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PRESENTATION ON THE DIPLOMATIC IMMUNITIES AND PRIVILEGES AMENDMENT BILL. BY SANDEA DE WET PRINCIPAL STATE LAW ADVISER (IL) 29 AUGUST 2001. REASONS FOR AMENDMENT BILL.
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PRESENTATION ON THE DIPLOMATIC IMMUNITIES AND PRIVILEGES AMENDMENT BILL BY SANDEA DE WET PRINCIPAL STATE LAW ADVISER (IL) 29 AUGUST 2001
REASONS FOR AMENDMENT BILL • PARLIAMENT APPROVED SOUTH AFRICA’S ACCESSION TO THE UNITED NATIONS CONVENTIONS ON PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS AND SPECIALIZED AGENCIES ON 26 AND 27 OF JUNE 2001 • THERE IS A LEGAL OBLIGATION TO INCORPORATE THESE PROVISIONS IN SOUTH AFRICAN LEGISLATION
REASONS FOR AMENDMENT BILL • SOUTH AFRICA ACCEDED TO THE VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS IN 1989 WITHOUT ANY RESERVATIONS • A SELECTIVE INCORPORATION OF VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS WAS HOWEVER MADE IN THE ACT • LEGAL OBLIGATION TO INCORPORATE ALL PROVISIONS OF THE VIENNA CONVENTIONS IN SOUTH AFRICAN LEGISLATION
REASONS FOR AMENDMENT BILL • APPLICATION OF IMMUNITIES AND PRIVILEGES TO INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES DONE WITHOUT PROPER LEGAL BASIS • APPLICATION OF IMMUNITIES AND PRIVILEGES TO INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES DONE ON AN AD HOC BASIS WITHOUT EQUALITY IN TREATMENT OF THE VARIOUS ORGANIZATIONS
REASONS FOR AMENDMENT BILL • INCREASING NUMBER OF INTERNATIONAL MEETINGS AND CONFERENCES HOSTED BY SOUTH AFRICA • NO PROVISION IN THE PRESENT ACT FOR THE GRANTING OF PRIVILEGES AND IMMUNITIES FOR PURPOSES OF SUCH MEETINGS AND CONFERENCES • EXCESSIVE ADMINISTRATIVE BURDEN WHEN GRANTING PRIVILEGES AND IMMUNITIES FOR THE PURPOSES OF SUCH MEETINGS AND CONFERENCES
REASONS FOR AMENDMENT BILL • ACT IS OUTDATED AS INTERNATIONAL RELATIONS GREW EXTENSIVELY SINCE 1989 WHEN ACT WAS PROMULGATED - • 110 DIPLOMATIC MISSIONS AND 56 CONSULAR OFFICES WERE ESTABLISHED • 18 OFFICES OF INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES WERE OPENED • HOSTING OF INTERNATIONAL CONFERENCE AND MEETINGS SUCH AS UNCTAD, NAM, WCAR, WSSD,ETC
OBJECTIVES OF AMENDMENT BILL • BRING THE ACT IN LINE WITH SOUTH AFRICA’S INTERNATIONAL OBLIGATIONS BY - • INCORPORATING CONVENTIONS ON PRIVILEGES AND IMMUNITIES OF UN AND SPECIALIZED AGENCIES IN SOUTH AFRICAN LEGISLATION • INCORPORATING ALL THE PROVISIONS OF THE CONVENTIONS ON DIPLOMATIC AND CONSULAR RELATIONS IN SOUTH AFRICAN LEGISLATION
OBJECTIVES OF AMENDMENT BILL • BRING THE ACT IN LINE WITH SOUTH AFRICA’S INTERNATIONAL OBLIGATIONS BY - • HARMONIZING AD HOC PRACTICES AND EQUALITY IN TREATMENT OF THE VARIOUS INTERNATIONAL ORGANIZATIONS • PROVIDING FOR THE GRANTING OF IMMUNITIES AND PRIVILEGES WITH REGARD TO INTERNATIONAL MEETINGS AND CONFERENCES
OBJECTIVES OF AMENDMENT BILL • UPDATE THE ACT BY - • BRINGING EXISTING PROVISIONS IN LINE WITH PROVISIONS IN THE CONVENTIONS • DELETING DUPLICATIONS • CORRECTING CONTRADICTIONS • LESSEN THE ADMINISTRATIVE BURDEN
OVERVIEW OF PROPOSED AMENDMENTS • ARTICLE 1 - DEFINITIONS • “MEMBER OF A FAMILY” • “ORGANIZATION” • “SPECIAL ENVOY OR REPRESENTATIVE” • “SPECIALIZED AGENCY” • “CONVENTIONS” • “ACT”
DEFINITIONS • “MEMBER OF FAMILY” MEANS - • THE SPOUSE • UNMARRIED CHILD UNDER 21 • UNMARRIED CHILD BETWEEN AGES OF 21 AND 23 UNDERTAKING FULL TIME STUDIES • OTHER UNMARRIED CHILD OR FAMILY MEMBER OFFICIALLY RECOGNIZED BY SENDING STATE AND ISSUED WITHDIPLOMATIC /OFFICIAL PASSPORT
DEFINITIONS • “ORGANIZATIONS” MEANS - • INTERGOVERNMENTAL ORGANIZATION OF WHICH TWO OR MORE STATES ARE MEMBERS AND WHICH THE MINISTER HAS RECOGNIZED FOR THE PURPOSES OF THE ACT
DEFINITIONS • “SPECIAL ENVOY/REPRESENTATIVE” MEANS - • PERSON DULY AUTHORIZED BY SENDING STATE • UNDERTAKING A SPECIAL MISSION/TASK IN SOUTH AFRICA • USUALLY FOR A LIMITED PERIOD
DEFINITIONS • “THIS ACT” INCLUDES- • THE VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS; AND • THE CONVENTIONS ON THE IMMUNITIES AND PRIVILEGES OF THE UNITED NATIONS AND SPECIALIZED AGENCIES
SECTIONS 2, 3 AND 4 • CLEAR DISTINCTION BETWEEN GRANTING OF IMMUNITIES AND PRIVILEGES TO - • DIPLOMATIC MISSIONS AND CONSULAR POSTS • HEADS OF STATE AND SPECIAL ENVOYS • UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • INTERNATIONAL CONFERENCES AND MEETINGS
SECTION 2 • IMMUNITIES AND PRIVILEGES OF DIPLOMATIC MISSIONS AND CONSULAR POSTS AND MEMBERS THEREOF • VIENNA CONVENTIONS SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH AFRICA • VIENNA CONVENTION ON DIPLOMATIC RELATIONS APPLY TO DIPLOMATIC MISSIONS • VIENNA CONVENTION ON CONSULAR RELATIONS APPLY TO CONSULAR POSTS
SECTION 3 • IMMUNITIES AND PRIVILEGES OF HEADS OF STATE AND SPECIAL ENVOYS/ REPRESENTATIVES • IMMUNE FROM CRIMINAL AND CIVIL JURISDICTION OF COURTS • ENJOY SUCH IMMUNITIES AND PRIVILEGES • IN TERMS OF CUSTOMARY INTERNATIONAL LAW • ANY AGREEMENT, OR • AS THE MINISTER MAY CONFER UPON HIM/HER BY NOTICE IN THE GAZETTE
SECTION 4 • IMMUNITIES AND PRIVILEGES OF UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS SHALL APPLY TO THE UNITED NATIONS AND ITS OFFICIALS IN SOUTH AFRICA AND • SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH AFRICA
SECTION 4 • IMMUNITIES AND PRIVILEGES OF UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE SPECIALIZED AGENCIES SHALL APPLY TO THE SPECIALIZED AGENCIES AND ITS OFFICIALS IN SOUTH AFRICA AND • SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH AFRICA
SECTION 4 • IMMUNITIES AND PRIVILEGES OF UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • ORGANIZATIONS OTHER THAN UN OR SPECIALIZED AGENCIES RECOGNIZED BY THE MINISTER • ENJOY IMMUNITIES AND PRIVILEGES AS DETERMINED IN ANY AGREEMENT OR • IF IT IS NOT EXPEDIENT TO CONCLUDE AN AGREEMENT AS MAY BE DETERMINED BY THE MINISTER AND PUBLISHED BY NOTICE IN THE GAZETTE
SECTION 4 • IMMUNITIES AND PRIVILEGES PERTAINING TO INTERNATIONAL CONFERENCES AND MEETINGS - • FOR DURATION OF CONFERENCE/ MEETINGS • MINISTER TO RECOGNIZE CONFERENCE/ MEETING • AS SPECIFIED IN THE UN CONVENTION AND THE SPECIALIZED AGENCIES CONVENTION, OR • PROVIDED FOR IN ANY AGREEMENT • CONFERRED BY THE MINISTER BY NOTICE IN THE GAZETTE
SECTION 5 • ANY AGREEMENT CONFERRING IMMUNITIES AND PRIVILEGES SHALL BE PUBLISHED BY NOTICE IN THE GAZETTE • IF NOT EXPEDIENT TO CONCLUDE AN AGREEMENT THE MINISTER MAY CONFER IMMUNITIES AND PRIVILEGES AS MAY BE SPECIFIED IN A NOTICE IN THE GAZETTE
REMAINING SECTIONS • PURPOSE OF AMENDMENTS REFLECTED IN REMAINING SECTIONS- • TO BRING THE SECTIONS IN LINE WITH PROVISIONS OF THE CONVENTIONS • TO DELETE ANY DUPLICATIONS • TO CORRECT ANY CONTRADICTIONS • TO LESSEN THE ADMINISTRATIVE BURDEN
SECTION 6 • REPEAL SECTION 5 OF THE PRINCIPAL ACT ON PUBLICATION OF AGREEMENTS • THE BILL NOW GIVES FORCE AND EFFECT TO THE CONVENTIONS • NOT NECESSARY TO GIVE FORCE AND EFFECT BY PROCLAMATION • PUBLICATION IN A NOTICE FOR INFORMATION PURPOSESIS PROVIDED FOR
SECTION 7 • REPEAL SECTION 6 OF THE PRINCIPAL ACT ON THE NON-APPLICATION OF IMMUNITIES AND PRIVILEGES • DUPLICATES ARTICLE 34 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS • DIFFERENT PROVISIONS APPLY TO MISSIONS AND INTERNATIONAL ORGANIZATIONS IN TERMS OF THE RESPECTIVE CONVENTIONS • PROVIDE FOR WAIVER OF IMMUNITIES AND PRIVILEGES TO BE DONE EXPRESSLY AND IN WRITING
SECTION 8 • AMEND SECTION 7 OF PRINCIPAL ACT ON THE REGISTER OF PERSONS ENTITLED TO IMMUNITIES AND PRIVILEGES TO PROVIDE FOR THE INCLUSION OF PERSONS ENJOYING IMMUNITIES AND PRIVILEGES IN ACCORDANCE WITH • THE UN CONVENTION AND • THE CONVENTION ON SPECIALIZED AGENCIES
SECTION 9 • REPEAL SECTIONS 8 AND 9 OF THE PRINCIPAL ACT. SECTION 8 ON EXEMPTION FROM TAXATION • DUPLICATES ARTICLE 34 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS • DIFFERENT PROVISIONS APPLY TO MISSIONS AND INTERNATIONAL ORGANIZATIONS IN TERMS OF THE RESPECTIVE CONVENTIONS • PROVISION OF RECIPROCITY NON APPLICABLE TO INTERNATIONAL ORGANIZATIONS
SECTION 9 • REPEAL SECTION 9 OF PRINCIPAL ACT ON EXEMPTION OF GOVERNMENTS, ORGANIZATIONS AND INSTITUTIONS IN RESPECT OF IMMOVABLE PROPERTY • NO NEED FOR PROVISION • PRINCIPLE OF EQUITY IN TREATMENT AND NOT RECIPROCITY APPLICABLE • PROVISIONS OF THE CONVENTIONS APPLY
SECTION 10 • AMENDMENT OF SECTION 11 OF PRINCIPAL ACT ON ADJUSTMENT OF LOSS OF REVENUE TO LOCAL AUTHORITIES AND STATUTORY PUBLIC UTILITY ORGANIZATIONS • INCIDENTAL AMENDMENT TO DEAL WITH THE REPEAL OF SECTIONS 8 AND 9 OF THE PRINCIPAL ACT
SECTION 11 • SECTION 12 OF THE PRINCIPAL ACT ON THE RECOGNITION OF CERTAIN BUILDINGS IS REPEALED • DISCRETION NEVER EXERCISED UNDER THIS PROVISION • NOT NECESSARY TO HAVE THIS PROVISION • COSTLY TO IMPLEMENT
SECTION 12 • AMENDMENT OF SECTION 14 OF THE PRINCIPAL ACT ON ACQUISITION, CONSTRUCTION, RELOCATION, RENOVATION, REPLACEMENT, EXTENSION OR LEASE OF IMMOVABLE PROPERTY IN THE REPUBLIC • TO INCLUDE UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • TO ADD THE REQUIREMENT THAT THE PROPERTY HAS BEEN RECOGNIZED FOR THE USE OF EMBASSIES, CHANCELLERIES, OFFICES
SECTION 13 • SECTION 15 OF THE PRINCIPAL ACT ON LIABILITY INSURANCE REQUIREMENTS • INCIDENTAL AMENDMENT TO INCLUDE ALL PERSONS WHO ENJOY IMMUNITIES AND PRIVILEGES UNDER THE ACT
SECTION 14 • REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR PERMANENT RESIDENTS OF THE REPUBLIC- • PROVISIONS OF THE CONVENTIONS APPLY • SOUTH AFRICAN CITIZENS WHO ARE OFFICIALS SHALL ENJOY FUNCTIONAL IMMUNITIES (ARTICLE 38 OF VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ARTICLE 71 OF CONSULAR RELATIONS, ARTICLE V OF UN CONVENTION AND ARTICLE VI OF SPECIALIZED AGENCIES CONVENTION
SECTION 14 • REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR PERMANENT RESIDENTS OF THE REPUBLIC- • OFFICIALS ARE EXEMPTED FROM TAXATION ON SALARIES PAID BY THE UNITED NATIONS/SPECIALIZED AGENCIES (ARTICLE V OF UN CONVENTION AND ARTICLE VI OF SPECIALIZED AGENCIES CONVENTION • SOUTH AFRICA RECEIVES AN EQUIVALENT AMOUNT TO THE TAX EXEMPTION BACK IN THE FORM OF A DEDUCTION FROM ITS MEMBERSHIP DUES PAYABLE TO THE UNITED NATIONS
SECTION 14 • REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR PERMANENT RESIDENTS OF THE REPUBLIC- • “OFFICIAL” MEANS MEMBERS OF THE UN STAFF, BUT NOT THOSE WHO ARE RECRUITED LOCALLY ( GENERAL ASSEMBLY RESOLUTION 76(1) OF 1946
SECTION 14 • REPEAL SECTION 17 OF PRINCIPAL ACT ON LEGAL PERSONALITY OF CERTAIN ORGANIZATIONS AND INSTITUTIONS • PROVISION IS NOW REFLECTED IN SECTION 3A (3)
SECTION 15 • SUBSTITUTE SECTION 19 OF THE PRINCIPAL ACT ON OFFENCES AND PENALTIES BY A NEW SECTION 19 THAT INCLUDES ALL THE CONVENTIONS • TO DELETE THE SPECIFIC FINE IN ORDER FOR THE PROVISIONS OF THE ADJUSTMENT OF FINES ACT OF 1991 TO BE APPLICABLE
SECTION 16 • SUBSTITUTE SCHEDULE 1 OF PRINCIPAL ACT WITH THE FULL TEXT OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS OF 1961
SECTION 16 • ARTICLES 2 - 21 WERE ADDED • establishment of diplomatic relations • functions of diplomatic missions • obtaining an agrement from receiving state • multiple accreditation • head of mission accredited to more than one state • appoint members of staff freely
SECTION 16 • ARTICLES 2 - 21 WERE ADDED • members of staff from nationality of sending state; nationals only appointed with approval • declaration of persona non grata • notification of appointment of staff • size of the mission kept within limits • establishment of offices in localities other than those in which the missions are
SECTION 16 • ARTICLES 2 - 21 WERE ADDED • presentation of credentials • classes of heads of missions • class to which a head of mission is to be assigned to be agreed between states • precedence of heads of missions to be notified to the Ministry • reception of heads of missions to be uniform
SECTION 16 • ARTICLES 2 - 21 WERE ADDED • vacancy of post of heads of mission - charge d’affaires ad interim • right to use the flag and emblem • facilitation of acquisition of accommodation for offices
SECTION 16 • ADD ARTICLES 25, 26, 42 - 53 • accord facilities for performance of functions • subject to laws and regulations, freedom of movement and travel in territory • prohibition to work for personal profit • ending of functions of diplomat • evacuation assistance in cases of armed conflict • suspension of diplomatic relations
SECTION 16 • ADD ARTICLES 25, 26, 42 - 53 • temporary protection of interest of third state by sending state with the approval of receiving state • no discrimination in treatment of missions • end clauses • signature, ratification, accession and entry into force
SECTION 17 • SUBSTITUTE SCHEDULE 2 OF THE PRINCIPAL ACT WITH THE FULL TEXT OF THE VIENNA CONVENTION ON CONSULAR RELATIONS OF 1963
SECTION 17 • ADD ARTICLES 2,3, 4, 6-16 • exercise of consular functions • establishment of consular post • consular functions • exercise consular functions outside district • exercise consular functions in a third state • exercise consular functions on behalf of third state
SECTION 17 • ADD ARTICLES 2,3, 4, 6-16 • classes of heads of consular posts • appointment and admission of heads of consular posts • consular commission or notification of appointment • the exequatur • provisional admission
SECTION 17 • ADD ARTICLES 2,3, 4, 6 - 16,18-30 • notification to authorities of appointments • exercise of functions in case of vacancy,etc • precedence between heads of consular posts • appointment of same person by more than one states • appointment of members of consular staff • size of consular staff
SECTION 17 • ADD ARTICLES 21-30 • precedence between officers of consular posts • nationality of consular officials • declaration of persona non grata • notification of appointments, arrivals, etc • termination of functions of member of post • evacuation assistance • suspension of consular relations/closure
SECTION 17 • ADD ARTICLES 21-30, 34, 36-38 • facilities for work of consular post • use of flag and coat-of-arms • facilitate acquisition of accommodation • freedom of movement • contact with nationals of sending state • information in cases of deaths, guardianship,etc • communication with authorities