The 2009 Bilateral Investment Treaty between South Africa and Zimbabwe : Balancing between competing pressures

by | Oct 14, 2019 | SADC, SADC 2012I2

The 2009 Bilateral Investment Treaty between South Africa and Zimbabwe : Balancing between competing pressures

Authors Nokuhle Madolo

ISSN: 2026-8556
Affiliations: Senior Researcher at the Mandela Institute, University of the Witwatersrand
Source: SADC Law Journal, The, 2012, Issue 2, p. 205 – 222

Abstract

This paper discusses the Bilateral Investment Promotion and Protection Agreement (BIPPA) between South Africa and Zimbabwe entered into in November 2009. It highlights the fact that policymakers in both countries realised the need to have an agreement in place that would boost Zimbabwe’s beleaguered economy and serve as a protection mechanism for investments in both countries — amidst objections from South African farmers who tried to stop the agreement from being signed. The paper discusses the implications of these two countries’ entering into such an agreement against the background of their national economic policies, national laws and international law. The paper suggests there is a need to maintain a balance between national polices and international law as competing pressures are brought to bear when it comes to the BIPPA’s implementation. The question here is whether or not the Agreement alone is likely to solve the long-standing conflict brought by Zimbabwe’s land policy, which resulted in the seizing of land and the issue of investor protection. Competing pressures that are raised in this regard are issues of constitutional rights, legislative supremacy, diplomatic protection, and treaty interpretation in regard to investor protection. In this regard, the paper investigates the implications of the Agreement from the point of view of other legal obligations invoked in different forums, namely domestic South African and Zimbabwe law, Southern African Development Community (SADC) regional law, international law, and international customary law. Further questions are whether or not the BIPPA can, on its own, solve any investor dispute that may arise, and whether or not investors will be faced with a host of other competing legal pressures that could be brought to the forefront in future investment disputes. Of particular importance would be the BIPPA’s dispute resolution clauses. The discussion explores whether or not the signing of this Agreement ushered in a new dawn in the Zimbabwean economy and the stabilisation of the southern African region in general. The discussion is concluded by suggesting that, in seeking to balance the competing interests between national policies and international law and to ensure the constitutional responsibilities of the state are not interfered with, the BIPPA attempts to regulate future cross-border investment disputes between South Africa and Zimbabwe.

The state of trade liberalisation in goods in SADC

by | Oct 14, 2019 | SADC, SADC 2012I2

The state of trade liberalisation in goods in SADC

Authors Precious Nonhlanhla Ndlovu

ISSN: 2026-8556
Affiliations: LLD Candidate and Associate Lecturer, Faculty of Law, University of the Western Cape
Source: SADC Law Journal, The, 2012, Issue 2, p. 187 – 204

Abstract

The Protocol on Trade seeks to liberalise trade among Southern African Development Community (SADC) members through the elimination of tariff and non-tariff barriers with the aim of establishing a Free Trade Area (FTA) in the region. The paper revisits the Regional Indicative Strategic Development Plan (RISDP) timelines as far as trade liberalisation is concerned. It shows that while the FTA was launched as per the 2008 deadline, a number of obstacles still remain. These include the failure by some members to achieve the liberalisation threshold, inadequate customs infrastructure, the surge in non-tariff barriers, and the multiple memberships of the SADC countries in other regional trade blocs, which may undermine SADC’s objectives. This paper suggests that the solutions to these problems include consolidating the gains achieved from the FTA; getting members whose commitments are outstanding to take steps to align their customs laws to the agreed benchmarks; having members refrain from imposing non-tariff barriers; increasing customs cooperation; and setting realistic time frames.

Perspectives towards the development of the social protection dimension of the SADC regional integration agenda

by | Oct 14, 2019 | SADC, SADC 2012I2

Perspectives towards the development of the social protection dimension of the SADC regional integration agenda

Authors Letlhokwa George Mpedi, Mathias Nyenti

ISSN: 2026-8556
Affiliations: Professor and Director: Centre for International and Comparative Labour and Social Security Law (CICLASS), Faculty of Law, University of Johannesburg; Research Coordinator: Centre for International and Comparative Labour and Social Security Law (CICLASS), Faculty of Law, University of Johannesburg
Source: SADC Law Journal, The, 2012, Issue 2, p. 164 – 186

Abstract

The social protection of Southern African Development Community (SADC) residents is one of the central objectives of the SADC integration agenda. Evidence of this can also be seen in the various instruments adopted and/or concluded by SADC member states which are geared towards the promotion of adequate social protection in the region. These instruments include the SADC Treaty, the Charter of Fundamental Social Rights, the Draft Protocol on Facilitation of Movement of Persons, the Code on Social Security, the Code on HIV/AIDS and Employment, the Declaration on Gender and Development, the Declaration on HIV and AIDS, and various other instruments dealing with issues such as occupational health and safety. This paper explores the extent to which the social protection dimension of the regional integration agenda has been realised. It evaluates the extent to which the development of social protection in the region has been given prominence in the evolving regional integration initiatives. This is achieved by examining the regional social protection and related instruments, their impact on ensuring the establishment of a SADC-wide social protection regime, and steps adopted to realise SADC’s social protection goals.

Enhancing access to South African social security benefits by SADC citizens: The need to improve bilateral arrangements within a multilateral framework (Part II)

by | Oct 14, 2019 | SADC, SADC 2012I2

Enhancing access to South African social security benefits by SADC citizens: The need to improve bilateral arrangements within a multilateral framework (Part II)

Authors Marius Olivier

ISSN: 2026-8556
Affiliations: Director: International Institute for Social Law and Policy; Extraordinary Professor: Faculty of Law, University of the North-West, Potchefstroom; Adjunct-Professor: Faculty of Law, University of Western Australia, Perth, Australia
Source: SADC Law Journal, The, 2012, Issue 2, p. 129 – 163

Abstract

This contribution, the second of two parts, reflects on the need and availability of mechanisms to improve bilateral arrangements within a multilateral framework in order, amongst other things, to enhance access to South African social security benefits by SADC migrants. It discusses the impeding impact of the operation of the current immigration law and policy framework, as migrant workers whose employment or right to reside in South Africa has terminated may not have sufficient opportunity to finalise social security arrangements before departure. In addition, the widely reported xenophobic conduct vis-\xc3\xa0-vis and treatment of non-citizens further hampers access to social security benefits. The current labour agreements between South Africa and certain SADC countries, as is the case with more recent Memoranda of Understanding, are inadequate for various reasons, and do not qualify as true bilateral social security agreements. Despite guidance provided by the AU Migration Policy and Social Protection Frameworks and related documents, SADC regional social security and migration policy frameworks are still absent. The development of an integrated vision and harmonised policy framework at SADC level with regard to migration needs to be supported at the country level by a coherent and relevant migration policy. While some provision is made for the protection, in social security terms, of the position of non-citizens, SADC instruments invariably qualify the protection available; importantly, such protection is not supported by nationality discrimination and freedom of movement provisions. International instruments provide an important framework for a range of applicable principles for the treatment of non-citizens in social security, the protection of their accrued rights and portability of benefits, and the entering into of bilateral agreements. However, while applicable UN instruments have been widely ratified by most SADC countries, this is not so as regards ILO social-security-related Conventions, with particular reference to ILO migration Conventions. There is an evident need for the adoption of suitable bilateral social security agreements to better regulate entitlement to South African social security benefits and related social security coordination provisions. This flows from the weak provision made in this regard in the South African legal system and the legal systems of other SADC countries. Flexible approaches should be adopted by, for example, initially focusing on areas of concern which are common to South Africa and its neighbouring countries, and which are in need of urgent action (such as access to occupational injuries and disease benefits). It is argued that the bilateral regime should be undergirded by a multilateral framework which contains generally applicable standards and displays a phased and incremental approach in relation to (a) benefits provided for; (b) categories of persons covered; (c) the introduction of the principle of aggregation/totalisation of insurance periods/contributions; and (d) countries included in the agreement.