This blog post focuses on the Agreement for the establishment of the African Continental Free Trade Area (AfCFTA) and the implications for the evolution of lex mercatoria in Africa. This blog post is primarily based on a recent paper by Chisa Onyejekwe and Eghosa Ekhator titled ‘AfCFTA and Lex Mercatoria: Reconceptualizing International Trade Law in Africa’. The paper argues that some of the major innovations embedded in the AfCFTA (such as variable geometry and dispute settlement amongst others) form the crux of an emerging African practice of lex mercatoria. Consequently, the creation of AfCFTA has engendered what can be termed as an emerging concept of ‘Lex Mercatoria Africana’. In the context of the AfCFTA, this is exemplified by the notion that the AfCFTA explicitly promotes African trade principles.
Now that the commencement of AFCTA has been postponed in view of the COVID-19 pandemic, there is a need for a clear conceptualisation of flexibility in relation to the commitments and obligations created in African RTAs including the AFCTA. There is also a need to identify how some narratives that are subsumed in the flexibility paradigm may end up doing more harm than good to informal trade engagements in the continent.
In my view variable geometry is likely to further slow down the implementation of the AfCFTA because it is a way to accommodate less advantageous countries or countries unwilling to move as fast as others. Even if variable geometry is the only way to move forward in trade agreements of the 21th century as some have argued, it makes trade liberalization more complicated and slows down integration initiatives. More detailed research on variable geometry from an African perspective needs to be undertaken because the continent cannot afford the potential failure of the AfCFTA.
Variable geometry is an operational principle under the Treaty for the Establishment of the East African Community (the EAC Treaty). Much like the European Union’s ‘enhanced cooperation’ provisions, the objective of variable geometry is to reinforce the integration process by allowing progression of cooperation among a group of partner states within the Community in chosen areas and at different speeds. The underlying principle of flexibility is seen in both the Union and Community contexts albeit with necessary procedural differences. Other similarities lie in the requirement that cooperation must be left open to any member state wishing to join later, and that such cooperation can only be invoked as a last resort.
The first seeming obstacle to the emergence of a single African market is the contradictions between the stated aims of AfCFTA and some of the principles set out in the AfCFTA Agreement. As noted earlier, AfCFTA’s objectives include creating “a single market” and laying “the foundations for the establishment of a Continental Customs Union”. Yet, one of the principles under Article 5 is “variable geometry”, that is, differentiated integration. Of course, variable geometry was designed to recognise the heterogeneity and diversity in Africa’s economies. However, a single market is not consistent with an a la carte approach, where members integrate at different speeds.