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John B. Welfield and Le Thuy Trang

Interstate conflict, in the view of one-third of the global decision-makers and experts assembled to compile the World Economic Forum 2015 Global Risks Report, was the most probable serious danger facing the East Asia-Pacific region over the coming decade.1 A Pew Research Center global opinion poll conducted in the spring of 2014 found that people in eight of the 11 Asian countries surveyed expressed fears about possible military conflict over territorial disputes involving the People’s Republic of China and its neighbors. In China itself, more than six in every ten citizens expressed similar concerns. Two-thirds of Americans in 2014 also feared that intensifying territorial disputes between China and its neighbors could spark an armed conflict.2 Although the World Economic Forum 2017 Global Risks Report considered such conflict as a decreasing risk in terms of likelihood and impact,3 majorities in China, Japan and several other East Asian nations remained concerned about territorial tensions and the strategic drama being played out between the United States and China on land and at sea across the region had begun to fuel fears that the “Pacific century” might be shattered by a new Pacific war.4 For better or for worse, Southeast Asia, the region which has given birth to the most vigorous efforts to construct a regional security architecture designed to ensure long-term peace and stability in Asia and the wider Pacific Basin, is today confronted by a series of intractable problems that may well constitute the greatest tests it has faced since the end of the Cold War. Much has been said about the significance of the South China Sea for the security and development of the Indo-Pacific. This sea offers the shortest route from the Pacific Ocean to the Indian Ocean. About half of the world’s commerce, half of global liquefied natural gas and a third of global crude oil transit through this body of water each year.5 Two-fifths of the world’s tuna are born in the South China Sea, contributing to a multibillion-dollar fisheries industry.6 These statistics, oft-cited, are just a few indicators of the South China Sea’s importance to the region and the world at large. A durable regional security system that can deliver lasting stability and prosperity for the Indo-Pacific cannot be constructed in the absence of a smoothly functioning regional maritime order in this critical area. Yet this body of water, blessed with so many valuable resources and crisscrossed by a network of vital sea-lanes, has become the home to some of the most intractable territorial disputes in Asia and a stage for intensifying great power strategic competition. The longstanding territorial and maritime disputes simmering in the South China Sea and the machinations of great powers have been slowing down the momentum for regional cooperation and frustrating attempts to forge a robust and mutually beneficial security architecture. There is also another troubling dimension of very great significance. While the tempo of regional cooperation has slackened, the rate at which the South China Sea marine environment is deteriorating has accelerated. Forty percent of the South China Sea’s fish stocks have already been exhausted and, according to the United Nations Food and Agriculture Organization, most fish resources in the western part of the South China Sea have been exploited or overexploited.7 Meanwhile, 70 percent of the South China Sea’s coral reefs are reported to be in poor or only fair condition.8 Put simply, while the challenges to the South China Sea marine environment are growing, the capacity of regional mechanisms to effectively address those challenges has been undermined or severely constrained.

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African regionalisms as flexible legal regimes

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 6 critically reflects on the emergence of African regional regimes. Providing an overview of African regionalism is important for the contextualisation of the analysis of the SADC EPA. Drawing insight from the work of James Gathii, this book asserts that African regionalisms represent ‘flexible’ legal regimes1 that pursue multifaceted policy objectives. As such, African regionalisms do not fit neatly into the straitjacket of Article XXIV legal regimes. Nevertheless, it will be argued that these regions are still regimes integrated through law and have offered a space in which ‘norms of solidarity’2 or expressions of collective political will have been contested, shaped, and reproduced. 1 J.T. Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge: Cambridge University Press, 2011). 2 L. Dirar, ‘Norms of Solidarity and Regionalism: Theorising State Behaviour Among Southern African States’ (2016) 24 Michigan State International Law Review 667–723.

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The EU as a global actor

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

In Chapter 3, the normative role of the EU as a regional actor is discussed in detail. It will be shown that the EU’s strength as an international trade partner, or ‘market power’1 has enabled it to become a ‘normative actor’, which aims to export universal values through trade.2 It is argued that the EU’s normative power in external relations hinges on its market power. As such, an analysis of the common commercial policy set out in Article 209 TFEU is presented highlighting its parallelism with the EU’s internal trade strategy. Defining the EPAs as trade and development cooperation agreements, this chapter also explores the relationship between the common commercial policy and the development cooperation policy under Article 209 TFEU. If the EPAs have been built on the principles of ‘partnership’ and ‘equality’, it follows that the agreements should foster trade in a development-friendly way. However, the remaining chapters of this book demonstrate that the language of the legal texts suggests the primacy of economic rules over the promotion of ethical norms reinforcing the EU’s neoliberal conception of development. 1 C. Damro, ‘Market Power Europe: Exploring a Dynamic Conceptual Framework’ (2015) 22 Journal of European Public Policy 1336–54. 2 I. Manners, ‘The Normative Ethics of the European Union’ (2008) 84 International Affairs 45–60.

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Integration through law

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 1 presents the main epistemological framework and ontological claims of the book and asserts that regions should be understood primarily as legal regimes. Through the marriage of material power, ideational forces and institutions this book aims to promote an understanding of regions as fundamentally legal regimes. The law generates an assumption of the ‘right’ and ‘just’ way to live, guiding behaviour of institutions and of people through legal codification of norms. Legal philosophers are concerned with the validity of legal norms, their claim to correctness, and to understanding the reasoning and logic of the legal system while sociologically informed analyses of law seek to reveal the practical or empirically valid nature of legal norms in relation to other spheres of action, such as politics and the economy. Using the discourse theory of law, this book proposes that legitimate law is that which is normatively perceived to provide ‘good’ reasons for action. This book aims to demonstrate how legitimate law can emerge from a discursive and participative process of deliberation. It will be argued that the EPAs have created discursive spaces for deliberation albeit the inclusion of non-state actors in that process across the regional groupings has been limited. As such, the extent to which the EPAs constitute legitimate legal regimes in a Habermasian sense is questionable.

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Lessons from the CARIFORUM EPA

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 9 presents the findings of the EU commissioned ‘Five Year Report’ of the EPA negotiated between the EU and the Caribbean States (CARIFORUM). As the first comprehensive EPA to be concluded and implemented since 2008, the Report offers a rare opportunity for the other EPA regions to analyse the extent to which the benefits of the agreement are being realised by Caribbean businesses. A critical deconstruction of the Report identifies an information deficit, an implementation deficit, a financial deficit, and a development deficit. There appear to be inadequate monitoring mechanisms in place to measure the effect of trade liberalisation on the promotion of sustainable development, suggesting that the commercial aspects of the EPA have been prioritised over the social aspects of the agreement. Overall, the Report tells a cautionary tale for the other EPA groups and one to which they should listen very closely, especially in relation to non-tariff barriers to trade and financial support for the implementation of the agreements. However, in the context of CARIFORUM, it also sends a signal to the EU that the Caribbean states are seeking out other markets and may potentially suggest a shift away from post-colonial dependency on the EU market. Where the CARIFORUM states seek to negotiate new regional arrangements with other countries and regions, the inclusion of the MFN clause in the EPA may become particularly significant for the EU.

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The normative legal character of sustainable development

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 4 examines the normative character of the principle of sustainable development and assesses the extent to which it constitutes a justiciable norm. Through the analysis of the jurisprudence from the WTO’s Dispute Settlement Body and the UN International Court of Justice, the normative content of the principle of sustainable development will be revealed. Building on the work of Virginie Barral,1 it will be argued that the principle of sustainable development has served as an important hermeneutic tool in both judicial settings, giving colour, texture and shading to legal rights and obligations. Given the development focus of the EPAs this finding is particularly significant because it suggests that the sustainable development provisions of the agreements lack justiciability. Simply put, it implies that the sustainable development provisions in the agreement may not be enforceable through the dispute settlement mechanisms established under the EPAs. Nevertheless, in scaffolding the commercial aspects of the agreement around the principle of sustainable development it is arguable that the parties must apply the EPA in a development-friendly way. 1 V. Barral, ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23 European Journal of International Law 380.

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Regional trade agreements as legal regimes

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 2 provides a critical assessment of the legal bases for regionalism enshrined in the multilateral rules. Article XXIV of the GATT 1994 provides the legal basis for creating regional agreements, where at least one member of the regional group is a developing country. It permits derogation from the principles of MFN and non-discrimination on the assumption that trade will be increased by promoting the regional interdependence of countries, through customs unions and free trade areas. Regionalism has, therefore, been conceptualised as a means towards economic freedom, through closer integration between Members. Although the jurisprudence relating to Article XXIV is limited, it does offer some insight into the interpretive dimension of this provision and suggests a gradual ‘legalisation’ and rationalisation of Article XXIV.1 It will be argued that this process of rationalisation seals off the potential for alternative forms of integration schemes to emerge and, in doing so, promotes the neoliberal paradigm of regionalism. 1 J. Mathis, ‘The “Legalization” of GATT Article XXIV – Can Foes Become Friends?’ in K. Bagwell and P. Mavroidis (eds), Preferential Trade Agreements: A Law and Economics Analysis (Cambridge: Cambridge University Press, 2011).

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Regionalism in Southern Africa

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 7 explores the dynamism of regionalism in Southern Africa, through the shifts from the colonial to post-colonial and Apartheid to democratisation. With a focus on the Southern African Customs Union (SACU) and the Southern African Development Community (SADC), it will be shown that these regional arrangements have been historically constituted as a part of the region’s development strategy. However, the dominant position of South Africa has enabled it to integrate SACU through hegemonic legal ideology which has had a long-lasting impact on the region. The Southern African region will now be exposed to another hegemonic force through the EPA as it formalises its trade relationship with normative power Europe.

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The SADC EPA: a driver of development?

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 8 provides a critical and factual presentation of the full EPA signed between the EU and the SADC EPA states in June 2016. From the outset, it was clear that the success of the EPA negotiations would hinge on the convergence between institutionalised legal norms at the WTO level (Article XXIV compatibility) and the EU’s normative preferences expressed through its external trade policy in relation to trade and development.1 Overall, the perceived desirability of the EPA would be elicited from a good discursive fit between the ideational preferences of the EU and the Southern African countries. Through an analysis of the negotiations, it will be shown that the rhetorical argumentation that took place in this discursive space enabled the Southern African negotiators to reinforce the importance of the development dimensions of the EPA. An interesting approach adopted by the SADC EPA countries, and other ACP states, has been a form of rhetorical action known as ‘mimetic challenge’.2 Through normative argumentation, these countries have harnessed the EU’s rhetoric of the EPAs as ‘drivers of development’ to strategically direct the negotiations toward development objectives. The contentious issues raised in the negotiation phase will be discussed with particular reference to the MFN clause, infant industry protection, and the dispute settlement mechanism. This chapter will identify the potential interpretive difficulties that might arise on implementation and provide an overview of the implications this could have for the development potential of the SADC EPA states. 1 T. Heron, ‘Trading in Development: Norms and Institutions in the Making/Unmaking of European-African, Caribbean, Pacific Trade and Development Cooperation’ (2014) 20 Contemporary Politics 11. 2 S. Hurt, D. Lee and U. Lorenz-Carl, ‘The Argumentative Dimension to the EU-Africa EPAs’ (2013) 18 International Negotiation 67–87.