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A Constitutional Political Economy Approach

John M. Mbaku

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Protecting Minority Rights in African Countries

A Constitutional Political Economy Approach

John M. Mbaku

In this enlightening book, John Mukum Mbaku analyses the main challenges of constitutional design and the construction of governance institutions in Africa today. He argues that the central issues are: providing each country with a constitutional order that is capable of successfully managing sectarian conflict and enhancing peaceful coexistence; protecting the rights of citizens – including those of minorities; minimizing the monopolization of political space by the majority (to the detriment of minorities); and, effectively preventing government impunity.
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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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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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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.