Climate Law Comes Home to Roost: South Africa Releases its Draft Integrated Resource Plan for 2010-2030

It is evident that climate law has begun to impact the scope of energy planning in South Africa. In particular, the second revision of the Draft Integrated Resource Plan 2010 (IRP2) released by the South African Department of Energy makes direct reference to the nation’s international carbon-mitigation commitments in planning for its electricity sector. While some parties might find the government’s foray into, for instance, renewable energy and low-carbon emitting energy sources as being timid, the planning process does reveal a lot about the changing energy ethics of Africa’s largest electricity producer and the world’s thirteenth largest carbon emitter.

As previously mentioned by this author, South Africa will have a very tough time meeting its commitment to the UNFCCC process. The IRP2 process has brought together industry, government, the academe, civil society and industry – including independent power producers (IPPs) – as never before. The IRP2 hints at the changing nature of energy security ethics and legal approaches in Africa. While the IRP2 does not fully embrace this new brand of energy ethics, it will start South Africa on the road towards a reduced reliance on coal-fired electricity production. There is still hope for critics of the plan. Energy Minister Dipuo Peters has promised that the IRP2 was written with enough “flexibility” to, for example, embrace more renewable energy in the future should it be desired.[1]…

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The ANC’s Economic Identity Crisis: International Commitments, Local Problems and Politics

“Our history has been a bitter one dominated by colonialism, racism, apartheid, sexism and repressive labour policies. The result is that poverty and degradation exist side by side with modern cities and a developed mining, industrial and commercial infrastructure. Our income distribution is racially distorted and ranks as one of the most unequal in the world – lavish wealth and abject poverty characterise our society.”[1]

Since 1994 the African National Congress (ANC) has tried to ‘have its cake and eat it, too.’ The ANC has led a broad-based coalition that governs, more or less, from the centre of the South African political scene, but its current domestic economic policies do not seem to withstand the strong pull of its international commitments. Economically, ‘revolution’ in South Africa has been a tricky subject for policymakers within the ANC. The government has since 1994 been part of a tri-partite alliance with the Coalition of South African Trade Unions (COSATU) and the South African Communist Party (SACP) – these two parties giving a strong leftist tinge to the government’s composition and policymaking ability.

The country is outwardly open to investment, and President Jacob Zuma has boldly courted corporations to assure them his coalition will not create an “anti-business” atmosphere. However, committing to a neo-liberal trade agenda has not been easy for Zuma politically, and has been very tough on the nation. Economic…

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Failing International Development Energy Security Policies in Africa: Example of the USAID African Infrastructure Program

Changing conceptions of the ethics underpinning energy security strategy demonstrate how Western policies, particularly that of the World Bank and USAID, are out of lock-step with the realities faced by the citizens of African nations. Barry Barton, Catherine Redgwell and Donald Zillman define the classic conception of energy security “as a condition in which a nation and all, or most, of its citizens and businesses have access to sufficient energy resources at reasonable prices for the foreseeable future free from serious risk of major disruption of service.”[1] This is a simple ‘supply-is-greater-than-or equal-to-demand’ scenario. However, an array of emerging justice claims, from the tenets of sustainable development law and corporate social responsibility (CSR) to shifting norms in climate change law and international development practice mean that energy security is taking on a new meaning around the globe, and especially in Africa.

Internationally, the world was awakened to the relative instability of the global energy market by the 1973 OPEC oil crisis.[2] Since then, the West’s focus has been on maintaining security of supply, and increasing overall capacity across the energy sector in a state-centred, top-down fashion. Matters such as energy efficiency have largely fallen by the wayside, as the decreasingly regulated energy marketplace is centred on the production and consumption – but not saving – of energy.

A state-centred focus on ‘sustainable development’ has started to pervade some…

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Realizing Layers of Security in Haiti: A Conceptual Re-Think is Needed if Haiti is to Find Post-Earthquake Peace

Articles in this week’s New York Times and Globe and Mail highlighted calls for a massive scaling-up of disaster relief and development efforts in Haiti. However, leaders should be much more critical about the shortfalls of such missions in the past, as Haiti is no stranger to international interventions, in particular at the hands of the United Nations and the US government, and to a lesser extent, Canada. As security is often held to underpin relief and development efforts, policymakers need to reform their view of the provision of physical security and international law needs to reflect this process. Time and time again, Western powers have failed to assist the Haitian people address the wrongs of the past and meet their overall social and economic development goals.[1]

Sadly, it has become commonplace for developed nations to make big pledges when tragedies occur, but seldom are all funds collected to drive development strategies. Only 10% of funds pledged to Haiti after the January 2010 earthquake have arrived in Port au Prince thus far. Core funding is often lumped into ‘security programs’, while so-called ‘soft development’ strategies languish. Soft development aid dollars are often tied up in the activities of foreign NGOs. The amount of NGOs in Haiti is staggering. The presence of so many foreign personnel, who are often unaccountable to the Haitian government or people as a…

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The Securitization of Immigration and Refugee Law in the United Kingdom

In describing governance trends in the United Kingdom today, Ian Loader contends that certain issues or “threats” are taken out of the realm of democratic politics and “securitized” by government.[1] Refugee and asylum law in particular, is an issue that has been increasingly securitized over the past decade since the ‘9-11’ attacks in the US in 2001 and the ‘7-7’ attacks in the UK in 2005. Evidence of this trend can be detected from the analysis of a recent press statement from the British Home Office:

Asylum applications for the last three months of 2009 were the lowest since the early 1990s. Net migration is down, and the new UK Border Agency is increasingly successful… We are making the UK a more hostile place for illegal immigrants by issuing foreign nationals with ID cards, checking those who apply for visas against watch lists and fining those who employ illegal workers.[2]

There is nothing inherently wrong with a dip in asylum applications occurring within the UK. In fact, the decreasing amount of refugees in the UK probably does correlate with a global downturn in the total number of refugees.[3] Yet, it is strange that this press statement focuses on this dip in correlation to the UK Border Agency’s (UKBA) attempt to create a more  “hostile” atmosphere for those seeking to migrate to the UK.…

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Re-defining Disability in South Africa: The Social Assistance Amendment Bill

The Social Assistance Amendment Bill introduced in the South African Parliament last month has revealed fissures in government policy and has opened up debate on how this country handles disability issues. A key concern for some is that South Africa does not have centralized disability legislation. There are however, several different pieces of legislation and government policy that treat disability issues, such as the Social Assistance Act of 2004, the Employment Equity Act of 1998, and the Integrated National Disability Strategy of 1997, among others. This is not unusual, as countries such as Canada do not have dedicated national disability legislation. However, because the various pieces of South African legislation use different definitions of the term disability, this can create confusion, particularly when disabled persons are applying for government-provided financial assistance. Major criticisms of the bill are that it is still not clear enough, and that it does almost nothing to help move South Africa away from a medical model of disability, towards a social model that would promote societal inclusion for persons with disabilities.

South Africa signed and ratified the Convention on the Rights of Persons with Disabilities and its optional protocol in 2007. Furthermore, the South African Constitution specifically enshrines equality for persons with disabilities under Article 9(3). Yet, it is not clear how the current bill will take this…

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The International Trade in Policing and Security Models: Should it be Subject to Public International Law?

Private security has been a huge global business since the 1980’s. This is particularly true in South Africa, where a society traumatized by the Apartheid era is still dealing with the fallout from years of high policing and repressive governance strategies. Models of ‘policing’ have been imported into South Africa, and exported from this nation, since before the fall of Apartheid.

The term ‘policing’ here is used in a broad sense. While most people associate the term with the state police (that is, publicly funded policing bodies) the reality is that our day to day lives are made secure in a variety of different fashions: through urban architecture, private security firms, technological methods and neighbourhood watch groups, among other forms of security governance. Clifford Shearing of the University of Cape Town has written extensively on this phenomenon. He recognizes the fact that “the new players in policing are not part of formal government. As a result, governments, especially governments of nation-states, have lost their monopoly on policing.”[1] Shearing and his colleagues note that this is not necessarily a bad thing. Rather, governments should be aware of this phenomenon when drafting security regulation.

However, many dangers lurk when wading into this subject. Do international security firms subvert state security by threatening the development of state structures that can more adequately take into account overall economic and social development goals? Furthermore,…

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An Interview with South African Refugee Lawyer Fatima Khan

Professor Fatima Khan is a refugee lawyer and the Executive Director of the University of Cape Town Refugee Law Clinic. The clinic is funded by United Nations High Commission for Refugees (UNHCR), the University of Cape Town, the Atlantic Philanthropies and the Sigrid Rausing Trust. The clinic houses a centre for applied research, and has provided legal assistance to refugees and asylum seekers since 1998.  Ms. Khan lectures on Refugee Law to undergraduate and graduate students at the University of Cape Town, and is currently editing and co-authoring a bound volume that will analyze refugee legislation in various global jurisdictions.

[You may stream or podcast a 20 minute interview with Ms. Khan here]

Philip Duguay: You are a scholar who studies interpretation of international refugee law across various national jurisdictions. Where does South Africa lie on the spectrum in terms of its acceptance and implementation of the 1951 UN Convention on the Status of Refugees? In other words, how much weight does the Convention carry in South African case law?

Fatima Khan: The Convention carries a lot of weight in terms of South African law. The entire Convention has been accepted into South African law. However, I must say that South African refugee law is far more progressive and advanced than the…

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South Africa will Strain to Reach its Commitments to the UNFCCC

The last several years have provided for challenging times in South Africa. The country is struggling to find its place in the world in the post-Apartheid age. President Jacob Zuma’s recent State of the Nation address was long on rhetoric, mainly that which extolled the accomplishments of Nelson Mandela (who made a rare public appearance that evening) and the stewardship of the slightly rusty ruling African National Congress party. However, he said very little in the speech to help lay out a firm strategy for economic and social success.

One of the greatest problems in South Africa is that outside of major urban centres the population has only limited access to reliable energy sources. This flies in the face of South Africa’s international energy commitments because ESKOM, which nearly holds a complete monopoly in South African energy production, also provides 45% of the entire continent’s electricity. Of course, this is ‘the dark continent’[1], but South Africans are feeling a power pinch as export demands have been met at the expense of domestic power shortages.

After hosting the World Summit on Sustainable Development in 2002, South Africa made strong legal commitments to reduce its carbon footprint via the United Nations Framework Convention on Climate Change (UNFCCC). The Kyoto Protocol entered into force here in 2005. Despite a rocky start, the South African government recently…

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South Africa’s ‘Zimbabwe Problem’ – International Law vs. Soccer

Driving around the Cape Peninsula in South Africa, tourists are bound to run into street side hawkers trying to unload cheaply made pieces of “African” art – at least some of which are apparently made in China. Entering into a conversation with these traders, one quickly finds they are often not South African, but from Zimbabwe. The Republic of South Africa is awash with these economic migrants, many of whom have entered the nation illegally. The rash of xenophobic attacks here in 2008 makes it obvious that the local population does not appreciate the presence of so many illegal aliens in South Africa. After all, this is a nation with a lot of race issue to begin with, and unemployment rates hovering around fifty percent.

Ideally, South Africa’s partnership in the Southern African Development Community (SADC) means that such migrants may have a right to be here – at least on a limited basis. Article 5 of the SADC Treaty calls for the “the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the Region generally….” Article 2 of the SADC Draft Protocol on Facilitation of the Movement of Persons aims to allow citizens free movement within the group of member states. With that in mind, the interpretation of South African…

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