Joint Management as an Emerging Norm in International Watercourses Law: The Case of the SADC

by | Oct 14, 2019 | SADC, SADC 2013

Joint Management as an Emerging Norm in International Watercourses Law: The Case of the SADC

Authors William Attwell

ISSN: 2026-8556
Affiliations: Principal Policy Analyst, City of Cape Town
Source: SADC Law Journal, The, 2013, p. 117 – 138

Abstract

This article examines how the joint management approach to the governance of international watercourses — and its institutional expression: the international river basin organisation or IRBOs — is gaining traction as a norm in international watercourses law in the context of the SADC’s legal and policy architecture. It posits that, in response to the acute water insecurity facing the region, SADC member states have increasingly moved towards an integrated approach to international watercourses law and governance, one that places a strong emphasis on trans-boundary joint management regimes. This is underpinned by legal developments at international, regional and national levels. At an international level, the SADC member states that are party to the UN Convention on the Law of the Non-navigational Uses of International Watercourses have committed to the principles of equitable and reasonable utilisation, as well as provisions promoting the establishment of joint institutions. This has shaped regional international law, notably the 2000 SADC Protocol on Shared Watercourses, with its emphasis on institutional cooperation; as well as the attendant SADC policy documents shaping trans-boundary water governance. The article uses a case study of the Okavango states (Angola, Botswana and Namibia) to assess how the concept of joint management of trans-boundary watercourses has been incorporated into water law at a national level. The paper concludes by examining developments in contemporary international jurisprudence regarding the joint management concept and joint institutions by analysing two cases where the role of such institutions became a prominent theme in judgments handed down by the International Court of Justice.

Aligning Regional Integration Efforts in the SADC-EU Interim Economic Partnership Agreement with the African Economic Community

by | Oct 14, 2019 | SADC, SADC 2013

Aligning Regional Integration Efforts in the SADC-EU Interim Economic Partnership Agreement with the African Economic Community

Authors Mbakiso Magwape

ISSN: 2026-8556
Affiliations: None
Source: SADC Law Journal, The, 2013, p. 104 – 116

Abstract

The contracting States in the SADC-EU Interim Partnership Agreement (IEPA) confirmed their ‘commitment to promote regional cooperation and economic integration in the SADC EPA States’, and further committed to ensuring that ‘mutual arrangements support the process of regional integration under the SADC Treaty’. There have been, however, inconsistencies and dis-harmonisation caused by the IEPA, with regards to prior existing regional integration attempts the SADC has undertaken and committed to. One such regional integration commitment SADC has undertaken can be found in the African Economic Community Treaty (AEC), which requires six stages to be implemented (by Regional Economic Communities which includes the SADC) in order for the AEC to take form. The AEC aims to increase economic reliance and promote self-sustained development through integrating African economies and harmonising policies within those communities as defined in the African Economic Community Treaty (1991) Article 4:1(a) and (d). The SADC is a vital part of the AEC’s plans. The paper shall draw parallels to the regional integration commitments under the SADC-EU IEPA and the AEC treaty, and identifies dis-harmonisation and challenges between the two instruments. This paper shall also identify the stage that the AEC is in, and the SADC’s requirements and performance in complying to such stages, and ask the question whether the SADC-EU IEPA ‘supports’ such an integration process which is key to the SADC and Africa’s Economic aspirations.

Harmonisation or Unification of Laws in the Context of SADC Regional Integration: ‘Analysing the SADC’s Initiatives in the Era of E-commerce’

by | Oct 14, 2019 | SADC, SADC 2013

Harmonisation or Unification of Laws in the Context of SADC Regional Integration: ‘Analysing the SADC’s Initiatives in the Era of E-commerce’

Authors Deo John Nangela

ISSN: 2026-8556
Affiliations: None
Source: SADC Law Journal, The, 2013, p. 80 – 103

Abstract

Regional economic integration is one of the ambitious projects supported by African countries. Several initiatives to realise it, such as the formation of Regional Economic Communities (RECs), have been in place, some well before, and more, after independence. The Southern African Development Community (SADC) is one of the regional economic blocs in Africa. The SADC’s mission and vision include, among other things, support for deeper co-operation and integration among its members, the reason being the desire to benefit from the economies of scale. While this regional economic entity has identified various enablers of deeper integration, such as peace, security, good governance, information and communication technology, liberalisation and private sector development, it is submitted that unless it adopts a harmonised (or unified), ‘technology conscious’ legal regime to support the rest of integration enablers, deeper integration in the region will still remain delusional. The adoption of such a legal framework in the region is necessary at such a time as this when technology forms the basis of modern knowledge-based economy. Such a framework has the potential to lessen cross-border business intricacies in the region. If, for instance, the region resolves to adopt a radical approach towards development of a unified legal regime, especially in the area of private international law, this may boost the development of e-commerce which is largely a cross-border activity. E-commerce, which forms part of the ‘new economy’, is essentially an important means of accessing the hitherto unaccessed markets, and, as a cross-border activity, is a catalyst for the integration process. As such, its development requires an environment with harmonised or unified legal rules that are technology conscious. This paper, therefore, supports a two prong approach to the facilitation of e-commerce in the region, ie, harmonisation and/or unification of laws. It examines the process of legal harmonisation in the context of the SADC region while also supporting the idea of possible unification in certain areas of the law. It suggests that, although the SADC region’s preference seems to incline towards legal harmonisation in future, the region may consider legal unification as a radical approach in certain areas of law such as private international law. The paper also argues that, with the development of e-commerce as a cross-border activity, an effective system of resolving conflict of laws issues within the region is an important attribute to the region’s successful economic integration. Such a system is currently lacking in the SADC’s integration process. In this regard the paper considers, however, that a successful integration process is not only a question of removal of economic and political differences but also removal of legal impediments, including those which arise out of underdeveloped commercial, criminal and private international law frameworks. In view of this, SADC member states need to demonstrate their commitment, political will and understanding of the fact that the successes of any economic integration includes, among other things, an appropriate legal framework which fosters and sustains the integration process.

WTO Special and Differential Treatment: Africa’s Golden Fleece or Trojan Horse

by | Oct 14, 2019 | SADC, SADC 2013

WTO Special and Differential Treatment: Africa’s Golden Fleece or Trojan Horse?

Authors Jumoke Oduwole

ISSN: 2026-8556
Affiliations: Lecturer, Faculty of Law, University of Lagos
Source: SADC Law Journal, The, 2013, p. 59 – 79

Abstract

The Doha Development Agenda (Doha Round) heralded an historic negotiation pertaining to Special and Differential Treatment (SDT) for developing countries. The SDT accorded to developing countries under the WTO takes the form of exemption provisions for least-developed countries (LDCs) and developing countries to ensure proportionality in the commitments undertaken between industrialised members and developing country WTO members based on their different levels of advancement. The paper argues that the goal of African countries in Doha negotiations should remain the attaining of equality in outcomes from the application of the new trade rules. Furthermore, today, even emerging economies attempt to remain within SDT categories for purposes of WTO rules, in order to continue benefitting from the exemptions available to their so-called peers within the system. The writer contends that, if not properly structured and implemented, SDT provisions woven into trade rules could become a disincentive to the growth of African economies. This paper analyses the possible implication of SDT proposals currently being presented by African countries in the Doha Round. The objective of the paper is to stimulate informed policy contributions across the continent that may be applied in advancing and negotiating key SDT areas during the Doha Round and beyond.

Off the Beaten Track into the Savannah: The Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe Ruling Imperils SADC Investment Law

by | Oct 14, 2019 | SADC, SADC 2013

Off the Beaten Track into the Savannah: The Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe Ruling Imperils SADC Investment Law

Authors Tawanda Hondora

ISSN: 2026-8556
Affiliations: None
Source: SADC Law Journal, The, 2013, p. 23 – 58

Abstract

This article considers the investment law implications of the celebrated case of Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe. In its decision, the Southern African Development Community (SADC) Tribunal declared that the 79 applicants, among which were 28 private limited companies and their shareholders: (i) had been subjected to unlawful race discrimination; (ii) had been unlawfully denied access to the courts of Zimbabwe; and (iii) were entitled to be paid ‘fair compensation’ for farms expropriated by the respondent State. This article argues that the Campbell case was wrongly decided. Contrary to the Tribunal’s decision under international law: (a) a company — such as Mike Campbell (Pvt) Ltd — cannot assert a race discrimination claim; (b) a shareholder in a company — such as William Michael Campbell — does not have a cause of action or jus standi against a State in a claim seeking compensation for property expropriated from the company, except where the company has been wound up, the direct rights of the shareholder — qua shareholder — have been breached, or a specific and enabling investment treaty applies to the dispute; and (c) a State is not required to pay ‘fair compensation’ or ‘prompt, adequate and effective compensation’ to its national from whom it has expropriated property. Although decided using international human rights law principles, the Campbell ruling is relevant to, and will imperil, SADC investment law, if it is treated as persuasive authority.

Using Local Legal Cultures to Evaluate the OHADA Regime as a Precedent for Business Law Integration in the SADC

by | Oct 14, 2019 | SADC, SADC 2013

Using Local Legal Cultures to Evaluate the OHADA Regime as a Precedent for Business Law Integration in the SADC

Authors Isabelle Deschamps

ISSN: 2026-8556
Affiliations: Lawyer, D.C.L. Candidate, McGill University; Non-practising Solicitor, Law Society of England and Wales (2008)
Source: SADC Law Journal, The, 2013, p. 1 – 22

Abstract

This paper discusses the importance for states, transnational organisations and ‘norm entrepreneurs’ in Africa to account for local legal cultures when contemplating regional business law unification and economic integration. It explores how local legal cultures shape commercial usages and how commercial law integration projects in Africa, in particular the OHADA and the SADC could better account for them. To begin with the paper revisits anthropological, critical and international law definitions of culture and analyses the attributes of local legal cultures. Building on this discussion, the article then analyses the relationship of general cultural norms to the particular informal legal norms that shape the living law of business in some OHADA and SADC countries. It looks at specific spheres where local business law cultures can be observed. The point is not to describe the specific business law cultures operating in the OHADA and the SADC regions, but rather to draw attention to settings where jurists and lawmakers can observe local business legal culture in action. The article concludes that paying attention to local business law culture will help assess the merits of the OHADA as a model for the SADC. On a broader scale, it will assist legislators, governments, jurists and other transnational business law experts in assessing the feasibility of an African economic and legal integration project.