Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)

CHAPTER 7

ENVIRONMENTAL LAW IN THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC) AND CROSS-CUTTING REGIMES

Oliver C. Ruppel

1 The Consideration of Environmental Concerns within the SADC Legal Framework

Environmental concerns are, similar to the protection and promotion of human rights, not at the heart of the constitutive acts of regional economic communities (RECs) like SADC. However, environmental concerns have, at least to some extent, found their way into the legal framework of most RECs.

SADC1 was established in Windhoek in 1992 as the successor to the Southern African Development Coordination Conference (SADCC), which was founded in 1980. SADC currently counts 15 states among its members, namely Angola, Botswana, the Democratic Republic of Congo (DRC), Lesotho, Madagascar2, Malawi, Mauritius, Mozambique, Namibia, the Seychelles,3 South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe.

In founding SADC, environmental protection was explicitly included. The Declaration and Treaty of SADC lays down in Article 5(g) as one of SADC’s objectives 4 to “achieve sustainable utilisation of natural resources and effective protection of the environment”. In order to achieve this, member states are, amongst others5, called to seek to harmonise their political and socio-economic policies and plans towards this aim and in particular to push forward the institutional development of environmental protection. Considering the multitude of environmental issues in single SADC countries and within SADC as a region, it is of utmost importance to achieve the objective of Article 5(g) of the SADC Treaty to the best possible extent.

1.1 Heterogeneity of SADC States

Selected Indicators for SADC Countries

SADC Country

Surface Area (sq. km)¹

Surface (% of total SADC)¹

Population (Mio Persons)²

GDP (2011 Estimates in Billion USD)²

GDP per Capita (2011 Estimates in USD)²

HDI (2011 Estimates)³

HDI Rank³

Angola

1,246,700

12,92

19,625

99,325

5,061.252

0,486

148

Botswana

566,730

5,87

1,853

16,390

8,843.914

0,633

118

DRC

2,267,050

23,50

72,571

15,306

210,915

0,286

187

Lesotho

30,360

0,31

2,588

2,690

1,039.532

0,450

160

Madagascar

581,540

6,03

21,851

9,359

428,327

0,480

151

Malawi

94,280

0,98

16,166

5,662

350,261

0,400

171

Mauritius

2,030

0,02

1,289

10,982

8,519.680

0,728

77

Mozambique

786,380

8,15

22,017

12,141

551,417

0,322

184

Namibia

823,290

8,53

2,138

13,015

6,087.231

0,625

120

Seychelles

460

0,00

0,089

0,993

11,116.899

0,773

52

South Africa

1,214,470

12,59

50,591

422,037

8,342.161

0,619

123

Swaziland

17,200

0,18

1,176

3,917

3,332.125

0,522

140

Tanzania

885,800

9,18

42,176

23,197

55,006

0,466

152

Zambia

743,390

7,71

13,585

18,408

1,355.054

0,430

164

Zimbabwe

386,850

4,01

12,575

9,242

734,968

0,376

173

Total

9,646,530

 

280.201

662.664

 

 

 

¹ Source: World Bank Development Indicators

² Source: IMF World Economic Outlook Database (September 2011)

³ Source: UNDP

Table compiled by Cord Luedemann

The heterogeneity of SADC member states is not only reflected by surface area, population figures, size of the domestic markets, per capita incomes, the endowment with natural resources and the social and political situation, but also by the variety of legal systems applied in different member states.6 In the states of sub-Saharan Africa, the concept of legal pluralism is predominant. In view of such heterogeneity within SADC it is of increasing significance for SADC member states to harmonise the law by means of implementation and transformation of SADC Protocols aiming to reduce or eliminate the differences between national and SADC community law.

Heterogeneity of Non-religious Legal Systems within SADC

Country

Legal System

Angola

Civil Law

 

Customary Law

Botswana

Roman Dutch Law

Common Law

Customary Law

DR Congo

Civil Law

 

Customary Law

Lesotho

Roman Dutch Law

Common Law

Customary Law

Madagascar

Civil Law

 

Customary Law

Malawi

 

Common Law

Customary Law

Mauritius

Civil Law

Common Law

 

Mozambique

Civil Law

 

Customary Law

Namibia

Roman Dutch Law

Common Law

Customary Law

Seychelles

Civil Law

Common Law

 

South Africa

Roman Dutch Law

Common Law

Customary Law

Swaziland

Roman Dutch Law

Common Law

Customary Law

Tanzania

 

Common Law

Customary Law

Zambia

 

Common Law

Customary Law

Zimbabwe

Roman Dutch Law

Common Law

Customary Law

1.2 Institutional Structure of SADC

Several institutions build the foundations for SADC: The Summit of Heads of State or Government is the supreme policy-making institution of SADC. It consists of the Heads of State or Government of all member states and is responsible for the overall policy direction and control of the functions of SADC. All decisions reached by consensus are binding. The Council of Ministers consists of one Minister from each member state, preferably the Minister for economic planning or finance. The Council of Ministers oversees the functioning and development of SADC, as well as the proper implementation of SADC policies and approves the policies, strategies and work programmes of SADC. Commissions are convened for specific sectoral tasks or programmes to coordinate the integration of policies and programmes in designated sectoral areas. Commissions report to the Council. The Standing Committee of Officials consists of one permanent secretary or equivalent official from each member state, preferably from the ministry for economic planning or finance ministry. The Committee serves as a technical advisory committee to the Council. The Secretariat is the principal executive institution of SADC. The Secretariat is headed by the Executive Secretary, who is the diplomatic representative of SADC. The Secretariat is responsible for the strategic planning and management of the programmes of SADC. The Secretariat implements decisions of the Summit and of the Council, provides financial and general administration, promotes SADC, and coordinates the policies of member states.

1.3 Environmentally Relevant Legal Framework

1.3.1 The SADC Treaty

SADC was established by signature of its constitutive legal instrument, the SADC Treaty. SADC envisages –

… a common future, a future in a regional community that will ensure economic well-being, improvement of the standards of living and quality of life, freedom and social justice, and peace and security for the peoples of Southern Africa. This shared vision is anchored on the common values and principles and the historical and cultural affinities that exist between the peoples of Southern Africa.7

To this end, SADC’s objectives include the achievement of development and economic growth, the alleviation of poverty, the enhancement of the standard and quality of life, support of the socially disadvantaged through regional integration, the evolution of common political values, systems and institutions, the promotion and defence of peace and security, and achieving the sustainable utilisation of natural resources and effective protection of the environment.8 In terms of SADC community law, the SADC Treaty is the highest source of law within SADC’s legal framework. In its Preamble, the Treaty determines, inter alia, to ensure, through common action, the progress and well-being of the people of southern Africa, and recognises the need to involve the people of the SADC region centrally in the process of development and integration. As stated above, the sustainable utilisation of natural resources and the effective protection of the environment have been laid down in Article 5(g) of the SADC Treaty as one of SADC’s objectives. Furthermore, food security, land and agriculture as well as natural resources and the environment have, among other issues, been identified as areas of cooperation by the SADC Treaty.9

1.3.2 The SADC Protocols

Besides the aforementioned provisions and objectives in the SADC Treaty, the SADC legal regime becomes responsive to environmental concerns in various other legal instruments as well. One category of such documents constitutes the SADC Protocols. The Protocols are instruments by means of which the SADC Treaty is implemented, and they have the same legal force as the Treaty itself. A Protocol comes into force after two thirds of SADC member states have ratified it. The Protocols which are of most relevance with regard to the environment are listed in the table and briefly explained below.

Protocol

Date of entry into force

Protocol on Energy

17 April 1998

Protocol on Fisheries

8 August 2003

Protocol on Forestry

17 July 2009

Protocol on Health

14 August 2004

Protocol on Mining

10 February 2000

Protocol on Shared Watercourse Systems

28 September 1998

Revised Protocol on Shared Watercourses

22 September 2003

Protocol on Tourism

26 November 2002

Protocol on Trade

25 January 2000

Protocol on Transport, Communications and Meteorology

6 July 1998

Protocol on Wildlife Conservation and Law Enforcement

30 November 2003

1.3.2.1 The Protocol on Energy

The Protocol on Energy strives to outline means of cooperation in the development of energy to ensure security and reliability of energy supply and the minimisation of costs. It is emphasised in the Protocol that development and use of energy must be environmentally sound.10 To achieve this objective, the Protocol inter alia provides for cooperation in the development and utilisation of energy in the sub-sectors of wood fuel, petroleum and natural gas, electricity, coal, new and renewable energy sources, and energy efficiency and conservation. The Protocol formulates the intention to promote increased production of new and renewable sources of energy in an economically and socially acceptable manner, including biogas, windmills, mini-hydro plants, passive solar design of buildings, photo-voltaic, solar thermal and solar stoves and water heaters. The development of national energy efficiency and conservation plans is encouraged. Article 4 establishes an Energy Commission, consisting of the Committee of Ministers, the Committee of Senior Officials, the Technical Unit, and sub-committees. The Commission is responsible for the implementation of the Protocol. Annex 1 to the Protocol contains guidelines for cooperation in the Energy Commission.

On the basis of the Treaty and the Protocol on Energy, the SADC Energy Corporation Policy and Strategy (1996); the Energy Action Plan (1997) and the Energy Sector Activity Plan (2000) have been drafted

in order to position the energy sector such that the region can derive maximum benefits from a rationalisation of resources and facilities in the region, and to develop initiatives that contribute to building the capacity of energy institutions in the region to participate effectively in future liberalisation of the energy sector, as well as in the regional economy.11

Under the Protocol, the Regional Electricity Regulators Association of Southern Africa (RERA) was established in July 2002. RERA is a formal association of electricity regulators in pursuit of the broader initiative of the New Partnership for Africa's development (NEPAD) and the African Energy Commission (AFREC).12 RERA strives to facilitate harmonisation of regulatory policies, legislation, standards and practices and to be a platform for effective cooperation among energy regulators within the SADC region. The objectives of RERA fall into three broad categories, namely: Capacity Building and Information Sharing; Facilitation of Electricity Supply Industry (ESI) Policy, Legislation and Regulations, and Regional Regulatory Cooperation. Each SADC country can have one electricity supply industry regulator as a member of RERA.

The draft Renewable Energy Strategy and Action Plan (RESAP) which still needs to be approved intends to contribute to energy supply security, stimulate economic growth and improve access to modern energy services. Furthermore, the action plan seeks to ensure that the regional energy strategy is aligned with global trends towards clean and alternative energy sources.13 Alternative fuels and environmental protection are important aspects and goals of the RESAP-Programme. It has been stated that 33% of the electricity demand should be covered by renewable energies by 2020, 39% by 2030. To this end, a total investment of 177 billion US Dollar is required until 2030.14

In July 2015, The Energy Ministers of the Southern African Development Community (SADC) approved the establishment of the SADC Centre for Renewable Energy and Energy Efficiency (SACREEE). Namibia was confirmed as the host country of the Secretariat of the Centre.15

Energy is a defining issue and closely linked with key contemporary global challenges in the SADC region – social development and poverty alleviation, environmental degradation, climate change, food security etc. Energy efficiency plays an important role in sustainable growth and development. Better energy efficiency can produce substantial benefits both for global economic growth and poverty reduction as well as for mitigating climate change. In the household sector, improved energy efficiency can directly reduce household expenditures on energy services, and therefore directly help to reduce poverty. Conducive policies are central to the development of sustainable energy generation and markets. Laws governing sustainable energy development and supply cut across many sectors such as, mining, forestry, agriculture, environment, water, industry, electricity, and petroleum, and hence require coordination – a complex challenge that is not easily overcome.16 The energy sector and the provision of electricity for southern Africa’s population and industries comprise a complex issue without including the influence of climate change to the equation. If SADC intends reducing its GHG and carbon emissions a transition to sustainable energy is inevitable. This requires redefining its competitive advantage from attracting energy intensive sectors on the basis of non-renewable energy (e.g. coal) to building a new advantage around climate friendly technology and energy. What remains a challenge, and that needs to be researched more extensively, is, how emerging regional and national legislation can harmonise and coordinate the work around the issues of sustainable energy. Cross-sectoral coordination and responsibilities need to be streamlined in order to assure decision making to promote energy security in the region through more effective energy trade mechanisms in future. In the same context policymakers and Government officials need to be capacitated to translate international policy to national and local levels, and vice versa. Further research emphasis needs to be placed on linking national, regional and international policymaking, especially in relation to all emerging climate change related issues, such as the Green Climate Fund.

1.3.2.2 The Protocol on Fisheries

Considering that fisheries are essential for the social and economic well-being and livelihood of the people in the region, with regard to food security and the alleviation of poverty, the Protocol on Fisheries provides for cooperation and integrative actions in order to optimise the sustainable use of the living aquatic resources within SADC. Thus, the objective of the Protocol is to promote the responsible and sustainable use of living aquatic resources and aquatic ecosystems, in order to enhance food security and human health, safeguard the livelihood of fishing communities, generate economic opportunities for citizens, and alleviate poverty.

The Protocol recognises the UN Convention on the Law of the Sea (UNCLOS) and takes into account the FAO Code of Conduct for Responsible Fisheries. Its objective is to promote the responsible and sustainable use of the living aquatic resources and aquatic ecosystems and interestingly defines a fish as any aquatic plant or animal and resources as all aquatic ecosystems. The preamble emphasises the necessity for joint co-operative and integrative action at regional level, awareness and support of national initiatives to implement international conventions on sustainable use and recognises the unique trans-boundary character of the aquatic resources and ecosystems and the need to cooperate in their management.17

Legal measures provided for in the Protocol to achieve this objective include the protection of resources against over-exploitation, the transfer of skills and technologies to other member states to enhance effective regional co-operation, and the exchange of information on the state of shared resources, levels of fishing, measures taken to monitor and control exploitation of shared resources, plans for new or expanded exploitation, and relevant research activities and results. The Protocol envisages to integrate systems to monitor resources, joint fish stock assessment programmes, agreed scientific methodologies, and preparation of best scientific advice on sustainable levels of exploitation. Of specific importance with regard to environmental protection relating to fisheries is the requirement to balance the needs of industrial enterprises, artisanal fishers, subsistence fishers, recreational fishers, and aquaculture practitioners, in a politically, environmentally and economically sustainable manner (Article 12) and the provision providing for the protection of aquatic ecosystems, including their biodiversity and unique habitats (Article 14). The harmonisation of legislation has been taken up by Article 8, asking for cooperation with regard to establishing region-wide penalties for illegal fishing by SADC and non-SADC flagged vessels in the waters of member states. Annexed to the Protocol are a list of international fora, conventions and agreements with which member states are to establish common positions and undertake co-ordinated and complementary actions, as well as a list of international bodies particularly relevant to the Protocol in Annex 2. Appendices 3 and 4 list international declarations on integrated coastal zone management and agreements on international rivers, respectively.

1.3.2.3 The Protocol on Forestry

Forests are dealt with in the Protocol on Forestry; they cover an area of 357 million hectares of the SADC region corresponding to about 33% of the land area.

The basic regional policy for sustainable management of forests in the SADC region is the Protocol on Forestry. It is a set of rules or principles agreed upon by the SADC member states on how to integrate and cooperate among themselves in order to commonly conserve and manage the SADC forests and woodlands for the benefit of the SADC people. The Protocol recognises the trans-boundary nature of these forests, the importance of transboundary management strategies, the vital role of forests in protecting water catchments particularly of shared water courses and understands that potential harm to these forests is not limited by national boundaries. One of the objectives of the protocol is the effective protection of the environment and the ways listed to achieve the objectives include “harmonising approaches to sustainable forest management, forest policy, legislation and enforcement…”.18 The guiding principles include the obligation of member states to “facilitate, promote and continually improve policy and legal frameworks that promote sustainable forest management”19.

Forests are home to a rich biodiversity, and millions of people live within the forests and woodlands, which directly support their livelihoods. Forest products from which the population can benefit include charcoal, honey, bush meat, and construction materials amongst many others. Thus, the transboundary conservation and management of forests are essential contributions to the protection and conservation of the environment and its biodiversity, and ultimately, to poverty alleviation. Regional approaches for policy harmonisation and transboundary forest conservation and sustainable use concepts are important mechanisms to attain regional integration. Recognising the essential role which forests play with regard to maintaining the earth’s climate, controlling floods and erosion, and as sources of food, wood and other forest products, the Protocol’s primary objective is to promote the development, conservation, sustainable management and utilisation of all types of forests and forest products in order to alleviate poverty and generate economic opportunities. To this end, the Protocol inter alia addresses issues of common concern including deforestation, genetic erosion, climate change, forest fires, pests, diseases, invasive alien species, and law enforcement.

Furthermore, states are called upon to facilitate the gathering and monitoring of information, and the sharing and dissemination of information, expertise and technology concerning forests; and to harmonise approaches to sustainable forest management, forest policy, legislation and enforcement, and issues of international concern. Trade and investment are to be promoted based on the sustainable management and utilisation of forests and the rights of communities are to be strengthened by facilitating their participation in forest policy development, planning, and management. The Protocol emphasises that traditional forest-related knowledge must be protected and requires mechanisms to ensure the equitable sharing of benefits from forest resources. SADC is currently in the process of drafting a SADC Regional Forestry Strategy and implementation plan.

1.3.2.4 The Protocol on Health

The Protocol on Health was primarily adopted in order to enhance cooperation in addressing the health problems and challenges facing member states through effective regional collaboration and mutual support. As a clean environment can provide best for the health of the region’s population, member states undertake to collaborate, co-operate and assist each other in a cross-sectoral approach in addressing regional environmental health issues and other concerns, including toxic waste, waste management, port health services, pollution of air, land and water, and the degradation of natural resources (Article 23).

Health largely depends on a minimum protection from diseases and unhealthy lifestyles. Many people in southern Africa are particularly vulnerable with regard to health threats as these threats are usually greater for poor people in rural areas, particularly children, women and indigenous groups due to malnutrition, insufficient access to health services, lack of clean water and other basic necessities.20

1.3.2.5 The Protocol on Mining

The SADC region is extremely rich in natural resources, including minerals, which can contribute to accelerating economic and social development and growth. The Protocol on Mining strives to harmonise national and regional policies and strategies related to the development and exploitation of mineral resources through developing human and technological capacity, including collaboration between the mining industry and training institutions, inter alia.

SADC states must ensure a balance between mineral development and environmental protection, including conducting environmental impact assessments (especially in shared systems and cross border projects), and sharing information on environmental protection and rehabilitation (Article 8). According to the ‘fixed stock paradigm’ mining is unsustainable because it is an unavoidable fact that resources will eventually be exhausted.21 According to the ‘opportunity cost paradigm’ mining can be sustainable because the costs caused by resource depletion will be counter-acted by new technology and future developments.22 With regards to the latter argument, foreign investment certainly plays a key part in the development of SADC’s mining sector and effective mining policies and legal frameworks must ensure the best possible outcomes in terms of sustainability of the mining sector in the region.23

1.3.2.6 The Revised Protocol on Shared Watercourses

The Revised Protocol on Shared Watercourses of the Southern African Development Community repeals and replaces the 1995 Protocol on Shared Watercourse Systems.

This Protocol recognises international consensus on a number of concepts and principles related to water resource development and management in an environmentally sound manner.

The policy acknowledges the Helsinki Rules, the UN Convention on the law of the Non-Navigational Uses of International Watercourses and Agenda 21 concepts and facilitates the establishment of shared water agreements.24

The scarcity of water restricts economic development and social upliftment in the SADC region.25 Successfully managing water resources in southern Africa will contribute in reaching SADC’s vision of sustainable development in the region:

The people of southern Africa call for a desirable future in which the region’s environment is conserved among all the competing uses of water, recognising the constraints inherent in natural ecosystems so that the environment can be sustainably improved, used and managed in the spirit of social and environmental justice.26

The Protocol aims to foster closer cooperation for judicious, sustainable and coordinated management, protection and utilisation of shared watercourses and advance the SADC agenda of regional integration and poverty alleviation. In order to achieve the objective, this Protocol, by virtue of Article 2, seeks to promote and facilitate the establishment of shared watercourse agreements and shared watercourse institutions for the management of shared watercourses; advance the sustainable, equitable and reasonable utilisation of the shared watercourses; promote a coordinated and integrated environmentally sound development and management of shared watercourses; promote the harmonisation and monitoring of legislation and policies for planning, development, conservation, protection of shared watercourses, and allocation of the resources thereof; and promote research and technology development, information exchange, capacity building, and the application of appropriate technologies in shared watercourses management.

Recognising the principle of the unity and coherence of each shared watercourse, SADC states undertake to harmonise the water uses in the shared watercourses and to ensure that all necessary interventions are consistent with the sustainable development of all watercourse states and observe the objectives of regional integration and harmonisation of their socio-economic policies and plans. The utilisation of shared watercourses (including agricultural, domestic, industrial, navigational and environmental uses) within the SADC region is open to each watercourse state, in respect of the watercourses within its territory and without prejudice to its sovereign rights, in accordance with the principles contained in the Protocol.

Member states are obliged to respect the existing rules of customary or general international law relating to the utilisation and management of the resources of shared watercourses. According to Article 3.4 of the Protocol, member states commit themselves to maintain a proper balance between resource development for a higher standard of living for their people and conservation and enhancement of the environment to promote sustainable development.

Watercourse states in their respective territories undertake to utilise a shared watercourse in an equitable and reasonable manner taking into account the interests of the watercourse states concerned, consistent with adequate protection of the watercourse for the benefit of current and future generations, and they participate in the use, development and protection of a shared watercourse in an equitable and reasonable manner. Such participation includes both the right to utilise the watercourse and the duty to co-operate in the protection and development thereof, as provided in this Protocol. Furthermore, the Protocol states that member states have to take all appropriate measures to prevent the causing of significant harm to other watercourse states. Where significant harm is caused to another watercourse state, the state whose use causes such harm is to take all appropriate measures to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation. Disputes between member states regarding the interpretation or application of the provisions of the Protocol which are not settled amicably, are to be referred to the SADC Tribunal under the SADC Treaty.

The Protocol established several SADC water sector organs (Committee of Water Ministers, Committee of Water Senior Officials, Water Sector Coordinating Unit, and Water Resources Technical Committee and sub-committees) and shared watercourse institutions. The Committee of SADC Water Ministers met in Maseru, Lesotho, in September 2011, where it has been stated that:

… climate change has also seen us facing more intense and frequent extremes of weather such as droughts and floods, thus necessitating coordinated management of our shared water courses and resources. For the SADC region with its multiplicity of shared watercourses, issues of cooperation and joint planning and management of the development and utilisation of our shared resources is of paramount importance.27

Various bilateral and multilateral water commissions within the SADC region have been established,28 which include the following:

1.3.2.7 The Protocol on Tourism

Considering that the tourism sector is one of the largest and fastest growing sectors in the region, the SADC Protocol on Tourism was primarily adopted to increase regional tourism trade and to utilise the wide range of natural, cultural and historical sites in the region as a means to achieve sustainable social and economic development. In order to achieve these objectives, the Protocol requires member states to better use resources through collective efforts and co-operation in an environmentally sustainable manner. Environmentally and socially sustainable tourism development based on sound management practices is to be promoted. The Protocol puts an emphasis on preserving the natural, cultural and historical resources of the region (Article 11).

1.3.2.8 The Protocol on Trade

The primary objective of the Protocol on Trade is to liberalise intra-regional trade in goods and services to ensure efficient production within SADC, reflecting the dynamic comparative advantages of its members states, contributing towards the domestic, cross-border and foreign investment climate, and enhancing the development, diversification and industrialisation of the region. Environmental conservation is integrated in that the Protocol provides for general exceptions from the Protocol’s principles in order to ensure the conservation of exhaustible natural resources and the environment (Article 9(h)). Furthermore, member states undertake to make compatible their respective standards-related measures, so as to facilitate trade in goods and services within SADC, without reducing the level of protection of human, animal or plant life or health, or of the environment (Article 17).

Regional trade can be a powerful source of economic growth. But trade does not automatically mean economic growth, let alone poverty reduction or sustainable development. The ability to benefit from regional trade and foreign investment is dependent on a number of factors, particularly the quality of the policies and institutions on the ground. Thus, trade should be considered a means to an end, but not as the end in itself. An effective SADC trade regime must first and foremost be friendly to the environment, address poverty reduction and promote sustainable development.

1.3.2.9 The SADC Protocol on Wildlife Conservation and Law Enforcement

The Protocol on Wildlife Conservation and Law Enforcement of SADC aims to establish within the framework of the respective national laws of each member state common approaches to the conservation and sustainable use of wildlife resources and to assist with the effective enforcement of laws governing those resources.

The Protocol applies to the conservation and sustainable use of wildlife, excluding forestry and fishery resources. Each member state has to ensure the conservation and sustainable use of wildlife resources under its jurisdiction, and that activities within its jurisdiction or control do not cause damage to the wildlife resources of other states or in areas beyond the limits of national jurisdiction.

In line with Article 4 of the Protocol, appropriate policy, administrative and legal measures have to be taken to ensure the conservation and sustainable use of wildlife and to effectively enforce national legislation pertaining to wildlife. Cooperation among member states is envisaged to manage shared wildlife resources as well as any trans-frontier effects of activities within their jurisdiction or control. To achieve its overall objectives, the Protocol is to promote the sustainable use of wildlife, harmonise legal instruments governing wildlife use and conservation, enforce wildlife laws within, between and among member states, facilitate the exchange of information concerning wildlife management, utilisation and the enforcement of wildlife laws, assist in the building of national and regional capacity for wildlife management, conservation and enforcement of wildlife laws, promote the conservation of shared wildlife resources through the establishment of trans-frontier conservation areas, and facilitate community-based natural resource management practices for management of wildlife resources.

The Protocol establishes the Wildlife Sector Technical Coordinating Unit; the Committee of Ministers responsible for Food, Agriculture and Natural Resources; the Committee of Senior Officials; and the Technical Committee. The Wildlife Conservation Fund is established by Article 11.

1.3.2.10 The SADC Protocol on Transport, Communications and Meteorology

Member states acknowledge that they are members of the World Meteorological Organisation (WMO) and, through their national meteorological services, constitute an integral part of the regional and global system or network of the WMO’s programmes and structures, in particular the World Weather Watch programme (Article 12.1). Within the regional and international cooperative system of the WMO, members are encouraged to provide adequate legal frameworks and appropriate financial support to the national meteorological services to establish an integrated network of observation, data processing and communications systems; and enhance the provision of meteorological services for general and specialised applications in the region and internationally (Article 12.2). Such co-operation framework obliges member states to inter alia strengthen their weather and climate monitoring systems, improve public and specialised weather services, promote sustainable development with the emphasis on climate change and protection of the environment, and strengthen meteorology research capacity in the region. The Protocol emphasises that sustainable development is to be promoted with an emphasis on climate change and protection of the environment. These aims are to be achieved by means of strengthening the capabilities of national meteorological centres in climate applications and advice; enhancing existing environmental monitoring activities; optimising the use of regional structures; and fostering an awareness of the contributions which can be made by national meteorological centres to planning sustainable development in agriculture, forestry and related areas (Article 12.7).

1.3.3 Other SADC Legal and Institutional Instruments Relevant for the Environment

1.3.3.1 The Regional Indicative Strategic Development Plan (RISDP)

Apart from the Treaty and protocols, SADC also provides other instruments at different levels. These are not binding and do not require ratification by SADC member states.

In March 2001, the Heads of State and Government met at an Extraordinary Summit in Windhoek and approved the restructuring of SADC institutions by means of a Regional Indicative Strategic Development Plan (RISDP) which was approved by the SADC Summit in 2003.

The RISDP reaffirms the commitment of SADC member states to good political, economic and corporate governance entrenched in a culture of democracy, full participation by civil society, transparency and respect for the rule of law. With regard to monitoring the implementation of the RISDP, the Summit exercises oversight through progress reports from the SADC Secretariat.

The focal point of the RISDP is thus to provide strategic direction with respect to SADC programmes and activities, and to align the strategic objectives and priorities of SADC with the policies and strategies for achieving its long-term goals. The RISDP is indicative in nature, merely outlining the necessary conditions that should be realised towards achieving those goals. The purpose of the RISDP is to deepen regional integration in SADC. The RISDP has identified gaps and challenges in the current policies and strategies, and used them to reorient those policies and strategies. In light of the identified gaps and challenges, Chapter 4 focuses on a number of priority intervention areas of both cross-sectoral and sectoral nature that are critical for the achievement of SADC’s objectives, in particular in promoting deeper regional integration, integrating SADC into the world economy, promoting equitable and balanced development, eradicating poverty and promoting gender equality, protecting the environment and strengthening sustainable development.

In order to attain these goals, SADC will inter alia need to harmonise policies, legal and regulatory frameworks for the free movement of factors of production and to implement policies to attain macroeconomic stability and build policy credibility. Although it has to be emphasised that RISDP it is not a binding instrument, at every Summit in recent years member states reaffirmed their commitment to regional integration as per the RISDP, which has identified environment and development as cross-sectoral priority intervention areas, as environment and sustainable development present opportunities for the region to advance its programme of action in environment and natural resources management and forge harmonisation of and compliance with environmental policies, standards and guidelines by pursuing the strategic objectives outlined in the RISDP.30

With regard to environment and sustainable development, the RISDP has elaborated the following areas of focus:

An internal desk assessment of the RISDP in 2011 which was approved by SADC Council in 2011 was followed by an independent mid-term review carried out and approved by Council in 2012 and 2013. In 2014 and 2015, a task force comprising the SADC Secretariat, all member states and key stakeholders developed and finalised the Draft Revised RISDP 2015-2020 and its Implementation Framework and Indicative Costs. In 2015, the SADC Summit has approved the Revised Regional Indicative Strategy of Development Plan (RISDP) and Implementation Framework of 2015-2020.32 The Revised RISDP comprises 7 chapters with 4 priority areas (of which only the first priority area has been revised substantially as compared to the initial RISDP):

1.3.3.2 The SADC Declaration on Agriculture and Food Security

With the 2003 Declaration on Agriculture and Food Security, Heads of State and Government gave substantial means to some specific objectives laid down in Article 5 of the SADC Treaty, namely the promotion of sustainable and equitable economic growth and socio-economic development to ensure poverty alleviation, with the ultimate objective of its eradication and the achievement of sustainable utilisation of natural resources and effective protection of the environment. With this Declaration, SADC member states committed themselves to promote agriculture as a pillar of strength in national and regional development strategies and programmes, in order to attain their short-, medium-, and long-term objectives on agriculture and food security.

The Declaration covers a broad range of human-rights-relevant issues including the sustainable use and management of natural resources and human health. This is because increasing temperatures and declining precipitation in the region resulting from climate change are likely to reduce yields for primary crops in the next decades, changes which will have a substantial impact on food security in SADC, although the extent and nature is still uncertain.33 Periods of drought and flooding will have an impact on food availability, food access, and on nutrient access.34 It is predicted that the impacts of climate change, such as sea-level rise, droughts, heat waves, floods and rainfall variation, could push millions of people into malnutrition and increase the number of people facing water scarcity.35

1.3.3.3 The SADC Charter of Fundamental and Social Rights

The 2003 Charter of Fundamental and Social Rights in SADC, although not legally binding, is an important human rights document that specifies the objectives laid down in Article 5 of the SADC Treaty for the employment and labour sector. The Charter enshrines the right to a safe and healthy environment, among others. To mobilise the policy value, and indeed the legal force, of a right to a safe and healthy environment in the SADC regime requires the introduction of likely human rights impacts and outcomes. For instance, are the specific rights potentially affected by climate change – the rights to food, water, shelter, and health or rights associated with gender, children and indigenous peoples – addressed in context? The right to a safe and healthy environment become highly relevant to the design and implementation of approaches to adverse environmental effects in policy and legal terms. This dimension includes arguments based on human rights obligations of SADC members under a variety of international law instruments. These range from the integration of human rights into country strategies in terms of priority entitlements or more procedural rights that are relevant to the design and implementation of national policies (e.g. right to information, participation, or access to decision-making). Recognition of the link between the abuse of the human rights of various vulnerable communities and related damage to their environment is expressed in the concept environmental justice.36 Internationally, the experience of courts that have been asked to decide on cases with regard to environmental rights shows that the judiciary is crucial when it comes to interpreting existing law and policy in a way that takes into account environmental concerns. In the 2009, South African case of Lindiwe Mazibuko and Others v City of Johannesburg and Others, O’ Reagan J held that –

[t]he purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of Government to account through litigation. In so doing, litigation of this sort fosters a form of participative democracy that holds Government accountable and requires it to account between elections [for] specific aspects of Government policy. When challenged as to its policies relating to social and economic rights, the Government agency must explain why the policy is reasonable ….37

The aforementioned reasoning does not only apply to the domestic level and should thus in future also be considered on the regional level. This shall become even clearer in the passage below dealing with SADC law enforcement and relevant case law.

1.4 SADC Law Enforcement and Relevant Case Law

Other SADC provisions than those of the Treaty and the Protocols are beyond any doubt important mechanisms for practically improving the state of the environment and the managing thereof within SADC. However, given that, in the legal sense, only provisions of a binding nature can be enforced, the SADC Treaty and its protocols are pivotal to enforcing environmental provisions within SADC.

1.4.1 The SADC Tribunal

The SADC Tribunal was established in 1992 by Article 9 of the SADC Treaty as the judicial institution within SADC. The inauguration of the Tribunal and the swearing in of its members took place in November 2005 in Windhoek, Namibia. The Council designated the seat of the Tribunal to be in Windhoek. The judicial body began hearing cases in 2007, but no case dealing specifically with environmental provisions has been received so far.

Originally, the Tribunal was established to have the mandate to adjudicate disputes between states and between natural and legal persons in SADC and to have jurisdiction over all matters provided for in any other agreements that member states may conclude among themselves or within the community and that confer jurisdiction on the Tribunal.38 In this context, the SADC

Tribunal also has jurisdiction over any dispute arising from the interpretation or application of environmentally relevant Protocols. The Tribunal was primarily set up to resolve disputes arising from closer economic and political union.39 However, the Tribunal has demonstrated40 that it can also be called upon to consider the human rights implications of economic policies and programmes.41

Surprisingly, the SADC Heads of State and Government dissolved the Tribunal during 2010. In all probability, this was linked to the continued non-compliance by Zimbabwe with the Tribunal’s judgments which is unfortunate.42 It was decided that “a review of the role, functions and terms of reference of the SADC Tribunal should be undertaken and concluded within six months”43 and the SADC Tribunal was suspended. At an Extraordinary Summit of Heads of State and Government in May 2011, the following was decided:44

These decisions have been subject to critical debate.45 At the 32nd Session of the Summit of the Heads of State and Government in 2012, it was inter alia concluded as follows:

24. Summit considered the Report of the Committee of Ministers of Justice/Attorneys General and the observations by the Council of Ministers and resolved that a new Protocol on the Tribunal should be negotiated and that its mandate should be confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.

De facto, the aforementioned decision means a drastic limitation of the competence (if not paralysis) of the SADC Tribunal as it was initially provided with the competence to deal with proceedings initiated by private parties against either the community or member states. Without the competence to deal with proceedings initiated by private parties the new SADC Tribunal will only operate with its wings cut and most likely become unemployed, due to the fact that basically all proceedings before the old SADC Tribunal had so far been initiated by natural or legal persons. Instead of strengthening the mandate of the new SADC Tribunal it has been weakened at the cost of national sovereignty thinking. The fear of loss of state autonomy, the lack of vision and the unwillingness to compromise are obstacles that prompted SADC to decide against strengthening SADC citizens’ rights in the regional community.

Since then, the Tribunal remained suspended. In August 2014, SADC Council of Ministers have considered and approved a draft new Protocol on the SADC Tribunal and recommended it to Summit for further consideration, approval and signature. 46 Not only taking into consideration the variety of binding SADC Protocols with an environmental impact, the revival of the Tribunal would have been an important step towards the development of environmental jurisprudence at the African sub-regional level. However, the draft Protocol for the Tribunal limits its competence, as it was initially provided with the competence to deal with proceedings initiated by private parties against either the community or member states. At its 35th Summit held in Gaborone, Botswana in August 2015, the SADC Heads of State and Government approved a resolution on the establishment of the Southern African Development

Community Administrative Tribunal (SADCAT).47 In contrast to the old SADC Tribunal, the revised Protocol regarding the SADCAT does not provide for access to the tribunal for individuals, and it will no longer handle cases between countries. The new SADCAT is thus no court of justice as the SADC Tribunal used to be but will merely function as a legal institution for the interpretation of treaties and protocols of SADC.

The following cases with some environmental and human rights impact reflect the promising beginnings of the SADC Tribunal before it had been cut its wings.

1.4.2 Mike Campbell: An Environmentalist

In 2005, the Constitution of Zimbabwe was amended. The Constitutional Amendment (No. 17) Act 2005 allowed the Government to seize or expropriate farmland without compensation, and it bars courts from adjudicating on legal challenges filed by dispossessed and aggrieved farmers. The practical implications of the Amendment Act resulted in farm seizures, where the majority of the approximately 4,000 white farmers were forcibly ejected from their properties with no compensation being paid for the land. On 11 October 2007, Mike Campbell (Pvt) Ltd, a Zimbabwean-registered company, and others instituted a case with the SADC Tribunal to challenge violations by the expropriation of agricultural land in Zimbabwe by that country’s Government.48 Mike Campbell had purchased the farm in question on the open market in 1980, after Zimbabwe’s Independence.

On 28 November 2008, the SADC Tribunal in its final decision ruled in favour of Mike Campbell and other white commercial farmers.49 In its decision the Tribunal held that the Republic of Zimbabwe was in breach of its obligations under Articles 4(c) and 6(2) of the SADC Treaty and that the applicants had been denied access to the courts in Zimbabwe;50 and the applicants had been discriminated against on the ground of race.51 The Tribunal further directed the Republic of Zimbabwe to take all necessary measures to protect the possession, occupation and ownership of the lands of those applicants who had not yet been evicted, and to pay fair compensation to those who had already been evicted. The ruling was considered to be a landmark decision expected to shape the legal landscape in the SADC region.52 Despite the rule that the Tribunal’s decisions are final and binding,53 the Zimbabwean Government never accepted the Tribunal’s judgement in the Campbell case.54 Subsequently, the farm of Mike Campbell was invaded.55 This raised the question of how the Tribunal’s judgements were to be enforced. In early April 2011, the South African Advocate Jeremy Gauntlett filed an urgent application before the SADC Tribunal on behalf of Mike Campbell and another against the Summit of the Heads of State or Government of SADC, the Presidents of its 15 countries, the Council of Ministers of SADC and the Republic of Zimbabwe. The application requested an order that ensures that “the [SADC] Tribunal continues to function in all respects as established by Article 16 of the Treaty”.56 On 9 April 2011, the South African Sunday Times newspaper published the following:

Mike Campbell, 78, the commercial farmer who made legal history when he took President Mugabe to the Southern African Development Community (SADC) Tribunal in 2007 and won the case a year later, died at his temporary home in Harare this week.’

It is further reported that:

Campbell never recovered from the abduction and brutal beatings meted out to him, his wife Angela and son-in-law Ben Freeth by ZANU-PF thugs .... The 78-year-old farmer sustained severe head injuries, which resulted in brain damage, broken ribs and damage to his lower limbs 57

The dealings around the Campbell case reflect that the rule of law is in a state of flux in SADC and the recent dissolution of the SADC Tribunal is obviously linked to the continued Zimbabwean non-compliance with the Tribunal’s judgments.

In March 2012, the African Commission on Human and Peoples’ Rights decided to register and consider a complaint about the suspension of the SADC Tribunal. The claimants requested the African Commission to refer their communication to the African Court of Justice so it can order the SADC Summit and its member states to lift, with immediate effect, the suspension of the tribunal; to reappoint the tribunal’s judges and to give the tribunal the funding it needs to get on with its work. However, the African Commission has concluded that neither the separate analysis of Articles 7 (on the right to have ones case heard) and 26 (on the independence of the courts) of the African Charter on Human and Peoples Rights, nor a combined reading of the two provisions do create an obligation to ensure access to the SADC Tribunal. The African Commission thus found no violation of Articles 7 and 26 of the African Charter by the respondent states.58

With regard to the question whether it can still realistically be expected that SADC will take appropriate action against Zimbabwe, one can only refer to the late Mike Campbell and conclude without reservation that ‘justice delayed is justice denied’. Mike Campbell was an environmentalist as has been eloquently reflected in the following press passage:

Campbell was an early conservationist, and after Zimbabwe gained independence in 1980, the purchase of a neighbouring farm provided the space to introduce giraffe, impala and eland. Wildlife drew visitors to the family's Biri River safari lodge. He grew tobacco and maize and raised a resilient herd of Mashona-Sussex cattle, while mangoes from the 40,000 trees generated foreign currency from sales in British supermarkets. The Government-sanctioned invasion of white-owned commercial farms began in earnest two decades after independence. Mugabe promised a ‘fast-track’ redistribution of 3,000 farms to landless black people. Mount Carmel was a plum target.... The documentary ‘Mugabe and the White African’ (2009), which won a British independent film award, depicts Campbell and his wife enjoying a sundowner as a farm worker comes to warn that an armed gang is headed for the house. In a moment worthy of Sir Francis Drake on Plymouth Hoe, he tells his wife, Angela, he will deal with them “when I have finished my drink”. Campbell refused to hand over his farm to the so-called war veterans (few were old enough to have featured in the war), and instead gave them a shed to live in, as he did not want them “chopping down trees to build your huts”. The invaders moved to Bruce's house, and in time burned down the safari lodge, poached the wildlife and slaughtered or rustled the cattle. Not even a warthog remained, he said later.59

1.4.3 Swissbourgh and the Lesotho Highlands Water Project (LHWP)60

This case is also relevant to a discussion of the SADC Tribunal, the environment and common economic goals of the SADC region. The case was heard in the High Court and Court of Appeal of Lesotho as well as the High Court of South Africa. Nine years after it was first heard it was brought before the SADC Tribunal. In August 2010 it was decided that “a review of the role, functions and terms of reference of the SADC Tribunal should be undertaken and concluded within 6 months”61 and the SADC Tribunal was suspended. On 25 January 2011, the South African based Josias van Zyl and the Swissbourgh Group filed an application with the SADC Tribunal to set aside the SADC Summit decision to suspend the Tribunal. The Swissbourgh Group claimed that Lesotho, South Africa and Zimbabwe are facing massive financial claims resulting from their respective international law violations stemming from a case in which the Swissbourgh Group launched against the Kingdom of Lesotho for compensation and damages suffered following the expropriation of its mineral rights in the execution of the Lesotho Highlands Water Project (LHWP) Treaty. The 1986 Treaty is a contractual agreement governing the design, construction, operation, and maintenance of the Project, as well as the export of water to South Africa.62 The suspension of the SADC Tribunal brought the case of the Swissbourgh Group to a halt.63 The case has not been resolved.

1.5 Some Challenges Ahead

SADC’s vision includes a ‘common future’ that will ensure economic and social well-being for all the people of Southern Africa.64 The objectives of the SADC Treaty in particular include “promotion and equitable economic growth and socio-economic development that will ensure poverty alleviation with the ultimate objective of its eradication”.65 Although a basic legal framework is in place these objectives stand largely unfulfilled at present. Unsustainable development in SADC is a reality due to “economic and sectoral policies which are too narrowly conceived and focused and which neglect the negative consequences on the people and the environment.”66 Other obstacles in SADC include “duplication and fragmentation of authority” and “institutional failure … caused by policies that are not backed up by legislation and therefore cannot be legally enforced”.67

The SADC legal framework provides for a broad bandwidth of provisions with high relevance for environmental protection and it cannot be overemphasised that the rule of law, good governance and the protection of the environment play an essential role in economic development which again contributes to growth, productivity and employment creation, all being essential for sustainable reductions in poverty. However, a major part of any successful legal strategy towards sustainable development includes enforcement. The rule of law means nothing without effective access to justice, without compliance with and enforcement of judgments made by legitimate courts. With regards to the recent dissolution of the SADC Tribunal the legal fraternity in the region responded as follows:

Heads of State from the Southern African Development Community (SADC) have unlawfully sabotaged the SADC Tribunal and undermined the right of citizens to access justice … by violating regional laws and acting unconstitutionally ….68

Having said this, it must be concluded that the dissolution of the SADC Tribunal violates the right to a fair trial, non-discrimination, access to justice and effective legal remedies within the legal framework of SADC.

2 The Consideration of Environmental Concerns in Cross-cutting Regimes

2.1 The Southern African Customs Union (SACU) and SACU Related Trade Agreements

Having celebrated its 100th anniversary in 2010, the Southern African Customs Union (SACU) is the world’s oldest customs union. 69 SACU has five members, namely South Africa,

Botswana, Lesotho, Namibia, and Swaziland. All five SACU member states are also members of the SADC. One objective of SACU is to facilitate the cross-border movement of goods between the territories of the member states. In order to achieve trade liberalisation, the free movement of domestic products is part of the SACU Treaty (Article 18). Goods grown, produced or manufactured in the common customs area are generally free of customs duties and quantitative restrictions within the common customs area. However, member states have the right to impose restrictions on imports or exports in accordance with national laws and regulations for the protection of health of humans, animals or plants, the environment or intellectual property rights and exhaustible natural resources.

In 2006, SACU signed an FTA with European Free Trade Area (EFTA) states (Iceland, Liechtenstein, Norway and Switzerland).70 SACU and the EFTA states have laid down in Article 28 of the Free Trade Agreement on investment that “it is inappropriate to encourage investment by relaxing health, safety or environmental standards”. The broad nature of environmental protection is reflected in the somewhat vague formulation of Article 31, which provides that the conservation of the environment has to be taken into account in the “implementation of assistance in the various sectors to which it is relevant”.

As a first step towards the creation of a Free Trade Area between the Mercado Común del Sur (MERCOSUR) and SACU, SACU has signed a Preferential Trade Agreement (PTA) with MERCOSUR countries71 in 2009.72 Trade liberalisation is the focus of this agreement and read together with its annexes, specific preferences are granted by MERCOSUR to SACU and vice versa. The PTA only indirectly refers to environmental concerns in making reference to the general exceptions provision in the General Agreement of Tariffs and Trade (GATT) Article XX.

In 2008, SACU 73 and the United States signed a Trade, Investment and Development Cooperation Agreement (TIDCA) in order to “to promote an attractive investment climate and to expand and diversify trade between SACU and the United States”.74 As laid down in the Preamble, the parties of the TIDCA recognise the “importance of protecting and preserving the environment in accordance with each Party’s environmental laws, and desiring to ensure that trade and environmental policies are mutually supportive in the furtherance of sustainable development”.

2.2 The EAC-COMESA-SADC Tripartite Initiative

In October 2008, the Heads of State of the member states of SADC, the Eastern African Community (EAC) and the Common Market for Eastern and Southern Africa (COMESA) negotiated a communiqué as the basis of the Tripartite Partnership. Therein the Heads of State representing all three regional economic communities agreed that the communities should merge into a single market in order to promote the rapid social and economic development of the region.75 With the 2011 Second Tripartite Communiqué the respective Heads of State adopted the following developmental approach to the Tripartite Integration process:

… that will be anchored on three pillars ...: Market integration based on the Tripartite Free Trade Area (FTA); Infrastructure Development to enhance connectivity and reduce costs of doing business as well as Industrial development to address the productive capacity constraints76

According to the Communiqué, the Tripartite initiative incorporates 26 countries, almost half of the African Union, with 600 million people and a Gross Domestic Product (GDP) of approximately US$1.0 trillion. An Agreement for the Tripartite Free Trade Area (TFTA) was adopted in June 201577 with several post-signature issues still to be finalised:

Main features of trade in goods, the elimination of customs duties, trade remedies and rules of origin still need to be negotiated. In a second negotiation phase, a Protocol on Trade in Services and Protocols on trade-related matters, including on competition policy, cross-border investment, trade and development, and intellectual property rights are to be negotiated. For these Protocols to be negotiated, the TFTA envisages a timeframe of 24 month upon entry into force of the TFTA, which will only be the case after 14 member states of EAC, COMESA or SADC have ratified the TFTA.78

The outcomes of both phases have great significance for the environment in the single market and it remains to be seen whether the Tripartite initiative will also bring prosperity to the people that have so far been left behind in sub-Saharan Africa. Transforming society will require comprehensive legal, political, social, and economic reforms and development initiatives, such as investing more in education, public services, and infrastructure, enhancing participation in trade and protecting the environment for present and future generations. Moreover, it also remains to be seen whether the Tripartite initiative will push the regional integration agenda to empower the poor and reduce pressures such as under-development, unemployment, environmental neglect, health emergencies, and strife.

The approach of the TFTA to protect the environment is congruent with that followed by the WTO. Environmental interests are considered within the system of general exceptions. The agreement in its Article 31 provides for a number of general exceptions to the basic principle of non-discrimination to allow countries in certain circumstances to take account of economic and/or noneconomic interests and values that compete with free trade. Amongst others, these exceptions justify measures necessary to protect human, animal or plant life or health as well as measures relating to the conservation of exhaustible natural resources, provided that “such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade”.

The agreement also follows the WTO approach with regard to the system of dispute settlement. According to Article 30 of the Agreement, a panel is to be established for the purposes of dispute settlement, where an amicable resolution is not achieved over disputes dealing with the implementation of the provisions of the agreement.

The East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC) have already initiated discussions towards the establishment of the COMESA-EAC-SADC Tripartite climate change programme to facilitate their long-term vision of working together.

2.3 The BRICS Partnership

The BRICS partnership is a grouping of leading emerging economies, namely Brazil, the Russian Federation, India, China and South Africa, that plays a key role in the world economic development scenario.79 The five BRICS states cover more than a quarter of the world’s land area and almost the half of the world’s population lives within their territories. BRICS is neither an international organisation nor a trade bloc in terms of a regional (or preferential) economic community. BRICS considers itself to be “a platform for dialogue and co-operation amongst countries that represent 43% of the world’s population, for the promotion of peace, security and development in a multi-polar, inter-dependent and increasingly complex, globalizing world.”80 The BRICS partnership is of economic and political importance in many regards, and it is predicted that the BRICS economies could become a much larger force in the world economy.81 While China and India are considered to be the ‘world’s factory’ and the ‘world’s office’, respectively,82 Russia has come to be known as the ‘world’s gas station’ and Brazil as the ‘world’s farm’. In this context, South Africa could serve as the ‘gateway to Africa’ and its rich natural resources83 as most foreign direct investment attracted by African states relates to natural resources.84

Environmental issues have played an important role throughout the BRICS meetings, as stipulated in the Summit Declarations. On 14 April 2011, the leaders of the five BRICS states signed a joint declaration on the global economy, international financial issues and developmental affairs, in Sanya, China.85 The Sanya BRICS Declaration contains various linkages with regard to trade and the environment. The declaration emphasises that “[I]n the economic, financial and development fields BRICS serves as a major platform for dialogue and cooperation” and the group has agreed to continue further expanding and deepening economic, trade and investment cooperation among BRICS countries. Furthermore, BRICS countries, by signing the declaration have committed themselves “to assure that the BRICS countries will continue to enjoy strong and sustained economic growth supported by our increased cooperation in economic, finance and trade matters, which will contribute to the long-term steady, sound and balanced growth of the world economy.”86 The declaration refers to environmental matters with climate change leading the way as climate change is considered to be “one of the global threats challenging the livelihood of communities and countries.”87 In this regard and highlighting the principle of equity and common but differentiated responsibilities, BRICS leaders have committed themselves “to work towards a comprehensive, balanced and binding outcome to strengthen the implementation of the United Nations Framework Convention on Climate Change and its Kyoto Protocol”88 and to enhance “practical cooperation in adapting our economy and society to climate change.”89 Moreover cooperation has been envisaged in order to “reach new political commitment and achieve positive and practical results in areas of economic growth, social development and environmental protection under the framework of sustainable development.”90

In its fourth Declaration signed in New Delhi in March 2012,91 the BRICS states again emphasised their strong commitment to enhancing sustainable development by also focusing on environmental protection. In the Declaration the BRICS states affirm their commitment towards the implementation of the UNFCCC and the CBD, amongst others. It is specifically pointed out that “sustainable development should be the main paradigm in environmental issues, as well as for economic and social strategies” 92 . Noteworthy is that the Delhi Declaration points out the commitment of the BRICS states towards environmental protection and respective MEAs, just as the achievement of the MDGs but the Declaration is also very clear regarding the responsibilities of developed nations and the need to ensure that growth in non-developed countries is not affected.93

In the 2013 Durban eThekwini Declaration,94 BRICS reaffirmed its commitment to the promotion of international law, multilateralism and the central role of the United Nations (UN). The discussions also reflected a growing intra-BRICS solidarity, as well as the shared goal to contribute positively to global peace, stability, development and co-operation based on an inclusive approach of shared solidarity and co-operation towards all nations and peoples.95 In the eThekwini Declaration BRICS leaders have acknowledged climate change as being “one of the greatest challenges and threats towards achieving sustainable development”96 and have included in the eThekwini Action plan to hold a consultative meeting of BRICS senior officials in the margins of relevant sustainable development, environment and climate related international fora, where appropriate.

In July 2014, the 6th BRICS Summit was held in Fortaleza, Brazil under the theme ‘Inclusive Growth: Sustainable Solutions’. The Summit has produced various outcomes, including the Fortaleza Declaration and Action Plan, and, most importantly, the Agreement on the New Development Bank,97 the purpose of which has been defined as to mobilise resources for infrastructure and sustainable development projects in BRICS and other emerging economies and developing countries, complementing the existing efforts of multilateral and regional financial institutions for global growth and development.98 BRICS leaders have stated to “support the creation of a facilitation mechanism for the development, transfer and dissemination of clean and environmentally sound technologies and call for the establishment of a working group within the UN on this proposal”.99 With regard to climate change, BRICS leaders have called upon all countries to “build upon the decisions adopted in the UN Framework Convention on Climate Change (UNFCCC) with a view to reaching a successful conclusion by 2015, of negotiations on the development of a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, in accordance with the principles and provisions of UNFCCC, in particular the principle of common but differentiated responsibilities and respective capabilities.”100 Furthermore, it has been reiterated that “renewable and clean energy, research and development of new technologies and energy efficiency, can constitute an important driver to promote sustainable development, create new economic growth, reduce energy costs and increase the efficiency in the use of natural resources.”101

In 2015 the 7th BRICS Summit was held in Ufa, Russia. The Ufa declaration emphasises “the importance of economic growth based on the balanced development of all economic sectors and on the development and introduction of advanced technologies and innovations, (depends on) the mobilization of resources from financial institutions and the encouragement of private investment.” Private investment also means Africans investing in Africa.102 Furthermore, BRICS reaffirmed its commitment to the ambitious post-2015 development Agenda, which should reinforce the international community’s commitment to eradicate poverty achieve sustained, equitable and inclusive economic growth and sustainable development fully comply with all principles of the UN Conference on Environment and Development held in Rio in 1992, including, in particular, the principle of Common But Differentiated Responsibilities (CBDR).103 Moreover, BRICS expressed its readiness to address climate change in a global context and at the national level and to achieve a comprehensive, effective and equitable agreement under the United Nations Framework Convention on Climate Change.104

 


1 For more details on SADC see http://www.sadc.int/; accessed 23 September 2015.

2 Madagascar was suspended in 2009 after Andry Rajoelina seized power from elected President Marc Ravalomanana in a military coup.

3 The Seychelles was a member of SADC from 1997 to 2004; it re-joined SADC in 2008.

4 Other objectives of SADC are to: achieve development and economic growth and alleviate poverty; evolve common political values, systems and institutions; promote peace and security; achieve collective self-reliance, and the interdependence of Member States; maximise productive employment and utilisation of resources of the Region; and to consolidate the long standing historical, social and cultural affinities and links among the people of the region.

5 Other means to achieve the objectives of SADC include: Eliminating obstacles to the free movement of capital and labour, goods and services, and of the people of the region among Member States; promoting the development, transfer and mastery of technology; improving economic management and performance through regional co-operation; securing international understanding, co-operation and support; and mobilising the inflow of public and private resources into the region.

6 See Ruppel-Schlichting / Ruppel (2011:305-307).

7 For SADC’s vision see http://www.sadc.int/; accessed 12 September 2015.

8 These are some of the SADC objectives laid down in Article 5 of the SADC Treaty.

9 Article 21.3 SADC Treaty.

10 Article 2.8.

11 SADC (2009).

12 For further information see http://www.rerasadc.com/index.cfm; accessed 28 September 2012.

13 See ETG (2015).

14 See http://www.az.com.na/wirtschaft/sadc-bekennt-sich-zu-kostrom.158525.php; accessed 7 September 2015.

15 See GRN South Africa (2015).

16 For various aspects related to energy security and renewable energies in sub-Saharan Africa see Ruppel / Althusmann (2015).

17 Ruppel / Bethune (2007).

18 Article 3(1)(f) of the Protocol.

19 Article 4(4) of the Protocol.

20 UNDP (2008).

21 Tilton (2009:7).

22 Ibid.

23 Frick (2002:2).

24 See Ruppel / Bethune (2007).

25 SADC (undated).

26 Ibid.

27 Opening Remarks by the Deputy Executive Secretary – Regional Integration Eng. Joao Caholo at the SADC Ministers Responsible for Water Meeting and the Regional Strategic Water Infrastructure Investor/Donors Conference http://www.sadc.int/files/1013/1678/2942/REMARKS_BY_DES_AT_SADC_MINISTERS_OF_WATER_MEETING_and_DONORS_CONFERENCE_MASERU_SEP_2011_22h00.pdf; accessed 20 October 2011.

28 For more information see Ruppel / Bethune (2007).

29 The Future Okavango Project (TFO) analyses ecosystem functions and services within this trans-boundary basin, inter alia focusing on the influence of existing economic, legal, and social institutions on individual or collective action in land, forest, pasture, wildlife, and water management in the Okavango River Basin. Cf. http://www.future-okavango.org/subproject_SP07_tfo.php?PHPSESSID=pmd19856fi9q6lrd7pj1h8j2o3; accessed 20 September 2015.

30 Cf. SADC (2003:66ff.).

31 Ibid.

32 GRN South Africa (2015).

33 Boko et al. (2007); Niang / Ruppel (2015:1202).

34 Ziervogel et al. (2006b). Niang / Ruppel (2015:1221).

35 UNDP (2008); Niang / Ruppel (2015:1217).

36 Ruppel (2010i:323).

37 Lindiwe Mazibuko and Others v City of Johannesburg and Others Case CCT 39/09 [2009] ZACC 28.

38 Art 15(2) of the Protocol on the Tribunal and Rules of Procedure thereof.

39 Viljoen (2007:503).

40 Mike Campbell and Another (PVT) Limited v The Republic of Zimbabwe SADC (T) 2/2007 (cited hereafter as the Campbell case).

41 For more information on the SADC Tribunal’s human rights jurisdiction see Ruppel (2012a, 2011a, 2009a, b, c, k) and Ruppel / Bangamwabo (2008).

42 Especially with the judgment in the Campbell case.

43 See SADC Communiqué of the 30th Jubilee Summit of SADC Heads of State and Government, 17 August 2010; http://www.sadc.int/index/browse/page/782; accessed 25 September 2011.

44 Communiqué of the Extraordinary Summit Heads of State and Government of the Southern Africa Development Community Windhoek, Republic of Namibia, 20 May 2011; http://www.swradioafrica.com/Documents/SADCSummit240511.pdf; accessed 10 May 2012.

45 For a critical view on these decisions see for example Pillay (2011) as well as the letter to the Executive Secretary of SADC by former president and members of the SADC Tribunal A.G. Pillay, R. Kambovo and O.B. Tshosa dated 13 June 2011 available at http://www.az.com.na/fileadmin/pdf/2011/az/SADC-Letter-06-24-11.pdf accessed 10 May 2012.

46 See Outcome of the SADC Council of Ministers Meeting held on 14-15 August 2014 at Victoria Falls, Zimbabwe ; available at http://www.sadc.int/files/2314/0821/8588/Outcome_of_the_Council_of_Ministers_meeting_of_August_14_and_15_2014L.pdf; accessed 3 September 2014.

47 See Communiqué of the 35th Summit of SADC Heads of State and Government held in Gaborone, Botswana 17-18 August 2015 available at http://www.sadc.int/files/7814/3997/3204/Final_35th_Summit_Communique_as_on_August_18_2015.pdf, accessed 24 August 2015.

48 For more information on the Campbell Case see Ruppel (2012a, 2011a, 2009a, b, c, k) and Ruppel / Bangamwabo (2008).

49 Mike Campbell (Pvt) Ltd and Others v The Republic of Zimbabwe SADC (T) Case No. 2/2007.

50 Ibid.

51 The issue of racial discrimination was decided by a majority of 4 to 1. Judge OB Tshosa, in his dissenting opinion, concluded that “Amendment 17 does not discriminate against the applicants on the basis of race and therefore does not violate the respondent obligation under Article 6(2) of the Treaty”. He argues that “the target of Amendment 17 is agricultural land and not people of a particular racial group and that – although few in number – not only white Zimbabweans have been affected by the amendment”. See Mike Campbell (Pvt) Ltd and Others v The Republic of Zimbabwe SADC (T) Case No. 2/2007, dissenting opinion of Hon. Justice Dr Onkemetse B. Tshosa.

52 Cf. Ruppel (2009k).

53 Article 16(5) SADC Treaty.

54 On 28 February 2009, Zimbabwe’s President Robert Mugabe said that “[t]here is no going back on the land reforms”, and that “[s]ome farmers went to the SADC tribunal in Namibia but that’s nonsense, absolute nonsense, no one will follow that …. We have courts here in this country that can determine the rights of people. Our land issues are not subject to the SADC tribunal” See The Namibian 2 March 2009 “Mugabe says Zim land grabs will continue”.

55 On 25 February 2009, Michael Campbell and his wife had to leave the farm in fear of their safety after a group of two vehicles led by Peter Chamada, nephew of Cabinet Minister Nathan Shamuyarira, claiming to be from the Lands Office, came to the farm and said that they did not care about the law or the police, and that they had come to take over the land. See The Namibian 27 February 2009 “Campbell flees farm invasion in Zimbabwe”.

56 See http://www.radiovop.com/national-news/5978-new-application-to-sadc-tribunal-makes-history.php; accessed 4 April 2011.

57 See http://www.timeslive.co.za/sundaytimes/article1010628.ece/Farmer-who-took-Mugabe-to-court-dies-from-injuries accessed 9 April 2011.

58 See Luke Munyandu Tembani and Benjamin John Freeth vs Angola and Thirteen Others Communication 409/12 decision done in Banjul, the Gambia during the 54th Ordinary Session of the African Commission on Human and Peoples Rights, 22 October to 5 November 2013; available at http://www.achpr.org/files/sessions/54th/comunications/409.12_/achpr54_409_12_eng.pdf; accessed 22 September 2015.

59 Cf. http://www.guardian.co.uk/world/2011/apr/24/mike-campbell-obituary; accessed 14 October 2011.

60 Swissbourgh Diamond Mines & Others v The Kingdom of Lesotho Case No. SADC (T) 04/2009.

61 SADC Communiqué of the 30th Jubilee Summit of SADC Heads of State and Government, 17 August 2010; at http://www.sadc.int/index/browse/page/782; accessed 25 September 2011.

62 See http://www.lhwp.org.ls/overview/treaty.htm; accessed 21 April 2011.

63 See Sasman (2011).

64 Cf. http://www.sadc.int/index/browse/page/715; accessed 19 June 2011.

65 Article 5 Amended Declaration and Treaty of SADC 1992.

66 Susswein (2003:297).

67 Ibid:303.

68 See http://www.thezimbabwean.co.uk/news/zimbabwe/35444/sadc-leaders-undermine-reginal-tribunal.php; accessed 20 August 2011.

69 For further details on SACU see Ruppel (2010k).

70 For the text of the Agreement, which came into force in 2008, see http://www.sacu.int/docs/tradeneg/efta-fta2006.pdf; accessed 20 May 2010.

71 Common Market of South America, consisting of Argentina, Brazil, Paraguay and Uruguay.

72 For text of the Agreement see http://www.tralac.org/cause_data/images/1694/I_Texto_Principal.pdf; accessed 24 March 2011.

73 For text see http://www.sacu.int/docs/tidca/agreement.pdf; accessed 24 March 2011.

74 Article 1 TDCA.

75 Cf. First Communiqué of the COMESA-EAC-SADC Tripartite Summit of Heads of State and Government COMESA EAC SADC TRIPARTITE (2008); http://www.comesa-eac-sadc-tripartite.org/sites/default/files/documents/Final%20Communique%20-%20The%20Tripartite%20Summit%202008.pdf; accessed 19 October 2011.

76 Cf. Second Communiqué of the COMESA-EAC-SADC Tripartite Summit of Heads of State and Government COMESA EAC SADC TRIPARTITE (2011); http://www.comesa-eac-sadc-tripartite.org/sites/default/files/documents/Communique%20of%20the%202nd%20Tripartite%20Summit%20-%20English%20-%2012.06.2011.pdf/; accessed 19 October 2011.

77 Available at http://www.tralac.org/images/docs/7531/tfta-agreement-june-2015.pdf; accessed 22 September 2015.

78 For further details on the TFTA and ist implications for SADC see Erasmus (2015 a and b).

79 Prior to South Africa’s first attendance of the summit in 2011, the group was named BRIC (Brazil, Russian Federation, India and China). South Africa had received a formal invitation to join from China in 2010. The first BRIC summit was held in 2009 in Yekaterinburg in Russia, the second BRIC summit in 2010, in Brasília, Brazil, followed by the third BRICS summit in 2011 in Sanya, China, the fourth Summit in 2012 in New Delhi, India, the fifth Summit in 2013 in Durban, South Africa, the sixth Summit in Fortaleza, Brazil in 2014 and the seventh Summit in Ufa in Russia in 2015. The eighth Summit will take place in 2016 in New Delhi, India.

80 See para 3 of the Delhi Declaration, available at www.bricsindia.in/delhi-declaration.php; accessed 9 April 2012.

81 See Ruppel / Ruppel-Schlichting (2013); Wilson et al. (2010).

82 Fujita (2006).

83 Van den Bosch (2011).

84 Marafa (2009:13).

85 Sanya Declaration http://www.bricsindia.in/thirdSummit.php; accessed 8 April 2012.

86 See para 13 of the Sanya Declaration at http://www.bricsindia.in/thirdSummit.php; accessed 8 April 2012.

87 See para 22 of the Sanya Declaration.

88 Ibid.

89 Ibid.

90 para. 23 of the Sanya Declaration.

91 Delhi Declaration at http://www.bricsindia.in/delhi-declaration.php; accessed 9 April 2012.

92 Ibid at para. 32.

93 See for example Delhi Declaration paras 29, 30, 31, 33, 34, 35.

94 2013 Durban 5th BRICS Summit eThekwini Declaration and Action Plan at www.brics5.co.za/fifth-brics-summit-declaration-and-action-plan; accessed 24 November 2013.

95 Para. 2 of the 2013 eThekwini Declaration.

96 Para. 37 of the eThekwini Declaration.

97 Available from http://brics6.itamaraty.gov.br/agreements; accessed 18 August 2014.

98 For the NDB’s potential in the field of development co-operation see Mota Prado / Salles (2014).

99 Para. 55 of the Fortaleza Declaration.

100 Para. 52 of the Fortaleza Declaration.

101 Para. 53 of the Fortaleza Declaration.

102 Cf. McNamee et al.

103 Para. 65 of the Ufa Declaration.

104 Para. 67 of the Ufa Declaration.