Gerhard Erasmus, tralac Associate, comments on developments in the Tripartite FTA negotiations

What is presently being discussed, in the Tripartite Free Trade Area (T-FTA) negotiations, has diverted fundamentally from the FTA apparently envisaged at the first T-FTA Summit in 2008. One of the original objectives, to address the problem of overlapping membership, will not be achieved. The opposite will come about. How did this happen and what will the implications be? Is it possible to revert back to the original plan?

At the first summit of the Tripartite Free Trade Agreement (T-FTA) states in October 2008 in Kampala, certain decisions were adopted on how to launch and undertake the process of establishing this new regional trade arrangement called the Tripartite FTA. There were promising ideas about an opportunity to achieve a new design for intra-Africa trade and there was a plan. The objective at the time was, as stated in the adopted documentation, to establish a single FTA, with the typical legal and institutional features of such an arrangement[1]. The draft agreement subsequently prepared for the purpose of directing the negotiations reflected this assumption; it proposed a single agreement for all 26 states involved by virtue of their membership of the EAC, COMESA and SADC.

The Tripartite Task Force, through the Tripartite Trade and Customs Sub-Committee, prepared a Draft FTA Roadmap and a Draft Agreement for establishing the Tripartite FTA, including annexes on tariff liberalisation, non-tariff barriers, rules of origin, customs cooperation and related matters, transit trade and transit facilities, trade remedies, competition policy and law, technical standards, sanitary and phytosanitary measures, movement of business persons, intellectual property rights, trade development, trade in services, and a dispute settlement mechanism. This was a comprehensive blueprint for an inclusive FTA. This was a first instalment on the plan to have a proper FTA with a single tariff regime.

In addition to the draft Roadmap and draft FTA Agreement, other documents necessary for the establishment of the FTA were prepared. They were Negotiating Principles (NPs) and a Declaration Launching the FTA Negotiations.

All the FTA draft documents were formally submitted to the Tripartite FTA members for consideration in preparation for the negotiations. A number of country missions to explain the contents of the draft Agreement and the benefits were undertaken. Regional consultations were also undertaken at individual Regional Economic Community (REC) level and technical workshops organised at the Tripartite level.

In June 2011, another Tripartite Summit was convened in Johannesburg where a Declaration and the Negotiating Principles were formally adopted to guide the process. The Negotiating Principles were stated as separate principles (single undertaking, variable geometry, acquis*, and so forth) but they were not defined. They have subsequently become the real focus and basis for conducting the actual business of establishing the T-FTA. They have also undergone major changes and were given detailed ‘clarifications’ at the end of 2012.

The negotiations are no longer about the original plan. At present they focus on the accommodation of only those member states which do not at present have FTAs between them. The principle of the acquis is the anchor for this scaled-down and redirected process. The recent clarification of the Negotiating Principles explains what is now foreseen.

* Acquis is a French term meaning ‘that which has been agreed’.

Read more in a Trade Brief by Gerhard Erasmus: Redirecting the Tripartite Free Trade Agreement negotiations?

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