How and to whom will observer status be granted in the CFTA negotiations?
JB Cronjé, tralac Researcher, comments on the need to clarify the relationship between the objectives, rules of procedure and principles guiding the Continental Free Trade Area (CFTA) negotiations
The negotiations for the establishment of a Continental Free Trade Area (CFTA) are scheduled to commence in 2016. At the launch of the negotiations in June 2015 the Member States of the African Union adopted a negotiating mandate including the objectives and principles of negotiating the CFTA; an indicative roadmap for the negotiation and establishment of the CFTA; the terms of reference for the CFTA Negotiating Forum (CFTA-NF); and the institutional arrangements for the CFTA negotiation. Member States may use the current post-launch period to prepare negotiating mandates for their negotiators. The CFTA-NF is also expected to organise its initial meetings and adopt a schedule of negotiations during the preparatory period.
In terms of institutional arrangements, the Member States decided to conduct the negotiations within the context of the; African Union Ministers of Trade (AMOT); Committee of Senior Trade Officials; and CFTA-Negotiating Forum (CFTA-NF). The negotiations will be supported by the African Union Commission (AUC) and Continental Task Force. The technical and administrative support provided by the AUC includes background documents and texts based on the agreed scope of the negotiations as inputs for the CFTA-NF. The negotiations will be conducted in the CFTA-NF which will report to the Committee of Senior Officials on its activities. The CFTA-NF was scheduled to have its first meeting in December 2015 but this has been postponed to early 2016. Some of its specific responsibilities include, to:
Develop and adopt Rules of Procedure for the CFTA-NF including guidelines for observers which shall be consistent with the Rules of Procedure of the Africa Union;
Agree on Modalities and approach to the negotiations;
Undertake technical negotiations, including on the Draft Texts for the establishment of the CFTA;
Identify areas requiring expert inputs and create sub-committees and technical working groups to address specific issues requiring technical expertise. Initiate and supervise the undertaking of impact assessment studies as well as technical and policy research and analysis to facilitate negotiation; and
Adopt its schedule for Negotiations in line with the Roadmap for the CFTA negotiations
The Constitutive Act of the African Union provides for the establishment of at least nine Organs. These Organs adopted different rules of procedure which will make it challenging for the CFTA-NF to determine which Organ’s rules of procedure should be adopted. In most cases provision is made for decision-making by voting and in others provision is made for representatives of civil society, specialised institutions, professional organisations, regional economic communities, and development partners to participate in deliberations, make presentations and attend sessions as observers. The matter is further complicated by the negotiating principles of the CFTA which seem out of sync with the terms of reference of the CFTA-NF. For example, the negotiating principles provide that negotiations will be “AU Member States/RECs/Customs Territories driven” and that “decisions shall be taken by consensus”.
Therefore it is necessary to clarify the relationship between the objectives, rules of procedure and principles guiding the CFTA negotiation. Can the rules of procedure of the CFTA-NF, if consistent with those of the AU, trump conflicting negotiating principles? Consideration should be given to this matter at this particular stage especially in light of the obligation on the CFTA-NF to allow observers in the negotiation process. This will require the AUC to identify the key stakeholders and put mechanisms in place to allow them to consolidate their interests and to register their involvement in the process. These are important considerations because the extent to which different stakeholders, especially civil society, business community, regional and national regulators and other standard setting bodies are permitted to participate in the process will have a direct effect on the outcome of the negotiations.