Building capacity to help Africa trade better

AfCFTA Parallelism and the Acquis


AfCFTA Parallelism and the Acquis

AfCFTA Parallelism and the Acquis

According to the Governing Principles of the AfCFTA, the RECs’ Free Trade Areas (FTAs) are building blocks for the AfCFTA.[1] The AfCFTA shall also be governed by the preservation of the acquis and best practices in the RECs, in the State Parties and International Conventions binding the African Union.[2]

What will these provisions mean in practice? It means that the REC FTAs will continue to exist. Article 19(2) of the AfCFTA Agreement says... State Parties that are members of other regional economic communities, regional trading arrangements and custom unions, which have attained among themselves higher levels of regional integration than under this Agreement, shall maintain such higher levels among themselves. Article 8(2) of the Protocol on Trade in Goods states: State Parties that are members of other RECs, which have attained among themselves higher levels of elimination of customs duties and trade barriers than those provided for in this Protocol, shall maintain, and where possible improve upon, those higher levels of trade liberalisation among themselves.  

As far as the acquis is concerned (which is not defined in the AfCFTA Agreement) one must delve into its history. As far as we can tell, the notion of the acquis became part of the African integration vocabulary during the negotiations to establish the Tripartite Free Trade Area (TFTA). It was adopted as a Guiding Principle for those negotiations and was defined as follows: Building on the acquis of the existing REC FTAs in terms of consolidating tariff liberalisation in each REC FTA: Acquis is a French term meaning “that which has been agreed”. In the context of the Tripartite Free Trade Agreement it means that the negotiations should start from the point at which of the COMESA, EAC and SADC trade negotiations have reached. Tariff negotiations and the exchange of tariff concessions would be among Member/Partner States of the Tripartite FTA that have no preferential arrangements in place between them. This will both preserve the acquis and build on it.

This definition applies to the AfCFTA too. The effect is that the tariff concessions extended as part of the AfCFTA negotiations, would only be among those State Parties “that have no preferential arrangements in place between them”. Intra-REC trade is fully governed by the relevant REC FTA regimes and will not see any liberalization via the AfCFTA negotiations. The same applies, according to Article 19(2) of the AfCFTA Agreement, to regional trading arrangements and custom unions, which have attained among themselves higher levels of regional integration than under this Agreement. The terms “regional trading arrangements and custom unions” are not defined. They must, therefore, be interpreted by giving them their ordinary meaning within the context used.[3] Trade arrangements such as the TFTA (once in force), SACU and bilateral trade agreements should fall under this category of exceptions.

Those RECs with their own regional integration agendas will pursue their specific strategies on deeper integration, as well as other disciplines considered to be necessary for local needs. Examples are regional environmental programmes, energy, water, policing, nature conservation, political cooperation etc.[4]

What does it mean to be building blocks of the AfCFTA? When the Assembly of the African Union (AU) met virtually in Johannesburg on 5 December 2020 it adopted the Johannesburg Declaration. It reaffirmed “the role of the Regional Economic Communities (RECs) as building blocks to the African Economic Community and urged the RECs and the AfCFTA Secretariat to collaborate in the implementation of the AfCFTA Agreement”.[5] This statement implies recognition of the fact that the RECs are legal persons in their own right and that they have adopted legal obligations to deepen their own integration. Many want to be customs unions. Customs Unions limit the policy space of Member States[6]; they will have to act jointly when promoting continental integration initiatives.

The REC Member and Partner States will have to take political initiatives to align their regional integration agendas with the AfCFTA and with other RECs. The way forward will demand decisions about complex issues. Far-reaching decisions will be required when opening up their markers to third parties, especially if they have reached the stage where they have established a customs union. The recent tensions in the EAC caused by Kenya’s conclusion of its own trade deal with the United Kingdom (to retain quota free and duty-free access for its exports post Brexit) and its decision proposal to negotiate an FTA with the United States, are illustrations of obstacles to be overcome. Continental integration may be political kosher, but the individual REC Members face very distinct domestic challenges. Integration among diverse economies is always challenging.

The AfCFTA Agreement mentions long-term objectives regarding the formation of a “single African market”,[7] but does not have a plan of action. The only hints about subsequent steps are that a liberalized market for goods and services will be created “through successive rounds of negotiations” and that the foundation for the establishment of a Continental Customs Union will be formed “at a later stage”.[8] This is, politically speaking, a wise approach.

The AfCFTA decisions about maintaining existing benefits under the trade regimes of the RECs, make sense. These benefits are the result of deliberate economic integration over time, the refinement of the concomitant rules, and the development by firms of commercial networks, distribution arrangements, supporting services and of investments.

It would be illogical to discontinue the RECs or to start integration initiatives de novo under a different continent-wide configuration where very different dynamics, political realities and histories prevail. Success stories should be confirmed, not undermined. The AfCFTA does so. It has opted for a sound alternative, to use the RECs as building blocks of the AfCFTA.

[1] Art 5 AfCFTA Agreement (Legally scrubbed version, signed 16 May 2018)

[2] Ibid.

[3] Art 31, Vienna Convention on the Law of Treaties.

[4] SADC, for example has a Protocol on Trade, Finance and Investment and more than 20 additional ones.

[5] Ext/Assembly/AU/Decl.1(XIII)

[6] The Common External Tariff (CET) means tariff changes and offers are collective tasks.

[7] See Art 3 AfCFTA Agreement

[8] Ibid.

About the Author(s)

Gerhard Erasmus

Gerhard Erasmus is a founder of tralac and Professor Emeritus (Law Faculty), University of Stellenbosch. He holds degrees from the University of the Free State, Bloemfontein (B.Iuris, LL.B), Leiden in the Netherlands (LLD) and a Master’s from the Fletcher School of Law and Diplomacy. He has consulted for governments, the private sector and regional organisations in southern Africa. He has also been involved in the drafting of the South African and Namibian constitutions. He grew up in Namibia.

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