The Multilateral Trade System And The African Regional Integration Systems: The Use of Soft Law And Hard Law Strategies in The SADC, SACU And COMESA

ABSTRACT

The paper seeks to explore the relationship between the Multilateral Trade System (MTS) and the African Regional Integration System(s)(RIS). This is done through the analysis of norm formation on trade-in Regional Integration Systems (RIS). In this analysis, the manner in which the African Regional Integration Systems use the soft and hard law strategies to reproduce themselves institutionally on trade issues is carefully explored. This is done by looking at specific case studies of COMESA, SADC and SACU. This approach will help to reveal the degree of policy awareness and consistency or lack thereof in the processes that leads to institutional decision-making and outcomes in these Regional Integration Systems. It is the contention of this paper that the African RIS have not sufficiently and efficiently used their own internal institutional processes to allow for a coherent interaction between them and the MTS. In carrying the analysis forward the ‘landscape’ of tensions and contradictory interactions between the MTS and the RIS is explored. The nexus between the Africa Continental Integration programmes and the RIS programmes is carefully evaluated. 8 The evaluation of the MTS and its relationship with RIS is further explored to locate the analysis in the historical context. Specific aspects that define the basis of legal regime in the MTS on RIS is revisited in the study in order to ensure and appreciate the continuities and discontinuities in the process of norm formation at the MTS level. The conceptual tools of global legal pluralism are used in the analysis. These tools allow for a multi-disciplinary and ‘multi-site’ approach to the analysis. In short, the tools allow for an open intellectual space within which the analysis takes root. The rationales for the adoption of the conceptual framework are briefly discussed in the paper. The paper then concludes with the practical analysis with case studies on COMESA, SADC and SACU. Thereafter, conclusions and observations on the relationship between the African RIS and the MTS are offered. The conclusions reveal that the RIS have a ‘haphazard’ approach to norm formation and consolidation. The ‘haphazard’ process does not sufficiently allow for policy consistency within the RIS. This situation in turn weakens and compromises the RIS ability to meaningfully engage the MTS. Consequently, the African RIS is disarticulated. It is finally recommended that the African RIS take the institutional process of norm formation seriously. In this process a sustainable balance between the soft law strategy and hard law strategy must be maintained.