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The African Union, the African Economic Community and Africa's Regional Economic Communities: Untangling a Complex Web

Document Cited authorities 2 Cited in Related
Vincent
Pages92-103
DOI10.3366/E0954889009000528
Date01 March 2010
Published date01 March 2010
AuthorRichard Frimpong Oppong
INTRODUCTION

In 2007 and 2008, the African Union (AU) adopted two protocols that are significant for economic integration in Africa. These are the Protocol on the Relations between the African Union and the Regional Economic Communities [Protocol on Relations]1

Available at http://www.afrimap.org/english/images/treaty/AU-RECs-Protocol.pdf (accessed on 26 November 2009). When it enters into force, this protocol will replace the Protocol on Relations between the African Economic Community and the Regional Economic Communities, 25 February 1998, reprinted in 10 African Journal of International and Comparative Law Afr. J. Int'l & Comp. L. (1998): 157 [Protocol on the Relations between the AEC and RECs].

and the Protocol on the Statute of the African Court of Justice and Human Rights [Protocol on the African Court of Justice].2

Available at http://www.africa-union.org/root/au/Documents/Treaties/treaties.htm (accessed on 26 November 2009). When it enters into force, this protocol will replace the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights, 9 June 1998, and the Protocol of the Court of Justice of the African Union, 11 July 2003, 13 African Journal of International and Comparative Law (2005): 115.

 The former aims at addressing a difficult problem with Africa's economic integration, which is the existence of multiple regional economic integration organisations with overlapping memberships, and no clear principles of co-ordination among them. The latter establishes a court with jurisdiction over issues that potentially encompass those arising under the Treaty establishing the African Economic Community [AEC Treaty].3

See Treaty establishing the African Economic Community, 3 June 1991, 30 International Legal Materials: 1241 [AEC Treaty].

 The AEC Treaty is the foundation of an attempt to create an economic community covering the whole of Africa – a continent with 53 sovereign states. If successful, the African Economic Community will be the largest economic integration organisation (in terms of membership) in the world

The adoption of the Protocol on Relations and the Protocol on the African Court of Justice provides an auspicious moment to examine a fundamental question: what is the relationship between the AU, Africa's regional economic communities (RECs) and the African Economic Community (AEC)? This is a complex question, which has so far not received any systematic examination in the discourse on Africa's economic integration.4

Senghor's commentary on the processes leading to the formation of the AEC suggests that there were some discussions on this question. Indeed, he suggests that the relationship between the OAU and the AEC was a theme of special study by experts. Arguably, the existing legal framework does not suggest that the question was thoroughly addressed. See J. Senghor, ‘The Treaty establishing the African Economic Community: An Introductory Essay’, 1 African Yearbook of International Law (1993): 183.

Finding answers to the question and clarifying the relationship are important for the success of economic integration in Africa. This paper aims to put up this issue for serious discussion and research THE AEC AND AFRICA'S RECs

In 1994, the AEC Treaty entered into force. The treaty envisages the creation of an African Economic Community over a period of thirty-four years using six defined stages of evolution.5

In a sense, the African Economic Community both is and is to be! Understandably, this may sound confusing to a reader. In this note the ‘AEC’ is used to refer to the current organisation irrespective of the stage in its development, and reference to the ultimate stage of the AEC is written in full as ‘the African Economic Community’.

Rather than start from scratch, the AEC uses existing RECs as the building blocks of the African Economic Community.6

In 2006, the Assembly of Heads of State and Government of the African Union suspended, until further notice, the recognition of new RECs with the exception of the following eight: Economic Community of West African States (ECOWAS), Common Market for Eastern and Southern Africa (COMESA), East African Community (EAC), Economic Community of Central African States (ECCAS), Southern African Development Community (SADC), Inter-Governmental Authority for Development (IGAD), Arab Maghreb Union (AMU) and Economic Community of Sahelo-Saharian States (CENSAD). See African Union, Decision on the Moratorium on the Recognition of Regional Economic Communities, Assembly/AU/ Dec.112 (VII), 2006. [RECs Moratorium Decision].

 In other words, progress by the RECs is progress for the AEC and a step closer to the African Economic Community. In the words of Article 88(1) of the AEC Treaty, the African Economic Community ‘shall be established mainly through the co-ordination, harmonization and progressive integration of the activities of [RECs]’.7

Article 3 of the Constitutive Act of the African Union, 11 July 2000, 13 African Journal of International and Comparative Law (2005): 25, also underscores the need to ‘coordinate and harmonize the policies between existing and future Regional Economic Communities for the gradual attainment of the objectives of the [African] Union’. Indeed, this is described as an ‘objective’ of the Union. It is worth noting that under Article 88(2) of the AEC Treaty, it was the AEC (not the Organization of African Unity [now the African Union], that was entrusted with the co-ordination, harmonisation and evaluation of the activities of existing and future regional economic communities.

 The RECs are ultimately to merge or be absorbed8

Protocol on Relations, supra note 1 Art. 5(1)(d).

 to form the African Economic Community. This is a unique and quite complicated approach to economic integration. Usually, countries form economic communities – free trade areas, a customs union, economic unions or complete economic integration. Indeed, to date, it appears that the only known case of a successful ‘merger’ of RECs was the merger of the European Community with the European Free Trade Area to form the European Economic Area.9

See K. Riechenberg, ‘The Merger of Trading Blocks and the Creation of the European Economic Area: Legal and Judicial Issues’, 4 Tulane Journal of International and Comparative Law (1995): 63.

 A more recent attempt is the Union of South American Nations,10

It consists of Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela. The treaty establishing the Union was signed on 23 May 2008.

 which is a free trade zone that unites the Common Market of the Southern Cone and the Andean Community

Remarkably, although the RECs are the building blocks of the African Economic Community, they are not members of the AEC or parties to the AEC Treaty. It is the individual African states that are parties to the AEC Treaty and the treaties creating the RECs. Indeed, states are often parties to more than one REC. These raise complex questions. To what extent are the RECs bound by decisions of the AEC? Since the RECs, which have their own legal personality, are not parties to the AEC Treaty, what is the legal basis for assuming that they will merge and form the African Economic Community? Indeed, it is difficult to predict whether the RECs would willingly merge with the AEC. One may also query whether the AEC has the will or legitimacy to impose its vision of an African Economic Community on the RECs.11

Equally important will be AEC's ability to finance the cost of the merger.

If they were to merge and form the African Economic Community, what will be the legal status of the RECs after the merger?12

The United Nations Economic Commission for Africa (UNECA) conceives the future relationship between the AEC and the RECs in this way: After the [RECs] have achieved a customs union and a common market, they will merge to form the African Common Market, and the full-fledged African Economic Community intervention will follow. The African Economic Community will take the lead on dealing with member countries, and the functions and structures of the [RECs] will be revised to serve as its implementation arms. See UNECA, Assessing Regional Integration in Africa II: Rationalizing Regional Economic Communities (2004), p. 94.

 None of these questions is effectively addressed in the Protocol on Relations

Nor do the founding treaties of the RECs shed any brighter light on these issues. For example, the Treaty establishing the Common Market for Eastern and Southern Africa13

Treaty establishing the Common Market for Eastern and Southern Africa, 5 November 1993, 33 International Legal Materials: 1067 [COMESA Treaty].

envisages the conversion of COMESA into an organic entity of the African Economic Community.14

Ibid. Art. 178(1)(c).

 This appears to suggest that COMESA does not envision the formation of the African Economic Community as its demise. However, the treaty provides that the Authority of Heads of State and Government may, on the recommendation of the Council of Ministers, terminate the operations of the COMESA.15

Ibid. Art. 192(1).

 This suggests that a legal mandate exists for bringing COMESA to an end, if that is what will be needed after the formation of the African Economic Community. Neither the Revised Treaty establishing the Economic Community of West African State16

See Revised Treaty establishing the Economic Community of West African States, 24 July 1993, 35 International Legal Materials (1996): 660, 8 African Journal...

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