Rules on cross-border data flows are no exception to this general trend. Moreover, given that the WTO rulebook was mostly written in the 1990s prior to the rise of the data driven economy, multilateral trade rules by and large do not regulate cross-border data flows, a fact which has contributed to rules on this front – demand for which has only increased as economies have become more data intensive – being set nationally and even sub-nationally, but also regionally, and in PTAs and FTAs. At the same time, trends such as the rise of what is often referred to as ‘surveillance capitalism’ has brought the issue of personal data protection on privacy grounds into sharper focus around the world. With this background context in place, this essay looks at the intersection of economic integration and personal data protection with a view to informing ongoing debates on what AfCFTA rules on cross-border data flows might look like.
Free Trade Agreement
Migrants and migrant workers from the Global South carried the economies of the Global North on their backs during the Covid-19 pandemic. On the one hand, millions of migrant workers in agriculture, trans-portation, care, food processing, construction, and other essential sectors continued working while the world shut down. On the other hand, migrant workers faced some of the harshest and most punitive treatment due to their status or lack thereof; many migrant workers were detained, deported or subjected to severe and inhumane treatment coupled with the physical, emotional and psychological impact of the pandemic. The pandemic unveiled high levels of nationalism, racism and xenophobia that impacted mi-grants globally and states have used the momentum to justify heavy handed measures and increased migration restrictions and the monitoring of migrants.
The Eco Oro arbitral award demonstrates that there is still a long way to go before the adjustments that ISDS needs to make to correct its profound inequalities are taken seriously. This system not only continues to exclude the actors most affected by its decisions like local communities, but also continues to redefine, through typical private law devices, rules and substantive aspects of our democracies.
In order to decide whether to include IF in the AfCFTA and how, African policymakers should be aware of all these different approaches and dynamics around Investment Facilitation to be able to set their own priorities in this relatively “new” area in international investment law, crafting an innovative and holistic approach for their future investment protocol. To date, international and regional approaches in IF are still in the making – making it easier for policymakers to identify what works best for Africa. In the process, policymakers can also leverage their own cutting-edge reform efforts on investment protection and regulation, and set a regional standard as a rule-maker – which could, in turn, influence ongoing or other future global processes on this topic.
It is important that the Global South countries and particularly African countries device approaches that aim at entrenching integration in their own regions. This is absolutely crucial now that African States have the ambition of increasing intra- African trade. Secondly, African governments need to approach FTA and EPAs with the countries in Global North with extra caution and with their development needs, economic situations, and integration ambitions in mind.
Should the Kenya-United States Free Trade Agreement be concluded, it would violate Article 37 of the Protocol on the Establishment of the East African Customs Union. Article 37 requires a Partner State to notify the EAC of a new trade agreement even when there is merely a proposed trade agreement. Article 37 of the Protocol requires that Partner States notify the other Partner States before offering a third-party preferential market access since Partner States share a common Customs territory.
A focus on the ongoing Kenya-U.S trade negotiations is pertinent as a lens to rethink the trade and investment treaty making reform at the continental level in the context of the African Continental Free Trade Area (“AfCFTA”) (section 3). The authors conclude with concrete suggestions aiming to improve the drafting of the prospective Kenya-U.S FTA provisions.
The current century's threat to communities, including climate change and vast and deepening inequalities, may be aggravated by the Agreement. By limiting the power of governments to govern in the interests of the community and the environment, and bolstering a regulatory framework intended to advance the interest of multi-national corporations and only the wealthiest people, trade and investment agreements deepen issues of human rights. The RCEP may, as a consequence, advertently exclude marginalised groups, including women, indigenous peoples, migrants and essentially those without any capital or political power.
Regional trade agreements such as RCEP which include some of the major global palm oil producers including Malaysia and Indonesia could have been drafted to help sustainable palm oil production in both countries by eliminating markets for unsustainable palm oil. Despite all of the fanfare around RCEP, the RCEP treaty is a lost opportunity for using trade to advance human rights and environmental protection.
Without doubt, once in force, RCEP could stimulate COVID-19 recovery in the region by fostering greater investment among the fifteen Asia-Pacific countries. However, as the Agreement will be co-existing with other IIAs among the countries, it adds another noodle to the already growing spaghetti bowl of IIAs among the Asia-Pacific States.