Securing compliance with African economic integration treaties through the use of NEPAD and APRM initiatives
Abstract
The African Union has adopted two initiatives, namely, the African Peer Review Mechanism (APRM) and the New Partnership for Africa’s Development (NEPAD) to improve the governance performance of African states and to collectively attempt to build institutional, human and infrastructural capacity. This paper examines both initiatives to explore how these initiatives can be used to create a platform for securing compliance with the various African integration treaties.
NEPAD and APRM were not created solely for the purposes of promoting economic integration. However, the rationale for examining these initiatives in the context of compliance with integration treaties is to emphasise the point that, even in the absence of strong supranational institutions, alternative mechanisms can be used by African states to foster compliance with their integration obligations. Consequently, the paper argues that the purpose of NEPAD and the APRM is not only to guarantee that regional norms affect the behaviour of states, but also to determine whether the norms are effective in bringing about change on the continent.
African economic integration and the NEPAD agenda
Upon the independence of most African states in the 1960s, disenchantment with the post-colonial economy led third-world countries to seek to use economic integration as a means of encouraging South-South trade and economic co-operation between developing countries.[1] In Africa the role of economic integration was more expanded, because it was seen as a means of pooling resources to improve the living conditions of African people and to reduce the effects of Africa’s balkanisation.[2] Integrating African economies was based on the need to improve the overall welfare of the African people by overcoming poverty, creating self-sustenance on the continent, and giving the African people a better life. Since the creation of the Organisation of African Unity (OAU) and its subsequent transformation into the AU, African leaders have passed numerous declarations, resolutions and treaties aimed at improving the overall welfare of the African population.[3] Therefore, in order to properly understand economic integration in Africa, it is has to be viewed as a means to an end and not as an end in itself.
As part of the AU’s goal of improving African people’s quality of life, the New Partnership for African Development (NEPAD) was launched on 23 October 2001.[4] NEPAD is the AU’s economic programme of action, which promised to be a ‘long term vision of an African-owned and Africa-led development programme’.[5] The primary goal of NEPAD is to eradicate poverty, and to put Africa on the path of sustainable growth and development in order to participate actively in the world economy.[6] To achieve this goal, the NEPAD document sets out a programme of action which identifies the conditions necessary for sustainable development in Africa. These conditions are identified as peace, security, democracy, good governance, human rights and sound economic management.[7] Furthermore, capacity building features as a central theme in NEPAD’s strategy for combating underdevelopment. The strategy highlights the fact that most African states lack the capacity to meet the conditions necessary for sustainable development. The NEPAD document emphasises capacity building in various sectors of African economies. Priority is given to bridging the existing gaps in infrastructure, education, information communications and technology, agriculture, and science and technology.[8] NEPAD also provides strategies for facilitating capital flow initiatives and market access initiatives. As a strategy for enhancing capital flows in African economies, NEPAD advocates an increase in domestic resource mobilisation and debt relief, increased flows of Overseas Development Assistance (ODA), and private capital flows.[9] In respect of market access, NEPAD advocates the removal of tariff and non-tariff barriers, diversifying production, promoting private sector participation, promoting African exports, and boosting the capacity of states in the services sector.[10]
Given the range of policy areas that NEPAD covers, one may question how NEPAD can be used to facilitate compliance with integration objectives. Non-compliance with treaty obligations may sometimes arise as a result of lack of capacity to meet the required obligations under the treaty. In Africa, capacity constraints are evident in several sectors, and these inhibit the ability of African states to meet their integration obligations.[11] An essential component of the NEPAD agenda that can foster compliance with integration treaties, particularly in the area of intra-regional trade integration, is its emphasis on building capacity in regional infrastructures. The availability of sound infrastructures contributes to economic growth and poverty reduction.[12] It is an incontrovertible fact that having adequate infrastructures, such as transnational highways, good seaports and efficient railway networks, plays an essential role in facilitating the production of goods and services, thus reducing the cost of production.[13] Poor infrastructure in the areas of transport and communications has been identified as a major impediment to intra-African trade integration.[14]Research indicates that although tariff levels have decreased in recent years as a result of various regional and multilateral trade agreements, transport costs still remain a restrictive trade barrier in Africa.[15]Limao and Venables have shown that ‘[p]oor infrastructure accounts for 40 per cent of predicted transport costs for coastal countries and up to 60 per cent for landlocked countries’.[16] This invariably increases market prices and makes intra-African trade unattractive. The correlation between transport costs and the existing restrictions on intra-African trade, despite the reduction of tariffs between African states, highlights the fact that mere compliance with trade rules such as the elimination of tariffs will not suffice to achieve trade integration on the African continent. It is this challenge that NEPAD seeks to address.
The capacity-building mechanism incorporated into the NEPAD initiative makes it an essential tool for securing compliance with integration treaties because it tries to bridge the infrastructural gap which hitherto has served as an impediment to the implementation of some of the economic integration norms. An example of NEPAD’s infrastructural drive is the north–south corridor project: Durban in South Africa to Dar-es-salaam in Tanzania. So far, through this initiative, 157 infrastructural projects have been embarked upon, including 59 road projects, 38 rail projects and 6 bridge projects.[17] As part of the larger Cape-to-Cairo project, a 350-kilometre road between Dar-es-salaam and Cairo is presently under construction and will be completed in 2015.[18] Furthermore, preparatory work is in place for the construction of the Kazungulu Bridge linking Botswana and Zambia.[19] These efforts may look insignificant or minimal considering the dearth of existing infrastructure. However, they represent a starting point in the journey towards improving the overall welfare of African people. Furthermore, in order to achieve the goal of integrating all the Regional Economic Communities (RECs) into an African Economic Community (AEC), it will be necessary to create adequate transport linkages between the various RECs.[20]
NEPAD: A soft law approach
The NEPAD document is not a treaty between African states and as such is not binding. It could at best be described as soft law. However, its value lies in the fact that it creates a platform for strengthening the norms of integration. African integration treaties contain both legal and non-legal norms. This is partly necessitated by the fact that integration treaties in Africa are viewed as platforms for ‘integrated development and functionally specific projects’.[21] Adopting a combination of legal and non-legal norms is therefore necessary for the objectives of the integration treaties to be met. Generally speaking, legal and non-legal norms are often classified as hard law and soft law respectively.[22] However, defining the boundary between hard law and soft law is often difficult.[23] A simple distinction would be that hard law creates legally binding obligations, while soft law does not on its own create legally binding obligations.[24]
In broad terms, treaties such as the Constitutive Act of the African Union and the Abuja Treaty are categorised as hard law because they create legally binding obligations. However, as Baxter argues, there are instances where soft law could find its way into the text of hard law. Thus, within a hard law framework, it is not unusual to find ‘norms of various degrees of cogency, persuasiveness, and consensus which are incorporated in agreements between States but do not create enforceable rights and duties’.[25] This is exemplified in the embodiment of both legal and non-legal norms in the text of African integration treaties. In line with Baxter’s suggestion, Boyle and Chinkin argue that there are instances where the norms created in a hard law instrument may be so ‘obscurely worded’ that it becomes difficult to determine if any binding obligation has been created.[26]
The use of the term ‘soft law’ has been criticised because soft law cannot be classified as one of the sources of international law enumerated in article 38 of the Statute of the International Court of Justice.[27]Handl points out that soft law has been criticised by international lawyers because ‘the concept has been used in reference to international prescriptions that are deemed to lack the prerequisite characteristics of international normativity, but which, notwithstanding this fact, are capable of producing certain legal effects’.[28] In her analysis of soft law, Dinah Shelton posits that ‘non-binding norms have a complex and potentially large impact in the development of international law … In recent years, non-binding normative instruments sometimes have provided the necessary statement of legal obligation (opiniojuris) to evidence the emergent custom and have assisted to establish the content of the norm’.[29] Furthermore, when soft law is adopted in furtherance of a widely accepted hard law instrument, it yields better commitment and thus produces greater compliance.[30]
Shaffer and Pollack argue that the existing literature on hard and soft law can be viewed from the perspective of three schools of thought, namely, legal positivist, rationalist and constructivist.[31] Legal positivists regard hard law as legal obligations that are of a formally binding nature, while soft law, though not formally binding, could lead to binding hard law.[32] Rationalist consider hard and soft law as having separate attributes that states adopt for different contexts.[33] Constructivists view hard and soft law as facilitating the socialisation process of interstate interactions.[34]
Some scholars are opposed to the idea of classifying some form of law as ‘soft’.[35]Klabbers, for instance, completely rejects the notion of soft law and regards it as an attempt to create a category of law which cannot be used to compel states’ behaviour.[36] He posits that ‘if it could be claimed that soft law leads, in its application, to either hard law (hard responsibility, hard sanctions) or to non-law (no responsibility and no sanctions), soft law loses its distinctiveness, and there with its reason of existence’.[37] His argument is based on the fact that to refer to an instrument as soft law is to imply that it has a legal character which is however different from hard law. This in his view raises questions as to the legal consequences that may arise from the violation of the principles provided for in the soft law instrument.[38] In addressing the divide between hard and soft law, Shaffer and Pollack argue that hard and soft law ‘serve not only as alternatives or complements, but often as antagonist’.[39] This invariably means that the desirability or appropriateness of the use of either soft or hard law will largely depend on how states choose to use these instruments in a particular situation.
While it is beyond the scope of this paper to argue either for or against the desirability of the use of soft law instruments in the international arena, soft law instruments can be used to clarify or restate obligations created through hard law.[40] The NEPAD document does not create new legally binding obligations; rather, it proposes a programme of action which could be used by African states to ensure development on the continent – thereby fulfilling their obligations to improve the general well-being of African people.[41] The NEPAD document identifies areas in which the continent is deficient and proposes methods that should be adopted by African states to remedy the deficiencies. It serves as a basis for boosting the capacity of member states in sectors where individual state efforts have been insufficient. The NEPAD document on its own will not bring about compliance with African integration treaties, but when applied in combination with other continental efforts, it will help to reduce some of the problems (such as poor infrastructure and lack of institutional capacity) that often impact on the ability of states to comply with their integration obligations.
Criticism of NEPAD
Prominent African scholars like James Gathii and NsonguruaUdombana have expressed some doubt about NEPAD’s ability to extricate Africa from poverty and make her globally competitive.[42] For Udombana, the legitimacy of the NEPAD document can be questioned because it was unilaterally decided upon by African leaders without prior consultation with the African people.[43] He argues that, since the Constitutive Act of the AU and the NEPAD document acknowledge that for social cohesion to be created, the African people need to participate in the process of building partnerships with the government, Africansought to have been consulted before the NEPAD document was adopted.[44] In his view, the failure to actively involve African people in the process of adopting the NEPAD document reflects the inherent autocratic nature of African leaders at the municipal level.[45] The effect of such exclusion is that the majority of African people and the private sector, which NEPAD relies heavily on, may not be aware of the benefits that the NEPAD initiative promises.
Undoubtedly the process which culminated in the creation of NEPAD was not all-inclusive.[46] While the initiative was spearheaded by a few African leaders, it was acknowledged that the participation of non-governmental organisations, socio-economic organisations, professional associations, and civil society organisations was vital in formulating the AU programme of actions.[47] Therefore, after the creation of NEPAD, efforts were made to involve African people in the various NEPAD programmes. These programmes were well received and there has been no indication that African people view NEPAD as an alien initiative. While there may have been early concerns about the manner in which the NEPAD document was adopted (if any), those concerns were not grave enough to undermine the entire initiative, since palliative measures have been taken to acquaint African people with the benefits of NEPAD. The legitimacy of a rule or a body or rules (legally binding or non-legally binding) is dependent on whether its recipients accept it as appropriate.[48] In the case of NEPAD, there has not been great resistance to the initiative. In light of the above, questioning the legitimacy of the NEPAD document on the basis of the process through which it was created may be excessive.
In his assessment of NEPAD, Gathii expresses doubt about NEPAD’s ability to rescue Africa from its dependence on Western capital. He faults NEPAD’s market-oriented economic approach, which is dependent on foreign aid and capital, and thus fails to challenge the existing structures that sustain ‘inequality, poverty, and hierarchy, both within and without the African state’.[49] These structures, he argues, stand in the way of Africa’s development and any economic strategy that fails to challenge these structures is bound to be ineffective.[50]Gathii summarises his critique of NEPAD under three headings: (a) NEPAD’s failure to engage with the Bretton Woods-sponsored market-centred view of development, and thereby treating it as a non-negotiable development framework; (b) using the acquisition of foreign capital and donor aid as a pre-condition for NEPAD’s success; and (c) NEPAD’s failure to engage with the unfairness and injustice of the international trading rules.[51]
These criticisms of NEPAD’s approach to extricating Africa from poverty and underdevelopment are robust and valid. In general, ‘Africa’s external economic dependence and its lop-sided participation in the international trading system are key factors accounting for the dismal economic performance on the continent’.[52] Therefore, developing an internal economic self-sustenance system will help remedy this unequal participation in the international arena and improve economic performance at the continental level. However, the NEPAD document fails to address these issues pragmatically, and rather relies on Western aid and capital.[53] If NEPAD is to rescue Africa from the shackles of poverty and underdevelopment, African leaders must, together with non-state actors on the continent, re-examine the notions of primary reliance on foreign capital, donor funding, foreign aid and the exaggerated benefits of market access liberalisation. However, while the critique of the inherent contradictions in NEPAD’s market-oriented approach in resolving Africa’s economic woes is important and valid, aspects of the NEPAD programme are vital to Africa’s development. NEPAD’s focus on developing cross-border infrastructure is essential to development in Africa. Evidence suggests that a sound infrastructure will increase intra-African trade and improve the overall welfare of African people, thereby developing internal capacity on the continent.