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Implementing Trade Agreements: The Role of National Institutions and Administrative Law

13 Sep 2019
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Implementing Trade Agreements: The Role of National Institutions and Administrative Law

Trade and regional integration agreements must be implemented by the State Parties in order to make a difference. Who performs this function and what is the legal basis for the domestic implementation of trade agreements?

Parties to international agreements must ensure that the required domestic legal arrangements are in place in order to give effect to their obligations. If they fail to do so and the rights of other parties to the agreement in question are infringed, they are in violation of their obligations. They cannot invoke their national law or their own constitution to escape their international obligations. Article 27 of the Vienna Convention on the Law of Treaties is clear: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

International trade agreements are, as a rule, not self-executing. Compliance with such agreements mostly happens as part of the trade regulation responsibilities of national organs of state. Customs officials will, for example, be responsible for giving effect to new preferential arrangements and for ensuring that goods originating in the members of a Free Trade Area (FTA) will receive the benefits of lower customs duties. Domestic regulators are responsible for the implementation of agreements aiming at liberalizing trade in services. They must grant the required permits and may regulate service providers.

These state organs must comply with national administrative law requirements. If they fail to do so, their actions (or inaction) can be taken on review in the courts of the land. Private entities engaged in trade related activities (even if they are foreign owned) will have the necessary standing before these courts to bring such applications.

Administrative law is the body of law that allows for the creation of public regulatory agencies. It consists of all the statutes and regulations that govern the exercise of public powers for which they are responsible. They must implement their powers in a fair manner, must act rationally and respect the limits of their powers. They must also apply their minds to each matter before them and must give reasons for their decisions. Administrative law is about a system of checks, minimizing the risks of bureaucratic arbitrariness and overreach, while preserving for agencies sufficient flexibility to act effectively. It is linked to the idea of separation of powers and checks and balances.

In some instances, international agreements require that the international agreement in question is given the force of law in the national system. This requirement of ‘domestication’ is typical of deeper forms of regional integration. In the European Union a unique corpus of law, Community Law, has been developed. It is directly applicable in the EU member states and has primacy over national law. African Regional Economic Communities such as COMESA and the EAC use the same terminology but the Member states show no enthusiasm for real supra-nationality.

The domestication of treaties should be viewed against the background of the principle found in most legal systems that the status of international law in the national legal system is determined by domestic (constitutional) law and not by international law itself.

It is important for the resolution of disputes arising directly or indirectly from regional trade arrangements that domestic courts are allowed to play a clear and proper role. The domestic courts become part of the dispute settlement ‘chain’ created by the founding agreement and its protocols. Where private parties or ‘persons’ – defined as natural or legal persons in some of the treaties – are allowed access to the regional court or tribunal in addition to domestic courts or tribunals, the jurisdictional loop is closed in favour of an integrated system of dispute resolution in relation to the treaty itself and its associated instruments.

Multilateral rules are often made part of regional trade agreements. This has the benefit that familiar disciplines are applicable and that the same institutions can be used. In some substantive areas covered in the AfCFTA, World Trade Organisation disciplines have been made part of the deal; such as the administration of standards, trade remedies and safeguards. These will be vital for ensuring rules-based trade. The AfCFTA regime wants to co-exist with the multilateral system.

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