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

Published date01 November 2014
Date01 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.
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.

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