The keystone of Patrick Chinamasas arguments is a claim that President Mugabe (pictured) and others at the SADC summits had no authority to bind their States to the 2001 SADC amendment or protocols for the tribunal. So why did no-one say anything at the time?Chinamasa was familiar already with the Vienna Convention on the Law of Treaties from his long career advising government on treaties.
Reading the convention explains why he kept silent then there was nothing to say. Every head of state is assumed to hold authority. A states consent to be bound may be expressed by the head of states signature.
Not only has Chinamasa said nothing until now, neither have any of the SADC heads of state or their professional advisers. They have all kept silent and have never suggested there was need for ratification before the treaty amendment or protocol and its amendment could come into force.
Even if Chinamasa should have warned the heads of state that they were exceeding their authority in 2000, 2001 and 2002, it is too late to complain now, and the convention is very clear on this.
Article 46 says: A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
Article 47 says: If the authority of a representative to express the consent of a state to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating states prior to his expressing such consent.
Post published in: News