted in terms of the requirements of articles 18 and 103 of the TDCA calling for a review within five years of its entry into force, South Africa and the EU negotiated new texts during 2007 under Titles I (Political Dialogue), IV (Economic Cooperation), V (Development Cooperation), VI (Other areas of cooperation, and VII (Financial aspects of cooperation) of the Agreement. The negotiations were formally launched in Pretoria on 29 March 2007 by the two principle negotiators, Director-General Ntsaluba and Mr. Stefano Manservisi (DG:DEV).

The negotiations, which included all relevant South African Government Departments, were conducted by three negotiating groups, namely:

  • Political Dialogue Negotiating Group: DIRCO-led;
  • Economic and Other Areas of Cooperation Working Group: DIRCO-led;
  • Development Cooperation Negotiating Group: National Treasury-led.

As regards to the revision of the trade chapters (Title II – Trade, and Title III – Trade related issues), it was decided in March 2007 to de-link them from the broader TDCA revision and to conduct them under the SADC EPA negotiating process.

Following up to five rounds of extensive negotiations in some of the Negotiating Groups, on 10 October 2007 at the SA-EU Joint Cooperation Council (JCC), the two chief negotiators initialled agreed texts for 35 new and revised articles, these being the sum total of all changes outside of any possible changes to the text on the trade chapters. On 17 August 2009, a President’s Minute authorising the Minister of International Relations and Cooperation to sign the Amending Agreement during the 2nd SA-EU Summit, to be held on 11 September 2009 at Kleinmond, Western Cape, was requested. The signatories on the EU side were the EU Commissioner for Development and Humanitarian Aid, Mr. Karel de Gucht, as well as the Swedish Minister for Development, Ms. Gunilla Carlson -the Swedish Minister for International Development Cooperation.

Despite waiting for an opportune moment to sign the Amending Agreement, both parties have continued engaging in the process of implementing the Strategic Partnership Joint Action Plan and fully implementing the TDCA, which includes the revised TDCA articles. In this regard, in May 2009 an SA-EU DIALOGUE INTER-DEPARTMENTAL STEERING COMMITTEE (ISC)was launched, which is led by DIRCO. It meets every three months and oversees the full implementation of the TDCA and the functioning of the various dialogue forums.

To date, the following SA-EU Dialogue fora have been established, namely:

  1. Peace and Security Dialogue Forum (PSDF) – since May 2008.
  2. Annual Consultations (Development Cooperation) – since 1994.
  3. Joint Science and Technology Cooperation Committee (JSTCC) – since 1997.
  4. Trade Cooperation Council (TCC) – since 2000.
  5. Forum on Environment and Sustainable Development – Terms of Reference (ToR) agreed to in May 2007.
  6. Migration Dialogue Forum (MDF) – ToR agreed to on 4 November 2008.
  7. Health Dialogue Forum (HDF) – ToR agreed to on 4 November 2008.
  8. Space Cooperation – ToR agreed to on 4 November 2008.
  9. Energy Dialogue Forum (EDF) – ToR agreed to on 16 January 2009.
  10. Maritime Transport Forum – ToR agreed to on 16 January 2009.
  11. Joint Parliamentary Committee – est. Feb 2007 – meets twice per year
  12. ICT dialogue

The following dialogue forums are under consideration, namely:

  1. Education and Training Dialogue Forum.
  2. Crime and Justice Dialogue Forum .
  3. Social Dialogue Forum (SDF)
  4. Customs cooperation
  5. Statistics cooperation
  6. Culture

Summary of new and revised TDCA Articles

  1. In the revised Preamble (slide 5), a new recital has been added recognising that the multilateral disarmament and non-proliferation treaty system in all its components is of vital importance, and that progress should be made in the implementation of all the obligations deriving from it. South Africa’s inclusion of a reference to disarmament in this paragraph is an important point-of-principle victory, as it is the first time that the EU has been forced into not only focussing on including the non-proliferation aspect as an essential element in a framework agreement, but also the disarmament issue.
  1. Revised Article 2: Essential elements (slide 6)

The article has been reworded to include the respect for democratic principles and fundamental human rights as laid down in the Universal Declaration of Human Rights, as well as cooperating on issues of disarmament and the non-proliferation of weapons of mass destruction, as essential elements of this agreement. As essential elements, this means that any violation of these principles could result in the termination of the Agreement.

  1. Revised Article 55: Information society and ICTs (slide 7)

The article has been reworded to provide for broader cooperation. The Parties agree to cooperate in the development of the Information Society, and in harnessing ICTs as enabling tools of socioeconomic development in the information age. Cooperation shall include dialogues, information exchange and possible technical assistance on different aspects of building the information society.

  1. Revised Article 57: Energy (slide 8)

This article has been amended to place more focus on energy security, the promotion of cleaner energy technologies, as well as regulatory cooperation.

  1. Revised Article 58: Mining and Minerals(slide 8)

This article has been amended to allowfor support policies and programmes that promote the local beneficiation of minerals and that create opportunities for collaboration in the development of the mineral beneficiation sector.

  1. Revised Article 59: Transport (slide 9)

The existing article has been split into two. The general section now also allows for cooperation on issues of rail transport; exchanging of information and improving cooperation on the respective transport safety and security policies and practices; harmonising transport policies and regulatory frameworks through enhanced policy dialogue and exchanges of regulatory and operational know-how with competent authorities; as well as developing partnerships in the field of global satellite navigation systems, including research and technology development, and their application for sustainable development.

  1. New Article 59A: Maritime transport(slide 10)

This article has been added, allowing for broad cooperation and dialogue on maritime transport issues.This includes matters such as: formulate and perfect the legislation relating to maritime transport and market administration; strive for efficient transport service for international sea trade by the effective operation and management of the ports and fleets of the Parties; enforce internationally binding shipping safety standards and legal regulations and prevent marine pollution; exchange of personnel, scientific information and technology; strengthening efforts to enhance maritime security.

  1. Revised Article 60: Tourism (slide 10)

It has been broadened to include the development of local communities and promoting cooperation at regional and continental levels.

  1. The various articles in Title V: Development Cooperation(slide 11) have largely been amended to reflect updated internal SA and EU procedures. It also includes a new Article (65A) elaborating on the Parties’ joint commitment to meeting the MDG’s; to redoubling their efforts to meet their Monterrey Financing for Development commitments; achieving the outcomes of the Johannesburg Plan of Implementation (WSSD), as well as expressing their support for the African Union and its socio-economic programme
  2. Revised Article 83: Science and Technology (slide 12)has been substantially broadened, mainly to allow for greater S&T partnership and cooperation under the EU's Framework Programmes and to strengthening Africa's science and technology capacities.[SA is already the 4th largest non-EU participant in the Euro55 billion Framework Research Programme after the US, Russia and Japan. SA also has a separate Science and Technology Agreement with the EU – since 1997].
  1. Revised Article 84: Environment (slide 12) has been broadened now also allows for cooperation on improving air quality.
  1. Revised Article 85: Culture (slide 13)

It has been amended and now allows for the establishment of a policy dialogue in the field of culture. It also commits both Parties to cooperate in the framework of the relevant international fora (e.g. UNESCO) in order to enhance the protection and promotion of cultural diversity and to foster intercultural dialogue at international level.

  1. Revised Article 86: Social issues (slide 14)

Thisarticle has been amended and now allow for a broader dialogue in the area of employment and social policy, which will include questions relating to the social problems of post-apartheid society, poverty alleviation, decent work for all, social protection, unemployment, gender equality, violence against women, children's rights, persons with disabilities, older persons, youth, labour relations, public health, safety at work and population.

  1. Revised Article 90: Fight against drugs and money laundering (slide 15)

This article has been substantially altered. It has been re-titled to “Cooperation on Illicit Drugs”, allowing for cooperation to ensure a balanced and integrated approach towards addressing the drugs problem and reducing the supply of, trafficking in and the demand for illicit drugs.

  1. The original Article 91 (Data protection) has been substantially altered to also include articles on:
  1. A newArticle 91A:Weapons of mass destruction and their means of delivery (slide 16), as an essential element, committing the Parties to cooperate and to contribute to strengthening the multilateral disarmament and non-proliferation system and countering the proliferation of all weapons of mass destruction and their means of delivery through full compliance with and national implementation of their respective existing obligations and commitments under the relevant treaties and agreements and other relevant international obligations. In this regard they undertake to take steps to sign, ratify or accede to relevant international disarmament and non-proliferation instruments, as appropriate, and fully implement and comply with all international legally-binding instruments, as well as establish and/or maintain an effective system of national export controls
  1. A newArticle 91B:Combating terrorism(slide 17), consists mainly of a declaratory section dealing with commitments to combating terrorism and the approaches thereto, as well as the Parties agreeing to cooperate in the prevention and suppression of acts of terrorism in accordance with the Charter of the United Nations and international law, relevant conventions and instruments and within their respective legislation and regulations. In this regard they will, inter alia, exchange information on terrorist groups and their support networks, as well as exchange views on means and methods used to counter terrorism, including in technical fields and training, and by exchange of experiences in respect of terrorism prevention.
  1. A newArticle 91C:Money laundering and terrorism financing (slide 18), commits the Parties to making every effort and cooperating in order to prevent the use of their financial systems for laundering of proceeds from criminal activities in general and from offences related to illicit drugs and psychotropic substances in particular. This may also include administrative and technical assistance with the purpose of developing the implementation of regulations and efficient functioning of the suitable standards.
  1. A newArticle 91D: Combating Organised Crime(slide18), wherein the Parties agree to cooperate in combating organised and financial crime, including corruption.
  1. A newArticle 91E:Small arms and light weapons (slide19), wherein the Parties agree to pursue and further develop close cooperation to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects as set out in the UN Programme of Action (UNPoA) and to address the issue of the excessive accumulation of small arms and light weapons.
  1. A newArticle 91F:Mercenaries (slide 19), wherein the Parties undertake to establish a regular political dialogue and to cooperate in the prevention of mercenary activities in accordance with their obligations under international conventions and instruments, and their respective legislations and regulations implementing such obligations.
  1. A newArticle 91G:International Criminal Court (slide 20), wherein the Parties reaffirm their support for the International Criminal Court and its work. The parties further agree to cooperate to promote the universality and integrity of the Rome Statute and related instruments and agree to strengthen their cooperation with the ICC and its work.
  1. A newArticle 91H:Cooperation on Migration (slide 21), allows for a very broad and in-depth SA-EU migration dialogue.This article allows for very broad and in- depth SA- EU migration dialogue. In strengthening cooperation the dialogue shall cover a comprehensive agenda that includes:
  • fair treatment of foreign nationals residing legally on their territories;
  • visa issues of mutual interest; including simplifying entry procedures nationals of both parties;
  • travel document security and identity issues;
  • In the framework of cooperation to prevent and reduce illegal immigration, the Parties agree to readmit their illegal migrants;
  1. Failure to Ratify by South Africa
  • SA & EU entered into a Strategic Partnership on 14 May 2007.
  • SA is one of only nine such strategic partners for the EU- others are Brazil, Canada, China, India, Japan, Russia, Ukraine and the USA.
  • The SA-EU Strategic Partnership Joint Action Plan, is a political plan of action that compliments the TDCA.
  • Non- ratification by SA of the TDCA Revision Agreement would send a negative signal to a key strategic partner.
  • The Revised TDCA for the first time commits the EU to recognise that the multilateral disarmament and non-proliferation treaty system in all its components is of vital importance, and that progress should be made in the implementation of all the obligations deriving from it.
  • South Africa’s insistence on a reference to disarmament in this paragraph is an important point-of-principle victory, as it is the first time that the EU has been forced into not only focussing on including the non-proliferation aspect as an essential element in a framework agreement, but also the disarmament issue.
  • Following ratification, this could be used as a precedent going forward when dealing with the EU on the linkages between non-proliferation and disarmament.

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