THE%20SADC%20ORGAN%20ON%20POLITICS,%20DEFENCE%20AND%20SECURITY%20COOPERATION%20AND%20THE%20SADC%20MUTUAL%20DEFENCE%20PACT

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THE SADC ORGAN ON POLITICS, DEFENCE AND SECURITY
COOPERATIONANDTHE SADC MUTUAL DEFENCE PACT
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SADC MDP (Intro 1)

• The SADC MDP was signed by SADC HoSG Summit held
  in Tanzania in 2003. 12 out of 14 SADC member
  states have signed the MDP. As is shown by the
  history of the development of the MDP, this
  document is a baby of the SADC Organ.
• The objective of the MDP is to operationalise the
  mechanisms of the Organ for mutual co-operation
  in politics, defence and security matters
  (Article 2 of the SADC MDP).
• One of the principal provisions of the MDP is
  that member states will collectively respond in
  any manner they deem appropriate in the event of
  an attack on a member state (Article 6). This
  provision is similar to Article 5 of the NATO
  treaty.

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SADC MDP (Intro 2)

• However, interesting enough, Article 7 (2) of
  the MDP provides that
• No action shall be taken by any State Party in
  terms of this Pact, save at the State Partys own
  request or with its consent, except where the
  Summit decides that action needs to be taken in
  accordance with the Protocol.
• This is based on the view that for SADC to taken
  any action on issues, there shall be consensus.
  Therefore, if a member state has not made any
  request and Summit has not agreed on a course of
  action to take, SADC will not proceed to provide
  the necessary support.

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SADC MDP (Intro 3)

• The MDP also provides that SADC member states
  shall not harbour or support persons or groups
  whose aim is to destabilise other member states
  (Article 8).
• Article 9 of the MDP provides for defence co -
  operation. Reference is herein made to joint
  military exercises, training of military
  personnel, exchange of military intelligence,
  joint research and development, etc.

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SADC MDP (Intro 4)

• The MDP appears to operate from the premise that
  all SADC member states governments shall have
  acceeded to power through constitutional means
  and shall be exercising their mandate based on
  free and fair elections. It is not envisaged that
  some governments may be in power through
  unconstitutional means.

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Detailed Analysis of the SADC MDP
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INTRODUCTION AND PREAMBLE

• State Parties
• Angola
• Botswana (Ratified)
• DRC
• Lesotho
• Malawi
• Mauritius (Ratified)
• Mozambique
• Namibia
• South Africa
• Swaziland
• Tanzania (Ratified)
• Zambia
• Zimbabwe

• Pact signed by South Africa Tabled for
  ratification Parliament on 11 November 2004
• Seychelles to withdraw from SADC did not sign
  Pact
• Angola has not signed the Pact

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• In terms of the preamble, the Pact is based on
• SADCs commitment to UN Charter, Constitutive Act
  of AU, Protocol establishing the PSC of the AU
  and the Treaty
• The desire to live at peace with all peoples and
  Governments
• The commitment to SADC Treaty and Protocol on
  Politics, Defence and Security Cooperation
• Close cooperation in defence and security matters
  to the mutual benefit of SADC people

• Recognition of the sovereignty of all States, the
  strengthening of bonds between them, based on
  respect for their independence and non
  interference in internal affairs
• Promotion of peace, security, stability and
  well-being among SADC peoples
• The defence and safeguarding of the freedom of
  SADC peoples and their civilisation, their
  individual liberties and the rule of law
• Unification of efforts towards self-defence and
  preservation of peace and stability

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Article 1 Definitions

• "armed attack" use of military force in
  violation of sovereignty, territorial integrity
  and independence of a State Party
• "collective self-defence" measures undertaken
  collectively by the State Parties to ensure
  peace, stability and security in the Region
• "destabilise" to instigate, plan, execute or
  assist in the following
• Armed attack against a State Party
• Sabotage aimed at people of a State Party,
  whether inside or outside the territory of the
  State Party
• Any act or activity aimed at changing
  constitutional order of a State Party through
  unconstitutional means
• "State Party" Member State that has ratified or
  acceded to this pact

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• Implication
• It is clear from the definition of "armed
  attack", that the use of military force against a
  member state will constitute an armed attack. A
  definition of "military force" can in itself
  complicate the issue of determining when an
  attack is an armed attack ito the Pact.
• Will "military force" only be interpreted as
  being orchestrated by another State's military
  forces, or can it be interpreted as certain force
  used by organised para-military forces such as
  rebel groups or guerrilla fighters. Can this
  "military force" be orchestrated from inside a
  State Party's borders, or must it be a foreign
  armed attack?

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Article 2 Objective

• To operationalise the mechanisms of the Organ for
  mutual cooperation in defence and security
  matters
• Implication clear from the preamble, definition
  of "destabilise" and the objective of security
  cooperation that it is the intention of the
  drafters of this Pact to include matters of a
  much wider range than only those of a military
  nature

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Article 3 Conflict Resolution

• Conflict Resolution and international dispute to
  be settled by peaceful means in accordance with
  the Charter of the UN
• State Parties are to refrain from the threat of
  or the use of force if inconsistent with the
  Charter of the UN

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Article 4 Military Preparedness

• State Parties shall individually and
  collectively, by means of continuous cooperation
  and assistance, maintain and develop their
  individual and collective self-defence capacity
• Implication South Africa will be obliged to
  maintain certain regional standards wrt its
  military capacity and to work towards
  interoperability
• Implication South Africa will be obliged to
  participate in multi-lateral State Party military
  exercises more often

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Article 5 Consultation

• Where a State Party considers its territorial
  integrity, political independence and security
  under threat from another State Party, the
  threatened State Party shall consult with the
  latter and the then consult with the Organ
• Where consultation yields no satisfactory result,
  the Chairperson of the Organ may constitute a
  joint verification mission to investigate the
  threat
• Implication in the absence of the word "or"
  apparently Article 5(1) will only take effect if
  all three factors, "territorial integrity,
  political independence and security", are being
  threatened

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Article 6 Collective Self-defence and Collective
Action

• An armed attack against a State Party shall be
  considered a threat to regional peace and
  security and shall be met with immediate
  collective action by State Parties
• Collective action to be mandated by the Summit on
  the recommendation of the Organ
• Any armed attack and measure taken in response
  thereto, shall immediately be reported to the PSC
  of the AU and the SC of the UN
• Implication State Parties shall respond
  immediately by means of collective action.
  Apparently it is not necessary to respond with
  collective self-defence by means of the use of
  force. Any responsive action i.e. the use of
  diplomacy, the use of measures short of force or
  sanctions etc, will be accepted

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Article 7 Non-Interference

• State Parties undertake to respect one another's
  territorial integrity and sovereignty and to
  observe non-interference in the internal affairs
  of one another
• No action shall be taken to assist a State Party
  in terms of this Pact unless the State Party
  requests such action or consent to it except
  where the Summit decides that action needs to be
  taken in terms of the Protocol

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• Implication
• No State Party is allowed to render assistance or
  implement any sort of action without the consent
  or request of the State Party to be helped,
  unless specifically ordered by the Summit to do
  so
• Preferably, the nature of the assistance should
  be of a collective nature

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Article 8 Destabilising Factors

• State Parties undertake not to nurture, harbour
  or support any person, group of persons or
  institutions whose aim is to destabilise the
  political, military, territorial and economic or
  social security of a State Party
• Implication Although the Intelligence
  Structures already address the said matter, South
  Africa will derive an obligation from this pact
  to ensure that no destabilising factors are
  present in the Republic.

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Article 9 Defence Cooperation

• State Parties shall cooperate in defence matters
  and facilitate interaction among their armed
  forces and defence-related industries on the
  following and other mutual interest
• The training of military personnel in the field
  of military endeavour including joint military
  exercises
• The exchange of military intelligence and
  information
• The joint research, development and production
  under licence of military equipment, facilitation
  of supply and procurement of defence equipment
  and services

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• Implication Budget and strategic support
  constraints wrt training of foreign military
  personnel
• Implication South African Defence Industries
  and Armscor may have to support mutual
  procurement, research, development and production
  of military equipment

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Article 10 Supplementary Agreements

• State Parties may in respect of any particular
  issue covered by this Pact, agree to subsequent
  bilateral or multilateral agreements of a
  specific or general nature

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Article 11 Implementation

• State Parties shall receive delegations of Member
  States as coordinated by the Secretariat of the
  SADC Organ for the purpose of consultation
  regarding implementation of any aspect of this
  Pact

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Article 12 Confidentiality

• State Parties undertake not to disclose any
  classified information obtained under this Pact
  or related agreements
• State Parties undertake not to use any classified
  information obtained during multilateral
  cooperation among them to the detriment of or
  against any State Party
• Visiting personnel shall, in the implementation
  of this Pact, comply with the security
  regulations of the host State Party and
  information obtained shall be treated in
  accordance with this Article

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Article 13 Settlement of Disputes

• Any dispute among State Parties arising from the
  interpretation and application of this Pact,
  shall be settled amicably and if no resolution
  can be found, referred to the Tribunal

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Article 14 Withdrawal

• 12 months from the date of giving written notice
  to the Chairperson of the Organ
• A withdrawn State Party shall cease to enjoy all
  rights and benefits under this Pact
• A withdrawn State Party shall indefinitely remain
  bound by the provisions of Article 12
  (Confidentiality)

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Article 15 Saving Provisions

• State Parties shall declare that none of the
  International agreements between them and a Third
  Party are in conflict with the spirit and
  provisions of this Pact
• State Parties shall recognise existing defence
  agreements provided that such agreements are not
  in conflict with the spirit and provisions of
  this Pact
• Where existing agreements are in conflict with
  this Pact, the concerned State Parties shall take
  steps to amend the agreement

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• This Pact shall not derogate from a State Party's
  rights and obligations under the Charter of the
  UN, the Constitutive Act of the AU or relevant
  instruments human rights and international
  humanitarian law
• Implication South Africa will have ensure that
  defence related bilateral agreements comply with
  this Article
• Implication This Pact will have to be
  considered during the negotiation and drafting
  of all future bilateral agreements

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Article 16 Signature

• The Pact must be signed by duly authorised
  representatives of State Parties to the Protocol
  on Politics, Defence and Security Cooperation

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Article 17 Ratification

• This Pact shall be subject to ratification by the
  signatory States in accordance with their
  respective constitutional procedures
• Implication South Africa must ratify this Pact
  in terms of section 231(2) of the Constitution
• Implication Where not possible to implement the
  provisions of this Pact directly, implementation
  by means of incorporating legislation will be
  necessary

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Article 17 Accession

• This Pact shall remain open for accession by any
  State party to the Protocol on Politics, Defence
  and Security Cooperation

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Article 19 Amendments

• Any State Party may propose an amendment to this
  Pact
• Proposals to be made to the Chairperson of the
  Organ who shall duly notify all State Parties of
  the proposed amendments
• An amendment shall be adopted by decision of
  three quarters of all State Parties

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Article 20 Entry into Force

• The Pact shall enter into force 30 days after the
  deposit of the instrument of ratification by two
  thirds of the Member States

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Article 21 Depository

• The original texts of this Pact, and all
  instruments of ratification and accession, shall
  be deposited with the Executive Secretary, who
  shall transmit certified copies to all Member
  States in English, French and Portuguese
• The Executive Secretary of SADC shall register
  this Pact with the Secretariat of the UN and the
  Commission of the AU

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Article 22 Breach of the Pact

• Any State Party may report an alleged breach of
  the Pact to the Chairperson of the Organ, who
  shall institute an investigation, compile a
  report and make recommendations to the summit