LEGAL STATUS OF SADC TECHNICAL AGREEMENTS AND IMPLICATIONS FOR THE ALIGNMENT PROCESS

INTERNATIONAL LAW When a country joins a REC and becomes party to international agreements it is bound to live up to its obligations to implement the agreement. Only international agreements bind member states. Important to correctly identify international agreements because of the consequences

WHAT IS AN INTERNATIONAL AGREEMENT? VCLT provides that an international agreement must: - Be in writing - have been concluded by competent representatives - provide for the rights and duties of the parties

SADC MOU ON HARMONISATION OF SEED REGULATIONS Signed in February 2010 by Ministers of Agriculture of SADC States It establishes commonly agreed regulatory standards, rules and procedures related to: Seed Variety Release; Seed Certification and Quality Assurance; and Quarantine and Phytosanitary Measures for Seed. premised on the need to facilitate enhanced seed trade in the region and to increase the availability of high quality seed to farmers through rationalizing and removing national regulatory barriers for the movement of seed across borders.

WHICH SADC INSTRUMENTS AMOUNT TO TREATIES? SADC Treaty SADC Protocols MOUs – generally not binding Declarations – not binding Stndards and Model laws – Not binding

SADC TREATY AND PROTOCOLS Art. 22 of the SADC Treaty provides for protocols to be entered into in the areas of cooperation of SADC. The SADC Treaty and Protocols meet the requirements of an international agreement and so once ratified, they must be domesticated in accordance with the constitutional provisions of each member state.

NATURE OF UNDERTAKINGS UNDER TREATY AND PROTOCOLS Undertakings in the SADC treaty and in SADC protocols are legally binding. This means They are subject to ratification in accordance with member states’ constitutional provisions They are subject to domestication Other member states have a right to insist on compliance Failure to comply amount to breach of international law and this has serious consequences

OTHER SADC INSTRUMENTS MOUs typically entered into as a non binding preliminary document which provides a framework for cooperation prior to concluding a binding protocol The MOU on Microeconomic Convergence preceded the protocol on trade SADC Declarations are also adopted as antecedents to protocols eg SADC Declaration on Gender led to the SADC Protocol on Gender

LEGAL NATURE OF UNDERTAKINGS UNDER AN MOU MOU undertakings are “soft”. This means that Provisions not legally binding Merely persuasive Not subject to ratification Cannot speak of “ domestication” Failure to comply does not amount to breach of international law States cannot be punished for failure to comply But They have persuasive value Can influence domestic policy

VERDICT ON THE SEED REGULATIONS MOU The MOU on harmonisation of seed regulations is not a legally binding document The technical agreements are not really “agreements” as defined by international law If SADC developed a Protocol on Agriculture and the three technical agreements were made annexes to the Protocol then the agreements would have a binding status like the annexes to the Protocol on Trade.

IMPLICATIONS OF VERDICT ON THE ALIGNMENT PROCESS Not proper to speak of an obligation to “domesticate” the technical agreements Not correct to refer to “agreements”. States under no legal obligation to align States cannot be punished for failure to align Advocacy strategies must be informed by these facts. States cannot be compelled or “pushed” to comply Advocacy strategies must be persuasive designed to appeal more to reason than to legal compulsion

HOW NON BINDING INSTRUMENTS CAN INFLUENCE / SHAPE POLICY States will allow themselves to be influenced by non binding legal instruments which make good sense and which are in keeping with national interests. E.g SADC principles on Democratic Elections have shaped election management legislation SADC model law on HIV and AIDS has shaped the nature of HIV / AIDS management legislation.

IMPLICATIONS ON ALIGNMENT PROCESS Policy makers must be convinced that alignment makes good sense and is in the socio-economic interests of the country Emphasis and language must shift from “monitoring compliance” mode to arousing the interest of states by highlighting the benefits of the system Facilitating the process of political buy in and ownership

Thank you Any Questions? END Thank you Any Questions?