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Developing an Effective Mechanism to Monitor and Ensure Compliance to SADC Protocols and other Legal Instruments and Commitments Final Report
Abstract and Figures
So much of the regional integration agenda remains "on paper only" and therefore has little impact. This report examines a range of compliance mechanisms and tools to help ensure that trade agreements are actually implemented and operationalised.
Drawing on experience in Africa and internationally, recommendations are made as to what steps SADC could take to better hold its Member States to account and to deliver on their promises to the citizens of the region.
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The objective of this work is to answer the questions that “What is the deadlock of ASEAN Dispute Settlement Mechanisms (ASEAN DSMs)?” and “Why can’t ASEAN unlock it?” by comparative study between ASEAN DSMs and European Union Dispute Settlement Mechanisms (EU DSMs). A result of this work found that a positive consensus in decision making mode of ASEAN Summit under Article 20 of ASEAN Charter (Charter), which is seriously designed to protect the political security of ASEAN, also created a deadlock of ASEAN DSMs as a whole. Finally, in order to bypass this dead-end, the ASEAN needs to reverse the process by using the model of reverse consensus (negative consensus). However, even the Charter opens a gap to unlock its deadlock by re-interpreting of law, the ASEAN Summit still keep seriously staying on an ASEAN way to protect the political security. Hence the deadlock of ASEAN DSMs cannot be solved in practice until the political mindset of ASEAN is changed.
The Southern African Development Community (SADC) overarching objective is to foster peace, sustainable development, freedom and social justice, and the eradication of poverty for the people of Southern Africa, by creating the enabling environment for deep regional integration and cooperation. The vision is clear and ambitions are high. Yet, progress is slow. It is with the aim of addressing this issue that the Council decided to hold a Strategic Ministerial Retreat on 12-14 March 2017, to review the state of affairs of SADC and identify remedies to speed up progress towards ‘The SADC We Want’.
A number of institutional challenges have often been identified for SADC, including issues such as the lack of supranational SADC institutions, the vulnerability of institutions to power games, the influence of external partners, the lack of funding, the lack of non-state actor involvement, the lack of Parliamentary scrutiny, the vagueness of mandate and procedures, the inflexible decision-making procedure by consensus, and the incoherence of overlapping regional initiatives.
While these provide some possible pointers for institutional reforms, it is important to keep in mind some guiding principles and observations about institutional arrangements.
Discussions around institutional settings, and more generally about regional integration processes, tend to be quite prescriptive, with many preconceived ideas about what regional integration should or should not be, and what institutions are desirable or not. In reality, there is no ‘one-size-fits-all’, best practice model of institutional configuration for regional integration, or one predetermined trajectory that needs to be followed.
Analysing the dynamics of integration in Africa, Vanheukelom et al. (2016) identify several key findings of particular pertinence for institutional reforms. They note that while regional organisations adopt institutional forms to foster regional integration, these institutions often do not serve their stated functions. Focusing on institutional functions rather than forms should thus be at the heart of any institutional reform process.
They have also warned about the tendency for actors to pretend that major reforms are being undertaken where there is a strong degree of dependency on external funders. In such circumstances, member states are incentivised to signal their support for regional policies, programmes and institutions even when implementation is not a domestic priority, as illustrated by numerous examples in different RECs. In this context, the position of larger member states and coalitions of member states tend to play a major role in shaping (i.e. driving or hindering) regional outcomes. Coalitions of stakeholders, civil society actors or businesses, can also become important factors influencing regional dynamics. The tendency in many RECs, as in SADC, to focus mainly on state actors with little active involvement of non-state actors may also explain some of the problems in pursuing effective regional integration. Besides, integration dynamics are very sector or thematic specific, and can be perceived very differently in each country. Given the broad scope of sectors and integration issues on the SADC agenda, some will have more traction than others, depending on the sector characteristics and specific institutional and interest dynamics within each country around each issue.
Finally, the availability and allocation of resources to pursue the broad regional agenda also dictates the dynamics and speed of progress of the different thematic areas. In this respect, the role of donors in terms of the quantity and quality of support they provide to regional organisations such as SADC presents opportunities but also profound challenges depending on whether donors support home grown institutional reforms or drive the process.
What does it mean for the SADC institutional reform?
First, institutions should not be designed or reformed in a vacuum. This means that institutional adjustments are not a technical, or merely capacity issue, but first and foremost a political process, which requires political leadership, meaning take political responsibility for making choices and prioritising in the face of resources scarcity.
Second, institutional arrangements and processes should not be considered in an ideal form, but should respond to realities, at the regional and national levels. This means that SADC institutions should respond to the interests and incentives of the SADC Member States. They should also accommodate financial constraints. Besides, overdependence on external support raise the risk of donors driving rather than supporting reforms, reducing the ownership and ultimately the commitment of regional leaders to their own institutions.
Third, institutional arrangements should foster a greater connection with key domestic stakeholders in the SADC Member States, building on their incentives and interests, so as to harness their potential to drive, support or accompany integration processes. This means adapting institutional arrangements to include (and structure) private sector and civil society voices, at all stages of the regional policy cycle, i.e. in agenda setting, decision-making, implementation and monitoring & evaluation processes.
Therefore, identifying institutional reforms requires addressing issues of sovereignty and power relations, focusing on key priorities and building on national interests to stimulate regional coalitions. In terms of institutional setting, this would require for instance to strengthen the coordinating and facilitating role of the SADC Secretariat, to dedicate greater efforts to strengthen the SADC National Committees, and to structure and support non-state actors’ coalitions (business and civil society) at national and regional levels. In this optic, the role of the SADC Parliamentary Forum could also be enhanced. Given the traditionally strong role given to national ownership in the SADC construction, SADC leaders might rightly be more inclined to strengthen the SADC capacity to pursue effective intergovernmentalism, while aspiring in the longer term to more powerful regional institutions. In practice, institutional reforms can take an hybrid form, combining some features of each of the options.
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The seventh edition of EU Law: Text, Cases, and Materials provides clear analysis of all aspects of European law in the post Lisbon era. This edition looks in detail at the way in which the provisions of the Lisbon Treaty have worked since the Treaty became operational, especially innovations such as the hierarchy of norms, the different types of competence, and the legally binding Charter of Rights. The coming into effect of the new Treaty was overshadowed by the financial crisis, which has occupied a considerable part of the EU’s time since 2009. The EU has also had to cope with the refugee crisis, the pandemic crisis, the rule of law crisis and the Brexit crisis. There has nonetheless been considerable legislative activity in other areas, and the EU courts have given important decisions across the spectrum of EU law. The seventh edition has incorporated the changes in all these areas. The book covers all topics relating to the institutional and constitutional dimensions of the EU. In relation to EU substantive law there is detailed treatment of the four freedoms, the single market, competition, equal treatment, citizenship, state aid, and the area of freedom, security and justice. Brexit is the rationale for the decision to have a separate UK version of the book. There is no difference in the chapters between the two versions, insofar as the explication of the EU law is concerned. The difference resides in the fact that in the UK version there is an extra short section at the end of each chapter explaining how, for example, direct effect, supremacy or free movement are relevant in post-Brexit UK. Law students in the UK need to know this, law students in the EU and elsewhere do not.
This paper aims to answer the question why until now there is no single case every being brought to ASEAN dispute settlement system, from different angles. First, it analyzes whether there are lacking in the rules and procedures of the ASEAN Dispute Settlement System. Second, explores if the problem is in the dispute settlement system infrastructures. Third, examines whether ASEAN culture is the reason behind the zero dispute. Fourth, analyzes is there any financial constraint underlying the untested dispute settlement mechanism. Fifth, explores the possibility of Members not resorting to ASEAN DSM is because the lack of legal certainty or case precedence. Sixth, whether the lack of expertise or experts in ASEAN laws or ASEAN Dispute Settlement might be one of the reasons. Seventh, whether the very short and ambitious timeframe makes Members hesitant to utilize this mechanism. Eight, the low utilization is in fact happens everywhere in other RTAs/FTAs and not just ASEAN.
The establishment of the World Trade Organization in 1995 and the subsequent proliferation of regional and bilateral trade agreements resulted in the decline of global tariffs. However, other trade and regulatory measures have increased and thus restricted potential trade to some extent. These measures, non-tariff measures (NTMs), have also affected intra-SADC trade as there was no evidence of growth in the trade that needed to accompany the decline in tariffs. The extent of the impact of NTMs on SADC trade is still not fully understood due to lack of such data, which has effectively affected the quality of research in this area. In this article, data on NTMs related to SADC agricultural products for ten countries was compiled to shed some light on these measures, as well as to make them transparent. The results confirm that these countries have increased their use of NTMs over the period 2000 to 2010. As a result, on average one product was subjected to 17 NTMs in 2010. The Southern African Customs Union is the leader in the use of NTMs, while Malawi had the least incidences of NTMs. Most of the NTMs are applied on fruits, meat, dairy, vegetables and cereal products. The use of sanitary and phytosanitary measures (SPS) and of export measures was increasing faster than other categories were. Finally, there is an indication that NTMs are used as substitutes for the declining tariffs. NTMs are trade restricting, and if they are not addressed, they will continue to reverse the gains of the SADC free trade area, as well as other initiatives of trade liberalisation.
The Southern African Development Community (SADC) is a regional economic community in southern Africa consisting of fifteen Member States1 with a stated aim of creating a ‘Free Trade Area’ among its Members. SADC’s Tribunal (‘the Tribunal') in Windhoek had the capacity, until the summer of 2010, to hear individual applications from the SADC Member States on human rights matters. The Tribunal was meant to act in cases where an individual’s human rights were not being protected by the legal system in their home state and they had exhausted all available legal remedies. In the most high profile case to come before the Tribunal, Zimbabwean farmers were able to apply for an order preventing state forces proceeding with the removal of farm land under a government land redistribution programme that was being executed against mainly white landowners, depriving them of their property without compensation.
- Afreximbank
Afreximbank, 2018. African Trade Report. Cairo: Afreximbank.
Report of the Eighth Meeting of Senior Officials, Lusaka: Accelerated Programme for Economic Integration
APEI, 2019. Report of the Eighth Meeting of Senior Officials, Lusaka: Accelerated Programme for
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The Country With The World's Worst Inequality Is
- J Beaubien
Beaubien, J., 2018. The Country With The World's Worst Inequality Is.... [Online]
Available at: https://www.npr.org/sections/goatsandsoda/2018/04/02/598864666/the-countrywith-the-worlds-worst-inequality-is
East African prospects: An update on the political economy of
- D Booth
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- F A K K Golooba-Mutebi
- Uganda
Booth, D., Cooksey, B. & Golooba-Mutebi, F. a. K. K., 2014. East African prospects: An update on
the political economy of Kenya, Rwanda, Tanzania and Uganda., London: ODI Report.