What should a re-constituted Southern African Development Community (SADC) Tribunal be mindful of to succeed?

This is the author's accepted manuscript. The final published article is available from the link below. Copyright @ 2012 Koninklijke Brill NV.The Southern African Development Community (SADC) is a sub-regional international organisation comprised of 15 transitional States that have embraced the principle of the rule of law as a basic norm of their constitutional arrangements. Their biggest challenge presently is to undo the provocative and salient legacy of social, economic and psychological apartheid on their territories for almost a century, without disrupting their developmental endeavours. This article examines the question of what role if any the SADC Tribunal envisaged under Article 9 of the constitutive SADC Treaty might play to facilitate successful transitions from apartheid to egalitarian rule. It shows that a multiplicity of dialectics abound that do not allow for easy answers, much to the frustration of both the cultural relativists and their rivals, the universalists, regarding human rights protection. The article recommends meaningful pedagogical engagement of the challenges confronting the SADC sub-region as a direct consequence of almost a century of apartheid - the worst form of governance known to man in recent times. This should inform national, sub-regional and regional dynamics in the pursuit of SADC goals and aspirations. SADC Human Rights Courts and Tribunals are encouraged to develop a “due-account jurisprudence” that is congruous with the transitional requirements of their societies just as the German Federal Constitutional Court had done in the aftermath of the fall of the Reich, and also after the re-unification of Germany

The right to democratic entitlement: Time for change?

The right to democratic entitlement is well documented in international law. Numerous universal and regional constitutional treaties are premised on it and reverend it. National constitutions of most States espouse themselves to it. International civil society champions it. It is a right that resides at the core of the United Nations' originating vision for a secure and peaceful world - steered on the twin rails of social justice and respect for human rights. The current Zimbabwe crisis that came to a head at the 2002 Presidential election suggests that mere institutionalisation of this right under international law, regional law and national constitutional laws is not in itself sufficient to ensure its enjoyment. For this right to pass from enchanting rhetoric to practice that promotes and upholds the dignity of human beings everywhere in the world, procedural and other accounting strategies need to be developed so that impunity for its breach is stopped. This article examines the possibilities of enjoyment of this right in transitional States under present international arrangements. It concludes that for this to happen the international community needs urgently to demonstrate its commitment to the enjoyment of this right through (1) consistent application of interventionist mechanisms such as the SHIRBRIG initiative in situations where the right is at issue and, (2) development of efficient international, regional and national election audit systems with power effectively to strike down elections that breach the said right

On the jurisprudential significance of the emergent state practice concerning foreign nationals merely suspected of involvement with terrorist offences

Copyright @ 2009 Intersentia.This article examines emergent state practice of European States concerning foreign nationals that are merely suspected but not charged with involvement with terrorist offences, including deportation to destinations where they risk torture, inhuman or degrading treatment or punishment – usually their own country of origin, contrary to the foremost rules of international human rights law. The article attempts a rule of law analysis with a view to evaluating the difficulty posed for States by the absence still of alternative mechanisms for ensuring both the national security interest on the one hand, and on the other, the human rights interest of terrorist suspects. The article argues that sustainable counter-terrorist strategies will be distinguished and characterised by their insistence on the recognition, promotion and protection of the dignity inherent in all individuals – including terrorist suspects whether or not they have been charged with terrorist offences. This calls for the urgent development of human rights steered national security policies that prioritize the recognition, promotion, protection and reinforcement of the dignity inherent in all individuals. Such policies will have at their core, strategies for the efficient resolution of the question of how best to deal with the individuals that are ‘merely suspected by States agents’ of involvement in terrorist offences, particularly foreign nationals. The article examines jurisprudence arising from cases involving among others the UK, Italy, Sweden, Spain, the Netherlands and France and shows a worrying appetite by these pro-democracy States to minimize human rights protection of terrorist suspects as a means of progressing the fight against international terrorism. This approach contradicts the international paradigm of over six decades whereby the establishment and maintenance of international peace and security was premised on human rights. The article advocates the development of human rights steered policies and strategies to deal with foreign nationals suspected of involvement with international terrorism

European/Southern African Development Community (SADC) states' bilateral investment agreements (BITs) for the promotion and protection of foreign investments vs post‐apartheid SADC economic and social reconstruction policy

This is the author's accepted manuscript. The final published article is available from the link below. This article is (c) Emerald Group Publishing and permission has been granted for this version to appear here. Emerald does not grant permission for this article to be further copied/distributed or hosted elsewhere without the express permission from Emerald Group Publishing Limited.Purpose – This article aims to examine the sustainability of European and SADC states' practice of agreeing bilateral investment agreements (BITs) for the promotion and protection of foreign investments in light of the latter's recent inauguration of Black Economic Empowerment (BEE) as a basic norm of regional customary international law and strategy for countering the social and economic legacy of apartheid rule on their territories for over half a century. Design/methodology/approach – The approach taken is textual analysis and deconstruction of emergent SADC BEE legislation, substantive BIT legislation provisions, dispute settlement mechanisms and emergent jurisprudence on the tensions between BEE policy and BIT obligations. Findings – The strong elements of exclusivity between European/SADC BIT dispute settlement mechanisms on the one hand, and the “ouster clauses” of SADC BEE legislation and regulations on the other, are mutually incompatible. This incompatibility threatens the sustainability of the EU/SADC states' BIT dynamic for the promotion and protection of foreign direct investments (FDIs). Originality/value – Demonstration of BEE as SADC's emergent basic norm of social reconstruction for countering the social and economic legacy of apartheid rule in affected states and implications of that for EU/SADC policy on the promotion and protection of FDIs

Latecomers to the ILO and the authorship and ownership of the international labour code

The article examines the extent to which latecomers to the International Labour Organisation (ILO) that comprise more than one half of the organization could be said to have contributed to the establishment of the International Labour Code, about two thirds of which had already been established by the time that they began to join the ILO as politically sovereign independent states. The article focuses on the recent work of the ILO Working Party on Policy Regarding the Revision of Standards (1994-2002). It evaluates both the significance of outcomes of the Working Party’s achievements and the role of the latecomers in that enterprise. It shows that the latecomers have appropriated the ILO dynamic and utilized the ILO’s Working Party and Committee structures both to project matters of foremost concern to themselves onto the agenda of the ILO and to update the International Labour Code by evaluating, categorizing, and suspending some of the Conventions and Recommendations that they had deemed to be irrelevant. It concludes that after the conclusion of the work of the Working Party on Policy Regarding the Revision of Standards, latecomers to the ILO have become equal co-authors and co-owners of the International Labour Code together with all the other member states parties of the ILO