The AfCFTA Agreement formally entered into force on 30 May 2019, thirty days after twenty-two instruments ratifications had been deposited.[1] However, implementation is still not possible. This state of affairs has a political explanation. An Extraordinary African Union (AU) Summit adopted the AfCFTA Agreement and Phase I Protocols on 18 March 2018 in Kigali, Rwanda. It also decided that the AU Member States should support the AfCFTA (which at that point was well-advanced but incomplete) by immediately signing and ratifying the AfCFTA Agreement and the first three Protocols.

The outstanding matters deal with the most complex aspects of forming a Free Trade Area (FTA); tariff reductions, rules of origin and, and this instance, conditions for trade in services. Without tariff reductions and rules of origin, there cannot be an FTA. Sensitive matters must first be agreed (on the basis of consensus) before the State Parties will open their markets to competition from the rest of the continent. The outstanding negotiations will take time and the careful weighing of individual States’ offensive and defensive interests.

Once an international agreement enters into force, only the State Parties (in this instance those AU Member States that have ratified the AfCFTA Agreement) have rights and obligations under the new legal regime. However, since the AfCFTA negotiations have been launched as an AU project and are member-driven,[2] all AU Member States participate in the negotiations, including the outstanding ones. The outstanding matters will be decided post entry into force of the Agreement of which they are an integral part.[3]

Those AU Members that are not AfCFTA State Parties yet continue to participate in the outstanding negotiations. This includes Nigeria, Africa’s biggest economy. It has signed but not yet ratified the AfCFTA Agreement. This seems to be an ideal position to be in. Non-State Parties will be able to steer the outstanding negotiations in the desired direction without being bound by whatever is agreed. If their national interests are adequately accommodated by the results, they will presumably become State Parties. Those AU Member States that have already become AfCFTA State Parties will not have the freedom to ratify the AfCFTA Agreement de novo but will also make sure that they too can live with the results of the outstanding negotiations. This modus operandi may gravitate towards the lowest common denominator.

The outstanding AfCFTA negotiations must clarify additional issues:

1. Several legal instruments (tariff schedules, annexes on rules of origin and on specific commitments for services sectors) must be formally adopted and must be in force for all State Parties. It should be clarified when they become binding and for whom. A formal declaration to this effect seems necessary.

   The normal procedure for adopting and ratifying treaties intended to embody one single arrangement (e.g. comprehensive trade agreements) is to complete all negotiations before the text is signed and then ratified. Nothing is complete till everything is complete. Separate entry into force procedures only apply to new legal instruments negotiated subsequently. The AfCFTA Agreement does not permit reservations.[4]

   Being a signatory to the AfCFTA is not enough. Articles 22 and 23 of the AfCFTA Agreement (read together with the applicable definitions in Article 1) are clear; an AU Member State can only become a State Party to the AfCFTA Agreement through ratification or accession.

   What is at stake here is legal certainty. Sovereign States are not bound by international agreements to which they have not consented.

2. Who will authenticate and adopt the texts of the outstanding AfCFTA schedules and annexes? Article 22 of the AfCFTA Agreement says the AU Assembly adopts the AfCFTA Agreement; which it already did in March 2018 in Kigali. Will it perform a similar function in respect of the outstanding instruments? The rule is that when international legal instruments are negotiated, all participating States are involved in the decision indicating that final agreement has been reached and that there is one binding version of the text.[5] The final versions of the outstanding AfCFTA schedules and annexes should therefore be approved by all the States negotiating them, unless there is a decision to the contrary. AfCFTA State Parties as well as non-State Parties will be involved in this process.

   What will happen if the Non-State Parties involved in the present negotiations insist that they should also be given an opportunity to ratify (not accede to) the AfCFTA Agreement in order to count as “original” State Parties? For political reasons they might be accommodated but Articles 22 and 23 do not provide for additional entry into force procedures. There will probably be another ad hoc innovation.

3. There should be a procedure signifying the binding nature of the outstanding instruments for those AU Members that have already become AfCFTA State Parties. They can immediately start trading under AfCFTA rules, provided their domestic measures are in place. For the remaining 25 or so non-State Parties (Nigeria is one of them) this will only be possible once they have complied with the requirements of Articles 22 and 23, and their domestic measures are ready. It would be unfortunate (and legally questionable[6] if implementation of the AfCFTA is again postponed in order to allow actual trade to commence at a subsequent date set by the present negotiators.

4. The AfCFTA is not a legal person in its own right,[7] but the relationship between the AfCFTA as a binding legal regime on the one hand, and the municipal legal systems of the State Parties (as well as those of existing Regional Economic Communities (RECs), intra-African trading arrangements and customs unions) on the other hand, should be clarified. The AfCFTA Agreement does not do so in any detail.

   This is an important matter since the AfCFTA is designed to exist in tandem with the RECs, regional trading arrangements and customs unions which have attained among themselves higher levels of regional integration than under the AfCFTA. The State Parties shall maintain such higher levels among themselves.[8] The AfCFTA will be another African FTA existing alongside several other trade arrangements to which the same State Parties belong. This requires legal and procedural clarifications. It will also cause overlapping membership burdens.

[1] As required by Art 23 of the AfCFTA Agreement. https://www.tralac.org/news/article/14042-afcfta-agreement-secures-minimum-threshold-of-22-ratifications-for-entry-into-force.html

[2] Art 5 AfCFTA Agreement.

[3] Art 1 AfCFTA Agreement defines this Agreement as the Agreement Establishing the African Continental Free Trade Area and its Protocols, Annexes and Appendices which shall form an integral part thereof.

[4] Art 25 AfCFTA Agreement.

[5] Art 9 Vienna Convention on the Law of Treaties.

[6] The effect of Art 23 of the AfCFTA Agreement is clear; this Agreement has already entered into force on 30 May 2019; thirty days after the required number of ratifications had been deposited.

[7] Art 13 of the AfCFTA Agreement says the Secretariat shall be a functionally autonomous institutional body within the AU system, with an independent legal personality.

[8] Art 19(2) AfCFTA Agreement.