African Regional Trade Agreements as Flexible Legal Regimes

James Thuo Gathii, Albany Law School

Abstract

Based on the types of treaty commitments contained in African Regional Trade Agreements (RTAs) and how these RTAs are understood by their members, this article argues these RTAs are flexible legal regimes. Flexibility here refers to the following defining features of African RTAs. First, these RTAs are regarded as establishing flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence. Second, African RTAs incorporate as a central feature the principle of variable geometry according to which different speeds towards meeting time tabled and other commitments are adopted. Third, African RTAs adopt a broad array of social, economic and political objectives without giving salience to any set of objectives. Fourth, African RTAs demonstrate a particular preference for functionally specific objectives to undertake discrete projects and as forums for the integrated development of common resources such as river basins that cut across national boundaries. Fourth, African RTAs demonstrate a remarkable commitment to the equitable distribution of gains from trade and a corresponding weakness in the adoption of non-discrimination trade principles and the related objectives of trade liberalization. Fifth, African RTAs are characterized by multiple and overlapping memberships exemplifying a classic case of the spaghetti bowl. Multiple RTA membership illustrates the flexibility or open-door membership African RTAs offer.

This view of African RTAs sharply contrasts with the current trends that examine trade integration in Africa in light of the European Union and other regional integration arrangements like the North American Free Trade Agreement (NAFTA). From this perspective, integration is regarded as necessarily destined to proceed on a linear path where tariffs and non-tariff barriers are progressively eliminated and the trade regimes of member countries are linked together, and eventually their fiscal and monetary policies are harmonized. This article by contrast shows that some of the central concerns of African RTAs have diverged from these classical cases of regional integration. In so doing, it focuses on the central problems African RTAs have been designed to address and shows that trade liberalization is sought to be achieved within a broader set of non-trade goals. Further, this article shows how the principle of variable geometry and the related focus on equitable sharing of gains from trade integration have set non-discriminatory African regional trade into the background.