The Disbanding of the SADC Tribunal: A Cautionary Tale

Abstract

In 2011 the heads of state of the Southern African Development Com-munity (SADC) disbanded the SADC Tribunal after the regional court held that the Zimbabwean government's land seizures violated the rule of law. The disbandment reflects SADC's hierarchy of values, in terms of which the organization's formal commitment to human rights and a regional legal order is subordinate to the political imperatives of regime solidarity and respect for sovereignty. The Tribunal saga demonstrates that the jurisdiction of regional courts derives not simply from their official mandates but from an interplay between domestic and regional law and politics.

Backlash against international courts: explaining the forms and patterns of resistance to international courts

“…The interesting question is, however, whether the action of one Member State is enough to terminate the operation of an IC. The much discussed case of the SADC Tribunal suggests that the action of one state – Zimbabwe – triggered the backlash, yet it was the concerted action of the collective of the Member States that led to the outcome (Alter et al ., 2016 a ; Nathan, 2013). Moreover, these actions were certainly facilitated by the fact that the underlying socio-political question of the legal case reflected broader societal cleavages and, thus, could count on the support from broad segments of particularly Zimbabwean and South African society.…”

“…The 2012 Brighton Declaration can arguably also be seen as an attempt at reducing the power of the ECtHR (Madsen, 2016). As an example of actions challenging the authority of an IC, the case of the SADC Tribunal is illustrative (Nathan, 2013) but also an outlier. Backlash leading to the elimination of a tribunal has so far been very rare.…”

“…Recent years have seen growing resistance to international courts (ICs) in many parts of the world. The most striking example is the Southern African Development Community Tribunal (SADC Tribunal), which became a political target and ultimately was suspended when ruling on the highly controversial question of land rights in Zimbabwe (Nathan, 2013). Although perhaps an extreme example, the SADC Tribunal is not alone in having faced pushback and even backlash.…”

The Guarani Aquifer Agreement and Transboundary Aquifer Law in the SADC: Comparing Apples and Oranges?

“…93 However, the SADC Tribunal has been suspended since 2012, once again demonstrating that such mechanisms are severely limited by the principle of State consent. 94 The disbanding of the SADC Tribunal also illuminates the fact that the establishment of such mechanisms is by no means future-proof. While the implementation challenge for the Guarani Aquifer Agreement can be characterized by the absence of dispute settlement provisions in the Agreement itself, the obstacles for the SADC region lie in the failure of regional mechanisms, in spite of the existence of thorough legal provisions.…”

The Successes and Challenges for the European Court, Seen from the Outside

“…Adverse reactions include reductions in funding (an ongoing challenge in the Inter-American system 25 ); restructuring the court (such as the creation of the EACJ Appellate Division 26 following a controversial 2005 decision 27 ); and politicizing judicial appointments. More extreme responses include overt noncompliance to signal a government's displeasure with specific rulings; unilateral treaty withdrawals 28 (most recently, Venezuela's 2013 denunciation of the American Convention 29 ); threats to create a rival human rights regime (a possibility being explored by several left-leaning South American countries 30 ); and even suspending the court and stripping its jurisdiction to hear complaints from private litigants (a rebuke of the SADC Tribunal spearheaded by Zimbabwe in 2011 31 ).…”