SOUTH AFRICA’S INVESTMENT TREATIES MUST MEET ITS HUMAN RIGHTS OBLIGATIONS COALITION OF HUMAN RIGHTS GROUPS LODGES PUBLIC INTEREST INTERVENTION REQUEST

Date: 27 July 2009

South Africa’s bilateral investment treaties should not be read in a way that conflicts with its human rights obligations under its own constitution or under international treaties that it has signed up to.

In an action that could have enormous ramifications for the millions of people left marginalised by the policies of the apartheid era, as well as for South Africa’s mining industry, a group of European investors claim that the South African government has taken away their mineral rights without providing adequate compensation.

The European investors - several Italian citizens and Luxembourg corporations - are claimants in a case (Piero Foresti, Laura de Carli and others v. Republic of South Africa) filed in 2007 before an ad hoc arbitration tribunal constituted under the World Bank’s International Centre for Settlement of Investment Disputes. The investors hold stakes in granite quarrying companies in South Africa. They argue that the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) effectively extinguishes their mineral rights without providing adequate compensation and unfairly discriminates against them.

The MPRDA was introduced to partially fulfil the South African government’s obligations to advance equality in the country, including with respect to the nation’s natural resource wealth. Under the MPRDA, both domestic and foreign mining companies are required to submit applications to convert their “old-order” mineral rights into “new-order” rights. In order to successfully convert their rights, a company must fulfil criteria that include the submission of an environmental protection plan and the achievement of certain Broad Based Black Economic Empowerment targets. The investors allege that fulfilling these criteria would render their ‘new’ rights of lesser value than the ‘old’ ones, in breach of South Africa’s obligations under two of its bilateral investment treaties.

However, the South African government maintains that the MPRDA conversion procedure does protect the security of tenure of mining and prospecting rights and complies with South Africa’s commitments under domestic and international law. The Government maintains that the Black Economic Empowerment targets contained in the Act are necessary to redress the devastating socio-economic impact of apartheid.

Four non-governmental organisations (NGOs) have joined together in seeking to assist the international arbitration tribunal in interpreting the relevant South African mining legislation in light of the country’s constitutional and international human rights obligations. Two of South Africa’s leading human rights organisations, the Centre for Applied Legal Studies (CALS) and the Legal Resources Centre (LRC), have a track record of having litigated hundreds of human rights cases in South African courts over the past 30 years. They are working with the Center for International Environmental Law and Interights (CIEL), and the International Centre for the Legal Protection of Human Rights (INTERIGHTS) - two major international NGOs with expertise in litigating international human rights and environment. In coalition, the four NGOs hope to gain permission to comment on how the Tribunal might consider the crucial domestic and international human rights issues that the dispute raises.

More specifically, their comments would address the extent of South Africa’s legal obligations to promote both human rights - such as the right to equality - and sustainable, equitable development. They would also demonstrate the relevance of these obligations in relation to the interpretation of South Africa’s bilateral investment treaties. The NGOs’ aim is to assist the Tribunal in resolving the dispute fairly while at the same time avoiding any conclusion that would create conflict between South Africa’s legal obligations arising from bilateral investment treaties and human rights treaties.

Hearings are currently scheduled for April 2010.

Issued jointly by: The Legal Resources Centre, the Centre for Applied Legal Studies, the Center for International Environmental Law, and INTERIGHTS the International Centre for the Legal Protection of Human Rights.

For further information, please contact:

Legal Resources Centre (LRC)
Jason Brickhill
27 11 8369831
[email][email protected]

Centre for Applied Legal Studies (CALS)
Jackie Dugard
27 84 2406187
[email][email protected]

Center for International Environmental Law (CIEL)
Marcos Orellana
1 202 742 5847
[email][email protected]

Interights, the International Centre for the Legal Protection of Human Rights
Iain Byrne
44 207 278 3230
[email][email protected]