Abstract
The African pursuit of economic development through regional integration has a long history but has had mixed results. The implementation of agreements has not kept pace with political ambition, and deadlines are frequently adjusted. Most of the Regional Economic Communities have significant membership overlap, resulting in duplication and legal uncertainty. Implementation remains a problem, while regional institutions do not enjoy supra-national powers. This chapter discusses the most recent African integration endeavours, the Tripartite Free Trade Area (TFTA) and the African Continental Free Trade Area (AfCFTA). They have a broader coverage and aim at consolidating and expanding existing African regional integration arrangements. Their designs, the outcomes of some of the negotiations, and the context in which they will be implemented are discussed and assessed. These developments shed light on contemporary African trade and integration endeavours and the associated difficulties.
Trudi Hartzenberg is the Executive Director of the Trade Law Centre (tralac). Gerhard Erasmus is an Emeritus Professor of the University of Stellenbosch and a tralac Associate.
Since this paper was written (March 2017), the African Continental Free Trade Area (AfCFTA) negotiations on trade in goods and trade in services have progressed. Heads of State and Government of Member States convened at the tenth Extraordinary Summit of the African Union on 21 March 2018, in Kigali, Rwanda, and forty-four Member States signed the Agreement establishing the African Continental Free Trade Area. Forty-seven Member States signed the Kigali Declaration and thirty signed the Protocol on Free Movement of Persons. It is important to note however, that negotiations on tariff liberalisation are yet to begin. Negotiations on rules of origin have made some progress, but are not yet complete. Trade in services negotiations are still ongoing, with priority sectors, for negotiations on regulatory matters, still to be selected by Member States.
The Tripartite Free Trade Area (TFTA) negotiations are also still ongoing. Tariff reduction negotiations between the Member States of the Southern Africa Customs Union (SACU) and the East African Community (EAC), and also between the Member States of SACU and Egypt are continuing, as are negotiations on the rules of origin. Phase 2 of the negotiations, which are to cover services, investment and competition policy, have not begun.
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- 1.
Hartzenberg 2011.
- 2.
The Treaty establishing the African Economic Community (Abuja Treaty) of 1991 is perhaps the best example of a project to unite Africa. It is officially in force since June 1994 but not implemented. It offers a framework for continental integration to be achieved over six stages and 34 (but not exceeding 40) years. Full political and economic integration is the end goal. See further EK Bensah Jr (2011) ‘The Accidental ECOWAS & AU Citizen’: Why ‘Africa’ is Lost in the ‘Abuja Treaty’ Translation, Pan-Africanist International, 12 September 2011, http://www.panafricanistinternational.org/?p=1316, accessed 21 November 2017.
- 3.
The African Union has recognised eight such RECs: the Arab Maghreb Union (AMU), the Community of Sahel-Saharan States (CEN-SAD), the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), the Intergovernmental Authority on Development (IGAD), the Common Market for Eastern and Southern Africa (COMESA), the Southern African Development Community (SADC), and the East African Community (EAC).
- 4.
1991 Treaty Establishing the African Economic Community, 30 ILM 1241 (‘Abuja Treaty’), Article 6.
- 5.
See e.g. Erasmus 2016.
- 6.
C. McCarthy (2010) Reconsidering the African regional integration paradigm, International Centre for Trade and Sustainable Development, 21 September 2010, http://www.ictsd.org/bridges-news/trade-negotiations-insights/news/reconsidering-the-african-regional-integration, accessed 21 November 2017.
- 7.
Ibid.
- 8.
Hartzenberg 2011, at 1.
- 9.
COMESA, EAC, SADC (2008) Final Communiqué of the COMESA-EAC-SADC Tripartite Summit of Heads of State and Government, 22 October 2008, https://www.tralac.org/wp-content/blogs.dir/12/files/2011/uploads/FinalCommuniqueKampala_20081022.pdf, accessed 21 November 2017.
- 10.
Ibid., para 13.
- 11.
Ibid., para 14(i).
- 12.
Ibid., para 14(ii)(c).
- 13.
2011 Memorandum of Understanding on Inter Regional Cooperation and Integration Amongst Common Market for Eastern and Southern Africa (COMESA), East African Community (EAC) and Southern African Development Community (SADC), http://www.tralac.org/wp-content/blogs.dir/12/files/2011/uploads/MoU_Inter_RegionalCooperationIntegration_19_01_2011.pdf, accessed 21 November 2017. This MoU came into force on 19 January 2011 (Trademark South Africa (2011) COMESA, EAC and SADC MoU signed, 2011, http://www.trademarksa.org/news/comesa-eac-and-sadc-mou-signed, accessed 2 May 2017).
- 14.
2011 Memorandum of Understanding on Inter Regional Cooperation and Integration Amongst Common Market for Eastern and Southern Africa (COMESA), East African Community (EAC) and Southern African Development Community (SADC), Article 1(3).
- 15.
The text of the Agreement can be sourced from the tralac website (tralac, SADC-EAC-COMESA Tripartite Free Trade Area Legal Texts and Policy Documents, https://www.tralac.org/resources/by-region/comesa-eac-sadc-tripartite-fta.html, accessed 21 November 2017). The official title of the agreement is 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.
- 16.
COMESA, EAC, SADC (2015) Communiqué of the Third COMESA-EAC-SADC Tripartite Summit, 10 June 2015, https://www.sadc.int/files/5914/3401/0196/Communiqu_of_the_3rd_COMESA_EAC_SADC_Tripartite_Summit.pdf, accessed 21 November 2017.
- 17.
At the occasion of the Second Tripartite Summit of Heads of State and Government of 12 June 2011 in Johannesburg. COMESA, EAC, SADC (2011) Communiqué of the Second arbitration COMESA-EAC-SADC Tripartite Summit, 12 June 2011, http://www.trademarksa.org/sites/default/files/publications/Communique%20of%20the%202nd%20Tripartite%20Summit%20-%20English%20-%2012.06.2011_1.pdf, accessed 21 November 2017.
- 18.
The TFTA Agreement has been signed by 18 out of 26 participating countries, namely Angola, Burundi, Comoros, Democratic Republic of Congo (DRC), Djibouti, Egypt, Kenya, Malawi, Namibia, Rwanda, Seychelles, Sudan, Tanzania, Uganda, Swaziland, Zambia, and Zimbabwe. The State of Libya signed the Agreement on 19 October 2016.
- 19.
Tralac, African Continental Free Trade Area (AfCFTA) Legal Texts and Policy Documents, https://www.tralac.org/resources/by-region/cfta.html, accessed 21 April 2018.
- 20.
R Davies (2017) Minister Rob Davies: Debate of the State of the Nation Address, South African Government, 15 February 2017, http://www.gov.za/speeches/sona-debate-minister-trade-and-industry-15-feb-2017-0000, accessed 21 November 2017.
- 21.
Erasmus 2013, at 6 (emphasis added).
- 22.
2011 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 (‘TFTA Agreement’), http://www.atf.org.na/cms_documents/feb-tftaagreements9june20151740hrscleaned.pdf, accessed 21 November 2017, Article 2.
- 23.
N Kruger (2017) Update on South Africa’s Trade Negotiations: Presentation to the Parliamentary Portfolio Committee on Trade and Industry, 16 May 2017, https://www.thedti.gov.za/parliament/2017/Trade_Negotiations.pdf, accessed 4 December 2017.
- 24.
R Davies (2017) Minister Rob Davies: Debate of the State of the Nation Address.
- 25.
Ibid. (emphasis added).
- 26.
TFTA Agreement, Article 17.
- 27.
Ibid., Article 18.
- 28.
Ibid., Article 19.
- 29.
Ibid., Article 24.
- 30.
Ibid., Article 25.
- 31.
As the South African Minister of Trade and Industry has described it. See R Davies (2017) Minister Rob Davies: Debate of the State of the Nation Address arbitration. South Africa is a party to the TFTA negotiations.
- 32.
These countries are defined in Article 1 as the Member States of Common Market for Eastern and Southern Africa, the Partner States of the East African Community, and the Member States of the Southern African Development Community who are party to this Agreement and any other member of the African Union that would have become party to this Agreement.
- 33.
The EAC purports to be a customs union with a common external tariff. Its members will, therefore, all presumably become TFTA parties if such a decision is taken. COMESA and SADC are not customs unions.
- 34.
TFTA Agreement, Article 39. SACU is also a functioning customs union with a common external tariff.
- 35.
The United States and the Association of Southeast Asian Nations (ASEAN) concluded the US-ASEAN Trade and Investment Arrangement (TIFA) in 2006 and since then have been working to build US-ASEAN trade and investment ties as well as to promote ASEAN regional economic integration. Wikipedia (2016) Trade and Investment Framework Agreement, updated 25 November 2016, https://en.wikipedia.org/wiki/Trade_and_Investment_Framework_Agreement, accessed 21 November 2017.
- 36.
As per the TFTA Implementation Plan adopted in June 2015. The text is available on the tralac website (tralac, www.tralac.org, accessed 21 November 2017).
- 37.
TFTA Agreement, Article 5.
- 38.
Ibid., Article 9(2).
- 39.
Ibid., Article 45.
- 40.
Intra-African trade remains significantly lower than Africa’s trade with the rest of the world (Jensen and Sandrey 2016).
- 41.
TFTA Agreement, Article 37.
- 42.
Ibid., Article 42.
- 43.
1994 General Agreement on Tariffs and Trade, 1867 UNTS 190 (‘GATT’), Article XXIV(8)(a)(ii).
- 44.
Ibid., Article XXIV(8)(b).
- 45.
Under the Enabling Clause developing countries are allowed some flexibility.
- 46.
GATT, Article XXIV(5).
- 47.
Ibid., Article XXIV(5)(c).
- 48.
The Enabling Clause of 1979 applies to preferential tariff treatment accorded by developed GATT contracting parties to products originating in developing countries in accordance with the Generalised System of Preferences, differential and more favourable treatment with respect to the non-tariff measures, and regional or global arrangements entered into amongst less-developed contracting parties for the mutual reduction or elimination of tariffs.
- 49.
TFTA Agreement, Article 36.
- 50.
Ibid., Article 39(3).
- 51.
Officially called the Sharm El Sheikh Declaration Launching the COMESA-EAC-SADC Tripartite Free Trade Area.
- 52.
2015 Sharm El Sheikh Declaration Launching the COMESA-EAC-SADC Tripartite Free Trade Area (‘Sharm El Sheikh Declaration’), http://hdl.handle.net/11671/591, accessed 21 November 2017, para 3.
- 53.
The Preamble of the Sharm El Sheikh Declaration recognises ‘that there are still some outstanding issues on the Tripartite Free Trade Area Agreement in relation to Annex I on Elimination of Import Duties, Annex II on Trade Remedies and Annex IV on Rules of Origin which will form part of the Built-in Agenda’.
- 54.
See footnote 18.
- 55.
TFTA Agreement, Article 44.
- 56.
Examples are customs cooperation, the elimination of unnecessary and unjustifiable technical barriers to trade, the elimination of unjustifiable sanitary and phytosanitary (SPS) measures, financial matters, trade policies and negotiations, research and statistics, as well as technical regulations and standards for metrology, conformity assessment, and accreditation.
- 57.
TFTA Agreement, Article 27.
- 58.
For example trade facilitation.
- 59.
TFTA Agreement, Article 14.
- 60.
Ibid., Article 14(1).
- 61.
Ibid., Article 15.
- 62.
The WTO Agreement on Technical Barriers to Trade and the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) are examples.
- 63.
TFTA Agreement, Article 10(2) states that the ‘Tripartite Member/Partner States recognise the existing reporting, monitoring and elimination mechanisms on Non-Tariff-Barriers established by the three RECs and undertake to harmonise them into a single mechanism’. Article 30(7) expressly mentions the possibility of inconsistency or a conflict between the TFTA Agreement and the treaties and instruments of COMESA, the EAC, or SADC. Article 29 provides that a Tripartite Task Force of the Secretariats of the three RECs shall provide secretariat services to the Tripartite arrangement.
- 64.
Defined in Ibid., Article 1, and listed in Article 6 as one of the TFTA Principles.
- 65.
Ibid., Article 29.
- 66.
The EAC, COMESA, and ECOWAS.
- 67.
Presumably under the Enabling Clause.
- 68.
Article 6 of the Abuja Treaty provides for implementation in six stages, over 34 years.
- 69.
The TFTA Preamble states that it is ‘COMMITTED to championing and expediting the continental integration process under the Treaty establishing the African Economic Community and the Constitutive Act of the African Union through regional initiatives’. Note that it is, at the same time, also affirming the Kampala Communiqué of the Tripartite Summit of 22 October 2008 under which the Heads of State and Government representing the three regional economic communities agreed to establish a single TFTA Customs Union beginning with a Free Trade Area, as well as their own RECs.
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Erasmus, G., Hartzenberg, T. (2018). From the Tripartite to the Continental Free Trade Areas: Designs, Outcomes and Implications for African Trade and Integration. In: Amtenbrink, F., Prévost, D., Wessel, R. (eds) Netherlands Yearbook of International Law 2017. Netherlands Yearbook of International Law, vol 48. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-243-9_2
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