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Will EPAs Foster the Integration of Africa Into World Trade?

Published online by Cambridge University Press:  20 September 2010

Aniekan Iboro Ukpe
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Abstract

New Economic Partnership Agreements were intended to replace the non-reciprocal EU-African, Caribbean and Pacific trade relationship by 1 January 2008, in a bid to further the development of African, Caribbean and Pacific countries under a WTO-compatible framework. African countries and regions failed to conclude any EPAs by that date due to scepticism about the deeper trade implications of EPAs. However, in a move that has seen the disintegration of Africa's EPA negotiating groups and compromised regional integration across the continent, many African countries broke ranks to initial bilateral goods-only Interim Agreements with the EU as a first step towards concluding full EPAs. Exploring an alternative approach to concluding EPAs, this article underscores the point that the Interim Agreements, although seemingly preserving market access preferences for some African countries, are already having devastating effects on regional integration, the very basis of Africa's development strategy.

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 2 , October 2010 , pp. 212 - 231
Copyright
Copyright © School of Oriental and African Studies 2010

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References

1 See the preamble to the WTO Agreement.

2 The conventions were named after the city where they were signed: Lomé I, signed on 28 February 1975; Lomé II, signed on 31 October 1979; Lomé III, signed on 8 December 1984; and Lomé IV, signed on 15 December 1989, all available at: <http://www.acpsec.org/en/treaties.htm> (last accessed 22 August 2007).

3 Cotonou Agreement, art 37.1.

4 Id, arts 34.1, 34.2 and 34.3. Also see the preamble of the WTO Agreement.

5 Id, art 37, particularly (2) and (3). See also “EU rethink on trade threat to ex-colonies” (8 October 2007) The Financial Times at 8.

6 See: the Final Act of Lagos; arts 4(1) and (2) of the Treaty Establishing the African Economic Community (AEC Treaty); and arts 3(c) and (j) of the Constitutive Act of the African Union. The Final Act of Lagos is a summary of The Lagos Plan of Action for the Economic Development of Africa, 1980–2000 (annex I), available at: <http://www.uneca.org/itca/ariportal/docs/lagos_plan.pdf> (last accessed 25 February 2008).

7 See “COMESA”, available at: <http://actrav.itcilo.org/actrav-english/telearn/global/ilo/blokit/comesa.htm> (last accessed 17 June 2010).

8 See particularly para 14(vi) of the Lagos Plan of Action, above at note 6.

9 See “COMESA”, above at note 7.

10 See AEC Treaty, arts 4.2(a) and 6.2.

11 See AU “Decisions and declarations” (AU Assembly, seventh ordinary session, Banjul, The Gambia, 1–2 July 2006), available at: <http://www.africa-union.org/root/au/Conferences/Past/2006/July/summit/doc/Decisions_and_Declarations/Assembly-AU-Dec.pdf> (last accessed 15 February 2008). The eight RECs are the Economic Community of West African States (ECOWAS), Common Market of East and Southern Africa (COMESA), Economic Community of Central African States (ECCAS), Southern African Development Community (SADC), Inter-Governmental Authority for Development, Arab Maghreb Union, Economic Community of Sahelo-Saharian States and the East African Community (EAC).

12 32 of the 53 member states of the AU are classified as LDCs by the UN.

13 See UN “The criteria for the identification of the LDCs”, available at: <http://www.un.org/special-rep/ohrlls/ldc/ldc%20criteria.htm> (last accessed 17 September 2007).

14 GATT decision on differential and more favourable treatment reciprocity and fuller participation of developing countries, 1979.

15 Council reg 416/2001.

16 See council regs 1381/2002 and 1401/2002.

17 Non-LDCs who did not initial the interim EPAs have the same reason to maintain trade barriers against their regional neighbours.

18 Before this split, four of the five EAC countries (Burundi, Kenya, Rwanda and Uganda) were negotiating under the ESA EPA group, while the fifth (Tanzania) was negotiating under the SADC EPA group.

19 ECCAS member states are Angola, Burundi, Cameroon, Central African Republic, Chad, Congo, Democratic Republic of Congo, Equatorial Guinea, Gabon, Rwanda, and São Tomé and Principe. Six of these (Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea and Gabon) currently make up CEMAC.

20 The eight Franco-phone countries (Benin, Burkina Faso, Côte d'Ivoire, Guinea Bissau, Mali, Niger, Senegal and Togo) in the 14 member ECOWAS region formed UEMOA in 1994 to co-exist with ECOWAS.

21 See para 4 of the EU-CEMAC EPA road map, para 4 of the EU-West Africa EPA road map, para 4 of the EU-ESA EPA road map and para 5 of the EU-SADC EPA road map.

22 Usually, when a group of countries form a customs union, they must introduce a common external tariff. This means that the same customs duties, import quotas, preferences and other non-tariff barriers to trade apply to all goods entering the area, regardless of which country within the area they are entering.

23 See art 6 of the Treaty Establishing the Economic Community of Central African States (ECCAS Treaty).

24 See below for the case on West Africa.

25 Namibia initialled the agreement on 12 December 2007.

26 See European Centre for Development Policy Management (ECDPM) “EPA negotiations: Where do we stand?” (20 December 2007) Weekly Updates at 28, available at: <http://www.acp-eu-trade.org/library/files/ECDPM_20-12-07_EPA%20Negotiations%20%20Where%20do%20we%20stand_final.pdf> (last accessed 10 January 2008).

27 See art 5 of the Revised Treaty Establishing the Economic Community of West African States (ECOWAS Treaty).

28 See “Gambia in ECOWAS court again?” (13 May 2008) Africa News.com, available at: <http://www.africanews.com/site/list_messages/18220> (last accessed 17 June 2010).

29 See art 31 of the Treaty Establishing the Southern African Custom Union.

30 M Patel “Economic partnership agreements between the EU and African countries: Potential development implications for Ghana” (report, June 2997) at 16, available at: <http://www.realizingrights.org/pdf/EPAs_between_the_EU_and_African_Countries_Development_Implications_for_Ghana.pdf> (last accessed 22 February 2008).

31 See “Negotiating group on rules – Submission on regional trade agreements” (paper TN/RL/W/155 by the African, Caribbean and Pacific group of states, 28 April 2004).

32 See art 14 of the EU-Côte d'Ivoire interim EPA.

33 See ECOWAS “Summary of conclusions on Economic Partnership Agreement between West Africa and the European Union” (Côte d'Ivoire, Ghana and Nigeria consultation meeting (expert level) Accra, 10 January 2008).

34 Cotonou Agreement, art 36.1.

35 See GATT, art XXIV:5.

36 Id, art XXIV:8(b).

37 See id, art XXIV:5(b) and (c).

38 Id, art XXIV:4.

39 Wang, J “China's regional trade agreements: The law, geopolitics and impact on the multilateral trading system” (2004) 8 Singapore Year Book of International Law and Contributors 119 at 135Google Scholar, available at: <http://law.nus.edu.sg/sybil/downloads/current/jiang.pdf> (last accessed 20 June 2008).

40 Id at 134.

41 See L Bartels “Legal issues relevant to the notification of EPAs under article XXIV GATT” at 2, available at: <http://www.acp-eu-trade.org/library/files/Bartels_EN_261007_Legal-issues-notification.pdf> (last accessed 21 June 2008).

42 See para 7 of the 1994 Understanding.

43 See GATT, art XXIV:7(b). See also Bartels “Legal issues”, above at note 41 at 3; and Wang “China's regional trade agreements”, above at note 39 at 137.

44 WT/L/127 (7 February 1996).

45 WT/L/671 (adopted 14 December 2006). For a detailed discourse on the Transparency Decision and notification of RTAs, see Bartels “Legal issues”, above at note 41.

46 Transparency Decision, para 7(b).

47 Id, at annex, paras 11 and 12.

48 Id, para 7(a).

49 Id, at annex, para 2 (a). See Bartels “Legal issues”, above at note 41 at 15.

50 See WTO Analytical Index (1995, WTO) at 858.

51 See Bartels “Legal issues”, above at note 41 at 5.

52 “Examination of the free trade agreement between the United States and Chile”: WT/REG160/M/1.

53 See “Examination of the interim agreement between the EC and Chile”: WT/REG164/M/1, para 10 and “Examination of the Bulgarian- former Yugoslav Republic of Macedonia FTA”: WT/REG90/M/1, para 7.

54 See Bartels “Legal issues”, above at note 41.

55 Transparency Decision, above at note 46, annex 2.

56 Cotonou Agreement, art 37.7.

57 Desta, M “EC-ACP partnership agreements and WTO compatibility: An experiment in north-south inter-regional agreements?” (2006) 43 Common Market Law Review 1343 at 1372 and 1344Google Scholar.

58 Appellate Body Turkey – Restrictions on Imports and Textile and Clothing Products (Turkey–Textiles): WT/DS34/AB/R, adopted 22 October 1999, para 48.

59 See “Synopsis of ‘systemic’ issues related to regional trade agreements”: WT/REG/W/37, para 54(a).

60 European Commission “Summary of EC-SA bilateral trade relations”, para 3, available at: <http://ec.europa.eu/trade/issues/bilateral/countries/southafrica/index_en.htm> (last accessed 28 August 2007).

61 See ECDPM “EPA negotiations”, above at note 26 at 6 and 7.

62 See “Synopsis”, above at note 59, para 54(b).

63 Ibid.

64 Id, para 54(a).

65 Id, para 55.

66 See European Commission “Update: Interim economic partnership agreements” (December 2007) at 4–5, available at: <http://trade.ec.europa.eu/doclib/docs/2007/november/tradoc_136959.pdf> (last accessed 7 January 2008).

67 See Cotonou Agreement, art 36.1.

68 1994 Understanding, para 3.

69 See South Centre “Revisiting EPAs and WTO compatibility” (analytical notes, July 2005) at 5, available at: <http://www.southcentre.org/index.php?option=com_content&task=view&id=330&Itemid=67> (last accessed 20 August 2008).

70 “Free trade agreement between the United States and Australia – Questions & answers”: WT/REG184/5, para 19. See also Bartels “Legal issues”, above at note 41 at 7.

71 “Free trade agreement” id, para 28.

72 “Free trade agreement between the US and Chile – Questions and replies”: WT/REG160/6 at 2.

73 See RTA Committee “Examination of the EC-Jordan Euro-Mediterranean agreement”: WT/REG14/M/1 (28 April 2004), para 8.

74 Panel report Turkey-Textiles: WT/DS34/R (adopted 31 May 1999), para 6.124.

75 Id, para 4.1.

76 See Patel “Economic partnership agreements”, above at note 30.

77 See “Working party on the North American Free Trade Agreement – Question and replies”: WT/REG4/1, paras 23 and 24.

78 See Bartels, above at note 41 at 10.

79 See Jennings, R (ed) Oppenheim's International Law: Vol 1 – Peace (9th ed, 1996, Oxford University Press) at 255Google Scholar.

80 See Appellate Body report United States – Standards for Reformulated and Conventional Gasoline, (US-Gasoline): WT/DS2/AB/R (adopted 20 May 1996) at 23; and Appellate Body report United States – Restrictions on Imports of Cotton and Man-made Fibre Underwear: WT/DS24/AB/R (adopted 25 February 1997) at 16.

81 Bartels “Legal issues”, above at note 41.

82 See “Synopsis”, above at note 59, para 21.

83 Ibid.

84 Panel report Turkey-Textiles, above at note 74, para 9.52.

85 Appellate Body report Guatemala – Anti-Dumping Investigation Regarding Portland Cement From Mexico (Guatemala – Cement): WT/DS60/AB/R (adopted 25 November 1998), paras 76 and 86.

86 Panel report Turkey-Textiles, above at note 74, para 9.53.

87 Appellate Body report India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products: WT/DS90/AB/R (adopted 22 September 1999), para 97.

88 DSU, art 6.2.

89 See Bartels “Legal issues”, above at note 41.