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The Challenge of Overlapping Regional Economic Communities in Africa: Lessons for the Continental Free Trade Area from the Failures of the Tripartite Free Trade Area

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Ethiopian Yearbook of International Law 2017

Part of the book series: Ethiopian Yearbook of International Law ((EtYIL,volume 2017))

Abstract

The Tripartite Free Trade Area (TFTA) was launched with several objectives, an important one being to address the challenge of too many regional economic communities (RECs) with too many overlapping memberships in the eastern half of the continent. This article attempts to describe the genesis of the problem in the continent since the Abuja Treaty of 1991, articulates how the inability to address the relationship between the TFTA and its preexisting RECs derailed the TFTA project, and makes detailed recommendations on how to avoid the same mistakes in the CFTA negotiations. The key message of this article is very simple: TFTA’s fate was sealed when the negotiators abandoned the original objective of forming a customs union by merging the constituent RECs into one. To succeed, the Continental Free Trade Area (CFTA) will need to avoid that mistake, aim to become a continental customs union and eventually a common market, and ensure the progressive merger of all RECs into one through a detailed program of integration over a realistic implementation period.

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Notes

  1. 1.

    For a detailed discussion of the evolution of the concept and policy of creating an integrated African economic space, see AUC (2009).

  2. 2.

    See Luke and Mabuza (2015).

  3. 3.

    Art. 41 of the Agreement Establishing a Tripartite Free Trade Area Among the Common Market for Eastern and Southern Africa, the East African Community and the Southern African Development Community (hereafter referred to as the TFTA Agreement), 10 June 2015, Sharm el Sheikh, provides: “1. This Agreement shall remain open for accession by any Member/Partner State of COMESA, EAC or SADC. 2. The Agreement shall also remain open for accession to other member states of the African Union. 3. The Tripartite Council of Ministers shall adopt accession regulations.” See COMESA-EAC-SADC (2015).

  4. 4.

    To mention just a few examples, for Disparte and Bugnacki, this was the “crucial inflection point” for the continental integration process (see Disparte and Bugnacki (2015) while for Luke and Mabuza this was “a milestone for Africa’s regional integration process.” (See Luke and Mabuza (2015).

  5. 5.

    See para. 9 of the preamble of the TFTA Agreement.

  6. 6.

    See para. 3 of the preamble of the TFTA Agreement.

  7. 7.

    See para. 3 of the preamble Declaration Launching the Negotiations of the Establishment of the Tripartite Free Trade, 12 June 2011, Johannesburg.

  8. 8.

    As the High-Level Panel observed, the RECs, “which are expected to serve as building blocks in the integration process, have been constrained by several factors, particularly the overlapping memberships, the insufficient inter-RECs co-operation and lack of coordination and harmonisation at the continental level.” See High-Level Panel, Audit of the African Union (report submitted to the AU Assembly, 18 December 2007). Available at http://www.aprmtoolkit.saiia.org.za/component/docman/doc_view/277-atkt-au-audit-report-2007-en, p. xv, para. 16.

  9. 9.

    See UNECA (2006), p. xvii, (hereafter ARIA II).

  10. 10.

    See Charter of African Unity, 25 May 1963a, Addis Ababa (hereafter referred to as the OAU Charter).

  11. 11.

    See Art. III:6 of the OAU Charter.

  12. 12.

    See Art. II:2 of the OAU Charter. Then Nigerian Minister of Justice and a participant in the negotiations for the OAU charter recalled in 1965 that a proposal by Ghana and a couple of other countries for the establishment of a political union of Africa was “firmly rejected” by the conference. See Elias (1965), p. 245.

  13. 13.

    See OAU Secretariat, Resolutions Adopted by the First Conference of Independent African Heads of State and Government (Addis Ababa, Ethiopia, 22–25 May 1963b, CIAS/PLEN.2/REV.2).

  14. 14.

    For a list of important decisions taken by the OAU between the 1960s and the 1980s, see Abuja Treaty, Preamble.

  15. 15.

    The ambition of the Lagos Plan of Action (LPA) was such that it aimed to exempt trade in “all food products originating from member countries … from the application of regulatory non-tariff barriers except health requirements, effective from January 1982.” See Chapter VII of OAU (1980).

  16. 16.

    See OAU (1991).

  17. 17.

    It is notable that talk of accelerating implementation of the AEC project started already before the actual adoption of the Abuja Treaty text on 3 June 1991. For example, when the so-called Kampala Document was adopted on 22 May 1991 launching the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA), the cooperation calabash observed that economic integration “should be intensified and a shortened timetable for the African Economic Community should be agreed upon.” See Kampala Document (1991) available at https://slideblast.com/oau-african-union-summit_595a55381723dde9bcd9d736.html.

  18. 18.

    See Accra Declaration on the Union Government of Africa Accra, Ghana, 3 July 2007, available at: http://www.dirco.gov.za/docs/2007/ghan_decl0706.htm.

  19. 19.

    See AU (2012b) Decision on Boosting Intra-African Trade and Fast-tracking of the CFTA, Assembly/AU/Dec.394(XVIII), 29–30 January 2012.

  20. 20.

    See AU, Agenda 2063: the Africa We Want (Popular Version, 2015a), para. 72(h), p. 17.

  21. 21.

    See AU (2015b) Decision on the Launching of the Negotiations of the Establishment of the Continental Free Trade Area, Assembly/AU/Dec.569(XXV), 15 June 2015.

  22. 22.

    See UNECA (2006).

  23. 23.

    For a useful summary of the varying sizes of African economies, see Hartzenberg (2011) Regional Integration in Africa Trade, WTO Staff Working Paper ERSD-2011-14 (October 2011), available at https://www.wto.org/english/res_e/reser_e/ersd201114_e.pdf, p. 3.

  24. 24.

    However, the Treaty does not even name these regional organizations; it simply assumed that the RECs would be a different version of the five official sub-divisions of the continent determined by the OAU in 1976—Central Africa, East Africa, North Africa, Southern Africa and West Africa. A 1976 OAU Council of Ministers meeting declared that “there shall be FIVE regions of the OAU, namely, Northern, Western, Central, Eastern and Southern.” See Resolution CM/Res. 464(XXVI) of the 27th Ordinary Session of OAU Council of Ministers (1976), paragraph 2(a), quoted in draft report of the Ministerial Meeting on Rationalization of RECs, Ouagadougou, Burkina Faso, 27–31 March 2006, available at https://au.int/web/sites/default/files/decisions/9591-council_en_23_february_1_march_1976_council_ministers_twenty_sixth_ordinary_session.pdf.

  25. 25.

    Note however that the Fourth Extraordinary Session of the Assembly of Heads of State and Government of 8–9 September 1999 at Sirte, Libya, has decided to “shorten the implementation periods of the Abuja Treaty” but no decision has yet been taken on the specifics. See OAU (1999) Sirte Declaration, oc. EAHG/Draft/Decl. (IV) Rev.1, available at https://issafrica.s3.amazonaws.com/site/uploads/SUMDECLUNREF.PDF.

  26. 26.

    Adapted from Article 6 of the AEC Treaty. A substantial part of the Treaty is devoted to an elaboration of the expectations and obligations of the parties at each of these six stages and the modalities for the final realization of the AEC. See in particular, Articles 28–66 of the Treaty.

  27. 27.

    Forty-nine of the 55 AU Member States are parties to the Abuja Treaty—the remaining six being Djibouti, Eritrea, Madagascar, Morocco, Somalia, and South Sudan. See list of countries that have signed, ratified/acceded to the Abuja Treaty, available at https://au.int/sites/default/files/treaties/7775-sl-treaty_establishing_the_african_economic_community_1.pdf, consulted on 3 September 2017, updated 15 June 2017.

  28. 28.

    See UNECA (2017), p. 20 (noting further that COMESA, SADC, and ECCAS have only an FTAs).

  29. 29.

    See High-Level Panel (2007), p. 12, para. 30.

  30. 30.

    See ARIA II (2006), p. 91.

  31. 31.

    For interesting reflections on the meaning and role of international law, see Harold (1997).

  32. 32.

    See Kagame (2017), p. 4 (hereafter Kagame Report).

  33. 33.

    Kagame Report (2017), p. 5. For a more positive assessment, see Gathii (2010), p. 573 (arguing that African RTAs are in fact consciously designed as “flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence”).

  34. 34.

    The decision to divide the continent into five regions was taken by the OAU Council of Ministers at its Twenty-Sixth Ordinary Session in Addis Ababa, Ethiopia, from 23 February to 1 March 1976 (CM/Res. 464 (XXVI)), where it decided: “there shall be FIVE Regions of the OAU namely, Northern, Western, Central, Eastern and Southern.”

  35. 35.

    A good example may be the Western African Monetary Zone, a regional grouping involving six countries members of both CEN-SAD and ECOWAS—namely Gambia, Ghana, Guinea, Liberia, Nigeria and Sierra Leone—that was created in 2000 to establish a second monetary union within the ECOWAS region. It is expected that WAMZ would merge with WAEMU to form a single monetary union at some point in the future. See http://www.wami-imao.org. It is to be noted that the ECOWAS Treaty also provides for the establishment of a monetary union, under Art. 55 of the ECOWAS Treaty.

  36. 36.

    Although the assumption of the Abuja Treaty in 1991 was the division of Africa into five regions, today Africa has as many as 14 RECs that officially aspire to evolve into FTAs, customs unions and so on. For an excellent analysis of the state of African RECs and the AEC project, see ARIA II (2006).

  37. 37.

    See AfDB, AUC and UNECA (2016), p. 7.

  38. 38.

    See AfDB, AUC and UNECA (2016), p. 7.

  39. 39.

    To give a few examples, Kenya belongs to four RECS (CEN-SAD, COMESA, EAC and IGAD).

  40. 40.

    COMESA members are: Burundi, Comoros, DR Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe.

  41. 41.

    So far only 16 Member States are participating in the COMESA FTA, with Ethiopia, Eritrea and Swaziland not fully implementing the FTA.

  42. 42.

    See COMESA Secretariat, Medium Term Strategic Plan 2016–2020: In pursuit of Regional Economic Transformation and Development, p. 7.

  43. 43.

    See WTO (1995) Notification of the Common Market for Eastern and Southern Africa, WT/COMTD/N/3 (29 June 1995).

  44. 44.

    See WTO (2017a), available at: http://rtais.wto.org/UI/PublicMaintainRTAHome.aspx.

  45. 45.

    See WTO, WT/COMTD/N/51 (9 January 2017).

  46. 46.

    Art. 46.1 of the COMESA Treaty.

  47. 47.

    See COMESA (2016) Communique of the Nineteenth Summit of the COMESA Authority of Heads of State and Government. In: COMESA. Available in COMESA. http://www.comesa.int/wp-content/uploads/2016/10/Summit-Communique-19.10.16-2.pdf.

  48. 48.

    See Gakunga (2016).

  49. 49.

    These are Burundi, Kenya, South Sudan, Rwanda, Tanzania and Uganda.

  50. 50.

    Under its terms of accession, South Sudan will be a full member of the EAC customs union in 2019. See EAC Secretariat, EAC Permanent/Principal Secretaries and Officials from the Republic of South Sudan discuss integration of the new Partner State into EAC (25 October 2016), available at http://www.eac.int/news-and-media/press-releases/20161025/eac-permanentprincipal-secretaries-and-officials-republic-south-sudan-discuss-integration-new.

  51. 51.

    See WTO (2000) Notification of the East African Customs Union, WT/COMTD/N/14 (11 October 2000).

  52. 52.

    See WTO (2000).

  53. 53.

    See AfDB, AUC and UNECA (2016), p. 16.

  54. 54.

    They are Angola, Botswana, Democratic Republic of Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

  55. 55.

    The members of SADC are: Angola, Botswana, Democratic Republic of Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

  56. 56.

    See WTO (2017b).

  57. 57.

    See WTO (2004) Notification of the Protocol on Trade in the Southern African Development Community, WT/REG176/N/1 (9 August 2004). To note that all RTA that South Africa is party to are notified under Art. XXIV GATT.

  58. 58.

    See WTO (2004).

  59. 59.

    Article 88 provides as follows: “Relations between the Community and Regional Economic Communities. 1. The Community shall be established mainly through the co-ordination, harmonisation and progressive integration of the activities of regional economic communities. 2. Member States undertake to promote the co-ordination and harmonisation of the integration activities of regional economic communities of which they are members with the activities of the Community, it being understood that the establishment of the latter is the final objective towards which the activities of existing and future regional economic communities shall be geared. 3. To this end, the Community shall be entrusted with the co-ordination, harmonisation and evaluation of the activities of existing and future regional economic communities. 4. Member States undertake, through their respective regional economic communities, to coordinate and harmonize the activities of their sub-regional organisations, with a view to rationalising the integration process at the level of each region.”

  60. 60.

    See the Protocol adopted by the Thirty-Third Ordinary Session, OAU (1997) Decision on the African Economic Community.

  61. 61.

    See COMAI (2006) Declaration of the First Conference of African Ministers of Integration (COMAI), adopted on 30–31 March 2006, Ouagadougou, Burkina Faso COMAI/Decl.(I). available at http://www.africa-union.org/Economic%20Affairs/RECS%20Rationalization/AU%20site5/Reports/Ouagadougou%20DECLARATION%2031%20March%202006.pdf.

  62. 62.

    See AU (2006) Decision on the Moratorium on the Recognition of Regional Economic Communities (RECs).

  63. 63.

    See paras. 3–4 of the Decision on the Moratorium on the Recognition of Regional Economic Communities (RECs).

  64. 64.

    See AU decision adopted by the Ninth Ordinary Council of the Assembly of the African Union (1–3 July 2007, Accra, Ghana), Assembly/AU/Dec.166–167 (IX); Assembly/AU/Decl.1(IX), available at http://www.africa-union.org/root/AU/Conferences/2007/june/summit/doc/accra/Draft_Assembly_Decisions.pdf, hereafter referred to as the Protocol on AU-RECs Relations (2008).

  65. 65.

    See Art. 4 of the AU Protocol on AU-RECs Relations (2008). AU (2008) Protocol on AU-RECs Relations.

  66. 66.

    See Art. 5 of the Protocol on AU-RECs Relations.

  67. 67.

    For example, Art. 24.1 of the SADC Treaty only refers to international instruments that may pursue the objectives of the SADC Treaty, which relegates the Abuja Treaty to a partner instrument to promote their own objectives: “Member States and SADC shall maintain good working relations and other forms of cooperation, and may enter into new agreements with other states, regional and international organisations, whose objectives are compatible with the objectives of SADC and the provision of this Treaty” (SADC 1992). In the case of the AMU Treaty, there is no reference either to the Abuja Treaty or the AU Constituent Act to this day.

  68. 68.

    For example, Art. 7(i) of the IGAD Agreement provides that one of the aims and objectives of the IGAD shall be to “promote and realize the objectives of the COMESA and the African Economic Community” (See IGAD 1986). In practice, however, IGAD has not taken any decisive step to comply with the commitments under the Protocol on AU-RECs relations.

  69. 69.

    See Hartzenberg (2011).

  70. 70.

    ARIA II (2006), pp. 116–117. It is notable that the expert meeting that preceded the First Conference of African Ministers of Economic Integration (CAMEI) observed, in 2006, that “although recognized as RECs, EAC, IGAD and CEN-SAD do not satisfy the criteria of ‘region’….” See “First Conference of African Ministers of Economic Integration (CAMEI) Meeting of Experts 27–28 March 2006 Ouagadougou (Burkina Faso), CAMEI/Consol Report/(I), available at http://www.africa-union.org. Note that both CEN-SAD and EAC were created in 1999, i.e. after the protocol was signed in 1998.

  71. 71.

    See ARIA II (2006), p. xxiv.

  72. 72.

    See ARIA II (2006), p. 117.

  73. 73.

    Note that harmonization and coordination of the activities of RECs have been at the centre of the Abuja Treaty from the beginning. To mention just one example, Article 28:2 provides: “Member States shall take all necessary measures aimed at progressively promoting increasingly closer co-operation among the communities, particularly through co-ordination and harmonisation of their activities in all fields or sectors in order to ensure the realisation of the objectives of the Community.”

  74. 74.

    The 1st Tripartite Summit resolved “that the three RECs should immediately start working towards a merger into a single REC with the objective of fast-tracking the attainment of the African Economic Community.” See the COMESA-SADC-EAC (2008) Final communiqué of the 1st Tripartite Summit, paragraph 13.

  75. 75.

    See paragraph 7 of the AU (2012a) Decision on African integration, of the 18th Ordinary Session of the AU Summit, ref. Assembly/AU/Dec.392(XVIII).

  76. 76.

    See AU (2012) Decision on Boosting Intra-African Trade and Fast Tracking the Continental Free Trade Area, Doc. EX.CL/700(XX), the 18th Ordinary Session of the AU Summit, ref. Assembly/AU/Dec.394(XVIII), para. 4.

  77. 77.

    See Assembly/AU/Decl.1(XVIII).

  78. 78.

    See 25th Ordinary Summit Decision on the launch of the CFTA, ref. Assembly/AU/Dec.569(XXV).

  79. 79.

    Indeed, in the words of a 2007 AU Assembly declaration, “the ultimate objective of the African Union is the United States of Africa with a Union Government as envisaged by the founding fathers of the Organization of African Unity. …” See Accra Declaration, http://www.africa-union.org/ConceptNote.html.

  80. 80.

    See para. 6, COMESA-EAC-SADC (2008) 1st Tripartite Summit Working Document on Trade and Infrastructure, p. 3.

  81. 81.

    See para. 14(j) of the COMESA-EA-SADC (2008) Final communiqué of the 1st Tripartite Summit.

  82. 82.

    COMESA-EA-SADC (2008), para. 11.

  83. 83.

    COMESA-EA-SADC (2008), para. 44.

  84. 84.

    COMESA-EA-SADC (2008), para. 100.

  85. 85.

    COMESA-EA-SADC (2008), para. 104.

  86. 86.

    See COMESA-EA-SADC (2011a), para. 13.

  87. 87.

    See Communiqué of the Second COMESA-EAC-SADC Tripartite Summit (2011a), Johannesburg: COMESA-EAC-SADC; see also paras. 14, 16 and 17 Communiqué of the 1st Tripartite Summit, 2008, pp. 3–4.

  88. 88.

    See Recital no. 3 of the Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area, 12 June 2011. See COMESA-SADC-EAC (2011b).

  89. 89.

    See COMESA-EAC-SADC (2011c).

  90. 90.

    See Art.6.1(a) of the Tripartite MoU.

  91. 91.

    See Art. 1.3(a) of the Tripartite MoU.

  92. 92.

    See Art. 9 of the Tripartite MoU.

  93. 93.

    Revised 2010 draft TFTA Agreement, available at: https://www.tralac.org/images/Resources/Tripartite_FTA/Draft%20Agreement%20Establishing%20Tripartite%20FTA%20Revised%20Dec%202010.pdf.

  94. 94.

    Art. 4 of the TFTA.

  95. 95.

    See para. 3 of the preamble of the TFTA.

  96. 96.

    For the latest information on the status of signatures and ratifications, see TRALAC, https://www.tralac.org/resources/by-region/comesa-eac-sadc-tripartite-fta.html.

  97. 97.

    Article 39 of the TFTA Agreement requires that it “shall enter into force on the Thirtieth day after the deposit of the fourteenth instrument of ratification by Member/Partner States of COMESA, EAC and SADC.”

  98. 98.

    For more information on this, see Mangeni (2017a).

  99. 99.

    For comments on the relationship between the TFTA and the CFTA, see Erasmus (2016); see also Mangeni (2017b).

  100. 100.

    See COMESA-SADC-EAC (2011a) Guidelines for Negotiating the Tripartite Free Trade Area among the Member/Partner States of COMESA, EAC and SADC (12 June 2011), available at https://www.tralac.org/files/2011/06/Annex-1-T-FTA-Negotiating-Principles-etc.pdf.

  101. 101.

    See Art. 6 of the TFTA Agreement.

  102. 102.

    “Building on the acquis of the existing REC FTAs in terms of consolidating tariff liberalisation in each REC FTA,” para. 3(v) of the TFTA negotiating principles, 1st Tripartite Summit, 2011.

  103. 103.

    See Update on the Tripartite Free Trade Area Negotiations: Statement by Mr Sindiso Ngwenya, Secretary General of COMESA, available at https://www.tralac.org/news/article/6974-update-on-the-tripartite-free-trade-area-negotiations-statement-by-mr-sindiso-ngwenya-secretary-general-of-comesa.html.

  104. 104.

    For more details, see Luke and Mabuza (2015).

  105. 105.

    See Erasmus (2013).

  106. 106.

    See Erasmus (2015).

  107. 107.

    See European Parliament (2015), p. 4 (noting that application of the principle of variable geometry “will lead to an increase in the complexity of regional integration arrangements, instead of their simplification, as originally intended. Ultimately, there will not be a single TFTA but a complex structure of multiple trade agreements”).

  108. 108.

    See Erasmus (2015).

  109. 109.

    For a discussion of the MFN principle in terms of its application at the multilateral level, see Van den Bossche and Werner (2013).

  110. 110.

    Curiously, this time the condition of reciprocity is supplemented with that of non-discrimination, but the practical implication of this addition remains unclear. Two questions arise: firstly, if the benefits of the new—deeper—preferential agreement are to be extended to the other TFTA members on a reciprocal basis, would that not inevitably require country-by-country negotiations to determine whether the new benefits have been adequately reciprocated? If yes, would that not almost certainly mean different countries would be prepared to “pay for” the new benefits? If yes, would that not mean the countries that have formed the new—deeper—preferential regime will be unable to treat the other TFTA members the same way, making discrimination a practical necessity? Secondly, what does the presence of a non-discrimination condition in para. 3 of Article 7, and its absence in para. 2 of the same provision, imply?

  111. 111.

    See para. 9 of the preamble of the TFTA Agreement.

  112. 112.

    Cf. Erasmus (2013, 2015), Kalenga (2016) and European Parliament (2015).

  113. 113.

    See AUC and UNECA (2012), p. 13.

  114. 114.

    See AU (2015c).

  115. 115.

    CFTA Negotiations Guiding Principles, Annex to the Report of the 2nd Meeting of the CFTA-Negotiating Forum and African Ministers of Trade, 16–24 May 2016.

  116. 116.

    Indeed, the African Union Commission prepared the Draft Terms of Reference of the CFTA Negotiating Forum “based on best practices in the RECs and the Tripartite.” See CFTA Negotiations Guiding Principles, Annex to the Report of the 2nd Meeting of the CFTA-Negotiating Forum and African Ministers of Trade, 16–24 May 2016.

  117. 117.

    See AUC (2017).

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  1. Leicester De Montfort School of Law, Faculty of Business and Law, De Montfort University, Leicester, UK

    Melaku Geboye Desta

  2. United Nations Economic Commission for Africa, Addis Ababa, Ethiopia

    Melaku Geboye Desta

  3. African Trade Policy Centre, United Nations Economic Commission for Africa, Addis Ababa, Ethiopia

    Guillaume Gérout

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  1. School of Law, University of Aberdeen, Aberdeen, United Kingdom

    Zeray Yihdego

  2. Leicester De Montfort School of Law, Faculty of Business and Law, De Montfort University, Leicester, United Kingdom

    Melaku Geboye Desta

  3. Addis Ababa University, Addis Ababa, Ethiopia

    Martha Belete Hailu

  4. College of Law and Governance Studies, Addis Ababa University, Addis Ababa, Ethiopia

    Fikremarkos Merso

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Desta, M.G., Gérout, G. (2018). The Challenge of Overlapping Regional Economic Communities in Africa: Lessons for the Continental Free Trade Area from the Failures of the Tripartite Free Trade Area. In: Yihdego, Z., Desta, M., Hailu, M., Merso, F. (eds) Ethiopian Yearbook of International Law 2017. Ethiopian Yearbook of International Law, vol 2017. Springer, Cham. https://doi.org/10.1007/978-3-319-90887-8_5

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