Following the SADC Heads of State summit over the weekend the media reported that the member states have taken a decision to bar individuals from accessing the SADC Tribunal. The communiqu? from the SADC Heads of State went further and stated that the SADC Tribunal will only hear disputes between different SADC member states. In other words legal entities will also be excluded from enforcing their rights at the SADC Tribunal.

The SADC Tribunal has of course been defunct ever since Zimbabwe's objections to decisions by the Tribunal which found that Zimbabwe was in violation of its obligations under the SADC Treaty. These cases were concerned with human rights violations, with the most famous case being the Campbell judgment which involved the unlawful expropriation of private land without compensation. Even though SADC requested a legal opinion on the correctness of these findings, which correctness was confirmed (in which Trade Law Chambers was involved), the Tribunal was effectively suspended after Zimbabwe exerted political pressure which led to a request by SADC leaders to review the powers of the Tribunal.

Media reports and commentators focussed exclusively on the travesty such decision brings in terms of human rights violations. Unfortunately not much attention has been given to the fact that the SADC Tribunal also had jurisdiction to adjudicate trade and investment disputes. A failure to recognise the rights of businesses in taking trade and investment disputes to the SADC Tribunal has far reaching implications. For one, businesses will have to lobby their own governments to initiate a trade or investment dispute against another member state of SADC as business will be prevented from enforcing its own interest at the SADC Tribunal. Prior to the suspension of the SADC Tribunal, all of the cases heard were initiated by individuals or legal entities. There has thus not been any dispute between SADC member states, not even any trade and investment disputes. It would also appear that SADC member states are not keen to even voice their concerns about the conduct of other member states. Furthermore, none of the SADC member states have ever initiated a trade dispute against any other WTO member (with that some member states have participated as third parties). This is in spite of the fact that there are numerous complaints by SADC businesses (and to a certain extent by SADC governments) of unfair trade practices at the WTO level. Although SADC business may be keen to enforce their rights, the WTO also does not allow individuals or legal entities to bring trade disputes. The WTO dispute settlement process is reserved for WTO member state and as such businesses have to lobby their governments to bring a WTO dispute.

To date such lobbying has not really been successful as there seems to be much resistance by SADC governments to get involved in the dispute settlement process. In defence of the inaction, governments often complain that, due to trade imbalances, retaliation would not be an appropriate remedy against unfair trade practices. Whilst in some instances there may be merit in such an argument, SADC member states should not lose sight of the fact that it is becoming an ever increasingly important market for the rest of the world and hence retaliation could indeed be not only appropriate but effective.

These complex political decisions weigh in heavily on the rights of the actual persons for which the SADC Trade Protocol or the WTO has been negotiated. It is of course business, and not governments, that trade and it is business that stands to gain or lose the most. It is thus a travesty that SADC is now clawing back the rights it gave to business in pursuing their trade and investment interests at the SADC Tribunal.

Rian Geldenhuys
© Trade Law Chambers 2012