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THE SADC MUTUAL DEFENCE PACT

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INTRODUCTION AND PREAMBLEINTRODUCTION AND PREAMBLE

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

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

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

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

• 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 DefinitionsArticle 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

"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).

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).

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Article 2 ObjectiveArticle 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

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 ResolutionArticle 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

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 PreparednessArticle 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-lnational (State Party) military exercises more often

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-lnational (State Party) military exercises more often

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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

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

Article 5 ConsultationArticle 5 Consultation

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Article 6 Collective Self-defence and Collective ActionArticle 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. 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

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. 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-InterferenceArticle 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

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

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 FactorsArticle 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.

• The PCD clearly indicated that any person in South Africa shall enjoy the Constitutional rights of freedom of speech, freedom of association, freedom of belief, etc.

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.

• The PCD clearly indicated that any person in South Africa shall enjoy the Constitutional rights of freedom of speech, freedom of association, freedom of belief, etc.

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Article 9 Defence CooperationArticle 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

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

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 AgreementsArticle 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

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 ImplementationArticle 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

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 ConfidentialityArticle 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

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 DisputesArticle 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

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 WithdrawalArticle 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)

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 ProvisionsArticle 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

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

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 SignatureArticle 16 Signature

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

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 RatificationArticle 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

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 AccessionArticle 17 Accession

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

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 AmendmentsArticle 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

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 ForceArticle 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]

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 DepositoryArticle 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

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 PactArticle 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

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