Following the NAFTA Star: SADC land reform and investment protection after the Campbell litigation

Abstract

This paper analyses the recent Southern African Development Community (SADC) Tribunal Campbell case from a trade and investment protection perspective. In the Campbell case the issue of the forcible expropriation of farm land without compensation by the Zimbabwean government was raised before the Tribunal in a human rights context.

By revisiting the dispute and analysing it from an investment protection perspective, the author controversially seeks to advance the thesis that the dispute had more to do with investment protection than the protection of human rights. This is done by isolating the specific issues the SADC Tribunal adjudicated upon and contextualising them in relation to investment protection rather than land and agrarian reform. To drive the point further home, a brief comparative analysis of the pertinent investment provisions of the North American Free Trade Agreement (NAFTA) and SADC is made. From the analysis, important lessons for SADC investment protection are extracted and highlighted. Despite the fact that the NAFTA provisions do not directly apply to SADC disputes, this paper concludes that NAFTA jurisprudence offers useful insights which the SADC can tap into, to the advantage of its nascent jurisprudence on investment protection.