Alterations in the configurations and lack of regional coherence

The SADC EPA group has split for the second stage of the negotiations. The group only consists of Botswana, Lesotho, Mozambique and Swaziland. Angola, Namibia and South Africa opted out of this stage citing several concerns which will be discussed further below. The Central Africa EPA process is also problematic in that only Cameroon signed the IEPA. Although there are areas for further negotiations under the Central Africa IEPA there has been no movement in the implementation of the IEPA by Cameroon. This is partly because there is still need to bring on board the rest of the Central Africa EPA States and produce a regional approach to the process. Hence even before the substantive aspect of the second stage of the negotiations is discussed it is important to note that there is no SADC regional consensus on this process and its content. Some SADC states are negotiating with the EC in various configurations in the second stage and some (Angola, DRC, Namibia and South Africa) are not involved in this process.

The result will be serious disparities in the nature of commitments made by SADC countries especially in the negotiations involving the so-called new generation issues (e.g. competition, investment, public procurement and new disciplines on services) with a direct impact on the current regional integration processes where common positions are expected to enhance the common market vision. Some SADC countries will make commitments on the new generation issues and others will not, and further, even for those who will make such commitments there are clear expected disparities on the scope and extend of the commitments as will be discussed below.

4.2.1 Differences within the SADC EPA group

The split in the SADC EPA group with respect to the new generation issues occurred for a number of reasons including the lack of preparedness of the SADC EPA group to handle these negotiations. The initial SADC EPA group position was against negotiating such issues. The objections to these negotiations were best captured by the position taken by South Africa as in the box insert below.

Box 6: Position of the South African Government on the new generation issues

Our opposition to including these issues in the EPA was spelled out in the original Framework Document agreed by the SADC EPA Group. First, there is no compulsion to negotiate the so-called new generation trade issues under the EPA to meet the requirements of WTO compatibility. Neither the Cotonou Agreement nor the TDCA contain any obligation in these areas. Second, some new generation trade issues are currently under negotiation in the WTO (services, IP, and environment), while others have been excluded (investment, competition, procurement, labour). Third, SADC EPA Member States have limited institutional and negotiating capacity, which would be severely strained if these issues were to be negotiated under the EPA. Further, new generation trade issues would pose serious policy challenges as SADC has no common policies in these areas. Negotiating these subjects under such conditions runs the risk of delivering unbalanced outcomes that may be prejudicial and limit national developmental objectives and policy space, and outcomes may foreclose prospects for deeper integration in SADC and SACU. Fourth, outcomes could result in obligations that go beyond those agreed in the WTO (WTO-plus), and introduce into the bilateral context, issues that contributed to the failures of Cancun (investment, competition and government procurement) and of Seattle (labour and environment).

Moreover, by negotiating these issues bilaterally, SADC EPA Member States would be complicit in bypassing WTO negotiations or prejudging its negotiating positions in the Doha round in areas of services, IPR protection, and environment where multilateral negotiations are ongoing.

Source: Government of South Africa (2008)²⁶

Whilst some of the above objections relate to the SADC EPA group, some of them such as the conflict between the WTO commitments and the WTO-plus facet of the EPA negotiations on new generation issues apply to the rest of the SADC countries negotiating in the other configurations. This reinforces the fact that no specific SADC wide position was articulated or adopted before the SADC countries made commitments to negotiate new generation issues in their respective EPA configurations. The decision to engage the EC on these issues has widened the rifts in the SADC integration agenda as some members are directly opposed to this engagement. This difference is compounded by the type of commitments made by the SADC countries as discussed below. Due to the fact that negotiations for the full EPAs are on-going there are no specific positions so far adopted, and in some regions negotiations are text based whilst elsewhere discussions have not produced any formal documents which are publicly available, this section of the report will make use of various documents which indicate the state of affairs. For example use of the CARIFIORUM EPA is made as it is the example of a full EPA which can be utilised as material for possible outcomes in the second phase of negotiations on trade-related issues which the SADC countries are currently engaged in but at varying stages of the process.

26. Government of South Africa, Department of Trade and Industry, SADC EPA Group-EC Negotiations: assessing the Emerging Outcome, 30 January 2008, Pretoria, available at http://www.dti.gov.za/parlimentary/EPAoutcomes.

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Our approach was that SADC EPA Member States would be prepared to engage these issues in an appropriate framework. This framework should focus on technical exchange and cooperation where the EU could assist in the development of SADC institutional, policy and legislative infrastructure.

This may extend to the development of common policies in SADC to foster regional integration. In recognizing that these issues are important dimensions of economic governance, SADC EPA Member States propose a cooperative engagement with the EU. Such cooperative arrangements would not extend to negotiations nor involve any substantive obligations. Furthermore, we argued that any final agreement in these areas would not be subject to dispute settlement under the EPA.

Other SADC EPA members shifted position on these issues. Initially, the SADC EPA Members, except Namibia and South Africa, indicated that they would consider committing to negotiate only in services so long as they received adequate technical assistance. In the final negotiations, under considerable pressure, these Members committed to immediately enter negotiations in services and investment without any binding upfront commitment for technical assistance from the EC, and they committed to negotiate competition and government procurement in future.