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Violation of international law in trade negotiations between
In order to support its considerable fishing fleet, which has exploited the resources in its own waters to the point of exhaustion, the EU seeks bilateral fisheries agreements with African, Caribbean and Pacific countries. As part of a broader trade agreement, the EU sought to negotiate a fisheries agreement with South Africa; however the manner in which this was done was in fact illegal according to international law. Aside from breaking the law there are a number of other problematic issues with the negotiation process of the overall trade agreement between the EU & South Africa. In spite of this the agreement is often heralded as one that should be followed by other ACP countries. Consequently the agreements with the surrounding countries in the region are being streamlined according to the TDCA and vice versa. Although a fisheries agreement was never reached, the danger here is that the streamlining process will nonetheless present the EU with possibilities to gain access to South African waters.
This could happen through other means than formal fisheries agreements, as the policy towards foreign direct investment, in the form of joint ventures between EU and South African fishing companies, is liberalised through the streamlining. This would effectively give the EU companies access to South African waters.
Africa Contact therefore urges our partners to start a critical engagement with the trade agreements because they have vast and pervasive effects, as they cover much more than trade in goods.
The EU, with its formidable market for fish products, is a major player in global fish trade.
out of every 5 fish that are exported worldwide end in the EU.
Consequently, the external effects of the EU’s Common Fisheries Policy (CFP) are far-reaching and of utmost importance for many African, Caribbean and Pacific (ACP) countries, and specifically for the coastal societies in these countries. South Africa is the second largest African exporter of fish to the EU, and the EU imports half of all the fish exports from South Africa.
After the apartheid-era in South Africa, the European Union went into trade negotiations with South Africa. The negotiations began in 1995 and ended in 1999 with the signing of the Trade, Development and Co-operation Agreement (TDCA). Though covering many different products, the agreement does not contain any rules on fish imports from South Africa. As the South African waters are rich in fish, the EU, mainly pushed by Spanish, French and Portuguese lobby, has been interested in gaining access to the South African coastal waters, and consequently, the EU pushed for negotiations on a fisheries trade agreement with South Africa. The first negotiations concerning fisheries took place in 2000. However, this has not been in the interest for South Africa as there is no surplus of fish, and the
negotiations have therefore never lead to an agreement. When the objectives of the EU were clearly known, why did the South African government participate in these negotiations? One of Africa Contact’s sources, participating in the first round of negotiations in 2000, has stated that:
“the trade agreement [TDCA] between the two [EU & SA] stipulated that a fisheries agreement should be negotiated, which is not fully acceptable according to international law.”
Thus, if South Africa wanted to finalise the TDCA, they had to hold negotiations on a fisheries agreement. As our source says, this is in contrast to international law on trade agreements. Aside from this breach of international law, the EU could not uphold its own rules either. In line with the Cotonou agreement
the EU strives to:
“... include the private sector and civil society organizations into the mainstream political, economic and social life.”
Rather than civil society being incorporated however, it is often the private sector, in the form of big fishing companies that is heard in the negotiations with the EU. In light of the detrimental effects that other fisheries agreements have had in West Africa for example, it is crucial that the civil society organisations are heard, and have a more dominant role in the negotiation and implementation process.
Regional dynamics
Regardless of these problematic issues, the agreement, along with the process leading to it, is often highlighted as a positive example for other ACP countries to follow. As a result, the Interim Economic Partnership Agreement (IEPA) signed between the EU and Botswana, Lesotho, Mozambique and Swaziland along with the initialled IEPA with Namibia are being continually streamlined with the TDCA in order to provide a comprehensive and all encompassing agreement for the entire region.
Although the fisheries negotiations between the EU and South Africa have stalled, and it is unlikely that South Africa will open up its waters to the EU through an agreement, the streamlining of these different agreements could present other options for the EU fleet to gain access to South Africa’s waters. Here it is helpful to look at what happened in Senegal. As of 2006, Senegal refused to enter a new fisheries partnership agreement with EU due to years of overexploitation of fish stocks. However, the Senegalese
government’s liberal approach to foreign direct investments has made it possible for European fishing companies to establish joint ventures
with Senegalese companies, or agreements between the government and private companies. An open policy towards international investment is a pillar of the current IEPAs that have so far been signed by Botswana, Lesotho, Mozambique and Swaziland. As the TDCA and the IEPAs are streamlined, the possibility of European fleets gaining access to South African waters is therefore rising. Gathering information and attaining an understanding of these agreements is therefore vital for civil society in South Africa, but also the remaining countries in the IEPA, where people are dependent on small scale fishing for their livelihood. Furthermore, this is a prime opportunity for civil society organisations to form alliances between the different countries to ensure that their governments are held accountable to the people when negotiating. As the EU is beginning its trade negotiations with Asian countries in 2011, there is a push towards finalising the current agreements in Southern African countries, and an increasing awareness on trade issues is therefore vital!
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