ANGOLA-BOTSWANA-LESOTHO-MALAWI-MOZAMBIQUE-NAMIBIA-SWAZILAND-TANZANIA-ZAMBIA-ZIMBABWE: TREATY OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY

  • Published on
    23-Jan-2017

  • View
    216

  • Download
    2

Transcript

  • ANGOLA-BOTSWANA-LESOTHO-MALAWI-MOZAMBIQUE-NAMIBIA-SWAZILAND-TANZANIA-ZAMBIA-ZIMBABWE: TREATY OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITYAuthor(s): Rosalind H. ThomasSource: International Legal Materials, Vol. 32, No. 1 (JANUARY 1993), pp. 116-135Published by: American Society of International LawStable URL: http://www.jstor.org/stable/20693772 .Accessed: 15/06/2014 03:30

    Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

    .JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

    .

    American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access toInternational Legal Materials.

    http://www.jstor.org

    This content downloaded from 195.78.108.185 on Sun, 15 Jun 2014 03:30:06 AMAll use subject to JSTOR Terms and Conditions

    http://www.jstor.org/action/showPublisher?publisherCode=asilhttp://www.jstor.org/stable/20693772?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp

  • 116

    ANGOLA-BOTSWANA-LESOTHO-MALAWI-MOZAMBIQUE-NAMIBIA-SWAZILAND TANZANIA-ZAMBIA-ZIMBABWE: TREATY OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY*

    [Done at Windhoek, August 17, 1992] +Cite as 32 I.L.M. 116 (1993) +

    Introductory Note

    to Rosalind H. Thomas

    On August 17, 1992, member countries of the Southern African Development Coordination Conference (SADCC) signed a Treaty1 establishing the Southern African

    Development Community (SADC), which is to replace the SADCC2. As an international economic organization, it will have legal personality in each of the member States' territories3 and its headquarters will be in Gaborone, Botswana

    ? seat of the current SADCC Secretariat4. The Treaty must be ratified by member States before it becomes operational (Art.40). It will enter into force thirty days after the instruments of ratification of two-thirds of the member States have been deposited with the Executive Secretary of SADC (Arts.41 and 43).

    As well as a Protocol to the Treaty Establishing the Southern African Development Community on Immunities

    and Privileges. This Protocol confers the privileges and immunities on SADC institutions that are necessary for the

    proper performance of their functions, and are to be comparable to those accorded to similar international organizations.

    The formalities for entry into force of this Protocol are essentially the same as for the Treaty.

    2 See Art.44.

    3 Art.3.

    4 Art.2.

    '[Reproduced from the text provided by the Secretariat of the Southern African Development Coordination Conference. The Introductory Note was prepared for International Legal Materials by Rosalind H. Thomas, Project Legal Advisor, Development Bank of Southern Africa, South Africa. The Protocol to the Treaty (on immunities and

    privileges) has not been reproduced. The Declaration by the Heads of State or Government of Southern African States, regarding the establishment of the Southern African Development Community, August 17, 1992, appears at 32 I.L.M. 267 (1993).

    [The Treaty establishing the African Economic Community, done June 3, 1991 among member states of the

    Organization of African Unity, is reproduced at 30 I.L.M. 1241 (1991).]

    This content downloaded from 195.78.108.185 on Sun, 15 Jun 2014 03:30:06 AMAll use subject to JSTOR Terms and Conditions

    http://www.jstor.org/page/info/about/policies/terms.jsp

  • 117

    SADCC was instituted twelve years ago on April 1, 1980, when the Heads of State or Government of nine Southern African countries5 met in Lusaka, Zambia to adopt a Declaration ? "Southern Africa: Towards Economic Liberation", which formed the basis for the creation of the institution. Comprised of a loose association of states with a quasi-legal personality, its aim amongst others, was to pursue policies to facilitate the economic development and

    independence of these countries from South Africa, and to achieve the integrated development of the region.

    The dramatic changes that have taken place regionally6 and internationally,7 together with developments in South Africa with the dismantling of statutory apartheid, and the unbanning of organizations such as the African National Congress (ANC) and the Pan African Congress (PAC), lead SADCC to reconsider its position and its lack of progress in achieving its

    objectives. This became particularly pressing with the prospect of an economically strong, democratic South Africa joining the group. During January 1992, SADCC adopted an important policy document: "SADCC Towards Economic Integration", which formed part of the travaux

    pr?paratoires to the Treaty. Listing several critical reasons8 for integrating Southern African

    economies, the report argued that there was an absolute necessity for these governments to transform and restructure their economies to make them more productive and competitive. Stating that no single country in the region could make the necessary changes on their own, it

    argued:

    In these circumstances, closer economic cooperation and integration have become no longer merely desirable, but imperative for growth, development and indeed survival.

    The Treaty is seen as an important step towards the attainment of these goals. By formalizing what was previously a loose-knit group of states, the treaty gives SADC the teeth it lacked as SADCC, thereby remedying what many considered to be a major flaw in what was otherwise seen as a pragmatic approach to development. In other words, it provides the

    Community with the capacity to enforce decisions taken by its supreme organ, the Summit of

    5 Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Tanzania, Zambia and Zimbabwe.

    6 Thus the rapprochement reached in Angola between UNTT? and the MPLA, the peace talks being brokered between Renamo and Frelimo in Mozambique, and movements in the rest of Southern Africa towards more democratic

    government, have contributed towards a positive view of the economic gains to be achieved by integration.

    The end of the Cold War and the collapse of the centrally-planned economies of Eastern Europe and the former Soviet Union.

    8 Including the argument that political change in South Africa is likely to lead to new patterns of investment in

    the region, with marked preference for South Africa because of its more attractive investment climate, infrastructural

    development, and its managerial, technical and technological capacities. A further argument looks to developments in the advanced industrialist countries, as well as in the Pacific Rim and Latin America where these countries are entering into protectionist trading blocs constructed of free trade zones. This has made integration even more crucial to enable the countries of the region to strengthen their bargaining power with these trading blocs.

    This content downloaded from 195.78.108.185 on Sun, 15 Jun 2014 03:30:06 AMAll use subject to JSTOR Terms and Conditions

    http://www.jstor.org/page/info/about/policies/terms.jsp

  • 118

    Heads of State or Government.9 Thus Article 6 "General Undertakings", provides that member States will adopt measures to promote the achievement of the objectives of the Community, and will refrain from doing anything likely to jeopardize the achievement of these objectives or the

    implementation of the Treaty provisions (Art.6.1). It also provides that member States will take all necessary steps to ensure the uniform application of the Treaty (Art.6.4), that they will accord the Treaty the force of national law (Art. 6.5) and cooperate with and assist S ADC institutions in the performance of their duties (Art. 6.6). To facilitate the enforcement of these

    obligations, the Treaty provides for the establishment of a Tribunal10 (Art. 16), the decisions of which are to be final and binding.

    In addition to the Tribunal, the Treaty provides for the establishment of several other

    "institutions", namely the Summit of Heads of State or Government (Art. 10), which is the

    supreme policy-making organ of SADC; the Council of Ministers (Art. 11), which has

    responsibility for overseeing the functioning and development of the Organization; the Commissions11 (Art. 12); the Standing Committee of Officials (Art. 13), an inter-governmental committee responsible for technical advice, and the Secretariat12 (Art. 14). The Secretariat is the principal executive body of SADC, responsible inter alia for strategic planning and

    management of SADC programs as well as administration of the Community's affairs.

    I.L.M. Content Summary

    TEXT OF TREATY - I.L.M. Page 120

    TABLE OF CONTENTS - I.L.M. Page 120

    PREAMBLE - I.L.M. Page 122

    [To establish the Southern African Development Community (SADC)]

    CHAP. ONE rPEFINmONSI - I.L.M. Page 122 ART. 1 [Treaty; protocol; Community; region; Member State; summit; High

    Contracting Parties; Council; Secretariat; Executive Secretary; Commission; Tribunal; Sectoral Committee; Sector Coordinating Unit; Standing Committee; Fund]

    CHAP. TWO ESTABLISHMENT AND LEGAL STATUS - I.L.M. Page 123 ARTS. 2-3 [Establishment of the SADC; headquarters at Gaborone, Botswana;

    legal personality of the SADC]

    CHAP. THREE PRINCIPLES. OBJECTIVES AND GENERAL UNDERTAKINGS - I.L.M. Page 124 ARTS. 4-6 [A primary objective is to achieve development and economic growth

    through the harmonization of political and socio-economic policies

    9 A function that the current SADCC Secretariat lacks, thereby weakening its ability to follow through on policies and strategies adopted by the member States.

    10 The details concerning, inter alia, the powers, functions and procedures of the Tribunal, are to be dealt with

    in a protocol (Art 16.2).

    11 It is anticipated that several commissions will be constituted on a sectoral basis and dealt with in separate

    protocols. The commissions are to work closely with the Secretariat but will be answerable to the Council.

    12 Headed by an Executive Secretary. The current Executive Secretary is Dr Simba Makoni from Zimbabwe.

    This content downloaded from 195.78.108.185 on Sun, 15 Jun 2014 03:30:06 AMAll use subject to JSTOR Terms and Conditions

    http://www.jstor.org/page/info/about/policies/terms.jsp

  • 119

    CHAP. FOUR

    CHAP. FIVE

    CHAP. SIX

    CHAP. SEVEN

    CHAP. EIGHT

    CHAP.

    CHAP.

    CHAP.

    CHAP.

    NINE

    TEN

    ELEVEN

    TWELVE

    CHAP. THIRTEEN

    CHAP.

    CHAP.

    FOURTEEN

    FIFTEEN

    CHAP. SIXTEEN

    and plans. General undertakings include non-discrimination and

    cooperation]

    MEMBERSHIP - I.L.M. Page 125 ARTS. 7-8 [Initial members, upon signature and ratification, are Angola,

    Botswana, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Tanzania, Zambia and Zimbabwe. New members may be admitted

    by unanimous decision of the Summit]

    INSTITUTIONS - I.L.M. Page 126 ARTS. 9-17 [Summit, Council of Ministers, Commissions, Standing Committee

    of Officiais, Secretariat, Executive Secretary and Tribunal. The

    composition and responsibilities of each are set forth]

    MEETINGS - I.L.M. Page 129 ARTS. 18-20 [Quorum; decisions; procedure]

    COOPERATION - I.L.M. Page 129 ARTS. 21-23 [Areas of cooperation are set forth; protocols in each area of

    cooperation; non-governmental organizations]

    RELATIONS WITH OTHER STATES. REGIONAL AND INTER-NATIONAL ORGANIZATIONS [ART. 24] - I.L.M. Page 130

    RESOURCES. FUND AND ASSETS [ARTS. 25-27] - I.L.M. Page 131

    FINANCIAL PROVISIONS - I.L.M. Page 131 ARTS. 28-30 [Budget; Audits; financial regulations]

    IMMUNITIES AND PRIVILEGES [ART. 31] - I.L.M. Page 132

    SETTLEMENT OF DISPUTES - I.L.M. Page 132 ART. 32 [Referral to the Tribunal]

    SANCTIONS. WITHDRAWAL AND DISSOLUTION - I.L.M. Page 132 ARTS. 33-35 [Sanctions against members for failure to fulfil obligations of the

    Treaty or for undermining SADC principles and objectives]

    AMENDMENT OF THE TREATY [ART. 36] - I.L.M. Page 133

    LANGUAGE - I.L.M. Page 133 ART. 37 [Working languages are English and Portuguese]

    SAVING PROVISIONS - I.L.M. Page 134 ART. 38 [Existing institutions, obligations or arrangements shall continue until

    the Council or Summit decides otherwise]

    CHAP. SEVENTEEN SIGNATURE. RATIFICATION. ENTRY INTO FORCE. ACCESSION AND DEPOSITARY - I.L.M. Page 134 ARTS. 39-43 [Deposited with the SADC Executive Secretary]

    CHAP. EIGHTEEN TERMINATION OF THE MEMORANDUM OF UNDERSTANDING -I.L.M. Page 134 ART. 44 [This Treaty replaces the 1981 SADCC MOU]

    [Done at Windhoek, Namibia, on 17 August 1992] [Authentic texts: English and Portuguese]

    This content downloaded from 195.78.108.185 on Sun, 15 Jun 2014 03:30:06 AMAll use subject to JSTOR Terms and Conditions

    http://www.jstor.org/page/info/about/policies/terms.jsp

  • TREATY QF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY

    TABLE QF CONTENTS

    I.L.M. Page

    PREAMBLE 122 CHAPTER ONE 122

    ARTICLE 1 DEFINITIONS I22

    CHAPTER TWO 123

    ESTABLISHMENT ANp LEgAL jSTATyg

    ARTICLE 2 ESTABLISHMENT 123 ARTICLE 3 LEGAL STATUS 123

    CHAPTER THREE 124

    PRINCIPLES. OBJECTIVES AND GENERAL UNDERTAKINGS

    ARTICLE 4 PRINCIPLES 124 ARTICLE 5 OBJECTIVES 124

    ARTICLE 6 GENERAL UNDERTAKINGS 125

    CHAPTER FOUR 125 MENPERSHIP

    ARTICLE 7 MEMBERSHIP 125

    ARTICLE 8 ADMISSION OF NEW MEMBERS 125

    CHAPTER FIVE 126 INSTITUTIONS

    ARTICLE 9 ESTABLISHMENT OF INSTITUTIONS 126

    ARTICLE 10 THE SUMMIT 126 ARTICLE 11 THE COUNCIL 126 ARTICLE 12 COMMISSIONS 127

    ARTICLE 13 THE STANDING COMMITTEE OF OFFICIALS 127

    ARTICLE 14 THE SECRETARIAT 127

    ARTICLE 15 THE EXECUTIVE SECRETARY 128

    ARTICLE 16 THE TRIBUNAL 129

    ARTICLE 17 SPECIFIC UNDERTAKINGS 129

    CHAPTER SIX 129

    MEETINGS

    ARTICLE 18 QUORUM 129

    ARTICLE 19 DECISIONS 129 ARTICLE 20 PROCEDURE 129

    CHAPTER 8EVEN 129

    COOPERATION

    ARTICLE 21 AREAS OF COOPERATION 129

    ARTICLE 22 PROTOCOLS 130

    ARTICLE 23 NON-GOVERNMENTAL ORGANISATIONS 130

    CHAPTER EIGHT 130

    RELATIONS WITH OTHER STATES. REGIONAL AND

    INTERNATIONAL ORGANISATIONS

    ARTICLE 24 RELATIONS WITH OTHER STATES, REGIONAL

    AND INTERNATIONAL ORGANISATIONS 130

    to o

    This content downloaded from 195.78.108.185 on Sun, 15 Jun 2014 03:30:06 AMAll use subject to JSTOR Terms and Conditions

    http://www.jstor.org/page/info/about/policies/terms.jsp

  • CHAPTER NINE 131

    RESOURCES. FUND AND ASSETS

    ARTICLE 25 RESOURCES 131

    ARTICLE 26 FUND 131 ARTICLE 27 ASSETS 131

    CHAPTER TEN 131

    FINANCIAL PROVISIONS

    ARTICLE 28 THE BUDGET 13i

    ARTICLE 29 EXTERNAL AUDIT 13?

    ARTICLE 30 FINANCIAL REGULATIONS 132

    CWVPTgR gfrgygy 132

    IMMUNITIES AND PRIVILEGES

    ARTICLE 31 IMMUNITIES AND PRIVILEGES 132

    CHAPTER TWELVE 132 SETTLEMENT OF DISPUTES

    ARTICLE 32 SETTLEMENT OF DISPUTES 132

    CPAPTSE TUERTEEN

    132

    SANCTIONS. WITHDRAWAL AND DISSOLUTION ARTICLE 33 SANCTIONS 132 ARTICLE 34 WITHDRAWAL 133 ARTICLE 35 DISSOLUTION 133

    ?BAFTBR FPWTggN 133 AMENDMENT OF THE TREATY

    ARTICLE 36 AMENDME...

Recommended

View more >