Kahaki Jere, tralac intern, discusses whether the underutilisation of regional Courts in dispute settlement in COMESA, EAC and SADC is a sign of lack of awareness of the role of regional Courts or of an unwillingness by member States to litigate against each other

The non-implementation of Treaty obligations – like the removal of trade barriers – by Member States of Regional Economic Communities (RECs) is often cited as one of the major hindrances to the progression of regional integration. This is a common phenomenon in the East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC). Under the Treaties that established these RECs, Member States made undertakings to implement Treaty obligations in various areas of cooperation such as trade for the development of the regions and enhancement of the welfare of the people in general.

The effective enforcement of negotiated commitments is one of the preconditions for a trading system to work. In light of this, the Regional Trade Agreements (RTAs) of the three RECs make provision for dispute settlement through the establishment of regional Courts and gave these Courts jurisdiction to determine disputes between member States with regard to the breach of Treaty obligations among other things.

Articles 28(1) of the EAC Treaty and 24(1) of the COMESA Treaty provide that:

A Partner State which considers that another Partner State or an organ or institution of the Community has failed to fulfil an obligation under this Treaty or has infringed a provision of this Treaty, may refer the matter to the Court for adjudication.

Article 15(1) of the SADC Protocol on the Tribunal provides that:

The Tribunal shall have jurisdiction over disputes between States, and between natural or legal persons and States.

And Article 17 goes on to provide that:

Subject to the provisions of Article 14 of this Protocol, the Tribunal shall have exclusive jurisdiction over all disputes between the States and the Community. Such disputes may be referred to the Tribunal either by the State concerned or by the competent institution or organ of the Community.

The East African Court of Justice (EACJ) has been in existence for 10 years, the COMESA Court has been in existence for 15 years and the SADC Tribunal was operational for 10 years before it was suspended by the SADC Summit in 2012. None of the Courts has made a determination on a reference made by a member State with regard to a breach of a Treaty obligation in the area of trade cooperation.

The lack of utilisation of the Courts in the settlement of disputes by member States could mean either one of two things: that disputes related to regional trade obligations do not arise between States or that all disputes are resolved peacefully. The first presumption is very unlikely, because, as stated earlier, the non-implementation of Treaty obligations is one of the major hindrances to the deepening of regional integration.

There are some instances where member States have blatantly acted in breach of their Treaty obligations, but the regional courts have not been called upon to exercise their adjudicative functions. The following examples show instances where the Courts could have been utilised to resolve disputes:

• In COMESA there has been a long standing dispute between various COMESA member States and Egypt which for a long time, would not amend its legislation to comply with the COMESA Protocol on Rules of Origin which provides for a 35 per cent value added threshold on COMESA exports that were originally imported into the region for them to quality for duty-free importation into a COMESA member State. Egypt had maintained a 45 per cent requirement of value addition on a product imported into Egypt from a COMESA State for it to be exempted from import duty in accordance with the COMESA Protocol on Rules of Origin. In defence of this, Egypt insisted that it was under an obligation to apply terms negotiated with the EU and the Pan Arab Free Trade Area.

• The existence of non-tariff barriers continues to negatively impact on intra-regional trade in COMESA, EAC and SADC by increasing costs due to delays incurred at border posts, other administrative delays during customs clearance of goods traded in the three regions.

The peaceful settlement of disputes is always the desirable option when a dispute arises and States usually rely on diplomatic means as a way of settling their differences. However, where breaches of Treaty obligations have a negative impact on regional trade like in the cited examples, invoking the regional Courts would be one of the ways of holding member States accountable for these breaches. Furthermore, member States willingly entered into these trade agreements and set rules and procedures to be followed in instances of breaches of Treaty obligations.

It has been proposed that African RTAs should be regarded as ‘establishing flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence [...] and that flexibility is not necessarily incompatible with assuming legally binding commitments. Often these obligations are assumed on the understanding that compliance will not be stringently enforced because the commitments are balanced against a variety of safety valves, such as the principles of variable geometry a as well as differences in timelines to comply with commitments that are based on the varying economic capabilities of their members.

The cited argument may be considered practical when put in the context of most African countries. However, where there are clear rules and obligations that Member States can adhere to without incurring economic losses, these should be effectively enforced. The regional Courts have a clearly defined role to ensure that disputes are determined in accordance with Treaty Provisions.

Could the lack of the utilisation of the dispute settlement mechanism be a sign that the role of regional Courts is not recognised by member States? It should be noted that the Member States are the signatories to the Treaty and therefore are, or should be, aware of the role that they gave to the Court. While pronouncements made by the Court may not result in immediate change in approaches to Treaty obligation implementation, the possibility of having a case of a breach of Treaty obligation come before a regional Court may make States more cautious regarding the need to align their policies with the Treaties that govern their trade relations.

New approaches taken by African states with regard to regional integration, like the development of the African Community of Practice on management for Development for Results (AfCOP-MfDR) – an initiative supported by the African Development Bank – should be applauded. The Africa for Results project aims to support AfCOP to mainstream results-based practices into the policies and strategies of RECs. The COMESA chapter of the AfCOP-MfDR) was recently launched in Lusaka to enhance the capacity of the REC and member States to implement regional policies by taking a results-based approach to integration. The Acting Secretary-General of COMESA stated that the project will contribute to promoting political leadership for results and will engage non-State Actors to hold policymakers accountable for results in RECs and member States. The initiative is an indication of the existence of political will by member States to uphold their Treaty obligations.

The development of programmes to ensure implementation of Treaty obligations is a step in the right direction, however, member States should utilise the options that are already available in the RECs, like the role that regional Courts have been given to ensure adherence to Treaty obligations.

Tell us what you think.

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Sources:

Gathii J.T “African Regional Trade Agreements as Flexible Legal Regimes” (2011). Available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1622274

COMESA, Regional African Community of Practice launched. Available online at: http://www.comesa.int/index.php?option=com_content&view=article&id=719:regional-african-community-of-practice-launched&catid=5:latest-news&Itemid=41

Treaty Establishing the East African Community. Available online at: http://www.tralac.org/resources/by-region/eac.html

Treaty Establishing the Common Market for East and Southern Africa. Available online at: http://www.tralac.org/resources/by-region/comesa.html