Analysis

The African Continent Free Trade Area (‘AfCFTA’) Protocol on Digital Trade (AfCFTA DTP) presents a significant opportunity to strengthen African digital solidarity. It could also advance a cohesive and strong African consensus and voice on digital trade regulation. This is especially significant, as Africa is relatively silent in global digital trade dialogues today. Building on the international law concept of international community and its African philosophical equivalent, Ubuntu, we offer a framing device to anchor digital solidarity and develop robust and inclusive Africa-centred digital trade norms. We first explore the relevance of community values in developing a regulatory framework for cross-border data flows in trade agreements, and then examine how shared values and digital solidarity can facilitate the development of a cohesive privacy and data protection regulatory framework in Africa.

Despite such threats, (digital) solidarity against injustice is being formed incrementally across the globe. Our contribution aims to shed light upon digital solidarity as a space where multiple imaginaries are formed and where some visions emerge as dominant, whilst others are invisiblised. In other words, we ask: has the MSF movement brought about adequate awareness of the current situation that torments Iranian women, or are the photos themselves distracting us from truly recognising the historical trends that have led to the build-ups of structural injustices over time? How are the systemic injustices that trigger the claim to different rights through digital solidarity articulated in framing the narrative and process of meaning-making?

Solidarity is an important principle that spans many areas of international law and policy such as human rights, trade, peace and security, criminal justice and environmental protection. In a landmark resolution, the UN Human Rights Council acknowledged that ‘[t]he same rights that people have offline must also be protected online’. This establishes a ‘normative equivalency’ between online and offline rights. Thus, for instance, the right to freedom of expression, safeguarded by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), is equally valid for online expression. This normative equivalency applies to the enjoyment of other human rights, including solidarity rights.

The US Government announced on October 30th that the Central African Republic (CAR), Gabon, Niger, and Uganda will be removed from the list of 35 sub-Saharan African (SSA) countries that are eligible for market access under the African Growth and Opportunity Act (AGOA). The announcement came on the eve of the 20th AGOA Forum in Johannesburg, South Africa, on the 2nd to 4th of November 2023. According to the US Government, CAR and Uganda have engaged in gross violations of internationally recognised human rights. This paper reflects on the decision, which is not the first by the Biden administration in the last few years. This paper argues that the recent decision by the US is an example of developed countries using trade incentives and sanctions to achieve their geopolitical interests in Sub-Saharan Africa (SSA) under the pretext of promoting human rights standards.

The African Continental Free Trade Area (AfCFTA), the largest in the world by membership, aims to increase trade flows of African products and services within the continent by removing tariff and non-tariff barriers. The Protocol on Women and Youth in Trade included within the scope of the Agreement establishing the AfCFTA is a first of its kind for a regional trade agreement of this scale. The inclusion of the Protocol is a concrete realization of the commitment of the Assembly of African Heads of State and Government of the African Union (AU) to “broaden inclusiveness” in the operation of the AfCFTA, demonstrating a novel approach to addressing gender issues within trade agreements. This article will first discuss the relevance of including gender considerations in trade agreements in supporting women’s participation in their various trade roles and in maximising the potential benefits of trade agreements as a whole; second, it will propose considerations for determining the scope and focus of the AfCFTA Protocol on Women and Youth in Trade.

Akin to the proverbial new wine in old skins, the Protocol on Women and Youth in Trade is an ingenious idea whose prospects stand to run afoul of entrenched and systemic forms of discrimination and exclusion. If successfully enacted, the instrument must find its way around economic nationalism (protectionism), vulnerabilities of infant markets in the South, dominance of neoliberal economic thinking, and State dysfunction. Short of far-reaching and deliberate institutional, policy, and legislative reforms at the individual country- and Regional Economic Community (REC) levels, the Protocol runs the risk of being another of those beautiful mechanisms printed on glossy paper, but with no tangible effects to the everyday lives of the billion Africans in whose name it was enacted.

One of the benefits of commenting or critiquing a drafting process and a draft protocol is that it gives you the freedom to question assumptions and offers a timely analysis that helps improve the zero draft. However, here I am, discussing and commenting on a draft protocol that I am yet to read because the draft is not available for public distribution. With that caveat, my thoughts here are general. The societal role of women cannot change without changing the position of men, and by the same token, concerns of women should not be confined to a separate protocol but rather ought to be at the heart of the AfCFTA. But here we are, and the question asked of us is to analyze what inclusive AfCFTA Protocol on Women and Youth means.

There have been many important developments on the continent since the official start of trading under the African Continental Free Trade Area (AfCFTA) in January 2021. Keen to stimulate discussion of the ambitious development objectives which have animated the AfCFTA project and their potential to be realized by the effort as currently conceived, the Institute for Global Law and Policy (IGLP) at Harvard Law School, Afronomicslaw.org, and the Firoz Lalji Institute for Africa (FLIA) at the London School of Economics and Political Science came together in early 2023 to co-sponsor a discussion series entitled “Assessing Developments in the Negotiation and Implementation of the AfCFTA”. The first session of the series was convened online by the IGLP on April 17, 2023, and centered on the Protocol on Women and Youth in Trade (the Protocol) which is currently being negotiated.

WTO Members have discussed WTO reform since the collapse of the WTO Appellate Body (AB) in 2019, which was caused mainly by the US opposition to appointing new AB members. The US attacked the AB for its performance and its interpretation of WTO rules. The US has also consistently criticized the WTO’s incapability to reach agreements and reform itself. Nonetheless, this Western discomfort towards the organisation and the AB began at the Third Ministerial Meeting in Seattle (1999) when developing countries opposed the Global North’s attempt to open new trade negotiations. This push continued during the Fourth Ministerial Conference in Doha(2001), where the membership loosely agreed on a mandate for “Global and Sustainable Development”, albeit one without clear expectations to cut a deal in line with such a mandate of achieving a fair balance between trade and development at the multilateral trading system. One ministerial conference after the other, there was a failure to agree on Western driven “Development Agenda” until the Members agreed on the Trade Facilitation Agreement and the agricultural subsidies exports prohibition in Bali (2013) and Nairobi (2015), respectively. However, and even after the collapse of the AB, a criticised agreement on fishery subsidies (2022) was reached with a sunset clause of 5 years, making it in turn a chimera because of the short term.

As this symposium and a plethora of literature have no doubt illustrated over the last few years, the World Trade Organisation’s (WTO’s) famed Dispute Settlement Body (DSB) is at a critical stage of its development. Some have referred to this stage as a crossroads – and with good reason – but I think it is more of a magic roundabout. Whichever way we look at it, there is so much at stake no matter which direction the DSB takes by the end of this crisis. One lesser discussed factor is the all-important question of participation, representation and diversity in the dispute resolution process.