Regional integration and trade liberalization in the Southern African Development Community

Journal of International Economic Law

Volumn 3, Issue 3, 2000, Pages 485-506

  Ng'ong'ola, Clement ^a  

^a UNIVERSITY OF BOTSWANA   (Botswana)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347883126     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/3.3.485     Document Type: Article

References (92)

1. Academic commentaries on regional integration in southern Africa are too numerous to list here. For a good, fairly recent, discussion see R. Gibb, 'Southern Africa in Transition, Prospects and Problems Facing Regional Integration', 36(2) The Journal of Modern African Studies 287-306 (1998).
2. The classification of countries for international trade law purposes follows the UN system, based on computation of human development indices. The classification of South Africa and other countries in the region is further noted below.
3. See, for example, the essays collected in B. Oden (ed), Southern Africa After Apartheid, Regional Integration and External Resources (Seminar Proceedings No 28, Nordiska Afrikainstitutet: Uppsala 1993), and R. Gibb, 'Regional Integration in Post-apartheid Southern Africa, the Case of Renegotiating the Southern African Customs Union', 23(1) Journal of Southern African Studies 67-86 (1997); N. Mwase, 'The Southern African Customs Union in a Post-apartheid Southern Africa', 28(5) Journal of World Trade 119-30 (1994); C. McCarthy, 'The Southern African Customs Union in a Changing Economic and Political Environment', 26(4) Journal of World Trade 5-24 (1992); W. G. Martin, 'The Future of Southern Africa: What Prospects after Majority Rule?', 50 Review of African Political Economy 115-34 (1991); and D. van der Merwe, 'Economic Cooperation in Southern Africa: Structures, Policies and Problems', 24 Comparative and International Law Journal of Southern Africa 386-404 (1991).
4. See, for example, the essays collected in B. Oden (ed), Southern Africa After Apartheid, Regional Integration and External Resources (Seminar Proceedings No 28, Nordiska Afrikainstitutet: Uppsala 1993), and R. Gibb, 'Regional Integration in Post-apartheid Southern Africa, the Case of Renegotiating the Southern African Customs Union', 23(1) Journal of Southern African Studies 67-86 (1997); N. Mwase, 'The Southern African Customs Union in a Post-apartheid Southern Africa', 28(5) Journal of World Trade 119-30 (1994); C. McCarthy, 'The Southern African Customs Union in a Changing Economic and Political Environment', 26(4) Journal of World Trade 5-24 (1992); W. G. Martin, 'The Future of Southern Africa: What Prospects after Majority Rule?', 50 Review of African Political Economy 115-34 (1991); and D. van der Merwe, 'Economic Cooperation in Southern Africa: Structures, Policies and Problems', 24 Comparative and International Law Journal of Southern Africa 386-404 (1991).
5. See, for example, the essays collected in B. Oden (ed), Southern Africa After Apartheid, Regional Integration and External Resources (Seminar Proceedings No 28, Nordiska Afrikainstitutet: Uppsala 1993), and R. Gibb, 'Regional Integration in Post-apartheid Southern Africa, the Case of Renegotiating the Southern African Customs Union', 23(1) Journal of Southern African Studies 67-86 (1997); N. Mwase, 'The Southern African Customs Union in a Post-apartheid Southern Africa', 28(5) Journal of World Trade 119-30 (1994); C. McCarthy, 'The Southern African Customs Union in a Changing Economic and Political Environment', 26(4) Journal of World Trade 5-24 (1992); W. G. Martin, 'The Future of Southern Africa: What Prospects after Majority Rule?', 50 Review of African Political Economy 115-34 (1991); and D. van der Merwe, 'Economic Cooperation in Southern Africa: Structures, Policies and Problems', 24 Comparative and International Law Journal of Southern Africa 386-404 (1991).
6. See, for example, the essays collected in B. Oden (ed), Southern Africa After Apartheid, Regional Integration and External Resources (Seminar Proceedings No 28, Nordiska Afrikainstitutet: Uppsala 1993), and R. Gibb, 'Regional Integration in Post-apartheid Southern Africa, the Case of Renegotiating the Southern African Customs Union', 23(1) Journal of Southern African Studies 67-86 (1997); N. Mwase, 'The Southern African Customs Union in a Post-apartheid Southern Africa', 28(5) Journal of World Trade 119-30 (1994); C. McCarthy, 'The Southern African Customs Union in a Changing Economic and Political Environment', 26(4) Journal of World Trade 5-24 (1992); W. G. Martin, 'The Future of Southern Africa: What Prospects after Majority Rule?', 50 Review of African Political Economy 115-34 (1991); and D. van der Merwe, 'Economic Cooperation in Southern Africa: Structures, Policies and Problems', 24 Comparative and International Law Journal of Southern Africa 386-404 (1991).
7. See, for example, the essays collected in B. Oden (ed), Southern Africa After Apartheid, Regional Integration and External Resources (Seminar Proceedings No 28, Nordiska Afrikainstitutet: Uppsala 1993), and R. Gibb, 'Regional Integration in Post-apartheid Southern Africa, the Case of Renegotiating the Southern African Customs Union', 23(1) Journal of Southern African Studies 67-86 (1997); N. Mwase, 'The Southern African Customs Union in a Post-apartheid Southern Africa', 28(5) Journal of World Trade 119-30 (1994); C. McCarthy, 'The Southern African Customs Union in a Changing Economic and Political Environment', 26(4) Journal of World Trade 5-24 (1992); W. G. Martin, 'The Future of Southern Africa: What Prospects after Majority Rule?', 50 Review of African Political Economy 115-34 (1991); and D. van der Merwe, 'Economic Cooperation in Southern Africa: Structures, Policies and Problems', 24 Comparative and International Law Journal of Southern Africa 386-404 (1991).
8. See, for example, the essays collected in B. Oden (ed), Southern Africa After Apartheid, Regional Integration and External Resources (Seminar Proceedings No 28, Nordiska Afrikainstitutet: Uppsala 1993), and R. Gibb, 'Regional Integration in Post-apartheid Southern Africa, the Case of Renegotiating the Southern African Customs Union', 23(1) Journal of Southern African Studies 67-86 (1997); N. Mwase, 'The Southern African Customs Union in a Post-apartheid Southern Africa', 28(5) Journal of World Trade 119-30 (1994); C. McCarthy, 'The Southern African Customs Union in a Changing Economic and Political Environment', 26(4) Journal of World Trade 5-24 (1992); W. G. Martin, 'The Future of Southern Africa: What Prospects after Majority Rule?', 50 Review of African Political Economy 115-34 (1991); and D. van der Merwe, 'Economic Cooperation in Southern Africa: Structures, Policies and Problems', 24 Comparative and International Law Journal of Southern Africa 386-404 (1991).
9. Reproduced in the booklet SADC, Declaration, Treaty and Protocol of the Southern African Development Community (Gaborone, Botswana: 1995). Details about the SADC and its members can also be found at the official website for the organization: http://www.sadc.org/, or the linked site http://www.sadc-online.com/.
10. The revision of SACU has stalled. There will hopefully be faster progress after the ratification and implementation of the SADC Protocol. The PTA was reconstituted into the Common Market for Eastern and Southern African States (COMESA) in 1993.
11. See, for example S. K. B. Asante, Regionalism and Africa's Development, Expectations, Reality and Challenges (London: Macmillan 1997); A. Oyejide, I. Elbadawi, and P. Collier (eds), Regional Integration and Trade Liberalization in Sub-Saharan Africa, Vol 1: Framework, Issues and Methodological Perspectives (London: Macmillan Press 1997); and C. Ng'ong'ola, 'Regional Integration and Trade Liberalization in Africa - the Treaty for the Establishment of an African Economic Community Revisited in the Context of the WTO System', 33(1) Journal of World Trade 145-71 (1999).
12. See, for example S. K. B. Asante, Regionalism and Africa's Development, Expectations, Reality and Challenges (London: Macmillan 1997); A. Oyejide, I. Elbadawi, and P. Collier (eds), Regional Integration and Trade Liberalization in Sub-Saharan Africa, Vol 1: Framework, Issues and Methodological Perspectives (London: Macmillan Press 1997); and C. Ng'ong'ola, 'Regional Integration and Trade Liberalization in Africa - the Treaty for the Establishment of an African Economic Community Revisited in the Context of the WTO System', 33(1) Journal of World Trade 145-71 (1999).
13. See, for example S. K. B. Asante, Regionalism and Africa's Development, Expectations, Reality and Challenges (London: Macmillan 1997); A. Oyejide, I. Elbadawi, and P. Collier (eds), Regional Integration and Trade Liberalization in Sub-Saharan Africa, Vol 1: Framework, Issues and Methodological Perspectives (London: Macmillan Press 1997); and C. Ng'ong'ola, 'Regional Integration and Trade Liberalization in Africa - the Treaty for the Establishment of an African Economic Community Revisited in the Context of the WTO System', 33(1) Journal of World Trade 145-71 (1999).
14. The debate and turn of events in Africa would appear to have been influenced by the completion of the common market project for the European Union in 1992; the conclusion of the North American Free Trade Agreement (NAFTA) in 1992; and the establishment of the Southern Cone Common Market (MERCOSUR) in 1994 in terms of the 1991 Treaty of Asuncion.
15. For a selection of sketches on this topic, see D. Anglin, 'Economic Liberation and Regional Cooperation in Southern Africa: SADCC and PTA', 37 International Organizations 681-711 (1983); P. Meyns, 'The Southern African Development Coordination Conference (SADCC) and Regional Cooperation in Southern Africa', in D. Mazzeo (ed), African Regional Organizations (Cambridge University Press 1984), 196-224; and D. A. K. Mbogoro, 'Regional Economic Integration and the Liberation Struggle in Southern Africa', in S. R. Msabaha and T. Shaw (eds), Confrontation and Liberation in Southern Africa (Colorado: Westview Press 1987), 143-55.
16. For a selection of sketches on this topic, see D. Anglin, 'Economic Liberation and Regional Cooperation in Southern Africa: SADCC and PTA', 37 International Organizations 681-711 (1983); P. Meyns, 'The Southern African Development Coordination Conference (SADCC) and Regional Cooperation in Southern Africa', in D. Mazzeo (ed), African Regional Organizations (Cambridge University Press 1984), 196-224; and D. A. K. Mbogoro, 'Regional Economic Integration and the Liberation Struggle in Southern Africa', in S. R. Msabaha and T. Shaw (eds), Confrontation and Liberation in Southern Africa (Colorado: Westview Press 1987), 143-55.
17. For a selection of sketches on this topic, see D. Anglin, 'Economic Liberation and Regional Cooperation in Southern Africa: SADCC and PTA', 37 International Organizations 681-711 (1983); P. Meyns, 'The Southern African Development Coordination Conference (SADCC) and Regional Cooperation in Southern Africa', in D. Mazzeo (ed), African Regional Organizations (Cambridge University Press 1984), 196-224; and D. A. K. Mbogoro, 'Regional Economic Integration and the Liberation Struggle in Southern Africa', in S. R. Msabaha and T. Shaw (eds), Confrontation and Liberation in Southern Africa (Colorado: Westview Press 1987), 143-55.
18. Sir Seretse Khama, 'Introduction' in A. J. Nsekela (ed), Southern Africa, Toward Economic Liberation (London: Rex Cellings 1981), vii-xix.
19. Reproduced in Nsekela, Southern Africa, Toward Economic Liberation, 2-7.
20. Nsekela, ibid, 3.
21. Nsekela, ibid, 3-6. Other areas or sectors included control and elimination of foot and mouth disease; harmonization of industrialization and energy policies; research and training and the sharing of national facilities within the region; and the establishment of a development fund. The areas of co-operation were more clearly and formally listed in the Communiqué of the Summit, reproduced in Nsekela at 1.
22. The Declaration at 5 envisaged that co-operation in the area of trade development would merely involve the study of existing payment arrangements and customs instruments 'in order to build up a regional trade system based on bilaterally negotiated annual trade targets and product lists'.
23. Sir Seretse Khama, 'Introduction' in Nsekela at xii.
24. See SADCC, Implementing the SADCC Program of Action (joint study by the SADCC Secretariat and the OECD, Paris and Gaborone: March 1998), 191-96, and I. Simba and F. Wells, Development Cooperation in Southern Africa: Structures and Procedures (Paris: OECD Development Centre), 45-51.
25. See SADCC, Implementing the SADCC Program of Action (joint study by the SADCC Secretariat and the OECD, Paris and Gaborone: March 1998), 191-96, and I. Simba and F. Wells, Development Cooperation in Southern Africa: Structures and Procedures (Paris: OECD Development Centre), 45-51.
26. For an internal acknowledgement of some of the weaknesses of the organization see SADCC, Theme Document, 3-7 and 23, Maputo, Mozambique, 29-31 January 1992. Other notable critical reflections include D. G. Anglin, 'Economic Liberation and Regional Cooperation in Southern Africa: SADCC and PTA', 681-711; P. Meyns, 'The Southern African Development Coordination Conference (SADC) and Regional Cooperation in Southern Africa', 211-21.
27. For an internal acknowledgement of some of the weaknesses of the organization see SADCC, Theme Document, 3-7 and 23, Maputo, Mozambique, 29-31 January 1992. Other notable critical reflections include D. G. Anglin, 'Economic Liberation and Regional Cooperation in Southern Africa: SADCC and PTA', 681-711; P. Meyns, 'The Southern African Development Coordination Conference (SADC) and Regional Cooperation in Southern Africa', 211-21.
28. For an internal acknowledgement of some of the weaknesses of the organization see SADCC, Theme Document, 3-7 and 23, Maputo, Mozambique, 29-31 January 1992. Other notable critical reflections include D. G. Anglin, 'Economic Liberation and Regional Cooperation in Southern Africa: SADCC and PTA', 681-711; P. Meyns, 'The Southern African Development Coordination Conference (SADC) and Regional Cooperation in Southern Africa', 211-21.
29. The Treaty establishing the AEC was signed at Abuja, Nigeria, by representatives of the Member States of the OAU on 3 June 1991. The preamble to the Treaty suggests that the decision to establish such an entity was taken almost a decade earlier, under the Lagos Plan of Action and Final Act of Lagos of April 1980.
30. Reproduced in the booklet SADC, Declaration, Treaty and Protocol of the Southern African Development Community (Gaborone, Botswana: 1995). Details about the SADC and its members can also be found at the official website for the organization: http://www.sadc.org/, or the linked site http://www.sadc-online.com/.
31. For classification of WTO members as developed, developing and least-developed countries see C. Ng'ong'ola, 'The World Trade Legal Order and Developing Countries: An Assessment of Important Concessions and Commitments with Special Reference to Sub-Saharan Africa', 11(1) The African Journal of International and Comparative Law (RADIC) 46-50 (1999), and United Nations, The Least Developed Countries, 1997 Report, (TD/B/44/6.UNCTAD/LDC 1997), Annex on Basic Data, 152-58.
32. For classification of WTO members as developed, developing and least-developed countries see C. Ng'ong'ola, 'The World Trade Legal Order and Developing Countries: An Assessment of Important Concessions and Commitments with Special Reference to Sub-Saharan Africa', 11(1) The African Journal of International and Comparative Law (RADIC) 46-50 (1999), and United Nations, The Least Developed Countries, 1997 Report, (TD/B/44/6.UNCTAD/LDC 1997), Annex on Basic Data, 152-58.
33. The SADCC probably had a stronger claim to classification as an arrangement for least-developed countries. Zimbabwe was the only SADCC member that could have been classified as a developing country. Botswana and Swaziland were still least-developed countries during most of the SADCC era.
34. SADC, 'Towards the Southern African Development Community, a Declaration by Heads of State and Government of Southern African States', in SADC, Declaration Treaty and Protocol of the SADC, 5.
35. Preamble to the SADC Treaty, clause 4.
36. Article 5(1)(h) of the SADC Treaty.
37. Article 5(1)(a).
38. Article 5(1)(d) to (g).
39. Article 5(1)(b), (c) and (h). This has been amply demonstrated so quickly by the rebellion against President Kabila's government in the DR Congo, not so long after its admission into the organization. Angola, Namibia, and Zimbabwe, ostensibly acting under the peace, security, and solidarity elements of the Treaty, intervened militarily and probably prevented the ouster of the Kabila regime. The other members of SADC did not regard themselves as bound under the Treaty to assist the Kabila regime in the same manner. They essentially backed efforts to resolve the problem through negotiations. Differences in the approach to politics in the region, especially between Zimbabwe and South Africa, have also delayed the finalization and implementation of the SADC Protocol on politics, peace, and security.
40. Article 5(2), (a) to (b) and (h).
41. Article 5(2)(d) and (e) to (g).
42. Article 5(2)(i).
43. Article 21, especially para (3).
44. Article 22.
45. Article 21(3). The old transport sector is now infrastructure and services. To food security has been added land and agriculture. Industrial development is now industry, trade, investment, and finance. Manpower development and training is human resources development, science, and technology. The areas covering fisheries, wildlife, forestry, mining development, and soil conservation are specified as natural resources and environment.
46. Article 21(3)(f) and (g).
47. SADC, Declaration Treaty and Protocol of the SADC, 6-7.
48. Articles 2 and 3.
49. Article 10(1).
50. Article 10(4).
51. The President of Botswana was informally designated Chairperson of SADCC. When the perennial Chairperson, President Masire, stood down under the new rules, the Chair passed to President Mandela before his retirement from his first and only term as Head of State. The election of President Mandela in the circumstances was perhaps more than propitious. President Chissano of Mozambique has succeeded President Mandela.
52. Articles 11(3) and 13(4).
53. Article 10(8).
54. Article 16(5).
55. Article 10(5).
56. Articles 10(8), 11(3)(6) and 13(6).
57. Article 10 (3) empowers the Summit to adopt legal texts and instruments for the implementation of the Treaty, but, thankfully, this is a task that it may delegate to the Council or some other institution.
58. T. Ostergaard, 'Classical Models of Regional Integration - What Relevance for Southern Africa?' in B. Oden (ed), Southern Africa After Apartheid, 28-47 at 33-39, and SADCC, 'SADCC Theme Document 1992', 20-24.
59. T. Ostergaard, 'Classical Models of Regional Integration - What Relevance for Southern Africa?' in B. Oden (ed), Southern Africa After Apartheid, 28-47 at 33-39, and SADCC, 'SADCC Theme Document 1992', 20-24.
60. Article 37 of the Treaty imposed the two-thirds ratification requirement. In addition to local media briefings, the SADC Secretariat reported the entry into force of the Protocol at the High Level Committee (HLC) meeting on Rules of Origin convened at the behest of Trade Ministers in Pointe Aux Piment, Mauritius, from 31 January to 4 February 2000. Of the original signatories to the Protocol, Zambia is the only country that has not ratified it. It is expected to apply it once it becomes operational. Angola and DR Congo are not, for now, expected to participate in the trade liberalization. See SADC, Industry and Trade Coordinating Division (SITCD), Record of the 1st Meeting of the HLC on Rules of Origin, Mauritius, February 2000.
61. SADC, SITCD, 'Tariff Reduction Schedules', Paper ITMC/13/4, 13th Meeting of the Industry and Trade Committee of Ministers, Gaborone, 12-14 July 1999.
62. See T. Bertelsmann, 'Trade Integration in Southern Africa', 6(1) South African Journal of International Affairs (1998), 47-51 at 48. The framework agreement for the EU-SA FTA was signed in October 1999.
63. Article 2(1) and (5).
64. Articles 2(2) to (4).
65. Part Six, Articles 23 and 24.
66. Part Five, Article 22, and Part Six, Article 25.
67. Articles 4-8, and Article 6(a) on existing forms of NTBs.
68. Article 2.
69. SADC, SITCD, 'Elimination of Non-tariff Barriers' (Paper: SADC/ITMC/13/5, 13th Meeting of Ministers, Gaborone, 14 July 1999), Annex 1. Also listed as NTBs are lack of trade financing, lack of marketing information, and bureaucratic arrangements.
70. Article 11.
71. Articles 3 (a) to (e).
72. Articles 9 and 10.
73. Articles 9(c) and (i).
74. SADC, SITCD, 'Tariff Reduction Schedules', (Paper: ITMC/13/4, July 1999).
75. This is required under Articles 4, 5, 8, and 10 of the 1969 SACU Agreement, currently under review.
76. The SADC Trade Protocol can on this point be contrasted with the 1969 SACU Agreement which incorporates in the revenue-sharing formula a factor intended to compensate the weaker economies for the effects of associating with South Africa in the arrangement.
77. Rule 2(1)(a) and (b).
78. Rules 2(1)(c), 2(2) and 2(4).
79. SADC, SITCD, Tariff Reduction Schedules', Paper: ITMC/13/4, July 1999, 9-10.
80. SADC, SITCD, 'Record of the 1st meeting of the HLC on Rules of Origin, Pointe Aux Piment, Mauritius, 31 January-4 February 2000.
81. Articles 16 and 17. Compare Articles 3 and 4 of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, and Articles 2-4 of the WTO Agreement on Technical Barriers to Trade.
82. Article 2 of the Protocol, for example, defines dumping in reference to Article VI of GATT 1994, and subsidies in the manner provided for in the WTO Agreement on Subsidies and Countervailing Measures.
83. See Article 18 on anti-dumping, Article 9 on subsidies, Article 20 on safeguard measures, and Article 21 on infant industry protection.
84. Article 9. The Protocol only refers to the periods of application referred to in Article 7 of this Agreement.
85. Article 27 and Annex VII, on Special and Differential Treatment of Developing Country Members.
86. Articles 29 and 30, the last two provisions in this Part are not controversial and need only be noted in passing. Article 29 enjoins Member States to use their best endeavours to co-ordinate their trade policies and negotiating positions in respect of their relations with third countries, groups of such countries or international organizations, so as to facilitate achievement of the objectives of the Protocol. Article 30 empowers Member States to develop co-operation and conclude agreements with third countries, groups of such countries, and international organizations, again, so as to facilitate the attainment of the objectives of the Protocol.
87. Article 6 of the Treaty Establishing an African Economic Community. This is admittedly set very far off. Regional CUs will be required to be in place during the third stage in the formation of the AEC. This should be within a period of 23 years from May 1994, the date of entry into force of the Abuja Treaty.
88. The CMT and the Sector Co-ordinating Unit have recommended the formation of additional organs to assist in the implementation of various aspects of the trade liberalization in SADC. The suggested organs include Sub Committees on Customs Co-operation and Trade Facilitation, and a Coordinating Committee on Sanitary and Phytosanitary and Technical Barriers to Trade (CC-SPS/TBT) Measures for Agricultural Products and Related Commodities. See SADC, SITCD, 'Report on the Formation of Sub-Committees within the SADC Industry and Trade Sector', Paper: SADC/ITMC/13/6, Gaborone, July 1999, and SADC, SITCD, 'Elimination of Non-Tariff Barriers', Paper: SADC/ITMC/13/5, Gaborone, July 1999, Annex II.
89. As far as trade is concerned, Tanzania more properly belongs to and should be at the core of the recently revived East African Co-operation.
90. Compare Article 32 of the Protocol with Article XXIII of GATT 1947, entitled 'Nullification or Impairment'.
91. This is reportedly on the agenda of the next meeting the HLC entrusted with finalization of the rules of origin.
92. Article XXIV of GATT 1994 and Article V of GATS. For a detailed description and discussion of the rules and parameters see WTO, Regionalism and the World Trading System (Geneva: 1995).