CHAPTER 3: Integrating Food Security in West Africa’s IP related Regional and Continental Trade Agreements Continental Trade Agreements
3.2 Relevance of Regional IP Regulation
3.2.3 Characteristics of Regional Agreements Tools for Differential Treatment
One definitive characteristic of RTAs is that they allow for greater preferential treatment of member than non-member countries, to achieve trade and non-trade objectives.438 This favoured treatment can take the form of reduction or elimination of tariffs between member states, the
437 A plurilateral agreement is a multi-national legal or trade agreement between countries. Free trade agreements, many of which are bilateral, are arrangements in which countries give each other preferential treatment in trade, such as eliminating tariffs and other barriers on goods. In economic jargon, it is an agreement between more than two countries, but not a great many, which would be multilateral agreement. See Richard Baldwin & Patrick Low, eds. Multilateralizing Regionalism: Challenges for the Global Trading System (Cambridge, UK: Cambridge University Press, 2009).
438 Thomas Cottier & Marina Foltea, “Constitutional Functions of the WTO and Regional Trade Agreements”, in Lorand Bartels & Federico Ortino, eds, Regional Trade Agreements and the WTO Legal System (Oxford: Oxford University Press 2006) 43-74, at 44-45.
formation of free trade areas, customs unions, common markets, and economic unions.Also, while making reference to WTO regulations, many RTAs contain obligations that go beyond multilateral standards for IP regulation in WTO agreements (described as TRIPS-plus agreements) and deal with areas not yet included in the WTO agenda, such as investment and competition policies, as well as labor and environmental issues.439
Preferential treatment contrasts with the principle of non-discrimination required in multilateral IP regulations, as exemplified in the Most Favored Nation (MFN) and National Treatment (NT) provisions of the WTO TRIPS Agreement.440 The WTO principle of non-discrimination obliges WTO Members to unconditionally grant to each other any benefit, favor, privilege, or immunity affecting customs duties, charges, rules, and procedures that they give to products originating in or destined for any other Member country.441
While some scholars view the differential treatment permitted in RTAs as an erosion of the WTO principle of nondiscrimination and harmful to the multilateral trading system,442 others see RTAs as playing a vital role in advancing regional integration and the development objectives of TRIPS.443 Article XXIV of GATT 1947 states that the agreement shall not be construed to prevent advantages that are granted by states in order to facilitate movement between countries, customs unions, or free trade areas. The fact that the drafters of GATT 1947 deliberately incorporated Article XXIV into this instrument is evidence that bilateral trade agreements (BTAs), RTAs, customs unions (CUs), preferential trade agreements (PTAs), or any similar concepts are a necessary means for promoting free trade within the WTO system. Similarly, Article V of GATS,
439 Leal-Arcas, Proliferation of Regional Trade Agreements, supra note 448, at 600.
440 TRIPS, Arts 3-4.
441 Leal-Arcas, Proliferation of Regional Trade Agreements, supra note 448, at 602-603.
442 Ibid, at 599.
443 Maurice Schiff & Alan Winters, Regional Integration and Development (New York: Oxford University Press, 2003).
which provides preferences in relation to services, is additional evidence to suggest the important role of RTAs in the current trade order of the WTO.
This thesis adopts a functional approach to RTAs, which views the room for differentiation permitted in RTAs as an important instrument necessary for upholding multilateralism. 444 Because one size does not fit all in IP regulation, it is important for IP regulations to be adjusted to suit the context, development challenges, and level of technology of different states. By granting room for differentiation, RTAs are complementary, not contradictory, to multilateral agreements.
Differentiation offers the advantage of diversified and specialized legal rules that are tailored to be suitable for the context in which they are applied.445 There is no contradiction between differentiation and unification in international law because both legal processes are semi-autonomous and interacting features of the international legal system.
Advance Regional Integration: Regional integration describes “the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new [regional] center, whose institutions possess or demand jurisdiction over preexisting national states. The end result of a process of political integration is a new political community, superimposed over the pre-existing ones.”446
Integration has been defined both as a process, and as the end result of amalgamation between parties.447 Usually, regional integration goes beyond multilateral cooperation, as it
444 Sangeeta Khorana et al, Bilateral Trade Agreements in the Era of Globalization: The EU and India in Search of a Partnership (Portland, Oregon: Edward Elgar, 2010); Aggarwal, Vinod K. & Shujiro Urata, Bilateral Trade Agreements in the Asia-Pacific: Origins, Evolution, and Implication (New York and London: Routledge, 2006).
445 Isabelle Van Damme, “What Role is there for Regional International Law in the Interpretation of the WTO Agreements?” in Lorand Bartels and Federico Ortino, eds., Regional Trade Agreements and the WTO Legal System (Oxford: Oxford University Press 2006), at 561-562.
446 Ernst Haas, The Uniting of Europe (Stanford: Stanford University Press, 1968) at 16.
447 See Business Dictionary online: < http://www.businessdictionary.com/definition/regional-integration.html> .
requires countries to harmonize their national policies by adopting common political and economic structures, laws, procedures, and supranational institutions to reach the objectives of a regional agreement. Thus, integration often involves the giving up to a certain level of the sovereign power of states to achieve the overall goals of a region.
The majority of RTAs signed by West African countries or ECOWAS contain provisions requiring integration of regulations, institutions and policies by states.448 The ideal grouping for economic integration includes countries at comparable levels of development but with disparate, complementary resource bases. Such countries would have the maximum to gain from integration but little to worry about in terms of the distribution of benefits in favor of rich countries at the expense of poor countries within the grouping.449 However, intra-West African formal trade is uneven, dominated by the strongest economies of the region, such as Nigeria, Ivory Coast and Ghana. The weakest countries contribute minimally to intraregional official trade flows.450
Moreover, past attempts by West Africa to adopt regional integration schemes for development purposes have not been successful. For example, the common economic and monetary policies put in place for French speaking countries in West Africa by The Union Economique et Monétaire Ouest Africaine (UEMOA), also known in English as West African Economic and Monetary Union (WAEMU), have not lead to the promised economic growth in member states.451
The more favorable assessment of regional integration arrangements involving developing countries is based on the theory that regionalism will lead to net trade creation as long as it is
448 For example, see Articles 2.1 & 2.2 of the Bangui Protocol.
449 FAO, “Regional Integration and Food Security in Developing Countries”, TCAS Working Document No.50, April 2003 at 25.
450 Piccolino, G. & Minou, S., “The EU and Regional Integration in West Africa: Effects on Conflict Resolution and Transformation” (2014) University of Pretoria RegioConf Working Paper, 5 at 7.
451 Ibid, at 17-18.
coupled with a significant degree of trade liberalization and where emphasis is put on reducing cost-creating trade barriers which simply waste resources. However, critical examination of this theory indicates that the assumptions on which it is based may prove faulty.452 Positive economic outcomes will depend on the deliberate design of these agreements and cannot simply be assumed.
A major criticism of West Africa’s regional agreements has been that they mimic inappropriate European frameworks.453 As such, maintaining the room for flexibility in setting integration ambitions, including making allowance for variable speed and variable geometry formulations for countries economic groupings with overlapping memberships and different integration objectives, is important for designing RTAs suitable for West Africa.
The following section examines important factors that must be taken into consideration, through differential provisions in IP regulation, so as to make them more suitable for advancing food security in the West African region.
3.3 Important Considerations Affecting IP and Food Security in the West African