This Trade Brief takes a look at a feature of African trade arrangements which has given rise to little discussion or concern. The legal instruments underpinning African trade arrangements often incorporate or refer to WTO disciplines (and those of other multilateral bodies) as part of the obligations undertaken by their Member States (MS). This is a feature of most of the Regional Economic Communities (RECs). However, in some instances, not all the members have joined the WTO. Examples of African states which are not WTO members are Algeria, Comoros, Equatorial Guinea, Ethiopia, Libya, Sao Tome and Principe, Somalia, Sudan, South Sudan and the Sahrawi Arab Democratic Republic.

As far as is known there have not been cases where the effect of WTO rules on non-WTO members of African trade arrangements has given rise to major legal problems in the application of African trade agreements, or where it has been necessary to clarify the applicable law as part of an intra-African dispute settlement process.

The reasons why this facet of African trade governance has not resulted in major problems are related to design and practical application. Membership configurations, the nature of the legal obligations, the extent to which WTO disciplines have been made part of the law of a particular regional regime, how “rules-based” a specific arrangement is, and how actively legal obligations are implemented and monitored, are factors which provide an explanation. This may, however, change rather soon, given developments towards the conclusion of the Tripartite Free Trade Area and Continental FTA.

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