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Transforming the ACP-EU ‘special’ relationship

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 5 marks the beginning of the analysis into the EPAs, providing a rich and historically sensitive account to the transformative nature of ACP-EU cooperation. In this chapter, the various shifts in the ACP-EU relationship are explored, enabling a better understanding of why this relationship has endured for so long. For many decades, the ACP countries enjoyed non-reciprocal preferential access to the EU market under the Yaoundé and Lomé agreements. Following changes at the multilateral level, and in accordance with the recommendations of the Appellate Body in the EC-Bananas III dispute, the ACP countries are no longer eligible to receive non-reciprocal market access for their exports to the EU market.1 Nevertheless, the EU has been keen to preserve its long-standing relationship with former colonies in the ACP and has done so by offering reciprocal, but asymmetric, preferential market access under the Cotonou Agreement and through the EPA framework. Although the primary purpose of the EPAs is to eradicate poverty and facilitate the gradual integration of ACP countries into the global economy,2 these agreements mark a significant transformative shift in ACP-EU cooperation as trade facilitation and reciprocal market access now form key parts of the agreements for the first time. 1 The only exception to this rule is where the country concerned qualifies for special and differential treatment. 2 Article 1 Partnership Agreement between the members of the African, Caribbean, and Pacific Group of States of the one part, and the European Community of the other part, signed in Cotonou on 23 June 2000’ [2000] OJ L317/3 as amended through Decision No. 3/2008 of the ACP-EC Council of Ministers of 15 December 2008, [2008] OJ L352/59 to adopt the revised provisions set out in [2010] OJ L287/3, hereinafter referred to as the ‘Cotonou Partnership Agreement 2014’.

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Table of cases

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

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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.

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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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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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Preface

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

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North-South Regional Trade Agreements as Legal Regimes

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

This book offers a critical reflection of the North-South regional trade agreements (RTAs), known as the Economic Partnership Agreements, negotiated between the EU and the African, Caribbean, and Pacific countries. Conceiving of regions as legal regimes, Clair Gammage highlights the challenges facing developing countries when negotiating RTAs with developed countries and interrogates the assumption that these agreements will and can promote sustainable development through trade.
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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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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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Introduction

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage