Abstract
The answer to the question about the possibility of moving ‘towards the common resource management system’ in the region of Southern Africa must be negative. Three main reasons for this can be highlighted. Firstly, the level of knowledge and dissemination of the contemporary developments in international law is low and relatively superficial. Secondly, the pursuit of the national interests of the States and their political elite requires the maintenance of a classical view of the sovereign powers granted to States as subjects of international law. And thirdly, the regional ‘integration’ pursued through regional SADC is organized in accordance with the standards of inter-governmental cooperation. This may be a disappointing response in view of the latest development of international law, as it is perceived in the Western world. This frustration should be tempered, however, by the standards of an effective understanding of multiculturalism and the diversity of civilizations, in order for it to be acceptable that there are areas in which the African and Western worldviews do not coincide and can be reconciled only with difficulty.
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Notes
- 1.
United Nations Statistics Division, Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings, available at http://unstats.un.org/unsd/methods/m49/m49regin.htm . In the United Nations geographic classification Madagascar, Malawi, Mauritius, Mozambique, Tanzania, Zambia and Zimbabwe belong to Eastern Africa, and Angola and the Democratic Republic of the Congo belong to Middle Africa. Angola, the Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mozambique, the Tanzania and Zambia belong to the ‘least developed countries’. Botswana, Lesotho, Malawi, Swaziland, Zambia and Zimbabwe belong to the ‘landlocked developing countries’. Mauritius and Seychelles belong to the ‘small island developing States’. According to the United Nations Statistics Division ‘[i]n international trade statistics, the Southern African Customs Union is (…) treated as a developed region’.
- 2.
According to Article 2 of the 2002 Southern African Customs Union Agreement, the objectives of SACU are: ‘(a) to facilitate the cross-border movement of goods between the territories of the Member States; (b) to create effective, transparent and democratic institutions which will ensure equitable trade benefits to Member States; (c) to promote conditions of fair competition in the Commons Customs Area; (d) to substantially increase investment opportunities in the Common Customs Area; (e) to enhance the economic development, diversification, industrialization and competitiveness of Member States; (f) to promote the integration of Member States into the global economy through enhanced trade and investment; (g) to facilitate the equitable sharing of revenue arising from customs, excise and additional duties levied by Member States; and (h) to facilitate the development of common policies and strategies’ (the text of the 2002 Agreement is available at http://www.sacu.int).
- 3.
According to the International Court of Justice (para. 244), ‘[t]he Court finds that it cannot uphold the contention of the DRC that Uganda violated the principle of the DRC’s sovereignty over its natural resources (…). The Court recalls that the principle of permanent sovereignty over natural resources is expressed in General Assembly resolution 1803 (XVII) of 14 December 1962 and further elaborated in the Declaration on the Establishment of a New International Economic Order (General Assembly resolution 3201 (S.VI) of 1 May 1974) and the Charter of Economic Rights and Duties of States (General Assembly resolution 3281 (XXIX) of 12 December 1974). While recognizing the importance of this principle, which is a principle of customary international law, the Court notes that there is nothing in these General Assembly resolutions which suggests that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State, which is the subject-matter of the DRC’s third submission. The Court does not believe that this principle is applicable to this type of situation.’ (Text available http://www.icj-cij.org/docket/files/116/10455.pdf).
- 4.
The book was reprinted by Cambridge University Press in 2008.
- 5.
Schrijver’s thought was synthesized, in 2010, in the article on ‘Permanent Sovereignty over Natural Resources’, for the Max Planck Encyclopedia of Public International Law, as follows (para. 24): ‘[s]everal successive chapters of international law have had a profound impact on the interpretation of the principle of sovereignty over natural resources, including human rights, international investment law and the law of the sea. Recently, the rapid developments of international environmental law and the concept of sustainable development made the principle take new directions. Hence, permanent sovereignty serves no longer as the source of every State’s freedom to manage its natural resources, but also as the source of corresponding international responsibilities requiring careful management and imposing accountability on national as well as international levels, taking into account international law on sustainable development including the interests of future generations. Moreover, in this interdependent world international regimes emerge for the management of natural resources (see also Interdependence), building on notions as “shared resources”, “common heritage” and “common concern of humankind” (see also Community Interest)’.
- 6.
Paragraph 2 of the Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, has a similar wording: ‘All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence’.
- 7.
- 8.
This subordinate position is illuminated by the words of De Wet (2011), p. 592, in relation to South Africa, despite this country’s being the most advanced State in this field in the whole of Southern Africa, ‘South Africa’s inconsistent approach may relate to the fact that expertise in the field of public international law—in contrast to expertise pertaining to international human rights law—is limited across the country. Most judges, litigators and law-makers are not well versed in public international law, partly due to the fact the subject matter has traditionally been neglected at universities. This in turn is a remnant of the country’s years of isolation and hostile attitude towards international law before 1994. Although some progress has been made in overcoming this attitude, the capacity deficit at universities in this area of law is still significant’.
- 9.
Tiyanjana Maluwa was on the occasion of the publication of the book Legal Counsel and Head of Legal Division, OAU, Ethiopia and Professor of Law, University of Cape Town, South Africa.
- 10.
Maluwa (1999), p. 32.
- 11.
From a different perspective, Pahuja (2012), pp. 407–408, states that the ‘internationalisation’ of the activities of developing States takes place through the imposition of development models of western origin.
- 12.
About the relevance of international law in the legal system of South Africa, see the profound and updated analysis by Dugard (2011), pp. 49–80; De Wet (2011), pp. 567–593. According to Dugard (2011), p. 23, ‘South Africa’s new constitutional order, which requires courts to interpret all legislation, and particularly the Bill of Rights, to accord with international law, has led to a renaissance of international law in the jurisprudence of its courts’ (reference to footnotes omitted), but De Wet draws attention to the fact that (p. 593) ‘the courts are much more reluctant to resort to international law as an instrument of interpretation in areas outside human rights law’. The power given by the constitution to the courts in South Africa finds its basis in the first paragraph of Section 39 and Section 233. In accordance with these constitutional provisions: i) ‘When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law’ (Section 39(1)); and ii) ‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative that is inconsistent with international law’ (Section 233).
- 13.
Paragraph 3 of Article 11 of the Constitution of Cape Verde provides that ‘[t]he legal acts emanated from the relevant organs of the supranational organizations of which Cape Verde is a member, shall enter directly into force in the domestic legal order, provided that is so established in the respective constitutive instruments’. It is possible to understand the wording of this Article only by recognising the influence that Portuguese constitutionalism, namely the Portuguese Constitution of 1976, has in the constitutionalism of Cape Verde. The system is inspired by the legal order of the European Union, having relevance in Cape Verde because of its participation in ECOWAS (Economic Community of West African States). The exceptional nature of the provision is demonstrated by the questions of Maluwa (1999), p. 40, particularly when he questions himself about the meaning of ‘supranational organizations’, despite using an English translation of paragraph 3 that is not appropriate (because the English translation used refers to ‘judicial acts emanating from competent offices of supranational organizations’). About the Portuguese system of incorporation of international law into national law, see de Almeida (2011), pp. 500–516.
- 14.
In this sense, for a distinct geographic area of Southern Africa, see Date-Bah (1998), p. 399, stating that ‘in the traditional scheme of concepts, land was given a religious significance. In the often cited words of a famous Ghanian Chief, Nana Sir Ofori Atta I.: “Land belongs to a vast family of whom many are dead, a few are living and a countless host are still unborn”’.
- 15.
Ayittey (2006), p. 323.
- 16.
As a general assessment, see Barsh (2007), p. 851, who states that ‘[t]he international legal status of indigenous peoples continues to be a work in progress, with relatively little in the way of explicit rules in widely accepted conventions. (….) At this stage, their gains in standing and participation exceed their achievements in the field of substantive law, and their rights enjoy greater weight in practice than may appear from a survey of the provisions of the UN conventions’.
- 17.
- 18.
About alternatives to the State model inherited from the colonial period see Pahm (2008), pp. 183–204.
- 19.
Thornberry and Viljoen (2009), p. vi.
- 20.
In this sense, from a strictly environmental perspective, the Overview Report, pp. viii and ix, even states that ‘with the introduction of conservation measures for protected areas and environments, the role of indigenous peoples in conserving and managing such lands was undervalued’.
- 21.
On the comparison between the Convention 107 and 169 of the International Labour Organization see Brölmann and Zieck (1993), pp. 197–212.
- 22.
In this sense, see Pogge (2012), pp. 385–389, when defending the argument that the international system leads to the maintenance in power of the political elites who promote their own interests by the ‘borrowing privilege’ and the ‘resource privilege’ to the extent that the debts incurred by any government will always be subject to payment and measures taken about available natural resources, even when taken by illegitimate governments, will always be ‘protected and enforced by all other states’ courts and police forces’ (p. 387).
- 23.
The example of Angola is particularly significant, because José Eduardo dos Santos, being President of the Republic since September 21, 1979, was re-elected on 31 August 2012, currently under the Constitution of 2010, which ensures maintenance in power for two terms of 5 years (in the same elections of August 31, 2012, the MPLA [Popular Movement for the Liberation of Angola], in power since 1975, won 71.8 % of the votes).
- 24.
On this issue see Bastos (2006), pp. 1009–1044.
- 25.
About this question, see the opinions of Erasmus (2011), available at http://www.tralac.org.
- 26.
- 27.
The initial version of the Treaty of the Southern African Development Community of 17 August 1982 was signed by Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Tanzania, Zambia and Zimbabwe. The 1992 Treaty was subsequently amended by the following agreements: (1) Agreement Amending the Treaty of Southern African Development Community of 14 August 2001; (2) Agreement Amending Article 22 of the Treaty of the Southern African Development Community of 17 August 2007; (3) Agreement Amending the Treaty of the Southern African Development Community of 8 September 2009 (amending Articles 10, 11, 12, 14 and 15 of the Treaty); (4) Agreement Amending the Treaty of the Southern African Development Community of 8 September 2009 (amending Articles 10 and 14 the Treaty); and (5) Agreement Amending the Treaty of the Southern African Development Community of 8 September 2009 (amending Article 10A of the Treaty)—available at http://www.sadc.int.
- 28.
With the wording after the Agreement Amending the Treaty of Southern African Development Community 14 August 2001 and the Agreement Amending Article 22 of the Treaty of the Southern African Development Community 17 August 2007.
- 29.
Ayittey (2006), p. 530.
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Loureiro Bastos, F. (2015). A Southern African Approach to the Permanent Sovereignty over Natural Resources and Common Resource Management Systems. In: Bungenberg, M., Hobe, S. (eds) Permanent Sovereignty over Natural Resources. Springer, Cham. https://doi.org/10.1007/978-3-319-15738-2_4
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