The African Continental Free Trade Area in a Decaying Multilateral Trading System:

Questioning the Relevance of the Enabling Clause

Regis Yann Simo

Abstract:
The signature of the African Continental Free Trade Area (AfCFTA) Agreement during the
10th Extraordinary Summit of the African Union (AU) Assembly of Heads of State and
Government held on 21 March 2018, in Kigali, Rwanda, marks a decisive turn in African
regional economic integration. After speedily securing the minimum threshold of 22
signatures, the Agreement, with the Protocols on Trade in Goods, Services and Dispute
Settlement, entered into force on 30 May 2019. While the AfCFTA comes at a very good time
for the continent especially by proposing African solutions to African problems, it also happens
amidst a backlashed multilateral trading system epitomised by the US-China trade war, the
WTO negotiations stalemate and the likely demise of its dispute settlement mechanism, as well
as the United Kingdom’s exit from the EU (Brexit).
The AfCFTA’s main aim is to create a single continental market for goods and services, with
free movement of businesspersons and investments, and thus pave the way for accelerating the
establishment of the continental Customs Union. While the establishment of existing regional
trade agreements (RTAs) has not always been conditioned on the satisfaction of the WTO rules
on the issue, this article examines the regime under which the AfCFTA should be scrutinised.
This calls for the dissection of the pertinence and the desirability of the Enabling Clause as
opposed to Article XXIV for this scheme composed of developing and least-developed
countries. The paper notes the tendency since 1979 to notify intra-African RTAs under the
Enabling Clause contrary to earlier practice.

Contents
Abstract: ................................................................................................................................................ 1
I. INTRODUCTION .......................................................................................................................... 2
II. A SUCCINCT FRAMEWORK OF THE AFRICAN CONTINENTAL FREE TRADE AREA ... 6
A. The Rationale for Regional Economic Integration: The Case of Africa ..................................... 8
B. The AfCFTA in a Nutshell........................................................................................................ 10
III. WTO RULES AND THE AFRICAN CONTINENTAL FREE TRADE AREA ..................... 12
A. The WTO Institutional Tolerance and Unenforceability of RTAs ........................................... 12
B. The Legal Provisions ................................................................................................................ 14
1. The GATT and General Rule on RTAs in Goods .................................................................. 14
2. The Enabling Clause and the AfCFTA as a RTA among Developing Countries .................. 16
C. Should the ‘Interim’ be the Alternative Route? ........................................................................ 20
IV. CONCLUSION ......................................................................................................................... 22


Senior Researcher at the Mandela Institute, Oliver Schreiner School of Law, University of the Witwatersrand,
Johannesburg, South Africa. PhD in International Economic Law (Bocconi University), LLM (University of
Fribourg). Contact: [email protected]. A draft of this paper was first presented at the International Economic
Law (IEL) Collective Inaugural Conference, University of Warwick, 6-7 November 2019.

1
‘For too long, the impression has been created that Africa development strategies […] are an
imitation – indeed, a poor imitation – of the strategies […] developed elsewhere for other
societies with different historical, cultural, economic and political background.(…) It is not
enough […] to keep repeating that Africa has tremendous potentials for development.
[African countries] have to prove this by turning these potentials into actual wealth for the
welfare of [their] people.’1

I. INTRODUCTION
Regional integration is a multidimensional process, which ranges from trade, financial,
monetary, to economic and political integration. While regional integration agreements can
take varying shapes and sizes, they usually differ regarding the extent of preferences granted
to members and the degree of policy coordination among them. Since Balassa’s Theory of
Economic Integration,2 the literature relied widely on the ‘stages’ enunciated by the author, a
trend that continues even today. These stages in a way conditioned the formation of post-
colonial African Regional Trade Agreements (RTAs) and the perception that they have failed
to achieve what they were established for. Indeed, the prevailing narrative has been to compare
any other RTA in the world, including African ones, to their more successful peers in Europe
and North America, mainly based on Balassa’s stages.3 According to that view, which is not
entirely erroneous considering the level of implementation of the commitments at domestic
level,4 the demise of African RTAs lies principally in their adherence to a stepwise model of
integration starting from the free trade area (FTA) to the expected economic and monetary
union.5 In doing so, African countries have sometimes relied on flexibilities provided by the
1979 Enabling Clause6 of the World Trade Organization (WTO) whose rules on RTAs are
more lenient than those of Article XXIV of the General Agreement on Tariffs and Trade
(GATT). The recent conclusion and entering into force of the Agreement establishing the

1
Adebayo Adedeji, The Evolution of the Monrovia Strategy and the Lagos Plan of Action: A Regional Approach
to Economic Decolonization (Addis Ababa: United Nations, 1983), at 1 and 3.
2
Bela A. Balassa, The Theory of Economic Integration (Homewood, Illinois: Richard D. Irwin, 1961).
3
See Regis Y. Simo, ‘Integrating African Markets into the Global Exchange of Services: A Central African
Perspective’, 6(2) Law and Development Review (2013) 255, at 259-260. Challenging this conventional wisdom
see James T. Gathii, ‘African Regional Trade Agreements as Flexible Legal Regimes’, 35(3) North Carolina
Journal of International Commercial Regulation (2010) 571 (arguing that African RTAs pursue many objectives
apart from market-led integration and should not be portrayed to have failed simply for not having scrupulously
mimicked Northern Hemisphere trade agreements).
4
See e.g. Trudi Hartzenberg, ‘Regional Integration in Africa’, WTO Staff Working Paper ERSD-2011-14 (2011).
5
See e.g. Jaime de Melo and Yvonne Tsikata, ‘Regional integration in Africa: Challenges and prospects’, in
Celestin Monga and Justin Yifu Lin (eds) The Oxford Handbook of Africa and Economics: Volume 2: Policies
and Practices (Oxford University Press, 2015), 222-246.
6
GATT Council, Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation
of Developing Countries, L/4903 (28 November 1979), GATT BISD (26 th Supp.), at 203 (1980) (hereinafter
‘Enabling Clause’).

2
African Continental Free Trade Area7 (AfCFTA) breaks with past paradigms and tackles the
liberalisation of goods, services and other factors concurrently.

The signature of the AfCFTA Agreement during the 10th Extraordinary Summit of the
African Union (AU) Assembly of Heads of State and Government held on 21 March 2018, in
Kigali, Rwanda, marks a decisive turn in African regional economic integration. After speedily
securing the minimum threshold of 22 signatures, the Agreement, with the Protocols on Trade
in Goods, Services and Dispute Settlement, entered into force on 30 May 2019 pursuant to
Article 23 of the AfCFTA Agreement.8 The journey leading to the now celebrated AfCFTA
Agreement commenced at the 18th AU Ordinary Session of the Assembly of Heads of State
and Government convened in January 2012 in Addis Ababa, Ethiopia. On that occasion, AU
states officials adopted an Action Plan on Boosting Intra-Africa Trade (BIAT) and a decision
to establish a Continental Free Trade Area by an indicative date of 2017.9 While the initial
2017 target was not met, the recent entry into force of the AfCFTA Agreement, coupled with
the adoption of the Protocol to the Treaty Establishing the African Economic Community
Relating to Free Movement of Persons, Right of Residence and Right of Establishment, 10 are
important breakthroughs for the construction of the African Economic Community (AEC).11
The AfCFTA obviously comes at a very good time for the continent especially by proposing
African solutions to African problems.12 But it also happens amidst a backlashed multilateral
trading system epitomised by the US-China trade war, the WTO negotiations stalemate and the

7
See Agreement Establishing the Continental Free Trade Area (adopted 21 March 2018, entered into force 30
May 2019) <https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta_-_en.pdf> accessed
10 October 2019 (hereafter AfCFTA Agreement).
8
Indeed, Article 23 of the AfCFTA Agreement provides that the AfCFTA, its protocols and any other related
instrument shall enter into force thirty days after the deposit of the 22nd instrument of ratification. The speed at
which this ratification threshold was achieved is something to highlight in the history of African regional
integration.
9
See Decision on Boosting Intra-African Trade and Fast Tracking the Continental Free Trade Area,
(Assembly/AU/Dec.394 (XVIII), 30 January 2012. The Action Plan for BIAT identifies seven priority action
clusters: trade policy, trade facilitation, productive capacity, trade related infrastructure, trade finance, trade
information, and factor market integration. See UNECA and AU, Boosting Intra-African Trade: Issues Affecting
Intra-African Trade, Proposed Action Plan for boosting Intra-African Trade and Framework for the fast tracking
of a Continental Free Trade Area (2012) <https://www.uneca.org/sites/default/files/uploaded-
documents/ATPC/issues_affecting_intra-
african_trade_proposed_action_plan_for_biat_and_framework_for_the_fast_tracking_en.pdf> accessed 15
October 2019.
10
Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons,
Right of Residence and Right of Establishment (adopted 29 January 2018, opened for signature 21 March 2018)
<https://au.int/sites/default/files/treaties/36403-treaty-
protocol_on_free_movement_of_persons_in_africa_e.pdf> accessed 15 October 2019 (hereafter Free Movement
of Persons Protocol).
11
See Treaty Establishing the African Economic Community (adopted 3 June 1991), 30 ILM 1241.
12
On the criticism of Africa’s external dependence on ideas for its socio-economic development, see Adedeji,
supra note 1.

3
likely demise of its ‘jewel in the crown’, as well as the United Kingdom’s exit from the EU
(Brexit).

The AfCFTA’s main aim is to ‘create a single continental market for goods and services,
with free movement of business persons and investments, and thus pave the way for
accelerating the establishment of the Customs Union’.13 Upon implementation, the AfCFTA is
also poised to become the largest trade agreement, at least in terms of participants, ever
concluded since the creation of the World Trade Organization (WTO).14 According to the UN
Economic Commission for Africa’s estimates, the AfCFTA ‘has the potential both to boost
intra-African trade by 52.3 per cent by eliminating import duties, and to double this trade if
non-tariff barriers are also reduced.’15 This milestone toward continental integration that has
been waning since the launch of the Lagos Plan of Action in 198016 is also happening at a time
when the multilateral trading system is under undue pressure leading to an explosion of
bilateral and regional activities. The aim of this paper is to assess whether the AfCFTA, like
other megaregional trade agreements, is a threat to the multilateral trading system. What is the
role, if any, of Article XXIV GATT in regulating a scheme like this one? Could AfCFTA be
mutually beneficial to African countries and the WTO?

Upon entry into force, State Parties that are Members of the WTO are required to notify
the trade agreement to the WTO.17 Yet, while the AfCFTA Services Protocol clearly states its
intention to conclude an agreement compatible with Article V of the General Agreement on
Trade in Services (GATS),18 the Protocol on Trade in Goods is silent on this issue and merely

13
See African Union, ‘CFTA - Continental Free Trade Area’, <https://au.int/en/ti/cfta/about> accessed 15 October
2019. On the general objectives of the AfCFTA, see Article 3 of the AfCFTA Agreement.
14
See UNECA, African Continental Free Trade Area: Questions & Answers (2018), at 1 <
https://www.uneca.org/sites/default/files/PublicationFiles/qa_cfta_en_230418.pdf> accessed 15 October 2019.
15
Ibid.
16
Organization of African Unity (OAU), Lagos Plan of Action for the Economic Development of Africa 1980-
2000
<https://www.resakss.org/sites/default/files/OAU%201980%20Lagos%20Plan%20of%20Action%20for%20the
%20Economic%20Development%20of%20Africa.pdf> accessed 15 October 2019. The Lagos Plan of Action
(LPA) succeeds to other initiatives in that same period recognizing the essentiality of economic cooperation
among African countries for the socio-economic transformation of the continent. See particularly (1) the African
Declaration on Cooperation, Development, and Economic Independence , OAU Doc. CM/S1.12 ()(XII) (9 May
1973); and (2) the Monrovia Declaration of Commitment on Guidelines and Measures for National and Collective
Self-Reliance in Social and Economic Development for the establishment of a New International Economic Order,
OAU Assembly Resolution AHG/ST. 3(XVI) Rev. 1 (which expressly calls for the establishment of a common
market as forerunner to an African Economic Community). On this roadmap leading to the adoption of the LPA,
see Rose M. D’Sa, ‘The Lagos Plan of Action – Legal Mechanisms for Co-Operation Between the Organisation
of African Unity and the United Nations Economic Commission for Africa’ 27(1) Journal of African Law (1983)
4.
17
Article 26 of the AfCFTA Agreement.
18
See Article 3.2(g) of the AfCFTA Agreement’s Protocol on Trade in Services. On the interpretation of Article
V GATS as it applies to trade agreements concluded by African countries, see Simo, supra note 3. For the

4
restates the AfCFTA Agreement’s goal to ‘to create a liberalised market for trade in goods.’19
In fact, nowhere in the AfCFTA legal apparatus is Article XXIV GATT mentioned at all,
leaving open the question of the choice of the regime under which the AfCFTA goods RTA
would find itself under the WTO legal system. The AfCFTA parties simply expressed that they
are conscious of ‘the need to create an expanded and secure market for the goods and services
[...] through […] the reduction or progressive elimination of tariffs and elimination of non-
tariff barriers to trade.’20 As will transpire later in this paper, while Article XXIV of the GATT
mandates the elimination of tariffs,21 and the Enabling Clause the reduction or elimination of
tariffs,22 none of them makes the ‘elimination of non-tariff barriers’ a requirement for a WTO-
compliant RTA. However, the fact that Paragraph 2(c) of the Enabling Clause makes room for
the ‘mutual reduction or elimination of non-tariff measures’ under conditions to be agreed by
the WTO Members23 may be an indication that the AfCFTA intends to hinge on the Enabling
Clause rather than Article XXIV of the GATT. The observed tendency to rely on the Enabling
Clause for the conclusion of RTAs in Africa since its adoption in 1979 may equally suggest
similar approaches with the AfCFTA. This paper will therefore address the (un-)desirability to
rely on the enabling clause when it comes to the WTO multilateral surveillance of the scheme.

Furthermore, the Preamble of the AfCFTA Agreements recognises that it will not only
strengthen economic rights of its members inter se, but also build upon their respective rights
and obligations under the Marrakesh Agreement Establishing the WTO.24 Consequently, rather
than being adversarial in nature, the WTO may instead capitalise on the liberalisation in the
AfCFTA which could prepare African countries to undertake meaningful commitments at the
level of the WTO. Multilateralism may be at risk, but this paper argues that AfCFTA is not a
threat to the WTO foundations but preparatory steps to engage in deep integration where
African countries are prepared to test their ability to participate in multilateral negotiations in
a considerable manner.

What follows is a study of the AfCFTA against the WTO rules on RTAs. Part 2 introduces
the AfCFTA and the context in which, like other RTAs before and after the creation of the

AfCFTA Services Protocol in that context and its contribution to the objectives of the deep integration, see Regis
Y. Simo, ‘Trade in Services in the African Continental Free Trade Area: Prospects, Challenges and WTO
Compatibility’ 23(1) Journal of International Economic Law (forthcoming, 2020).
19
See Article 2(1) of the AfCFTA Agreement’s Protocol on Trade in Goods.
20
Preamble of the AfCFTA Agreement, Recital 5 (emphasis added).
21
See Article XXIV:8(a) and (b) of the GATT.
22
See Enabling Clause, Paragraph 2(c).
23
Ibid.
24
Preamble of the AfCFTA Agreement, Recital 3.

5
WTO, it was negotiated. Part 3 on its part weighs and balances the most appropriate WTO rules
that should cater for its surveillance in the multilateral trading system. In particular, what are
the options available under the GATT and the Enabling Clause for an agreement concluded
between developing countries which at the same times ambitions to be a deep integration. Part
4 offers some concluding remarks.

II. A SUCCINCT FRAMEWORK OF THE AFRICAN CONTINENTAL FREE TRADE

AREA
Although recent years have witnessed a proliferation of RTAs throughout the world, most of
which coming into existence after 1993, regionalism as a phenomenon is far from new. Ever
since the creation of the multilateral trading system by the signing of the GATT in 1947,
Western European countries have been the champions of the post-war movements towards the
creation of RTAs.25 Africa has also not been left out of the bandwagon, as regionalism has
always been perceived here as both a political enterprise intended to address the political
fragmentation of the continent due to colonialism, and an economic venture with the aim of
achieving a level of industrialisation capable of integrating their economies in the global
trading system.26 Traditionally, RTAs involved only the reduction or elimination of tariff
barriers to trade. But since the beginning of the 1990s, particularly with the expansion of
multilateral trade rules on other areas of trade policy, such agreements also involve what has
come to be called ‘deep integration’,27 which includes additional elements of harmonizing
national policies in line with a reform agenda that favours greater freedom for market forces
and reduces options for government intervention.28

While the GATT does not employ the term ‘regional trade agreement’ itself, but rather
defines free trade areas and customs union (CU),29 the multilateral trading system uses RTAs
to designate preferential trade agreements (PTAs) concluded not only between countries
belonging to the same geographical region, but also those between countries not necessarily
geographically contiguous. The glossary and the jargon accompanying RTAs is so rich that it

25
See Andre Sapir, ‘The Political Economy of EC Regionalism’, 42(3-5) European Economic Review (1998) 717.
See also Thomas Cottier, ‘The Challenge of Regionalization and Preferential Relations in World Trade Law and
Policy’, 1(2) European Foreign Affairs Review (1996) 149.
26
See generally Teshome Mulat, ‘Multilateralism and Africa’s Regional Economic Communities’, 32(4) Journal
of World Trade (1998) 115.
27
See Simo, supra note 18.
28
On the main features of this new wave of RTAs, some of which tackle areas beyond topics currently under the
WTO mandate, see Henrik Horn, Petros C. Mavroidis and André Sapir, ‘Beyond the WTO? An Anatomy of EU
and US Preferential Trade Agreements’ 33(11) World Economy 1565.
29
See Article XXIV:8 of the GATT for the definitions of FTAs and CUs.

6
would inopportune to attempt listing and explaining each of them. They are often described in
terms of composition (whether bilateral or plurilateral), of geographical coverage (North-South
agreements (e.g. the economic partnership agreements (EPAs) between the European Union
(EU) and countries of the African, Caribbean and Pacific (ACP), or South-South agreements
(e.g. the Southern Common Market (MERCOSUR)). RTAs are also described in terms of scope
(i.e. goods, services), which sometime determines their type (whether a free trade area, customs
union or an economic integration agreement).

As of September 2019, the WTO has recorded near to 700 cumulative notifications of RTAs
of which more than 300 were currently in force.30 While Europe with the highest number
cumulates 99 active RTAs, Africa gets away with 35 active and notified RTAs.31 The reasons
for the recent proliferation of RTAs in all parts of the world are manifold, ranging from political
to economic, to geographical proximity.

Figure 1: RTAs in the World (as of September 2019)

Source: WTO Secretariat

30
See Figure 1.
31
See WTO Regional Trade Agreements Database <http://rtais.wto.org/UI/charts.aspx> accessed 15 October
2019.

7
 A. The Rationale for Regional Economic Integration: The Case of Africa

While the AfCFTA is the latest African Union Members initiative at continental-wide
economic integration, it follows numerous previous attempts in that direction. In general,
motives for entering into regional trade agreements can vary from one region to another. For
one, countries with a certain comparable level of development tend to be fertile grounds to
address free-rider issues inherent to multilateral trade based on MFN.32 Apart from proximity,
the surge of regionalisation in world trade in the 1990s, both prior to and after the establishment
of the WTO, were attributable to many causes. According to Cottier, the uncertainties relating
to the multilateral negotiations during the Uruguay Round that were rather slow and taking
longer than expected,33 prompted countries’ desires to negotiate bilaterally.34 Indeed, as
Jackson argues, frustration with the GATT forum resulted from the ‘large numbers and wide
diversity of economic and trading systems represented’ which rendered progress in new areas
of trade policy, such as services, intellectual property, competition, as well as environmental
concerns, difficult to achieve.35 In that context, RTAs were therefore perceived as second best
opportunities, and quicker to achieve among like-minded countries.36 The disintegration of the
Council for Mutual Economic Assistance (COMECON) at the end of the cold war further drove
new trade alliances between its members and western countries.37 The somewhat EEC model
(internal market) success story also influenced its adoption by other regions around the world.38

Deadlock at the multilateral forum and the difficulty to agree by consensus on a number of
issues are still relevant today after the establishment of the WTO and continue to motivate
searches for alternative forums. In effect, stalemate in WTO trade rounds is today still notable
in the Doha Round. However, before Doha, reasons continued to stem from geographic
proximity (for a large number of them) and cultural affinity, 39 to common political visions,

32
See UNCTAD, Trade in Services and Development Implications (Geneva: UNCTAD/TD/B/COM.1/85, 2007),
p. 5.
33
Indeed, the Uruguay Round negotiations started in 1986 and were finally concluded on 15 December 1993 after
missing the 1990 deadline due to an impasse at the Brussels Ministerial Meeting in December 1990 that led to its
extension.
34
Cottier, supra note 25, at 153.
35
See John Jackson, ‘Regional Trade Blocs and the GATT’, 16(2) World Economy (1993) 121, at 124.
36
See C.A. Primo Braga and Alexander J. Yeats, ‘Minilateral and Managed Trade in the Post-Uruguay Round
World’, 3 Minnesota Journal of International Law (1994) 231, at 234-235.
37
Cottier, supra note 25, at 153.
38
Ibid.
39
These are the so-called ‘natural’ RTAs, which Krugman argues, should be encouraged because they bear a high
potential of welfare improvement, hence a large potential for trade creation. See Paul Krugman, ‘The Move
Toward Free Trade Zones’, 76(6) Economic Review (1991) 5, at 12-13. See also Lawrence H. Summers,

8
economic bonds, to common historical past (predominant in ancient colonies, especially sub-
Saharan African ones). According to Krugman, countries might wish to enter into a trade
agreement because it gives them more sway to affect jointly terms of trade since they cannot
do it individually on their own.40 Whether true for developing countries is an empirical
question. Yet, developed countries seem to use their trade blocs as forums to increase their
bargaining power at the multilateral level as the establishment of the European Economic
Community and its leverage in the GATT negotiations testifies.41

Concerning African countries, they felt this need to cooperate before and immediately upon
gaining independence. Ezenwe holds that, at that moment of the history, motives by African
nations to enter into economic integration agreements are also both political and economic. 42
According to this view which is shared by many other experts in African studies,43 the sequels
of colonialism – high levels of fragmentations and divisions among the newly independent
States – called for cooperation if those territories were to stand the challenges of being newly
autonomous. This ‘old regionalism’ characterised by the need to curb dependence on the
colonial power at all cost, and to agree on communalities with a potential continental
government of a united Africa,44 was also happening at a time of ‘regionalist euphoria.’45

On the economic rationale for regional integration as we mentioned earlier, small-sized

countries (hence small markets) needed to expand and could only possibly achieve this by
coming together. There were strong beliefs that:

[the] creation of unified multinational markets would make possible faster

expansion and greater economic diversification of the African economy and
particularly of its industry. It would also enhance productive efficiency by

‘Regionalism and the World Trading system’ in Policy Implications of Trade and Currency Zones (The Federal
Reserve Bank of Kansas City, 1991) 295.
40
Krugman, supra note 39.
41
See John Whalley, ‘Why Do Countries Seek Regional Trade Agreements?’ in Jeffrey A. Frankel (ed), The
Regionalization of the World Economy (University of Chicago Press, 1998) 63, at 72.
42
Uka Ezenwe, ECOWAS and the Economic Integration of West Africa (Hurst & Co Ltd, 1983) at 12.
43
See generally Domenico Mazzeo (ed.), African Regional Organizations (Cambridge University Press, 1984).
44
See Richard Fredland, A Guide to African International Organizations (Hans Zell Publishers, 1990), at 5, also
pointing at the mitigated success of these undertakings as resulting from the relative youth of the newly
autonomous states and the rather haste for self-determination.
45
Mazzeo, supra note 43, at 1. He argues that in the 1950s and early 1960s (the African States’ independence
era), ‘the regional trend was reinvigorated worldwide by several interacting factors [namely] the existence of the
UN, a raging East-West conflict, (...) decolonization and new technological developments.’ Mulat on his part
concurs by admitting that ‘the quest for non-alignment in the tug of the Cold-war’ was the seeds of South-South
trade. See Mulat, supra note 26, at 115.

9
 permitting increased specialization and the operation of industries on a more
economic scale.46
Moreover, integration ‘would help in overcoming barriers to development appearing in
foreign trade with the developed parts of the world.’47 This position reflects an earlier trade
and development theory and the need for these poor countries to have access to developed
countries’ markets. The policy was therefore to unite in order to be stronger. That philosophy
is reflected in the provisions relating to ‘special and differential treatment’ included in WTO
covered agreements.48

B. The AfCFTA in a Nutshell

The WTO deadlock has not only resulted in the proliferation of traditional trade agreements
but has seen the emergence of agreements extending sometimes beyond the current WTO
mandate. These have been given the name of mega-regional trade agreements. The rise of
mega-regionals is one of the most striking contexts to study African regional trade agreements.
A mega-regional is considered to be a trade agreement that is negotiated by three or more
countries or regional groupings, whose members collectively account for 25% or more of world
trade, and the substance of which goes well beyond current WTO disciplines.49 Whether the
AfCFTA will meet the second requirement once implemented remains to be seen. It bears
noting, however, that while other mega-regional trade agreements such as the Transatlantic
Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP), launched
with great publicity, had come to a standstill in recent years, whereas the negotiations on the
AfCFTA have been relatively straightforward.

As hinted above, the objectives of the AfCFTA are to create a single market for goods,
services, facilitated by the movement of peoples and capital, which will lay the foundations of
a continental customs union. While relying on liberalizations achieved in the regional economic
communities (RECs),50 the AfCFTA also sets as its goal to ‘resolve the challenges of multiple

46
Ezenwe, supra note 42, at 12 (quoting United Nations, Economic Co-operation and Integration in Africa: Three
Case Studies, New York, 1969, (ST/ECA/09), p. iii).
47
Ibid.
48
See Edwini Kessie, ‘The Legal Status of Special and Differential Treatment under the WTO Agreements’ in
George A. Berman, and Petros C. Mavroidis, (eds.), WTO and Developing Countries (Cambridge University
Press, 2007), 12 (arguing that (some of) these provisions (or some of them) should be rendered ‘mandatory’ and
enforceable to accelerate the Doha Development Agenda (DDA) talks. On the gradual inclusion of these
provisions, see also Regis Simo, ‘The AGOA as Stepping Stone for USA-Africa Free Trade Agreements’, 17(3)
Journal of International Trade Law and Policy (2018) 115, at 118-120.
49
Peter Draper, Simon Lacey and Yash Ramkolowan, ‘Mega-Regional Trade Agreements: Strategic Implications
for the African, Caribbean, and Pacific Countries’, ECIPE Occasional Paper No. 2/2014 (2014) at 8.
50
See Preamble of the AfCFTA Agreement, Recital 10.

10
and overlapping memberships’ in those RECs.51 Indeed, overlapping memberships has been
one identified as an obstacle for African regional trade agreements.

Pursuant to Article 6 of the Agreement, the AfCFTA covers trade in goods, trade in
services, investment, intellectual property rights and competition policy. While the Protocols
on trade in goods and on trade in services are concluded, alongside the Dispute Settlement
Protocol, investment, intellectual property and competition policy are the subject matters of
Phase II, which began immediately after the conclusion of the AfCFTA Agreement. 52 It is
important to note that the while the above-mentioned Protocols are now in force, negotiations
on parties’ schedules of concessions/commitments (in goods53 and services54) and other issues
(such as rules of origin55) necessary to give impetus to the agreements are still underway.56
Upon adoption, these annexes to the particular protocols will form part of their respective
protocols,57 and eventually form part of the AfCFTA Agreement more broadly.58

Institutionally, the AfCFTA’s implementation is entrusted on four main entities. The first
is the Assembly, which, composed of Heads of States and Government of the AU, is the highest
decision-making organ. The role of the Assembly is to ‘provide oversight and strategic
guidance on the AfCFTA’ and adopt authoritative interpretation of the AfCFTA Agreement.59
The second organ is the Council of Ministers.60 The latter is composed of Members’ Ministers
in charge of trade and has a large mandate to oversee the effective implementation and
enforcement of the AfCFTA. This is also de facto the legislative organ in that it tasked, among
others, to make regulations, issue directives, deal with budgets, and recommend authoritative
interpretation to the Assembly. The Committee of Senior Trade Officials is the third institution
which is composed of Permanent or Principal Secretaries of each State Parties with the main
role to implement the decisions of the Council of Ministers.61 The fourth entity is the

51
Article 3(h) of the AfCFTA Agreement.
52
See Article 7 of the AfCFTA Agreement.
53
See Article 8 of the AfCFTA Agreements’ Protocol on Trade in Goods. See also Annex 1 of the Protocol on
Trade in Goods.
54
See Article 22 of the AfCFTA Agreement’s Protocol on Trade in Services.
55
See Article 13 of the AfCFTA Agreements’ Protocol on Trade in Goods. See also Annex 2 of the Protocol on
Trade in Goods.
56
For the AfCFTA Agreement framework, see Figure 2.
57
See Articles 22(4) and 28 of the AfCFTA Agreement Protocol on Trade in Services, Articles 3 and 8(1) of the
Protocol on Trade in Goods.
58
See Articles 1 and 8 of the AfCFTA Agreement.
59
Articles 9 and 10 of the AfCFTA Agreement.
60
Articles 9 and 11 of the AfCFTA Agreement.
61
See Articles 9 and 12 of the AcFTA Agreement.

11
Secretariat, which, pending its establishment, is hosted by the African Union Commission.62
Upon its operationalization, it will be an autonomous institutional body within the African
Union system with an independent legal personality.

Agreement Establishing the AfCFTA

Phase Phase
one Two

Protocol on Protocol on Protocol on

Trade in Trasde in Dispute
Goods Services Settlement

Protocol on Protocol on
Protocol on
Competition Intellectual
Investment
Policies Property

Annexes: Annexes:
- Schedules of Tariff 1. Working
Concessions Annexes: Procedures of the
- Rules of Origin Panel
(1) Schedules of
- Customs Co-operation and Specific 2. Expert Review
Mutual Administrative Commitments
Assistance
Groups
- Trade Facilitation (2) MFN 3. Code of Conducts
Exemptions for Arbitrators and
- Non-Tariff Barriers
(3) Annex of Air Panelists
- Technical Barriers to
Trade Transports
- Sanitary and Phytosanitary
Measures
- Transit Trade
- Trade Remedies

Figure 2: AfCFTA Framework

III. WTO RULES AND THE AFRICAN CONTINENTAL FREE TRADE AREA
A. The WTO Institutional Tolerance and Unenforceability of RTAs
RTAs, sometimes regarded as ‘termites’ in the trading system63 because they undermine the
central feature of post-war trade arrangements based on non-discrimination, are a permanent
feature of global trade landscape. As mentioned above, the number of RTAs currently in force
demonstrates that virtually all WTO Members are part of at least one RTA. This feature implies

62
Articles 9 and 13 of the AcFTA Agreement.
63
Jagdish Bhagwati, Termites in the Trading System: How Preferential Agreements Undermine Free Trade
(Oxford University Press, 2008).

12
leaving behind the debate around the ‘building block or the stumbling block’,64 the focus now
lies more on the coherence and convergence of RTAs with the multilateral system. Indeed, the
coherence issue (as only one facet of the RTAs troubles), has been a source of growing
concerns at the level of the WTO itself as the words of the former WTO Director General
Pascal Lamy testify. At the opening a conference on ‘Multilateralizing Regionalism’ held on
10 September 2007 in Geneva, Mr Lamy stated that ‘it would be fair to say that proliferation
[of RTAs] is breeding concern – concern about incoherence, confusion, exponential increase
of costs for business, unpredictability and even unfairness in trade relations’.65

Recently driven by the stalemate in the Doha Round, as alluded to, the current trend is the
increasing surge of preferential solutions either to secure existing concessions, or to establish
new ones. It is therefore no longer a secret that ‘regionalism’ is on the rise and gradually
appearing not as the second-best policy option but as a fully-fledged policy option.66 Although
this section analyses the WTO legal disciplines on RTAs, it is however worth noting at the
onset that the establishment of existing RTAs have not been conditioned on the satisfaction of
multilateral rules on the issue.67 Despite the vagueness of WTO provisions that set out to
measure RTAs compatibility with WTO rights and obligations,68 there is in fact what appears
as a de facto lack of enforceability of RTAs. But even if a RTA were to violate WTO
provisions, that would not render the agreement illegal from a purely international law
perspective as they stand, as international treaties binding on its signatories, on an equal
footing.69

Nevertheless, while conformity remains a desirable outcome, practice shows a reluctance

and a sort of ‘self-restraint’ on the part of WTO Members to challenge one another’s RTAs

64
See e.g. Richard E. Baldwin and Elena Seghezza, ‘Are Trade Blocs Building or Stumbling Blocs?’, 25(2)
Journal of Economic Integration (2010) 276 (finding that regionalism is neither a building block nor an obstacle
to multilateral trade liberalization, and rejecting the framing of the question in these terms).
65
Pascal Lamy, ‘Proliferation of Regional Trade Agreements “Breeding Concern”’(10 September 2007)
<https://www.wto.org/english/news_e/sppl_e/sppl67_e.htm> accessed 15 October 2019.
66
See e.g. Petros C. Mavroidis, ‘WTO and PTAs: A Preference for Multilateralism? (Or the Dog that Tried to
Stop the Bus)’ 43(5) Journal of World Trade (2010) 1145 (arguing that the status of RTAs has today moved from
that of exception to that of right). See also Whalley, supra note 41, at 66 (stating that, ‘despite the growth in
importance of GATT/WTO’ RTAs have been ‘a central feature in the development and evolution of the postwar
trading system rather than the exception’).
67
See Petros C. Mavroidis, ‘If I Don’t Do It, Somebody Else Will (Or Won’t): Testing the Compliance of
Preferential Trade Agreements with the Multilateral Rules’ 40(1) Journal of World Trade (2006) 187.
68
See e.g. Kenneth Dam, ‘Regional Economic Arrangements and the GATT: The Legacy of a Misconception’
30(4) University of Chicago Law Review (1963) 615, at 619 (arguing that the ‘apparent precision’ of Article XXIV
to set the rules for the determination of the circumstances under which RTAs will be permitted ‘is quite illusory’).
69
See Thomas Cottier and Martin Molinuevo, ‘Article V GATS’, in in R. Wolfrum, P.T. Stoll and C. Feinäugle
(eds.), Max Planck Commentaries on World Trade Law: WTO – Trade in Services, vol. 6 (The Hague: Martinus
Nijhoff, 2008), at 128.

13
even when they might not be very compliant with the rules.70 This holds true for both WTO
Members not taking part in a RTA (the ‘outsiders’) and those effectively parties to at least one
scheme (the ‘incumbents’). Since ‘the majority’ of WTO Members participate in RTAs,
‘affected third countries have been reticent to criticize’ them,71 least litigate against. Mavroidis
describes the situation as one involving a scenario of ‘mutual deterrence’. 72 In effect, since a
today’s outsider stand to be a tomorrow’s incumbent, his risk-averse attitude is explained by
the fear of helping burst a RTA today that it might join tomorrow, thus ‘facing the music it
helped, through its pleadings, compose’.73 Likewise, an incumbent is afraid of ‘shooting itself
in the foot’ by setting not only a precedent, but particularly a benchmark of what is meant by
a fully compliant RTA, thus a standard for the assessment of consistency of its own RTA.74

B. The Legal Provisions

1. The GATT and General Rule on RTAs in Goods
The principal provision on RTAs in the WTO regime is Article XXIV of the GATT 1994.
According to GATT Article XXIV:4, which is the general principle underpinning the formation
of RTAs, the purpose of a CU or of an FTA should be to facilitate trade between the signatories
and not to raise barriers to the trade of other WTO Members with such territories.

Article XXIV:5 on its part defines the conditions under which RTAs can be formed.
Pursuant to Article XXIV:5(a), a CU can be formed if the duties or other regulations of
commerce (ORCs) imposed at the institution of such union with regard to commerce with
outside parties are not on the whole higher or more restrictive than those applicable prior to the
formation of such union. Article XXIV:5(b) provides the same conditions with regard to a FTA.
It is not necessary to define what ORCs mean in this context, since, per the Appellate Body in
Turkey – Textiles, ‘quantification and aggregation of regulations of commerce other than duties
may [at times] be difficult.’75 However, it suffices to state that this is not a requirement for
RTAs formed among developing countries in reliance on the special and differential treatment
provided by the Enabling Clause. Likewise, the requirement that CUs and FTAs pursuant to
GATT Article XXIV:8 shall be entities in which ‘duties and other restrictive regulations of

70
Mavroidis, supra note 67, at 208-212.
71
Ibid, at 209 quoting Jeffrey Schott, ‘More free-trade areas?’, in Jeffrey Schott (ed.), Free trade areas and US
Trade Policy (Washington, D.C.: Institute of International Economics) at 25.
72
Ibid, at 211.
73
Ibid.
74
Ibid, at 2012.
75
Appellate Body Report, Turkey – Restrictions on Imports of Textile and Clothing Products (Turkey – Textiles),
WT/DS34/AB/R (adopted 19 November 1999), para. 54, referring to Paragraph 2 of the Understanding on Article
XXIV [hereinafter Appellate Body Report, Turkey – Textiles].

14
commerce’ (ORRCs) are eliminated on ‘substantially all the trade between the constituent
territories of the union’ are not binding on RTAs formed under the Enabling Clause. The test
of compatibility of a GATT Article XXIV RTA is therefore rendered more stringent than one
that applies to RTAs concluded under the Enabling Clause, which does not even distinguish
between an FTA and a CU.

One question that remains debatable today is whether a WTO Member can raise
participation in a RTA not only as an exception to the principle of non-discrimination enshrined
in Article I of the GATT, but also to deviate from the prohibition of quantitative restrictions
and the latter’s non-discrimination requirement. The question comes up because Article XIII
of the GATT requires quantitative restrictions to be non-discriminatory when applied to
imports and exports. And in the words of the Appellate Body, ‘[n]on-discrimination obligations
apply to all imports of like products, except when these obligations are specifically waived or
are otherwise not applicable as a result of the operation of specific provisions of the GATT
1994, such as Article XXIV.’76 Yet, since ‘like products should be treated equally, irrespective
of their origin’,77 Article XIII:1 of the GATT requires that all third countries like products be
similarly prohibited or restricted.

The problem is therefore whether the RTA (say the AfCFTA) can justify for instance a ban
on the importation of a product from any WTO Members except imports from AfCFTA
countries. This issue first arose in EEC – Bananas I, where, in acknowledging the status of
Article XXIV as an exception to all other obligations under the GATT, the GATT Panel ruled
that this deviation was however only valid ‘for the purpose of forming a customs union or free-
trade area’ and ‘not for any other purpose.’78 Since GATT Article XXIV does not provide
Members ‘with a justification for restrictive import measures as such’, import restrictions in
the view of the Panel ‘could not be justified by Article XXIV.’79 Later in EC – Bananas III,
the Appellate Body confirmed this reading and decided the ‘special regimes’ for the
importation of bananas did not discharge from the obligation under Articles I:1 and XIII of the
GATT.80

76
Appellate Body Report, European Communities – Regime for the Importation, Sale, and Distribution of
Bananas (EC – Bananas III), WT/DS27/AB/R (adopted 25 September 1997), para. 191, [hereinafter Appellate
Body Report, EC – Bananas III].
77
Ibid, para. 190.
78
GATT Panel Report, EEC – Member States’ Import Regimes for Bananas, DS32/R, 3 June 1993 (unadopted),
para. 358.
79
Ibid.
80
Appellate Body Report, EC – Bananas III, paras 191 and 255(k).

15
 In the same vein, the WTO Panel in Turkey – Textiles ruled that invoking a RTA to deviate
from the non-discrimination obligation of Article XIII, does not render the measure legal from
a WTO law perspective.81 To arrive at such a conclusion, however, the Panel relied on the fact
that the impugned quantitative restrictions were not necessary for the formation of the customs
union in question. Nonetheless, the Turkey – Textiles Appellate Body later held that it had made
‘no finding on the issue of whether quantitative restrictions found to be inconsistent with
Article XI and Article XIII of the GATT 1994 will ever be justified by Article XXIV,’82
indicating the likelihood of a finding in a different direction. Whether this reasoning applies to
RTAs notified under the Enabling Clause is also another matter altogether.

2. The Enabling Clause and the AfCFTA as a RTA among Developing Countries
The Enabling Clause is the legal basis for RTAs between developing countries. Like Article
XXIV of the GATT, the Enabling Clause is an exception to the MFN. In effect, Paragraph 1
states:

Notwithstanding the provisions of Article I of the GATT contracting parties may accord
differential and more favourable treatment to developing countries without according
such treatment to other contracting parties
While Paragraph 2(a) covers (non-reciprocal) preferential trade arrangements by
developed-country Members in favour of developing countries, Paragraph 2(c) allows
developing countries to legally deviate from the MFN clause and provide reciprocal tariff
preferences among themselves without extending the same conditions to other WTO Members.
Paragraph 2(c) reads:

[The provisions of paragraph 1 apply to the] [r]egional or global arrangements entered

into amongst less-developed contracting parties for the mutual reduction or elimination
of tariffs and, in accordance with criteria or conditions which may be prescribed by the
[WTO Members], for the mutual reduction or elimination of non-tariff measures, on
products imported from one another.
The Enabling Clause allows the conclusion of RTAs that would in normal circumstances
fall short of GATT Article XXIV requirements, thus illegal from the perspective of WTO rules,
but are authorized because of the developing status of its members. In other words, these RTAs
can function without its participants having to satisfy the stringent requirements of GATT

81
See Panel Report, Turkey – Textiles, paras 9.188–9.189.
82
Appellate Body Report, Turkey –Textiles, para. 65 (original emphasis).

16
Article XXIV,83 notably the elimination of other restrictive regulations of commerce on
substantially all the trade between the parties.

Empirically, pre-1979 African trade pacts were notified under Article XXIV GATT 1947.
This was the case for instance of the African Common Market between Algeria, United Arab
Republic (Egypt), Ghana, Guinea, Mali and Morocco;84 the Ghana – Upper Volta Trade
Agreement;85 or the Equatorial Customs Union – Cameroon Association between Cameroon,
Central African Republic, Chad, Congo and Gabon.86 The only exception in that period was
the Tripartite Agreement, a cross-regional agreement between Egypt (an African country),
India (Asian) and Yugoslavia (European) concluded in 1968.87 The conclusion of the latter was
influenced by adamant calls at that time for special and differential treatment that were also
getting ground at the United Nations, especially against the backdrop of the First session of the
United Nations Conference on Trade and Development (UNCTAD I).88

This pre-1979 practice contrast with the tendency recorded since the adoption of the
Enabling Clause. Indeed, apart from the Economic Community of West African States

83
See Committee on Trade and Development, Legal Note on Regional Trade Arrangements under the Enabling
Clause – Note by the Secretariat, WTO Doc. WT/COMTD/W/114 (12 May 2003), para. 5.
84
Treaty Establishing the African Common Market, GATT Doc. L/1835 (25 September 1962) (agreement signed
1 April 1962, entered into force 1 July 1963). Notified as a customs union under GATT Article XXIV (on 25
September 1962), it became inactive on 31 December 1998.
85
Trade Agreement between the Republic of Ghana and the Republic of Upper Volta, GATT Doc. L/1766 (17
May 1962) (Ghana-Upper Volta Trade Agreement) (agreement signed 28 June 1961, entered into force 9 May
1962). Notified as a free trade area under GATT Article XXIV (on 17 May 1962), it ceased to function on 31
December 1966.
86
Regulation of Economic and Customs Relations between the Member States of the Equatorial Customs Union
and the Federal Republic of Cameroon, GATT Doc. L/2061 (17 September 1963) (ECU-Cameroon Association)
(signed 23 June 1961, entered into force 1 July 1962). Notified as a free trade area on 13 September 1963 (see
GATT Doc. L/2061/Add.1, 24 October 1963), it expired on 31 December 1964. It was replaced by the Central
African Economic and Customs Union (known by its French acronym UDEAC for Union Douaniere et
Economique de l’Afrique Centrale). On the latter, see Pierre Tchanque, ‘L’Union Douanière et Économique de
l’Afrique Centrale’, 16(3) Journal of African Law (1972) 339.
87
Trade Expansion and Economic Co-Operation Agreement between India, the United Arab Republic and
Yugoslavia, GATT Doc. L/2980 (23 February 1968). Concluded on 23 December 1967, the Agreement entered
into forced on 1 April 1968 and deactivated on 31 December 1990.
88
See United Nations, Final Act and Report of the First United Nations Conference on Trade and Development -
UNCTAD I (23 March - 16 June 1964), UN Doc. E/CONF.46/141, Vol. I (1964), which recommended, inter alia,
the promotion of preferential arrangements and other forms of cooperation among developing countries, and asked
developed countries to provide them with technical assistance in that regard. This later gave rise to the adoption
of the Generalized System of Preferences (GSP) during UNCTAD II in New Delhi in 1968. See Resolution 21(II),
UN Doc. TD/97 (1968) at 38. On the evolution of these claims and the USA initial opposition to a regime of
preferences at the multilateral level, which it later embraced for political economy reasons, see Simo, supra note
48, at 118-120.

17
(ECOWAS),89 the Southern African Customs Union (SACU)90 and the Southern African
Development Community (SADC),91 the majority of African-country Members post-1979
notified their RTAs to the WTO under the Enabling Clause. This is the case for the Common
Market for Eastern and Southern Africa (COMESA),92 the East African Community (EAC),93
the Economic and Monetary Community of Central Africa (CEMAC),94 and the West African
Economic and Monetary Union (WAEMU).95

Critics contend that the relaxation of Article XXIV requirements in the enabling clause has
been counterproductive in regulating developing countries’ RTAs and has directed them to
conclude mediocre RTAs.96 This is because, as Mutai opines, the Enabling Clause was
erroneously interpreted as creating ‘an alternative procedure for the creation of RTAs by
developing countries.’97 This misconception, which ‘changed the legal nature of developing
countries’ obligations’ under the GATT also ended up ‘weaken[ing] the normative force of the
non-discrimination principle.’98

While the Enabling Clause requires mutual reduction or elimination of customs duties
among developing countries, the issue of non-tariff measures remains ambiguous. Recall
Paragraph 2(c) states that ‘the mutual reduction or elimination of non-tariff measures, on
products imported from one another’ in such an agreement would be achieved ‘in accordance
with criteria or conditions which may be prescribed by the CONTRACTING PARTIES’. The
question that follows is whether the Enabling Clause can provide a legal excuse to discriminate
against other WTO Members in non-tariff barriers issues. In other words, can a Member of the
AfCFTA (assuming it is notified under the Enabling Clause) impose a ban on imports from
other countries except those originating from Africa and plead the Enabling Clause to escape

89
See Committee on Regional Trade Agreements, Notification of the Economic Community of West African
States (ECOWAS) Agreement, WTO Doc. WT/REG399/N/1 (6 May 2019). It should be noted that ECOWAS
was originally notified under the enabling clause (see WTO Doc. WT/COMTD/N/21, 26 September 2005). Its
legal cover from the Enabling Clause to GATT Article XXIV was modified in 2019 after achieving the customs
union status.
90
See Committee on Regional Trade Agreements, Notification of the Southern African Customs Union (SACU)
Agreement, WTO Doc. WT/REG231/N/1 (28 June 2007).
91
See Committee on Regional Trade Agreements, Notification of the Southern African Development Community
(SADC) Agreement, WTO Doc. WT/REG176/N/1/Rev.1 (27 August 2004).
92
See WTO Doc. WT/COMTD/N/51 (9 January 2017).
93
See WTO Doc. WT/COMTD/N/14/Add.2 (15 October 2012).
94
See WTO Doc. WT/COMTD/N/13 (29 September 2000).
95
See WTO Doc. WT/COMTD/N/11 (3 February 2000).
96
See James Thuo Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge University Press),
at 125-128.
97
Henry Kibet Mutai, Compliance with International Trade Obligations: The Common Market for Eastern and
Southern Africa (Kluwer Law International, 2007), at 63.
98
Ibid.

18
from the non-discrimination provision under Article XIII of the GATT? It is unclear whether
the Turkey – Textiles ruling delivered in the context of Article XXIV applies mutatis mutandis
to the Enabling Clause.

It bears noting that Paragraph 3 of the Enabling Clause provides that any favourable
treatment ‘shall be designed’ solely for promoting trade among the parties and ‘not to raise
barriers to or create undue difficulties for the trade of any other contracting parties.’ 99 The
WTO Committee on Trade and Development interprets the Enabling as lex specialis vis-à-vis
Article XXIV.100 Lex specialis is a general international law principle pursuant to which a law
unique to a particular regime, or applicable in specific scenarios, prevails over the general
law.101 Applying lex specialis in the context of RTAs, therefore, one may reasonably claim that
the Enabling Clause only prevails over Article XXIV in tariff barriers. Regarding non-tariff
measures like quantitative restrictions, the Enabling Clause provides for their elimination
subject to ‘criteria and conditions’ yet to be set by the WTO Ministerial Council.102

Consequently, in the absence of these criteria and conditions, the issue of whether the
Enabling Clause embraces the elimination of non-tariffs measures remains an open question.103
Yet, following the lex specialis principle, coupled with the Appellate Body ruling in EC –
Bananas III that ‘a waiver from the obligations under Article I’ is far from implying ‘a waiver
from the obligations under Article XIII,’104 the non-discrimination requirement of quantitative
restrictions apply mutatis mutandis to RTAs under both the GATT and the Enabling Clause.

As a matter of procedure, RTAs concluded by virtue of the Enabling Clause, like the ones
under Article XXIV of the GATT, must be notified. Notification to the Committee on Trade
and Development must come with all the information deemed appropriate. As to the question
of when notification should occur, Paragraph 4speaks of WTO Members ‘taking action’ to
form a RTA. The phrase ‘taking action’ has been interpreted to ‘to refer at the latest to the point
in time’ when these countries takes such an action, and would mean ‘by no later than its entry

99
Enabling Clause, Paragraph 3(a). Note the use of the word ‘shall’ which contrasts with the word ‘should’ under
GATT Article XXIV:4.
100
See WTO Doc. WT/COMTD/W/114, supra note 83, para. 5.
101
See generally Regis Y. Simo, ‘The Law of International Responsibility: The Case of the WTO as a ‘Lex
Specialis’ or the Fallacy of a “Self-contained” Regime’, 22 African Journal of International and Comparative
Law (2014) 184.
102
See Enabling Clause, para. 2(c).
103
WTO Doc. WT/COMTD/W/114, supra note 83, para. 53(b).
104
Appellate Body Report, EC – Bananas III, para. 183.

19
into force.’105 Despite this requirement, the WTO Secretariat deplores that ‘number of RTAs
currently in force have not yet been notified to the WTO.’106

Notification of an RTA under the Enabling Clause does however not mean that such a
scheme should remain so indefinitely. Should parties wish to modify the legal coverage of their
Agreement, say by transforming it into a GATT Article XXIV RTA, they may do so pursuant
to Paragraph 4 of the Enabling Clause. This provision lays out the mechanism to morph the
AfCFTA, if initially notified under the Enabling Clause, into a GATT Article XXIV agreement
at a later stage when it reaches maturity. The ECOWAS has already made use of this route to
move its RTA from the Enabling Clause to a GATT Article XXIV RTA.107 The only
requirement when proceeding in this manner is to notify WTO Members of the ‘modification
or withdrawal of the differential and more favourable treatment’108 and ‘afford adequate
opportunity for prompt consultations at the request of any interested contracting party with
respect to any difficulty or matter that may arise.’109 In practice, the latter is very unlikely to
occur since transforming an Enabling Clause into a full-fledged RTA offers more opportunity
to outsiders who would ideally be less inclined to challenge that from happening.

C. Should the ‘Interim’ be the Alternative Route?

If GATT Article XXIV is considered too strict considering the developing status of African
states, and the Enabling Clause too lenient a test for an area such as the AfCFTA aspiring for
a deep integration, the legitimate obvious question that follows pertains to the alternative to
these courses. Recognising the special character of African RTAs as ‘flexible’ schemes,
sometimes relying on variable geometry among its participants,110 it is the contention here that,
if not a full-fledged Article XXIV upon its formation, the AfCFTA at worst should be notified
as an ‘interim agreement’ in that regard. However, this course of actions comes with its own
flipside.

While Article XXIV:8 defines CUs and FTAs as territories in which tariffs and ORRCs are
effectively eliminated, Article XXIV:5 on its part regulates ‘an interim agreement necessary
for the formation’ of a CU or a FTA. As their name suggests, interim agreements are
agreements that have not yet reached the stage of FTA or CU. However, choosing this route

105
WTO Doc. WT/COMTD/W/114, supra note 83, para. 19.
106
Ibid, para. 23.
107
See WTO Doc. WT/REG399/N/1, supra note xxxx.
108
Enabling Clause, para. 4(a).
109
Ibid, para. 4(b).
110
See Gathii, supra note 3.

20
does not deprive incumbents from abiding to a set of requirements, notably those relating to
the internal trade. Indeed, Article XXIV:5(c) states that an interim agreement must include ‘a
plan and schedule for the formation of such a [CU] or of such a [FTA] within a reasonable
length of time’. The Understanding on the Interpretation of Article XXIV GATT 1994
interprets ‘reasonable length of time’ as a period not exceeding 10 years, except in exceptional
cases.111 As to what may constitute ‘exceptional cases’, justifying an implementation period
beyond 10 years, it is suggested that the sensitivity of a particular sector and the development
status of the parties to the agreement may be relevant factors.112

If signatories believe that 10 years would be insufficient, they ‘shall provide a full
explanation to the Council for Trade in Goods of the need for a longer period.’113 This
requirement is in agreement with Article XXIV:7(b) which stipulates that if a notified interim
agreement ‘is not likely to result in the formation of a customs union or of a free-trade area
within the period contemplated by the parties to the agreement or that such period is not a
reasonable one’, WTO Members will make recommendations in that regard. In such a situation,
the signatories are required not to implement the agreement unless they are ‘prepared to modify
it in accordance with these recommendations.’114 Consequently, an interim agreement should
attain the status of a full RTA in at most 10 years, except in exceptional circumstances, and
other WTO Members are able to make binding commitments to the RTA participants to make
sure that they achieve that status.

However, the requirement to table a roadmap towards the completion of a FTA or CU is

not placed on notified full agreements, based, according to Bartels, on the presumption that
they already provide for the liberalization on substantially all the trade between the parties.115
It follows that, while few RTAs actually meet the requirements of Article XXIV and are never
challenged for falling short of expectations, selecting the ‘interim agreement’ route also comes
at the risk of having to comply with a predetermined chart. This is without prejudice to the
WTO practice, not always supported by law, of treating interim agreements as full RTAs for
notification and review purposes.116

111
Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994,
para. 3 (hereinafter GATT Article XXIV Understanding).
112
See Lorand Bartels, ‘Interim Agreements under Article XXIV GATT’, 8(2) World Trade Review (2009) 339,
at 346-347.
113
GATT Article XXIV Understanding, para. 3.
114
Article XXIV:7(b) of the GATT.
115
Bartels, supra note 112, at 341.
116
Ibid, at 343-345.

21
IV. CONCLUSION
The conclusion of the AfCFTA Agreement marks the concretization of a long-awaited project
for an African common market enshrined in the AEC Treaty and its forerunners. It forms part
of the AU Agenda 2063, an ambitious roadmap expected to lead in the coming decades to a
real economic prosperity in the African continent. Negotiated, signed, and entered into force at
a speed never witnessed before in the history of African regional trade agreements, the tasks
ahead rest in Members States’ implementation and eventual enforcement of the rules in case of
default. While the AfCFTA is an engine to boost intra-African trade and prepare its signatories’
integration into the multilateral trading system, where they would be able to speak with a
unique voice and leverage negotiations to their advantage, the global trading system is also
suffering from a number of setbacks. Although the rules for the surveillance of RTA schemes
such as the AfCFTA were designed in the post-war period, they may have also been rendered
inept by the practice not to notify RTAs before their entry into force. In a similar vein, instances
where an RTA was found not to meet the requirement to deviate from the MFN principle are
also rare, and disputes in this regard simply inexistent.

Nonetheless, it is the ambition of the AfCFTA to establish an agreement that ultimately does
not affect its Members’ rights and obligations under the WTO. While the tendency of African
countries has been to notify their RECs treaties under the Enabling Clause since the adoption
of that mechanism, which may have been done erroneously according to some authors, this
paper found that choosing the ‘interim agreement’ also comes at a cost not always borne by
schemes that go the ‘full agreements’ way.

22