The Pan African Lawyers Union’s (PALU) Annual Conference was held from 16 to 18 October 2024 in Addis Ababa, Ethiopia. Law Society of South Africa (LSSA), House of Constituents member, Thandeka Mpanza attended the conference and compiled the following report.

The theme of the conference was ‘Africa as a Global Powerhouse: Empowering Minds, Enlightening Paths,’ and the conference proved to be an insightful examination of important topics influencing the continent’s business and legal environment.

The event included a comprehensive section on business law, with presentations and discussions centred on the African Continental Free Trade Area’s (AfCFTA’s) regional trade opportunities, oil and gas industry best practices, and corporate transaction insights. The purpose of this section is to give participants the skills and information they need to succeed in a fast-paced business environment.

The conference also explored how the legal profession is constantly evolving, focusing on the increasing opportunities and challenges faced by foreign and African legal practitioners. The conference sparked important engagements on comprehension and cooperation through various talks and strengthening Africa’s position as a major world power.

Public interest and  development law: Human rights

During the session titled ‘Towards human rights-based approaches to sovereign debt investment arbitration’, an insightful conversation was conducted by Legal Analysis and Advocacy Policy Officer at the African Forum and Network on Debt and Development (AFRODAD), Ms Afshin Nazir.

Sovereign debt investment arbitration (SDIA) is a trend attributable to the failure by the international community to establish an international legal and institutional framework on sovereign debt restructuring. It promotes hold out for creditors, financial and economic crises and the lack of clarity around the word ‘investment’ under the International Centre for Settlement of Investment Disputes (ICSID) Convention. Article 25 of the Convention grants jurisdiction with regard to any legal dispute arising directly out of an investment. Ms Nazir referred to two cases, namely:

• Abaclat and Others v Argentine Republic (ICSID case no ARB/07/5) – the term ought to be construed broadly to include sovereign bonds. Also had a dissenting opinion.
• Postova Banka and Istrokapital v Greece (ICSID case no ARB/13/8) – the Tribunal disagreed that Postova Banka’s interests in Greek government bonds qualified as investments under the Slovakia-Greece Bilateral Investment Treaty (BIT) and the ICSID Convention.

The likelihood of African countries becoming increasingly entrapped in SDIA is influenced by several factors, including the increasing reliance on international capital markets and private creditors.

• Human rights issues in SDIA

The balance between investor protection and human rights considerations. Austerity measures can affect socio-economic rights and disproportionate impact on vulnerable groups. Two examples were given:

• Argentine case – Argentina defaulted on its debt and subsequently faced multiple arbitration claims at ICSID. Foreign bondholders argued that Argentina’s debt restructuring measures violated their rights under BITs. The austerity measures led to severe social impacts such as increased poverty, unemployment and a decline in access to essential services.
• Ecuador case – arbitration against Ecuador due to the enforcement of a domestic court judgment against Chevron related to environmental damages. The arbitration tribunal ruled in favour of Chevron, ordering Ecuador to pay substantial damages. This decision prioritised investment rights over Ecuador’s ability to enforce its environmental laws. The case illustrated the conflict between investment rights and environmental and indigenous rights.

• Human rights-based approach in SDIA

• Accountability – establishing mechanisms to hold both states and investors accountable for their actions.
• Non-discrimination and equality – preventing discrimination in the arbitration process and its outcomes.
• Empowerment – strengthening the capacity of individuals to understand and claim their rights and participate effectively in the arbitration process.
• Legality – ensuring that all arbitration proceedings and outcomes are consistent with international standards and obligations.

• Opportunities in SDIA

• Development of precedent favourable to the state.
• Enhancing legal and institutional capacity.
• Promoting transparency and accountability in debt management.
• Contributing to global discourse on sovereign debt and development.

• Design and implementation of a human rights impact assessment (HRIA)

• Integrating human rights provisions in legal frameworks.
• Drafting and negotiation – incorporating explicit human rights considerations in investment treaties.
• Training and capacity building – providing training for legal practitioners, arbitrators, government officials on human rights law and its application in investment arbitration.
• Conducting a HRIA prior to arbitration to identify potential human rights risk associated with the proceedings.
• Continuous monitoring should continue during the arbitration proceedings.
• Public participation is crucial.

• Recommendations

• Integrating gender perspectives and strengthening human rights in debt and investment policies and agreements.
• Enhance public participation and transparency in debt and investment decisions.
• Incorporate human rights and gender considerations into debt practices for creditors.
• International legal framework for promoting human rights and gender equality in international debt and investment practices.

Public interest and development law: Civil society organisations

During the session titled ‘Democratic impact of the shrinking of civic space’, the discussions cantered around the fact that civil society organisations (CSOs), particularly those involved in international development and human rights protection, face numerous obstacles, such as harassment, violence, and incarceration. Violations of civic rights were documented in approximately 109 countries in 2015, up from 96 the year before. Additionally, these abuses still affect other groups that are crucial to holding governments and other entities accountable, like journalists and activists.

In several nations, legislative changes have weakened civil society actors’ autonomy and limited their ability to operate efficiently. Legal measures that restrict or even completely suppress civil society, include –

• defamation laws;
• the criminalisation of previously allowed activities;
• prohibitions on organisations receiving funding from outside sources;
• the designation of civil society organisations as foreign agents; and
• stringent media reporting guidelines.

More than 120 laws limiting civic rights were proposed or introduced in 60 countries between 2012 and 2015. Although it may have been believed that civil society would be crucial to accomplishing the United Nations 2030 Agenda for Sustainable Development, the degree to which the sector is in danger in many nations raises the possibility that this is not the case, as some governments try to completely shut it out. In many regions of the world, CSOs will be unable to advance social, environmental, economic, and human rights if this trend is not reversed.

These discussions yielded that independent CSOs can and should play a significant role in achieving the 2030 Agenda, including localising the sustainable development goals, defending rights and fostering accountability, and offering useful monitoring services, if given the opportunity.

Public interest and development law: Joining international lawyers’ associations

As Africa becomes increasingly interconnected with the global community, African lawyers face unique challenges and opportunities. Navigating the complexities of international law, cross border disputes, and transnational advocacy is essential and joining international lawyers’ associations presents a strategic avenue for African legal professionals to expand their influence, engage with global legal developments, and enhance their capacity to address local and regional challenges.

This session titled ‘Roles, value, and benefits of joining international lawyers’ associations’ focused on the critical roles these lawyer associations play in shaping the careers of African lawyers, the unique value they offer in terms of professional growth and international advocacy, and the concrete benefits they bring to African legal practice, including enhanced access to knowledge, networks, and resources.

The roles of international lawyers’ associations

International lawyers’ associations serve several critical roles:

• Advocacy: They advocate for member interests at global forums, ensuring that African perspectives are heard.
• Knowledge sharing: These associations provide platforms for sharing knowledge and best practices among legal professionals worldwide.
• Capacity building: They facilitate training and capacity-building initiatives to strengthen the skills and competencies of African lawyers.

Value of membership influencing global standards

By joining these associations, African lawyers can:

• Engage in policy-making processes that shape international legal frameworks.
• Contribute to the development of international legal norms that reflect African realities.
• Represent African perspectives in critical global discussions, ensuring a balanced approach to international law.

There are various opportunities available for African lawyers:

• Advocacy: Participation in international cases and human rights issues can elevate their influence.
• Capacity building: Access to training and mentorship from established professionals equips them with valuable skills.
• Cross-border practice: Navigating different jurisdictions enhances their expertise and opens new avenues for practice.

By joining international lawyers’ associations, African lawyers are offered numerous benefits, including access to global expertise, professional development opportunities, and the ability to influence international legal frameworks impacting Africa. This session provided a comprehensive overview of the roles, value, and benefits of membership, equipping you with the tools and knowledge to maximise the potential of these platforms.

Conclusion

The work of PALU remains vast. While it is acknowledged that great strides have been made, South Africa (SA) remains the pioneer and role model of the advancement and protection of human rights within the African context, as demonstrated by SA’s work at the International Court of Justice showing that this reflects action beyond rhetoric.

Thandeka Mpanza LLB (NWU) is the Managing Director at Thandeka Mpanza Attorneys in Sandton. Ms Mpanza is member of the Law Society of South Africa’s House of Constituents, and Branch Secretary of the Black Lawyers Association’s North West Branch.

This article was first published in De Rebus in 2024 (December) DR 14.