Emerging Voices: Doing Regional Integration Better? The Possibility of Reinvigorating the Relationship Between International Human Rights Law and International Economic Law through the African Continental Free Trade Area

[Brenda K. Kombo is a Postdoctoral Fellow at the Free State Centre for Human Rights at the University of the Free State.]

It is ironic that the agreement establishing the African Continental Free Trade Area (AfCFTA) came into force less than a week after United Kingdom Prime Minister Theresa May announced her resignation; the same day United States (US) President Donald Trump threatened Mexico with tariffs; and as the US-China trade war escalated. Emerging in the face of growing skepticism around the globe about free trade, the AfCFTA could be the world’s largest free trade area in terms of membership since the World Trade Organization (WTO) was established in 1995, and will potentially integrate 55 African Union (AU) member states in a market of about 1.2 billion people with an estimated gross domestic product of $ 2.5 trillion. However, if it is to succeed, the AfCFTA must innovatively avoid the pitfalls of other trade liberalization efforts. Embracing human rights might make that possible.

Brexit, the US move away from multilateral trade agreements, and the rise of right-wing populism all point to disenchantment with the current international order. There is a sense that free trade has failed to deliver on its promises of broad-based economic growth and instead increased inequality and seemingly left behind large segments of the working and middle class around the globe.

Nevertheless, rooted in the pan-Africanist and development-oriented aspirations of the AU’s predecessor—the  Organization of African Unity—the AfCFTA Agreement embraces free trade as “crucial for deepening economic integration, and promoting agricultural development, food security, industrialization and structural economic transformation.” Moreover, the AfCFTA is conceived as the precursor to a continental customs union. This initiative will have far-reaching consequences and a new approach informed by other regional integration projects could potentially enable the continent to reap the desired benefits of integration even as they seem increasingly elusive elsewhere.

This post suggests that the AfCFTA could address some of the potential dangers of trade liberalization by giving human rights a clearer and more prominent role. More specifically, it considers three ways that international economic law (with a focus on trade) and international human rights law could be reconciled within the AfCFTA. While these possibilities are by no means comprehensive, they are intended to provoke further dialogue on how the AfCFTA might truly benefit Africa’s citizens.

Historical Bifurcation of International Human Rights and Economic Law

International economic law and international human rights law formally emerged contemporaneously. The Bretton Woods Agreement of 1944, General Agreement on Tariffs and Trade of 1947, and the Havana Charter of 1948 set the foundation of international economic law, while the signing of the United Nations (UN) Charter in 1945 and then the Universal Declaration of Human Rights in 1948 were pivotal to international human rights law. Nevertheless, these two areas of international law developed in “splendid isolation” from each other.   The anti-WTO protests in the late 1990s and more recent scholarship has sought to remedy the bifurcation.

Although international human rights law has its critics and is generally softer than international economic law, a certain amount of global consensus has developed over human rights norms and, at the continental level, over particular innovations within the African human rights system (e.g. rights and duties, collective rights, recognition of the right to development, etc.). By reconciling international human rights law and international economic law, the AfCFTA would take a human-centered approach that seeks, ab initio, to avoid the marginalization and exclusion that appears to be a consequence of privileging markets over people. Three possibilities are explored below.

International Economic Law Subsumes Human Rights

The AfCFTA Agreement’s Preamble recognizes “free movement of persons, capital, goods and services” as well as “the importance of … democracy, human rights, gender equality and the rule of law, for the development of international trade and economic cooperation.” Similarly, its predecessor the Free Movement Protocol guarantees non-discrimination, the rule of law, transparency, and protection of property. These rights might appear to echo some of those elaborated in the African Charter on Human and Peoples’ Rights, such as non-discrimination, liberty, access to information, and property rights. Ernst-Ulrich Petersmann would take this further, suggesting that they are among the shared values of international economic law and international human rights.  He proposes an approach where international economic law interprets international human rights law within the former’s framework. In the African context, the AfCFTA Agreement, processes, and Dispute Settlement Mechanism would safeguard the purportedly shared values.

The problem, as Philip Alston convincingly argued almost two decades ago in his response to Petersmann, is that the economic liberties or market freedoms valued within a trade liberalization context are not analogous to human rights. and are “granted to individuals for instrumentalist reasons”—to advance the free trade agenda. International economic law’s characterization of homo economicus differs significantly from the human being whose rights stem from inherent dignity.

Within this approach, the AfCFTA would, for example, protect nationals of other member states from discrimination in order to facilitate market transactions and integration. Yet, this would be a much narrower focus than that of the African Charter and other human rights instruments which recognize everyone’s inherent right to be free from discrimination and states’ obligation to take special measures to protect such rights.

Fortunately, the approach is not being contemplated within the AfCFTA. International economic law would at best redefine and at worst replace human rights, instead of fully integrating them into a broader transformative agenda.

A Human Rights Corrective for International Economic Law

This second alternative bridges international economic law and human rights by considering the impact of trade liberalization on human rights and seeking to mitigate negative consequences. Its strongest form, a rights-based approach, tries to realize the following in the “processes and outcomes” of international trade: non-discrimination of any individual or group; popular participation; impact monitoring; accountability; increased corporate social responsibility; and international cooperation and assistance.

The AU seems to have at least partially adopted this approach. The AfCFTA Agreement recognizes the importance of human rights to the continent’s advancement and, with the AU’s approval, the Economic Commission for Africa and other partners commissioned an ex-ante human rights impact assessment of the AfCFTA during the preparatory phase of negotiations. Although the assessment focuses primarily on agriculture and limited labor issues, it makes broader recommendations towards ensuring that human rights are respected in all aspects of the AfCFTA’s design and implementation.

Jennifer Zerk notes the assessment authors’ acknowledgment of their work’s limitations and the key difficulty of “establishing a causal link between a specific trade intervention and a human rights outcome.” In her view, while such assessments provide baseline data and an important opportunity for multi-stakeholder engagement, they cannot stand alone and present methodological, processual, and other challenges.

Moreover, while the impact assessment approach seeks to better integrate human rights within the trade project, it remains “neutral” towards trade liberalization as a policy. As such, in principle, it tries to simultaneously promote the progressive realization of human rights and progressive trade liberalization. What happens when conflicts between trade and human rights goals appear? For example, what if the African Charter’s guarantee of the right to a satisfactory environment conflicts with the AfCFTA, which is relatively silent on environmental protection? Policymakers would have to answer this question.

“Embedded Liberalism”

In The Great Transformation, Karl Polanyi describes a radical shift in the 19^th century from economies “embedded in social relations,” to a “disembedded” market economy. John Ruggie contends that a period of “embedded liberalism” emerged in the West after World War II. This period ended in the 1970s, according to Harlan Grant Cohen who proposes that trade must be “re-embedded within society and politics” in order to prioritize domestic social welfare and states’ human rights obligations to their citizens.

Admittedly, this would be challenging, particularly since, as Ruggie points out, African countries were excluded from the embedded liberalism experience. It could entail an overhaul of the AfCFTA Agreement to prioritize domestic considerations over multilateralism.  Trade considerations would be secondary to human rights to advance what Cohen calls a “broader welfare-enhancing project.” While liberalization would continue, its design and scope would be determined with a focus on member states’ advancement of the socio-economic, political, and cultural rights of their citizens. Collectively, the states would also address various challenges that characterize the contemporary era of global value chains, including the dangerous “race to the bottom.”

Conclusion

As it moves against the tide of free trade skepticism, Africa must take an approach to regional integration with greater potential to deliver on its promises. One way to do so might be through reconciliation of the historically separate areas of international economic law and international human rights law in order to more effectively address the distributional impact of free trade. Of the three approaches discussed above, the third seems to carry the most promise. Re-embedding trade within society maintains the focus on the very people whose lives it is intended to improve.