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Home Articles posted by Erika de Wet

Reactions to the Backlash: Trying to Revive the SADC Tribunal through Litigation

Published on August 5, 2016        Author: 

Introduction

In their article ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, Professors Alter, Gathii and Helfer eloquently portrays the political context leading to the rise and demise of the SADC Tribunal, the consequence of which was also the demise of an individual claims procedure for individuals in relation to human rights violations by member States. The life-span of the SADC Tribunal was a mere five years, for even though it was officially suspended in 2012, its functioning was effectively suspended since 2010.

At the time of its suspension, the SADC Tribunal had handed down 19 decisions of which 11 concerned Zimbabwe. Of these decisions eight were related to the Campbell and Others v Zimbabwe (Merits), Case No SADC (T) 2/2007, (8 November 2008)). Two of the three remaining cases involving Zimbabwe also concerned the violation of human rights. In Luke Tembani v Republic of Zimbabwe (Case No SADC (T) 07/2008 (14 August 2009)) the applicant had been denied a fair hearing after the seizure of his mortgaged property, while in Gondo and Others v Republic of Zimbabwe (Case No (SADC) (T) T) 05/2008 (9 December 2010)), the Zimbabwean Government had refused to give effect to court orders of Zimbabwean domestic courts that provided relief for victims of violence and thereby denying their right to a remedy. The final decision concerning Zimbabwe, United People’s Party of Zimbabwe v SADC and Others, Case No SADC (T) 12/2008 (11 June 2012)) related to the exclusion of the United Peoples’ Party of Zimbabwe from the power-sharing process in Zimbabwe that was mandated by the SADC during an Extraordinary Summit in March 2007.

Of the remaining eight cases five concerned internal employment disputes between the SADC and its employees. The remaining three decisions concerned a default judgment against the Democratic Republic of Congo (DRC) for unlawful seizure of property (Bach’s Transport (PTY) LTD v Democratic Republic of Congo Case No SADC (T) 14/2008 (11 June 2010)); a denial of jurisdiction in a case involving deportation from Tanzania due to lack of exhaustion of local remedies (The United Republic of Tanzania v Cimexpan (Mauritius) LTD and Others, Case No SADC (T) 01/2009 (11 June 2010); and a condonation of a late filing of defence by the Government of Lesotho in a case concerning the cancellation and revocation of mineral leases (Swissbourgh Diamond Mines and Others v The Kingdom of Lesotho, Case No. SADC (T) 04/2009 (11 June 2010)). Read the rest of this entry…

Filed under: EJIL, EJIL Article Discussion
 

Debating Disobeying the Security Council – is it a matter of ‘a rose by any other name would smell as sweet’?

Published on May 25, 2011        Author: 

Erika de Wet is Co-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria (South Africa); Professor of International Constitutional Law, University of Amsterdam (The Netherlands). The author’s critique is based on views developed in Chapters 4 and 10 of her monograph entitled The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004).

The book by Antonions Tzanakopoulos examines how and by whom the responsibility of the United Nations for unlawful Security Council sanctions can be determined. Its central thesis is that States can respond to unlawful sanctions imposed by the Security Council by disobeying the Security Council’s command in a manner that constitutes countermeasures to the Security Council’s unlawful action. The book is very well written, creative and  intellectually challenging in the way it attempts to align the law of State responsibility with the Law of the United Nations Charter.

However, like with other theories developed in an attempt to curb illegal action by the United Nations Security Council, closer scrutiny reveals that the arguments presented are not water-tight and may require further motivation. The subsequent paragraphs will focus on two such issues. The first concerns the reason why Antonios resorts to the concept of countermeasures in the first place, whereas the second relates to the analogy that he draws between Security Council sanctions and countermeasures.

A cornerstone of Antonios’ argument centres around his submission (pp 164-166) that all member States remain bound to decisions under article 25 of the United Nations Charter, which determines that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. This article remains controversial due to the question whether the phrase ‘in accordance with the present Charter’ refers only to the member States or the organisation as well. If it referred only to the member States they would be obliged to carry out decisions of the Security Council under all circumstances. If, however, the phrase referred to the organisation as well, it is arguable that the member States would only be obliged to carry out those decisions that were adopted in accordance with the Charter, i.e. intra vires.

Antonios does not accept that the controversial phrase ‘in accordance with the present Charter’ should be interpreted as meaning that member States are only bound by those Security Council decisions that remain within the competencies of the Council (i.e. intra vires decisions). He rejects this position on the basis of two arguments. First, he claims (with rather cursory arguments) that the ambivalence surrounding the meaning of this phrase cannot be resolved through interpretation. His second and perhaps more intriguing argument is that no constitutional system can operate unless there is some final instance that promulgates acts with which all the addressees must comply, irrespective of their lawfulness. In the subsequent paragraph he acknowledges that the term constitutionalization is problematic (without attempting to suggest a definition of his own) and doubts whether the Charter was meant to be a constitution. Even so, he seems to adhere to the argument that the Charter system, in order to operate, requires States to remain bound to all Security Council decisions, regardless of their legality (until such a time as they are revoked by the Security Council itself).

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