SALC legal position on SADC Tribunal

Statements — By on October 7, 2009 1:54 pm

The Southern Africa Litigation Centre

Opinion
IN RE:  SUBMISSIONS MADE BY THE MINISTER OF JUSTICE, ZIMBABWE, AS TO THE LEGAL COMPETENCE OF THE SADC TRIBUNAL, THE ENFORCEABILITY OF ITS DECISIONS, AND THE LEGAL OBLIGATIONS OF THE ZIMBABWEAN GOVERNMENT AS THEY RELATE TO THE TRIBUNAL

22 September 2009

A. Introduction

1. An opinion, dated 31 August 2009, purporting to be that of the Government of the Republic of Zimbabwe and signed by the Honourable P.A. Chinamasa, Zimbabwean Minster of Justice and Legal Affairs (the Minister), seeks to challenge the SADC Tribunal’s legal competence, the enforceability of its decisions and the legal obligations owed by the Republic of Zimbabwe to the Tribunal on the basis, in essence, that the Tribunal has not been properly established under international law. 

2. There have been several responses to this opinion.  Those responses in turn have prompted further statement from the Minister on the status of the SADC Tribunal.  On the 19 September 2009 a further legal opinion, on behalf of the Zimbabwe Commercial Farmers Union, was issued, addressing the Minister’s claim that the SADC Tribunal is improperly constituted.

3. The Southern Africa Litigation Centre, an organisation promoting human rights and the rule of law in southern Africa, is obviously deeply concerned at the challenge to the SADC Tribunal. But, as is evident, much has already been said on this issue and we do not wish to reiterate arguments already made. We therefore confine ourselves to submissions not yet made.

4. In our submissions below we address the contentions made that international law requires that subsequent amendment to the SADC Treaty be subject to a process of ratification and that the Protocol of the SADC Tribunal is not subject to amendment prior to coming into force. As will be shown, neither of these propositions has any validity at international law – at best fundamentally misunderstanding the inherent flexibility that infuses the law of treaties; at worst, deliberately misrepresenting the position under international law.

5. Notwithstanding the misstatement of principles of international law, we call on SADC to welcome the intent expressed on the part of the Zimbabwean government, as conveyed by the Minister, to be bound by and to adhere to the tenets of international law and we urge SADC to hold the Zimbabwean government to this express commitment.

B. No Requirement of Ratification for Amendments to Enter into Force

6. In sum, the opinion of the Government of the Republic of Zimbabwe (the Zimbabwe opinion) maintains that as the SADC Treaty is silent as to how amendments enter into force, customary international law prevails and requires that the same procedures applicable to the entry into force of the Treaty itself are of application to the amendment. As two-thirds of the Member States of SADC were required to ratify the Treaty before it entered into force, the same proportion of member States is required to ratify an amendment before it enters into force. This was not done in respect of the 2001 Agreement Amending the Treaty of the Southern African Development Community (the Amending Agreement) and in the absence thereof, the amendment has not entered into force and more pertinently, the SADC Tribunal is improperly established.

7. This is not a position that has any validity under international law and fundamentally misrepresents the inherent flexibility that characterises the law of treaties, particularly in respect of the conclusion and entry into force of agreements. A brief survey of the applicable provisions in the Vienna Convention on the Law of Treaties  (the Vienna Convention) shows this to be the case.

8. Article 39 of the Vienna Convention states the general rule regarding the amendment of treaties:  “A treaty may be amended by agreement between the parties.”

9. It continues: “The rules laid down in Part II apply to such an agreement except insofar as the treaty may otherwise provide.” Part II of the Vienna Convention regulates the conclusion and entry into force of treaties, and given the specification of the latter part of Article 39, does likewise in respect of the conclusion and entry into force of amendments.

10. Article 24 of the Convention, governing the entry into force of treaties, and thus of amendments, provides:
1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating State may agree.
2.  Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.

11. Consent to be bound by a treaty and, mutatis mutandis, an amendment, is established in terms of Article 11 of the Convention:
The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.[emphasis added]

12. Taken together, and separately, these articles are illustrative of the inherent flexibility of the law of treaties. Article 11’s reference to ‘other means if so agreed’ indicates that agreement does not have to be express: it is enough for it to be implicit in the text of treaty or otherwise established, for example by conduct. As Anthony Aust explains in Modern Treaty Law and Practice:
[I]t is possible for a treaty to be adopted, without signature, or any other procedure, and enter into force instantly for all the adopting states. The treaty which established the Preparatory Commission of the Comprehensive Nuclear-Test Ban Treaty 1996 (CTBT) was adopted by a resolution of the states which had signed the CTBT and was effective, at least in international law, immediately without any further act by those states.  
13. Use of the word ‘agreement’ in Article 39 of the Vienna Convention, similarly encourages a flexible approach in respect of amendments, recognising “that it is perfectly possible to supplement a treaty by an agreement which does not itself constitute a treaty, or by an oral agreement. . .”  

14. Contrary to the propositions advanced in the Zimbabwe opinion on the need for a “somewhat rigid and solemn process of ratification”, it is apparent, even from the unexpanded provisions of the Vienna Convention, that ratification is not mandatory for the entry into force of treaties or of amendments. It is not even the default position for entry into force of treaties or amendments. As Aust explains:
It has long been the practice of states whenever they intend a treaty to enter into force by a procedure involving more than just signature to provide evidence of that intention, and usually by an express provision in the treaty itself. Furthermore, when a treaty provides for ratification it is presumed that a state has not become bound by its conduct unless that is clearly its intention. If there is no indication, express or implied, of the need for ratification the treaty will be presumed to enter into force on signature. 

15. Even if ratification is agreed upon by the Parties as the means by which the original treaty comes into force, it is not necessarily the means by which subsequent amendments come into force. What is fundamental is the agreement of the Parties, and consequently their respective intent.

16. Aust’s survey of the procedures generally adopted for amendment (excerpted also in the Zimbabwe’s Government’s Opinion) makes it plain that ratification is not required before amendments enter into force.
The amendment  procedures built into treaties in recent years are often elaborate. No two are the same, each being tailored to suit the particular needs of the organisation or treaty, but they usually provide for:
(1) the number of parties, or votes in the plenary body or meeting, needed to support an amendment before it has to be put to all the parties;
(2) the majority needed for adoption of the amendment;
(3) whether the adopted amendment needs to be ratified or accepted (some treaties enable technical annexes to be amended simply by a decision of a body or meeting);
(4) if so, the number  of parties which need to ratify or accept for the amendment to enter into force;
(5) where ratification or acceptance is not required, whether the amendment can be adopted by tacit agreement;
(6) whether the amendment binds those parties which do not accept it.

17. As is evident, none of these procedures is mandatory and entry into force of amendments can be effected in a variety of ways:  through simple decision of a body or meeting or, by tacit agreement, etc. However, the centrality of agreement between parties is again underlined.

18. The only mandatory requirements for amendment (although these too can be deviated from if the treaty so provides), as stipulated by Article 40(2) of the Vienna Convention, are that :
Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:
(a) the decision as to the action to be taken in regard to such proposal;
(b) the negotiation and conclusion of any agreement for the amendment of the treaty.

19. Article 36 of the SADC Treaty indicates that these requirements were clearly recognised and provided for.

20. The Zimbabwe opinion maintains that “in the absence of a provision to the contrary in a treaty, the coming into force of an amendment is covered by the same underlying principles as those for the coming into force of the treaty.”  That unassailable position is supported by Article 39 of the Vienna Convention, and not Article 40 as maintained in the opinion.

21. Much more material however, is that from this unassailable position the following contentions, completely unreferenced and appearing without any authority, appear to be derived: “[b]ecause the Treaty does not contain provisions for entry into force which are specific to an amendment, customary international law applies and accordingly the intention of the Member States is taken to have been that the same provisions for the coming into force of the Treaty will apply to an amendment” ,  and that “[t]he entry into force is governed by customary international law and requires that the same procedures for the entry into force of the Treaty be adopted for the entry into force of the amendment.”

22. The Vienna Convention, which the Zimbabwe Opinion recognises as a restatement of customary international law, makes no such provision.  What it does provide in Article 39 is that the same rules applicable to the conclusion and entry into force of treaties apply to the conclusion and entry into force of amendments. Imperative for entry into force of treaties, and no less for amendment, is that agreement or consent is established and that such consent can be established by any agreed means.

23. In respect of the original SADC Treaty, Member States elected to have the Treaty enter into force “thirty (30) days after the deposit of the instruments of ratification by two-thirds of the States listed in the Preamble.” There are no provisions in the Treaty which specify how amendments are to enter into force.  Certainly, there is no indication from the text that State Parties intended that ratification be required before amendments would enter into force. The provisions concerning amendment and those relating to ratification and entry into force of the Treaty are contained in separate chapters of the Treaty. Moreover, the provisions relating to signature and ratification refer to ‘High Contracting Parties’, whereas the provisions applicable to amendment refer to the Summit – suggesting that a process for the conclusion and entry into force of amendments distinct from that for the original SADC Treaty was envisaged.

24. But even if the Treaty did expressly stipulate how amendments were to enter into force, even if State parties had intended that amendments enter into force through ratification, that would not be dispositive of the matter.  As Aust explains, subsequent agreement will supersede any procedure earlier agreed on:
The Convention on International Trade in Endangered Species 1973 (CITES) was effectively modified by a resolution of the Conference of the Parties in 1986 despite an amendment procedure having been built into the Convention.

25. Agreement was very clearly reached between Members of the Summit as to the entry into force of the Amending Agreement. The plain meaning of Article 32 couldn’t be any more clear that a distinctive rule was adopted as to the coming into force of the Amending Agreement:
This Agreement shall enter into force on the date of its adoption by three-quarters of all members of the Summit.
26. As agreement was very clearly reached as to entry into force of the Amending Agreement and consent to be bound clearly indicated there can now be no valid argument that the SADC Treaty was improperly amended and that the consequences of the amendment – including that the Protocol of the SADC Tribunal became an integral part of the SADC Treaty – have no legal effect.

C. The Protocol May Be Amended

27. As consent to be bound by the Amending Agreement can be established for all Members of the SADC Summit, including Zimbabwe, little need be said as to the entry into force of the Protocol for the SADC Tribunal. By virtue of amended Article 16 of the SADC Treaty the Protocol became an integral part of the Treaty, obviating further need for signature or ratification of the Protocol.    

28. However, as an illustration of the centrality of agreement to the law of treaties, of its inherent flexibility, and of the extent to which the Zimbabwe opinion fails to appreciate this centrality, it is worth noting that the opinion maintains that “any purported amendments to the Protocol are invalid ab initio as a Protocol which has not yet come into force cannot be amended in accordance with its own provisions.” 

29. While it is true that a treaty or any other multilateral instrument cannot, prior to it coming into force, be amended in accordance with its own provisions, as those provisions are not yet operative, the opinion errs in maintaining that a multilateral instrument cannot be amended prior to coming into force. It can. According to Aust:
It may be necessary to amend a multilateral treaty even before it has entered into force.
30. Most famously, the UN Convention on the Law of the Sea 1982, which entered into force in 1999, was amended by a supplementary agreement in 1994.

31. In this instance, the Protocol on the SADC Tribunal was first amended by Article 18 of the Amending Agreement of 2001 and thereafter by the Agreement Amending the Protocol on the Tribunal 2002, both of which constitute legitimate amendments at international law.

D. Conclusion

32. Neither the position that the Amending Agreement to the SADC Treaty requires ratification nor that the Protocol of the Tribunal is not subject to amendment are supported at international law. Amendment to the Treaty and Protocol were validly made and the Minister’s disputation thereof is without merit.

Nicole Fritz
Lloyd Kuveya
The Southern Africa Litigation Centre
22 September 2009

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