EU South African Trade, Development and Cooperation Agreement: Bane or Boon for Socio‐Economic Rights under the South African Constitution?

• Published date: 01 November 2014
• DOI: http://doi.org/10.1111/eulj.12106
• Date: 01 November 2014

EU South African Trade, Development

and Cooperation Agreement: Bane or

Boon for Socio-Economic Rights under

the South African Constitution?

Stefaan Smis* and Stephen Kingah**

Abstract: How does the EU–South African Trade Development and Cooperation Agree-

ment serve as a tool to ensure that basic services recognised under the South African

Constitution are secured and reinforced so that the most vulnerable are protected?

Benefits under the agreement will be hardly maximised by South Africans if political

institutions and those who serve in them fail to duly channel the benefits of the agreement

to the people while at the same time minimising potential deleterious effects of the

liberalisation fallout engendered by the agreement.

I Introduction: Synopsis of European Union–South Africa

Economic Relations

On 27 April 1994, South Africa held its first democratic elections having turned the

page on apartheid. The event culminated in the election of the first majority govern-

ment led by Nelson Mandela. When this happened, the European Union (EU)

recognised that South Africa’s political reform process had gained unparalleled

momentum and that the time had come to step up efforts to contribute to further

develop and consolidate political change in South Africa. On both sides, there was a

strong realisation that trade linkages could serve as a robust and formidable utensil to

enhance these objectives. The EU was and remains South Africa’s main trading and

investment partner.1In the 1990s, the EU accounted for 40 per cent of South Africa’s

exports and over 30 per cent of its imports. More than 50 per cent of foreign direct

investment in South Africa during that period originated from the EU and its

Member States. As a consequence, besides other initiatives to strengthen their rela-

tionship, the EU proposed in the fall of 1994 to start negotiations for a comprehensive

and long-term framework for cooperation. While South Africa saw such a relation-

ship in the light of an accession to the Lomé Convention with possibly some specific

* Professor of International Law and Dispute Settlement, Vrije Universiteit Brussel (VUB); reader in

Law, University of Westminster, London, UK.

** Research fellow, United Nations University, Institute on Comparative Regional Integration Studies

(UNU-CRIS), Bruges, Belgium.

1Herman Van Rompuy, Press Statement by the President of the European Council following the 5th

EU-South Africa Summit, Brussels, EUCO 169/12, 18 September 2012; José Manuel Durao Barosso,

Statement following the EU-South Africa Summit, Speech 12/165, Brussels, 18 September 2012.

bs_bs_banner

European Law Journal, Vol. 20, No. 6, November 2014, pp. 793–810.

© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

elements that could be accommodated outside this framework,2the EU opted for a

twin track approach. The first track leading to a protocol to the Lomé Convention

would cover terms and conditions of South Africa’s accession to the Convention, and

the second, had to establish a bilateral agreement between the European Community

and South Africa, which would include provisions for a mechanism leading to the

creation of a free trade area (FTA).

In April 1997, South Africa became a ‘qualified’ member of the Lomé Convention

as an important part of the agreement was set aside with regard to South Africa. In

March 1999, the EU and South Africa concluded the Trade, Development and

Cooperation Agreement (TDCA).3This accord creates an FTA between the parties.

The agreement is not only one of the most ambitious cooperation agreements con-

cluded between the EU and a third country, but was the first EU agreement negoti-

ated after the establishment of the World Trade Organization (WTO), and also set

precedence in terms of the kind of future agreements the EU intended to conclude

with developing countries. In addition to the TDCA, both partners negotiated three

separate agreements: the Science and Technology agreement (which entered into force

in November 1997), the Wine and Spirit agreement and the Fisheries agreement.

The goal of this contribution is to assess the extent to which the TDCA between

South Africa and the EU has been used in enhancing the realisation of some of the

socio-economic rights protected under the South African Constitution of 1996. Being

not only a trade liberalisation agreement but also a development and cooperation

agreement, it is relevant to query whether the agreement contributed to a better

realisation of economic and social rights in South Africa. These constitutional rights

include the rights to adequate housing, health, social security and water.

The structure of the article is as follows. The context within which the agreement

was signed is presented in section II. The goal here is to expose some of the interests

and motives that drove the negotiators on both sides. This discussion escorts the

reader into the agreement itself in section III which considers some of the important

provisions. In section IV, the paper considers the socio-economic rights protected

under the Constitution and discusses the activist approach of the Constitutional

Court in upholding these constitutionally embedded rights. The main question of

interest underlain in the goal of the article is the following: Are there some economic

and social rights under the South African Constitution, the attainment of which has

been eased or rendered difficult by the TDCA? These questions are addressed in

sections V and VI.

II Context Within Which the Agreement Was Signed

When democratic South Africa initiated its trade and cooperation negotiations

with the EU, the first choice of South Africa was to be admitted to the Lomé

2M. Lee, ‘The European Union—South Africa Free Trade Agreement: In whose interest?’, (2002) 20

Journal of Contemporary African Studies 81–106, 85. Also, see T. Bertelsmann-Scott, G. Mills and

E. Sidiropoulos, ‘The EU-SA agreement in a global context’, in T. Bertelsmann-Scott, G. Mills and

E. Sidiropoulos (eds), The EU-SA Agreement: South Africa, Southern Africa and the European Union

(South African Institute of International Affairs, 2000), at 17–30.

3EU Council, Agreement on Trade, Development and Cooperation between the European Community

and its Member States, of the one part, and the Republic of South Africa, of the other part, OJ EC, L

311/3, 4 December 1999.

European Law Journal Volume 20

794 © 2014 John Wiley & Sons Ltd.