When A South African Court Undermines the Last Remaining Pillar of Globalization

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Written by Balveer Arora, Céline Bak, Joël Ruet, Adam Thiam & Matthieu Wemaere

G20 leaders met in the port city of Hamburg, a symbol of international commerce, on July 7 and 8 looking for the keys of globalization through investment.

Thousands of kilometers away to the South, the precautionary seizure of an innocuous boat carrying African fertilizer anchored in a (South) African harbor, might be on its way to becoming a symbol of the shadow cast by “the new globalization” resistant to trade, politicizing investments, enrolling local courts into discreetly unravelling the advances of multi-lateral governance.

The dangers of de-globalization are already clear—denial of international trade by the American President, a highly politicized and public demand from Saudi Arabia that Africa disown Qatar—are just a few examples of global back-pedaling. Globalization has never achieved virtue, but it had made progress. The rise of international trade had led to widespread know-how and innovation. The rise of economic diplomacy marked a timid beginning of formalization taking over for blind conditions—coordination serving multilateralism. The G20 after years of club talks launched an “Africa Compact” to define and co-create the continent’s common investment framework with loads remaining to be defined. On the same token, China is bearing the effort of relaunching global growth through investment and pooling efforts with more than 70 country shareholders of the Asian Investment Bank. Call it slow and enduring progress, in a wider context today challenged by globalization discontents.

At least, next to trade and investment, the last pillar of the triptych, international law seemed to be protected. Aggregate and collective by design, it is not dependent on a single text or a single modifiable agreement. Yet it remains fragile and exposes itself to all risks of any jurisprudence making “precedent”. This politicized search for jurisprudence was unnoticed via courts of justice assuming jurisdiction to block commerce on political bases. Two ships chartered by the Moroccan mining company Phosboucraa were halted in early May at the request of the independent organization Polisario Front—one in Panama and one in South Africa. The reason? The cargos (55,000 tons of phosphate), belong to the Saharawi people according to the December 2015 Constitution of the Sahrawi Arab Democratic Republic (RASD). Panama quickly rendered its judgement, stating it was not competent to judge on an issue of international politics and that there was an absence of proof that the cargo belonged to the plaintiff, with no judicial existence. The RASD is not recognized by the international community. This affair is at odds with the 1999 Convention, which governs the seizure of maritime receivables to a physical person.

Despite this, in its judgement pronounced on June 15, the High Court of South Africa decided to postpone the decision, to gain additional competence needed to make a founded judgement. The court noted the “novelty of the matter and the complexity of international law issues that arise” (article 4 of the judgment). The wording is clear—it’s new, therefore there is possible jurisprudence. In a simple manner, the court declared, in the first words of its decree that “the territory of Western Sahara is said to be (sic., underlined by us) the only African territory still subject to colonial rule.” Liberally framed as this “said to be” may look, it is to say the least, an intriguing political mention made way outside of the court’s judicial scope.

Back to facts, the future of this disputed territory is managed by a clear and defined process between the United Nations, Morocco, and the international community. A debate does exist within the African Union, which Morocco rejoined in January 2017, and where South Africa is among the supporters of the Polisario Front’s claims. If politics offers spaces of disputed views between the UN, the African Union, and others, there is nonetheless a single international law. If differences or political processes have specific time frames, economic laws set landmarks. And this matter, local in appearance, vests global impacts.

A precedent would legitimize any movement to block cargo at any time, not only in South Africa—the credibility of its port authority is now tainted when it comes to transit and future investment—with a generalized Damocles sword whenever an organization feels authorized to take legal action on this “complexity.” Especially once it’s been overridden by jurisprudence, the “novelty” will have the corollary effect of delegitimizing any economic decision whose courts could assume to take on such issues.

African courts instead could well take a positive approach to multilateralism based on the sustainable development goals of the United Nations, which were adopted by the African Union. They could vouch to strengthen the contribution of law to economic progress by establishing continuity between international regulation on corporate responsibility or inclusive development that are slowly emerging and the concrete contribution of companies to the objectives of sustainable development. Justice courts should secure the status of companies—mining or other—wary of the environment, social responsibility, and inclusion of stakeholders. The pillar of international law should establish credibility for responsible investment. 180 digress from that approach; the Court in South Africa, at the heart of a continent dramatically lacking internal commerce, attacks the third pillar of globalization when the other two are already under siege.

Multilateralism does have its flaws, that’s clear, but who would seriously want an organization other than the UN to review key and complex political questions, turning international policy into a jungle of decrees, movements and counter-movements, launched by local and commercial courts? Who wants a world, where instead of regulated globalization, it would be permitted to issue judgments whose first paragraphs are sprinkled with distant policy and “said-to-be” considerations?

About the authors: Balveer Arora is Chairman, Centre for Multilevel Federalism & Former Rector, Jawaharlal Nehru University, New Delhi; Céline Bak is Senior Fellow, Centre for International Governance Innovation, Canada, and Member of G20’s Think20; Adam Thiam is a noted editorialist in Mali and specialist of pan-African issues; Joël Ruet is President of The Bridge Tank and Member of G20’s Think20; Matthieu Wemaere is lawyer at the Bars of Bruxelles and Paris.