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The Level of African Engagement at the World Trade Organization from 1995 to 2010.

Les niveaux d'engagement des pays africains à l'Organisation mondiale du commerce de 1995 à 2010
El nivel de compromiso africano en la Organización Mundial del Comercio de 1995 al 2010
Joan Apecu
p. 29-67

Abstracts

This article analyses the level of individual and collective participation of African World Trade Organization (WTO) Members in the Organization over a 15 year period, from 1995 to 2010. Specifically, it compares participation levels in three core areas of the WTO: regular committee work; Doha multilateral negotiations; and, dispute settlement. Primary data are collected and examined. Analysis showed that individual and collective participation by African WTO Members was nominal, minimal and largely ineffectual in relation to the group's significant membership share, in areas identified as priority, and compared to members' participation from other regions. The results of the analysis strongly suggest that the described level of participation of African countries is explained by the continuing inertia of a “special and differential exemption orientation”; misalignment in coordinating capital-driven domestic trade policy and economic reforms with the African WTO "Geneva frontline"; misallocation of negotiators across the core areas of work; a small trade share; and, to a lesser extent, specialised capacity handicaps. Furthermore, analysis indicated that the degree of engagement of participation of African WTO Members could be explained by levels of personal commitment and professional engagement of individual negotiators, regardless of capacity constraints and weaknesses. There were evident relationships between the level of African participation and the governance and institutional structures from which negotiators originated. Negotiators from systems with fragile democracies and weak governance structures tended to be tentative, largely inactive, inconsistent in participation and ineffectual in engagement. Within this overarching explanatory framework, specific variables have intervened in different combinations in the three areas of work to influence the levels of engagement, such as trade share levels, specific commercial interests, and competitiveness rankings. In this analysis, over a 15-year period, it is concluded that although African negotiators better expressed concerns and drew attention to their problems, a consistent, high quality level of participation and engagement has not been attained across the three core areas of WTO work. As a consequence, successful attainment of set objectives has remained elusive.

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1. Introduction

  • 1  In 2012, four new Members acceded to the WTO: Montenegro, Samoa, the Russian Federation and Vanuat (...)

1Of the 1571 Members of the World Trade Organization (WTO), 42 are from Africa. Africa accounts for approximately 27 per cent of total WTO membership and 35 per cent of WTO developing country membership. In the period 1995 to 2010, the role of developing countries in international trade increased significantly. Several of them have become important players in the global economy and have looked to trade as a vital tool for development. The share of developing countries in world trade as a group has steadily increased. This is against a backdrop of decline in global economic growth and trade shares of developed economies, fuelled in part by the devastating global economic crisis that began in 2008.

2Although there have been improvements in African trade and economic performance since the domestic reforms of the late 1980s and 1990s, its performance has continued to lag behind that of other developing country regions in Asia and Latin America. Africa's share of global trade has remained very low. Although a few African countries, mainly oil exporting ones, have performed relatively well, the majority have seen the share of their world trade decline. A complex set of internal and external factors account for this decline and low African share in world trade. Competitiveness rankings are low, as reflected in Global Competitiveness indices. African countries have not sufficiently diversified. There is still large dependence on one or two primary commodity exports. As a consequence, they have been affected by swings in commodity prices. Domestic markets are plagued by internal barriers to trade, such as low level and poor quality infrastructure, corruption, blunting of price signals. African markets remain small with regional markets insufficiently integrated. They have also been affected by protectionism in developed country markets, through both tariff and non-tariff barriers.

3A connecting theme in this article is the argument that a relationship exists between levels of African participation in the core areas of work at the WTO, where trade rules are established, and, the optimal use of trade policy as an engine for growth, development and poverty reduction. Of more specific direct relevance resulting from the research undertaken is the apparent tenuous relationship between the relatively greater activism in domestic level trade and economic reforms, on the one hand, and the minimal, nominal and largely ineffectual participation at the WTO, on the other. The question that needs answers is, why is it, that African WTO Members, including those from countries pursuing far-reaching domestic reforms (for instance, on the platforms of World Bank and International Monetary Fund (IMF) country programmes, and trade rules agreed in the Uruguay Round) participate minimally, nominally and ineffectively in the three core areas of the WTO's work – regular WTO committee work; Doha negotiations and WTO dispute settlement?Why the apparent disconnection?

4The "level of engagement/participation" as an analytic concept has been defined on the basis of a range of selected indices. In the Doha negotiations, these are namely: i) the number and content of statements made (in minutes of meetings); ii) number of proposals submitted in different areas of the negotiations both at individual and group level; and, iii) chairmanship of negotiating bodies. In regular committee work, this has been based on: i) number and content of statements made in committees; ii) number of submissions/proposals; iii) responses to mandated notification requirements, iv) chairmanship of regular bodies, v) discussant roles in trade policy reviews, and, vi) formulation of questions in trade policy reviews beyond "solidarity" statements. In dispute settlement, these have been specific to: i) "initiation of disputes", ii) respondents to disputes, iii) panellist functions, iv) Appellate Body Member positions, and, v) systemic third party positions.

2. Capacity factor

5The broad question of the level and quality of participation of developing countries, including African Members in the General Agreement on Tariffs and Trade (GATT)/WTO System, has been linked to capacity constraints, human resource limitations in capitals and missions in Geneva. At the coming into force of the WTO in 1995 and up until the launch of the Doha Round in 2001, African Members maintained the position that they had not participated in the Uruguay Round with full knowledge. They argued that trade policy technical skill levels had been and were low. As a consequence, they advocated that the Organization had to focus on implementation, training and developing the trade policy capacity levels of African WTO Members. They conditioned agreement on any new round of negotiations to significant investments to train and build capacity. Existing literature indicates that analytical and technical capacity was a constraining factor for the participation of African delegations with the coming into force of the WTO. There were low capacity levels in 1995. The data showed relative improvements in capacity levels over time coinciding with the launch of the Doha Development Agenda (DDA) negotiations. Now 15 years since the establishment of the WTO, although the human capacity deficits persist, it has been significantly mitigated. At this time, the key question is for domestic national policy decision-making: the value and priority a government assigns to trade and the WTO as a national policy objective. It is argued that overall capacity for trade policy is necessary. Even with the pressures and dilemmas for the allocation of resources to competing priority demands, specialised capacity for trade is critical. Trade is an engine for growth. Doha Round negotiations made clear that specialised capacity for trade is not only about securing the gains from trade, it is also about regulating Africa's relationship with other WTO Members and defining the place of the Continent in the global economy. African engagement in trade at the WTO also provides the vital nexus to the achievement of development priorities. The WTO is more than trade negotiations. It has emerged as one of the principal pillars for global governance in the trilateral relationship between trade, finance and development. In close to 20 years of functioning, it has rapidly and firmly established, not only as a forum for trade negotiations, but also as a forum for international co-operation. Although accession negotiations were not examined in this article, this is one of the principal lessons that stand out from the WTO Accession Packages of 29 Article XII Members. As a consequence, allocation of resources and prioritization of trade are not optional extras, or choices. They stand and should stand at the top of the scale of priorities in resource allocation for trade capacity development.

2.1. On-site location factor

  • 2  WTO Members for the purpose of a wider research on which this article is based were grouped into s (...)

6The physical presence of trade policy negotiators in Geneva at the WTO carries effects for effectiveness and quality of legal and institutional participation reflected in participation levels. An examination of the physical presence / location of African WTO Missions reveal that at the start of the Organization in 1995, only half of the 33 African WTO Members had representation in Geneva. This representation was the lowest in comparison to all other regions of WTO Members2. By 2010, the percentage of African representation in Geneva had significantly increased to 92.8 per cent compared to 80 per cent in 2005, 68 per cent in 2001 and 50 per cent in 1995. This was a reflection of the understanding by African Members of the relationship between capacity and effective participation through physical establishment of trade policy negotiators in Geneva. However, a question that still needed to be addressed was whether improvement in nominal capacity had been matched by qualitative improvement in capacity, technical expertise, personal individual commitment and the professionalism in the engagement of individual negotiators to enhance effectiveness. Increase in nominal capacity does not necessarily increase effectiveness in participation levels. This is an area that would require greater analysis. At this time, there is yet scope for qualitative improvements in participation.

2.2. Size factor

7Data collected and analysed reveal that the size of missions of the 33 African WTO Members in 1995 ranged from small to very small, averaging three delegates in a mission. This deviated from the average: low in comparison to the size of missions of WTO Members from other regions, with the exception of the Middle East countries. North American countries averaged ten delegates in a mission; six for Asia-Pacific countries; four for European countries; three and half for Latin America and Caribbean countries. Although the size of missions to the WTO improved across all regions 15 years later, improvements in the size of African WTO missions were relative. The number of African delegates covering WTO work averaged four delegates. This relative improvement in delegate size covering WTO work was reflected in relatively higher level of engagement/participation in regular committee work in areas such as the trade-related aspect of intellectual property rights (TRIPS), technical barriers to trade (TBT) and Trade Policy Review Body (TPRB). Improved engagement was also due to increased (compensatory) support from capitals, for those cases (sanitary and phytosanitary measures (SPS), TBT) where specialisation was based in capitals, or because of the cross-cutting nature of responsibility (TPRB). The relative improvement in mission size and consequent engagement levels were mostly reflected in the Doha negotiations, with agriculture (cotton), special and differential treatment, intellectual property and trade facilitation negotiations being the most illustrative. However, participation and engagement in the area of dispute settlement remained low despite increases in mission size and capacity building in the past 15 years. It was also observed that although there were relative improvements in terms of the number of African delegates, an average of four delegates per mission was inadequate in light of the scope, volume, complexity and technical expertise required for WTO participation. In 2009 for instance, there was an average of 147 meetings per week. This situation was compounded by the fact that most African delegations are accredited to cover the activities of other international organisations based in Geneva.

2.3. Capital-support Factor for the "Geneva Frontline"

  • 3  For a larger research, a questionnaire was administered to the 39 African WTO Members resident in (...)

8The quantitative and qualitative levels of participation were raised. The tabulation of the results of the questionnaire administered to African WTO delegates in Geneva revealed that overall support received from capitals was low.3 Coordination between Geneva and capitals was described as challenging and in some cases this suggested that the absence of effective and clear communication from capitals acted as a disincentive to effective engagement in the WTO. Furthermore, the problem of coordination across government ministries and departments was identified. Capital support provided was diverse and frequently without a connecting rationality. This situation highlighted the often complex domestic problem of inter-agency coordination and the challenges of collaboration in formulating coherent and consistent trade policy which ultimately reflect on participation in international organisations, including the WTO. However, the results of the analysis showed that when "support" and "instructions" were provided from capital authorities to negotiators in Geneva missions, and support and instructions were clear, consistent and based on domestic regulations and laws, there was a positive effect, through increased levels of participation.

2.4. Legal capacity in African WTO Missions

  • 4  Annex III: Questionnaire and results- African Participation at the WTO, Legal and Institutional As (...)

9Legal expertise and capacity in African WTO Missions to analyse, negotiate and draft legal texts in multilateral negotiations were also examined. An inventory of existing legal capacity in African missions was undertaken based on a questionnaire administered. The inventory of legal capacity was used as an indication of additional capacity of African delegations to effectively engage in the three areas of: regular work, negotiations and dispute settlement. Overall and consistent with the earlier finding of inadequate technical human resources in WTO missions, the results of the survey revealed that many African WTO Members did not deploy specialised legal staff dedicated to WTO work in their missions4. Details of the survey and interviews suggest a number of explanatory factors. First, several of these Members did not perceive immediate need and pressing urgency for the role of legal experts as compared to trade/commercial experts in WTO work. It was felt that the prime business of the WTO was commerce qua commerce, or trade facilitation. It was paradoxical that dispute resolution, the foundation of the WTO, was felt to be of second order priority for African countries. This perception is still reflected in the low level of use and participation in the WTO dispute settlement system. Second, there were financial constraints to deploy specialised legal expertise. Third, generally, there were low levels of technical knowledge of WTO law and practice. Finally, it was felt that there was no reason to have "in-house" counsel as several African Members minimally and hardly ever engage in WTO dispute settlement, either as complainants, respondents or third parties; and, in the rare instances when they do, acquire "outside" legal assistance, including those provided on a pro bono basis.

3. Overcoming capacity weaknesses – measures undertaken by African WTO Members

  • 5  Use of coalitional behaviour including issue-specific groups and technical assistance provided by (...)

10To improve participation levels and mitigate insufficient levels of WTO capacity, African WTO Members have taken measures. Two specific measures were examined namely, the 1995 formation of the WTO African Group and demands for enhanced WTO Secretariat technical assistance and capacity building5, which were subsequently reflected in Secretariat Technical Assistance Plans from 2001. As the WTO has evolved, in its regular work and in the content of multilateral trade negotiations, African negotiators also adjusted approaches and measures taken. For instance, on coalitional behaviour, a topic examined at length in the article, they either formed issue-based coalitions, such as the Cotton-4, or joined others such as the Trade Facilitation negotiations or Friends of Development.

3.1. The WTO African Group

11In 1995, African WTO Members established an informal African Group to coordinate their positions in the WTO and provide a forum to exchange views on how best to improve Africa's participation in the multilateral trading system. The establishment of the Group was motivated by the objectives of coordination and mobilizing the potential coalitional strength of the nominally largest regional group and compensate for capacity deficit, expert and other weaknesses. The African Union office in Geneva and the Geneva Liaison office of the UN Economic Commission for Africa (UN-ECA) undertake analysis and make policy suggestions with options for the Group. The African Group has utility for its Members. It has pooled scare resources, created synergies, provided a forum for exchanging views and engaging in coordination with other groupings and has "provided weight of numbers" in a non-voting institution for political decisions and African representation in small group consultations. The Group is part of the constituency system, which has become modus operandi in WTO work to facilitate consensus decision-making amongst the membership.

12There have been gains, notably with supportive group action in favour of the decision to amend the TRIPS Agreement to fully ensure that public health crisis in Africa could find workable solutions within the framework of the TRIPS Agreement; but, the functioning of the African Group is not a substitute of individual engagement and participation by African Countries. Although the Group has given support to decisions in favour of least developing countries (LDCs), most of which are African countries, LDCs have themselves preferred to pursue their interests within their dedicated forum – the LDCs' Consultative Group. On specific issues, there are tensions that have emerged between the two groups. Overall, however, the combined results of interviews and responses to a questionnaire to African delegates in Geneva strongly indicated that the level of engagement of the Group has been relatively effective in trade negotiations, where general positions are formulated, and limited in regular work and dispute settlement where specific individual member interests are in question. The African Group could consider equally focusing its attention on WTO regular committee work and dispute settlement.

3.2. WTO Secretariat technical assistance and capacity building

13Analytical and technical capacity has frequently been mentioned as a participation constraint for African delegations in WTO work. The question then is whether this constraint has been mitigated through increased WTO Secretariat technical assistance to African countries. The proposition was tested that the higher the number and quality of technical assistance received, the higher the possibility of mitigation of technical/analytical capacity constraints, and as a result, the higher the likelihood of increased participation.

  • 6  The same treatment for African countries with regard to the supply of technical assistance holds f (...)

14WTO Secretariat technical assistance programmes have placed particular emphasis on providing assistance to Africa and LDCs whose integration into the multilateral trading system remains a WTO priority (WTO, 2010)6. Current evidence confirms that overall, trade-related technical assistance and capacity building to WTO Members particularly developing countries in Africa have been on the increase. Data analysed indicated that WTO-specific technical assistance and capacity building to African countries increased from a total of 324 activities in 2000 (the selected baseline) by 281 per cent to a total of 1235 in 2005 and by 366 per cent to 1513 activities by 2010. These were massive increases in technical assistance and capacity building by the WTO Secretariat alone, excluding many other technical assistance and capacity building suppliers. In the period researched, WTO Technical Assistance has not only been sustained, but also augmented in quantum. The quality of WTO Technical Assistance has steadily improved as confirmed by independent evaluators and auditors of WTO. The question that remains is the appropriateness of candidates nominated by African delegations for training and, subsequently, national efficiency in the allocation of individual African negotiators so trained and whose capacity have been developed.

15African countries also benefit from a range of other trade-related technical assistance programmes such as the Enhanced Integrated Framework for least-developed countries; Reference Centre programmes (where relevant information on the WTO can be assessed); and, the Netherlands Trainee Programme (for junior public officials who spend up to ten months within the WTO Secretariat or at Geneva-based missions). In addition, there are "newer" programmes on building trade capacity for developing countries including African countries in the form of the Aid for Trade Initiative; the Standards and Trade Development Facility; and, the 2011 China LDCs' Accessions and Internship Programme.

16Has this increase in technical assistance and capacity building facilitated the participation of African Members in regular work, negotiations and dispute settlement? Evidence suggests that African participation overtime has been relatively improved with WTO technical assistance. Overall, hovewer, participation levels still remain low, implying that other factors that go beyond technical assistance and capacity building are at play. For instance, explanations are still necessary as to why despite increased amounts of technical assistance and capacity building in dispute settlement and various areas of regular WTO work the level of African participation/engagement in these two areas is still minimal, nominal and largely ineffective in relation to other groupings or individual Members. There are limitations to the Technical Assistance provided by all Technical Assistance providers. In the Technical Assistance provided by the WTO Secretariat, the Secretariat still has to ensure its neutrality, including in the review of cases either sub judice, or in reference to issues that could potentially be raised in disputes. However, the universe of Technical Assistance providers ensures that all angles are covered. There is for instance, Technical Assistance supplied by the Advisory Centre WTO Law (ACWL), private law firms that offer Technical Assistance pro bono, and other international organisations like the United Nations Conference  on Trade and Development (UNCTAD) with less constraints. What emerges, therefore, is that the responsibility still lies with African delegations and individual negotiators to coherently approach the consumption and use of WTO and other Technical Assistance. Such improvements should be undertaken through improved domestic coordination, better municipal domestic institutions, and strengthening "capital" / "Geneva Frontline" coordination.

4. Methodolgy

17This article aims to provide insight to the following research question: why is the participation on part of African WTO Members minimal, nominal and largely ineffective in the three core areas of the WTO's work – regular WTO committee work; Doha negotiations and WTO dispute settlement?Why the apparent disconnection? Methodologically, a range of specific analytic tools were applied, including statistical and substantive content analysis, comparative analysis with Members in other regions and "the participant/observer" role of the author. Many interviews were conducted with African Ambassadors, African trade negotiators, coordinators of the African Group, and, WTO Secretariat officials.

18For the regression analysis, several independent/explanatory variables were applied in various combinations in particular: trade share, GDP Per Capita, democracy level, and corruption level. These explanatory variables were applied to the dependent variable of "level of engagement and participation". The dependent variable specified was: "level of engagement/participation" of African WTO Members. This variable was specifically defined for measure in the area of negotiations as the: number of DDA chairmanships, number and quality of individual and co-sponsored proposals/submissions, number and quality of individual, co-sponsored and group proposals/submissions, interventions/statements. The variablespecifically defined formeasure in regular committee work as: ­number of chairmanships, number of proposals/submissions, number of interventions/statements, number of notifications (regular). This variableis specifically defined formeasure in dispute settlement as: ­number of chairmanships, initiationof disputes (complainant roles), respondent (defendant) roles, third party roles, panellist roles, Appellate Body Member roles. A number of the results from the regression analysis provide interesting insights. Several independent/explanatory variables were applied in various combinations in this thesis. The results of the regression are set out in Annex I.

19In order to reach conclusions on the "level of engagement/participation", percentage calculations were made for African WTO Members across the foregoing defined variables in relation to: (i) the size of African WTO membership totalling 42; (ii) in comparison to the engagement of individual Members from other regions; (iii) as a percentage of the engagement by all participating Members on a particular variable analysed; and, (iv) qualitative assessments about the level of participation in specific relationship to areas identified as top priority by African WTO Members in their declarations; statements; and, submissions.

20Data for the regression was gathered from relevant WTO bodies. Minutes or summary records of bodies falling under the category of regular work from 1995 to 2010 were examined. For the Doha negotiations, minutes, summary records and lists of proposals were reviewed from 2002-2010. For both regular committee work and the Doha negotiations, reports and internal records of committees and responsible divisions were used as primary sources. Data on notifications and specific trade concerns were assessed from relevant reports of respective committees. In addition, data was collected from WTO databases, including the SPS and TBT Information Management Systems; Dispute Settlement database and the ITTC activities database.

215. Participation of African WTO Members in chairing WTO bodies

22A comparison of data on chairmanships across 15 years for regular work, and 10 years for the DDA negotiations reveals the following result:

Table 1 Chairmanships across regular work and DDA negotiations

Region

Regular committee chairmanships

(1995-2010)

DDA negotiating group chairs (2002-2010)

Africa

78

6

Asia-Pacific

156

45

Europe

167

11

Latin America & Caribbean

94

34

Middle East

4

0

North America

30

3

Source: Authors own calculations based on WTO Secretariat information.

23Chairmanship of WTO bodies has several advantages ranging from the substantive to the ceremonial. It provides a core vantage point for understanding and obtaining inside knowledge of the operation of rules-based multilateral trading system and as a result, possibly influencing participation levels of an individual delegate or delegation. Although the role of a chair in a rules-based system that is Member-driven is constrained usually to brokerage and consensus building, there is also value in the profile and ceremony which carry a degree of influence for the wider public and constituencies in developing country Members.

24A question that needs to be more deeply examined is whether or not African WTO Members or for that matter any Member, should make a choice either in favour of struggling for and holding chairmanships, on the one hand or attending as many meetings as possible, on the other. This article argues that both must be done. Chairing WTO Bodies is a key and vital aspect in the level of engagement/participation of any Member in a rules-based Multilateral Trading System. The decisions that need to be made are in better, more rational allocation of resources, evenly distributed across the three areas of core WTO work. The questions for African policy makers are what are the solutions and how could the level of engagement/participation with regard to chairmanships be improved? There are several solutions, revolving around better Geneva-capital coordination, tenure and quality of delegations.

25The research evaluated the participation of African Members in the WTO by evaluating the share of chairmanship that African WTO Members have held relative to that of Members from other regions. Data collected revealed that overall 19 of the 42 African WTO Members (i.e. 40 per cent) had chaired regular WTO bodies, although 92.8 per cent of African WTO Members were Geneva-residents. No non-resident African Member had held a chairmanship. The data showed that although the share of regular-body chairmanships accounted for by African WTO Members had gradually risen from 1995 to its level in 2010, overall, it remained low in relation to the significant membership share of African WTO Members and in relation to the share of chairs held by Members from other regions. The data analysed showed that Africa's share of chairmanships was only better than the Middle East on competitive grounds and North America, but only because of the latter's conscious policy to be minimalist in taking up chairmanships. The Asia Pacific region performed best, followed by Europe and Latin America and Caribbean.

  • 7  Kenya, Tanzania, Tunisia and Nigeria

26In the 15-year period examined, only four African Members7 had been involved in chairing the WTO's principal bodies (General Council, Dispute Settlement Body and Trade Policy Review Body). This is partly explained by the personalities involved. They were well-trained, technically expert and committed individual personalities with long traditions in diplomacy and/or foreign trade policy. Nigeria was the only African WTO Member to have chaired all sectoral councils (Goods Council, Services Council and TRIPS Council), partly because of the professionalism and personality of the delegate in question, but also because it is one of the few African Missions with a specially accredited Ambassador to the WTO. Overall, African WTO Members' share in chairmanship of the subsidiary bodies was low and by the same limited universe of active African WTO Members.

27The common observed propensities of the delegations that had chaired these bodies were: (i) personal commitment, and professionalism of individual negotiators despite having small mission size (Lesotho regarding the safeguards and TBT committees); relatively better Geneva-capital coordination and support and having dedicated commercial offices, (Nigeria- rules of origin committee, Egypt- agriculture committee, Information Technology Agreement (ITA) committee and South Africa- Sanitary and Phytosanitary (SPS) committee); longer tenures in Geneva consistent with deeper specialisation and knowledge, familiarity with procedures, better peer recognition and stable networks (Tanzania- Import Licensing committee; South Africa and Mauritius- Trade and Development committee); commercial or systemic interest in subject matter, despite perceived complexity (Egypt- Anti-dumping committee, ITA committee, committee on financial services, agriculture committee as NFIDC; Nigeria-rules of origin committee).

28The data analysed suggests that a number of factors seem to have been in play in different WTO bodies to explain the low share of chairmanships by African WTO Members. Primarily, objective factors have typically included capacity constraints, technical expertise and specialization, commercial and systemic interests, inadequate Geneva-capital coordination and internal Organizational rules on appointment of officers to WTO bodies, particularly the strict standard of technical competence, which has significantly influenced chairmanship shares. Fulfillment of financial contributions, as part of Organizational rules on appointments, has also exercised considerable influence because they have led to the disqualification of otherwise eligible candidates from Members in arrears. The "residency-in-Geneva" requirement for chairmanship of certain WTO bodies has to a lesser extent affected the share of chairmanships held by African Members.

29In addition, interviews conducted to plumb the data revealed the importance of Geneva-capital coordination as well as the "unwritten custom of parcelling out specific bodies to particular regions". An "immeasurable" political factor of parcelling out chairmanship of particular regular bodies, such as the European Union’s (EU's) tradition of chairing the Budget, Finance and Administration Committee or similarly Africa's preponderant chairmanship of the Committee on Trade and Development because of the committee's core position of the mutual supportiveness of trade and development, a priority for African WTO Members was observed.

30The level of participation and share of chairmanships could be enhanced by stronger Geneva/capitals coordination. Second, there is evidence of technically competent individuals with specialised knowledge, but the numbers are low and there is considerable discontinuity in tenure. The evidence indicates that up to a point in time, longer tenures in Geneva to cover the WTO increases the quality of participation and effectiveness. African WTO Members should be well served by this. Longer tenures, generally, are consistent with deeper specialisation and knowledge, more familiarity with procedures, better peer recognition and more stable networks that enhance effectiveness. However, it is also the case, as suggested by the evidence, that beyond a certain threshold in time, complacency, fatigue and cynicism are likely to set in, requiring a vital rotation of the negotiator and "refresher" of the Member. Third, one of the findings that emerged in analysing the data is that the more technical, specialised, experienced and professionally motivated the delegates (in a delegation), the higher the share of chairmanships. This is the obvious pattern that has emerged from the limited universe of African WTO Members that repeatedly account for the largest share of chairmanships within the African Group. Such individuals have been systemically accepted to chair perceived complex regular bodies such as trade remedies bodies, trade in financial services, regional trade agreements and trade in civil aircraft.

31In terms of chairmanship of negotiating groups under the Doha Round negotiations, overall, only a limited universe of chairpersons has emerged in the ten year period of the Doha Round analysed and there has been near-unanimous reluctance to depart from the crop of chairpersons. The evidence shows that, different from chairmanships of regular bodies, there is less politicization with chairpersons of negotiating bodies who exercise a higher level of care and diligence. As of 2010, three African delegates from three African countries (Gabon, South Africa and Zambia) had chaired negotiating bodies in the areas of Trade and Environment, Development and Intellectual Property (Geographical Indications for Wines and Spirits). A common observation of the three delegates in question was individual professionalism and commitment and technical expertise, which contributed to Members entrusting them with these chairmanships.

6. African Participation in the Doha Round Negotiations

32Existing literature points to the fact that the participation of African countries in the previous GATT rounds including up till the Uruguay Round was very low to non-existent. With the exception of a few African countries, the vast majority were essentially "absent" or non-participatory. At the coming into force of the WTO in 1995, African WTO Members were confronted with the "implementation challenge" of the substantive legal results of the Uruguay Round to which they had become bound regardless of their level of participation or whether they had fully understood the commitments they had undertaken.

33The common position of the African Group more strongly elaborated in individual statements was best summarized in the Abuja Ministerial Declaration before the launch of the Doha Round in 2001, where, whilst reaffirming their commitment to a rules-based multilateral trading system, they concluded that the WTO and its Members needed to "respond in a manner that supports Africa's development and integration into the multilateral trading system". They also concluded that "…there is an urgent need for development issues to be put at the centre-stage at the WTO…addressing asymmetries in existing agreements…the objective should be the achievement of global growth and development for all Members, while decisively addressing present inequities in the multilateral trading system". (WTO, 2001) The position was taken that the results of the Uruguay Round negotiations were "unfair and unbalanced". It was considered that international trade trends made evident Africa's loss of trade share, "marginalization" and that the trading system needed to better respond to their development objectives.

34Against this background of very low participation in the Uruguay Round, African WTO Members sought to play a more active participatory role in the Doha Round. This was at the origins of the Doha Round negotiating activism, but with a tenuous relationship to quality and effectiveness of engagement. Substantively, the broad positions of African WTO Members have evolved in the course of the Round since 2001. Many declarations/decisions were adopted, which did not fully reveal individual African WTO Member differences. The most illustrative were the Kigali (2004); Cairo (2005) and Addis Ababa (2009) Declarations, which best capture the common African Group positions in the Doha Round.

6.1. Form of WTO African Member engagement in the Doha Round negotiations – largely coalitional

35The engagement of African WTO Members in the Doha Round negotiations has manifested in specific forms. Although there has been a limited degree of robust individual activity by some, the principal form of negotiating engagement has been in coalitional behaviour. African WTO Members have operated in a wide range of intra- and inter-regional issue-specific coalitions to compensate for their individual capacity weaknesses. This form of engagement has been more effective than their individual activity in relation to their negotiating objectives. Several facts emerged from the data collected and reviewed.

36First, African Members have been active in working through 18 basic coalitions in the Doha Round negotiations. Second, most African Member engagement has been through the African Group, LDCs' Consultative Group and the African Caribbean and Pacific (ACP) Group to which most of them belong. Third, these coalitions range across priority areas of interest for African Members. These include "development", special development needs for LDCs, special development needs of non-LDC vulnerable Members, targeted reform and liberalization position (recently acceded Members), agriculture, cotton, non-agriculture market access (NAMA), flexibility and protection for development purposes, trade facilitation, and intellectual property. These coalitions include those that are unique and long-standing coalitions that were re-adjusted for the Doha Development Agenda (DDA) negotiations.

6.2. African Member participation in the Trade Negotiations Committee

  • 8  African Members that had made individual statements in the TNC from 2002-2010 were: Benin, Botswan (...)

37The Trade Negotiations Committee (TNC) supervises the overall conduct of the Doha negotiations under the authority of the WTO's General Council. In the period 2002-2010, 42 per cent or less than half of African WTO Members had expressed individual negotiating positions in the Doha Round in the TNC. The African Members that had intervened with individual statements corresponded to the same limited universe of active African WTO Members8. Kenya and Uganda, with traditions of individual professionally motivated delegations and as previous coordinators of the WTO African Group, had made the most individual statements. Other African Members with a relatively high number of individual statements were those that were principal economies on the African Continent and/or had WTO dedicated missions with delegate composition that combined trade policy specialists and Foreign Service personnel, such as Nigeria, South Africa, Egypt and Morocco.

38By contrast, a higher number of "statements were made" by African Members in the context of groups or coalitions in the TNC confirming coalitional behaviour as the principal form of engagement in the negotiating context, to compensate for individual capacity weaknesses.

39The observed priority areas of African WTO Members as highlighted in their statements included development issues and special and differential treatment; agriculture and cotton, trade and non-trade solutions preference erosion as a result of market access obligations for preference granting countries; solutions to address non-tariff barriers, implementation of special priority for LDCs in the services negotiations; trade facilitation; and transparency and inclusiveness in the negotiating process. To some extent, it could be concluded that with what is currently on the table, African Members, particularly LDCs have already made some gains. This is evident in the 2005 decision on duty free, quota free market access for LDC exports; exemptions from certain obligations in the agriculture, NAMA and services negotiations; the agreement to treat cotton specially and more ambitiously and the 2011 waiver decision to enable the granting of preferential treatment to the services and service suppliers from LDCs. Other potential "gains" for African members include special and differential treatment for categories such as small vulnerable economies (SVEs), recently acceded members (RAMs), Net Food-Importing Developing Countries (NFIDCs) and “paragraph 6” countries in the agriculture and NAMA negotiations. Although the Doha Round is in abeyance, these "gains" confirm the valuable role of acting in a coalition. It may also potentially provide evidence of the form for active and effective African WTO Member participation in the Doha round in shaping the rules that could in future govern the multilateral trading system, different from their situation in previous GATT rounds, if the Doha Round "survives".

6.3. Agriculture negotiations

40In the agriculture negotiations, African Members reflect real negotiating diversity. Most African countries are net food importers or depend on preferential market access, and 25 countries are in the least developed bracket. The broad agricultural negotiating platform as agreed by African Trade Ministers in several of their declarations is that account should be taken of the need for appropriate policy space that would allow African countries to pursue agricultural policies that are supportive of their development goals, poverty reduction strategies, food security and livelihood security concerns, while ensuring improved market access for the agricultural products of African countries both in primary and processed forms.

  • 9  The Cairns Group is a Group of agricultural exporting nations to further agricultural trade libera (...)

41In reality, the negotiating diversity and overlapping membership in a number of formal and informal agriculture groups in the Doha Round agriculture negotiations fall into five broad categories. First, ambition in agriculture is led by South Africa as a member of the Cairns Group9. The Cotton-Four countries (Benin, Burkina Faso, Chad, and Mali) that seek elimination of trade distortions in cotton also fall in this category. Second, the combination of ambition and development objectives are represented by Egypt, Nigeria, South Africa and, Tanzania as G-20 members. Third, is the policy space position that is represented in a number of African countries that belong to the G-33 (Benin, Botswana, Congo, Cote d'Ivoire, Kenya, Madagascar, Mauritius, Mozambique, Nigeria, Senegal, Tanzania, Uganda, Zambia and Zimbabwe). Fourth, protection is represented by Mauritius, a member of the G10 with protectionist interests in agriculture. Finally, the African Net Food Importers represent the majority of African Countries.

42In the Special Session of the Committee on Agriculture, with regard to individual or co-sponsored proposals tabled, data analysed showed that despite significant membership share, agro-based economies, and their declared priority of this negotiating area, the number of proposals by African countries in the Doha agriculture negotiations had been the lowest, compared to those of other Members in other regions with the exception of the Middle East. Burkina Faso with an offensive interest in cotton and as coordinator of the Cotton-Four had tabled/co-sponsored the most proposals. Other African Members that tabled more than five individual proposals included Zimbabwe (once dubbed "the bread basket of Africa" and with a strong offensive interest in the agriculture negotiations as a G-20 member); Kenya (with individually professional motivated delegates); Nigeria (second largest economy on the continent, also with a strong offensive interest in agriculture and member of the G-20); and, Mauritius (with one of the leading competitive African economies with regard to domestic reform, despite having a defensive interest in the agriculture negotiations as part of the G10).

43The picture with regard to group or co-sponsored proposals by African Members confirms the proposition that the "weaker" Members have been more coalitional, producing the effect of a "larger" number of submissions/proposals. However, "volume" is not necessarily a good predictor of "quality" and does not indicate the likelihood of "consensus" and "passage". In the agriculture negotiations African WTO Members have operated at the group platform of the African Group; LDC Group; Group of RAMs; Cairns Group, G10, G-20, G-33, G-90, SVEs and Cotton-Four. Some African Members have overlapping membership in a number of these groups. Tanzania is an example. This raises questions about the mutual supportiveness, consistency in policy and negotiating positions of so many proposals onto which an individual Member signs.

44The current draft agriculture modalities of December 2008 would exempt several African WTO Members from undertaking commitments in market access, domestic support and export competition, as special and differential treatment because of special status either as least-developed countries, small and vulnerable economies or net food importing developing countries. This is an illustration of the continued inertia with a special and differential treatment orientation that has characterized the overall negotiating position of several African WTO Members. But, this should not undermine the fact that African WTO Members have been active in these negotiations where they have overcome typical capacity constraints by operating on a coalitional basis. Active participation has also been the result of assistance received from institutions such as UNCTAD, the South Centre and the International trade Development Economic governance Advisory Services (IDEAS) centre on cotton for C4 countries. This intelligent compensation for the standard capacity weakness of African WTO Members has contributed significantly in explaining their increased level of negotiating engagement in the Doha agriculture negotiations.

6.4. Non-agriculture market access negotiations

45In the non-agricultural market access (NAMA) negotiations, with the exception of non-tariff barrier negotiations, overall, the common African Group position has lacked ambition and is based largely on special and differential treatment and exemptions because of special status. This has revolved around policy space; special and differential treatment conditioned on less-than-full-reciprocity; flexibility in tariff binding coverage commensurate with development objectives; separation of flexibilities and ambition levels; WTO mechanisms to address preference erosion and non-tariff measures, LDCs exemption from tariff reduction commitments, and, opposition to deeper liberalization through sectoral initiatives. African WTO Members in the Doha NAMA negotiations fall into four mutually supportive categories. First is the defensive orientation, which is led by South Africa as coordinator of the NAMA 11. The "development-oriented" position of the NAMA 11 is to minimize further de-industrialization and achieve policies such as diversification, employment and other trade-development objectives. Second, are the "paragraph 6" countries averse to 100 per cent industrial tariff binding coverage for policy flexibility reasons. In this category are Cameroon, Congo, Cote d'Ivoire, Ghana, Kenya, Nigeria and Zimbabwe. Third, the LDC exemption category. Fourth, the small vulnerable economy category seeking flexibilities because of special status. In addition, there has been country-specific flexibilities sought inter-alia because of the impact of industrial tariff cuts on customs union partners. This is the case for South Africa and its Southern African Customs Union (SACU) partners.

  • 10  Congo; Cote d'Ivoire, Egypt; Ghana; Kenya; Madagascar; Mauritius; Morocco; Namibia; Nigeria; Rwand (...)

46In the period 2002-2010, 18 African WTO Members had sponsored 7.2 per cent of the total number of individual proposals in the NAMA negotiations10. Most of the individual proposals had a defensive orientation because of expressed concerns about potential exacerbation of de-industrialization, unemployment, government revenue loss as a result of tariff reductions and the need to ensure a level of harmonization of assumed commitments with customs union partners.

  • 11  For the purpose of this research, a group proposal was attributed to each member of the group.  Fo (...)

47Similar to agriculture, the distribution of group/co-sponsored proposals confirmed the proposition that weaker Members exhibited greater coalitional behaviour which had the effect of producing a "larger" number of submissions/proposals11. This higher volume of proposals is "nominalism" from which quality does not necessarily follow. In the NAMA negotiations, African countries participated under six main groupings – the ACP Group; LDC Group; “paragraph 6” countries grouping; SVEs group, RAMs group and NAMA 11 group of developing countries coordinated by South Africa.

6.5. Services negotiations

  • 12  "Increasing participation of developing countries".  This paragraph provides for the increased par (...)

48The overarching position of African countries in the services negotiations has been marked by ambition in Mode 4 (movement of natural persons to supply services), a defensive orientation that African countries have undertaken extensive commitments in liberalizing their services sectors and therefore credit should be accorded to this autonomous liberalization, and, full implementation of the LDCs special modalities. Ambition in the Group's position has also been linked by the request for effective implementation of Article IV of the General Agreement on Trade in Services (GATS)12.

  • 13  Djibouti; Egypt; Gambia; Kenya; Mauritius; Nigeria; Senegal; Tanzania; Uganda; Zambia; and, Zimbab (...)
  • 14  WT/L/847,Preferential treatment to services and service suppliers of Least-developed countries.    (...)

49African Members have essentially operated in the services negotiations within the group platforms of the African Group and LDC Group. In the period 2002 to 2010, with the exception of the Middle East region, African Members tabled the fewest proposals in relation to those from other regions. Only 11 African WTO Members had been involved.13 With the exception of co-sponsored proposals on logistics services (Mauritius and Djibouti) and on maritime transport (Gambia), the proposals by African Members reflected a continuation of their quest for special and differential treatment in the form of lower obligations. They have requested for special and different treatment because of purported autonomous liberalization undertaken within the framework of structural adjustment programmes of international financial institutions for which they have sought credit; or because of economic status or insistence that their services industries are still too weak to compete and should be shielded. Some have also argued that domestic prudential regulations are either non-existent or too weak to allow for competition. In this context, it is observed that the Hong Kong Ministerial Declaration of December 2005 exempted LDCs (many of which are African countries) from undertaking additional commitments. In the period after this Declaration, the focus of LDCs was on obtaining preferential market access treatment and a waiver from the most favoured nation provision to ensure the possibility of receiving these preferences without violating the most favoured nation (MFN) rule. This was achieved at the Eighth WTO Ministerial Conference in 2011.14 The challenge now is the implementation of this Decision.

6.6. Rules negotiations

  • 15  Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of De (...)

50The position adopted by African WTO Members in the rules negotiations has been mainly defensively oriented, linked to development. African WTO Members have sought the "need to avoid the introduction of more complex rules and disciplines under the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures" (Cairo Declaration 2005). In the negotiations on regional trade agreements, the overall position adopted has been that the Enabling Clause15 should not be re-opened and that the negotiations on systemic issues must address the Doha principle of "less than full reciprocity", asymmetry in market access, and Africa's development concerns with regard to RTAs with developed countries, pursuant to GATT 1994 Article XXIV and GATS Article V.

  • 16  Egypt; South Africa; Mauritius; Kenya; and, Morocco.
  • 17  WTO International Trade Statistics, 2010: Table 1.4, intra and inter-regional merchandise trade, 2 (...)
  • 18  Algeria, Egypt, Libyan Arab Jamahiriya, Malawi, Mozambique, Nigeria, South Africa, and Zimbabwe.

51Despite the declared intentions and priorities in their Ministerial statements, only 5 African countries – had been involved in the tabling of the 41 individual proposals by African WTO Members in the period 2002 to 201016. With the exception of South Africa and Egypt, interest, use and experience with trade remedy instruments have been limited. Egypt's greater use and experience with trade remedy instruments are reflected in its tabling of 30 proposals in this perceived complex trade policy area. Several factors explain the low level of Africa's overall engagement in this area identified as a priority. International trade is currently characterized more by global supply chain networks. It could be argued that Africa's very low overall number of proposals correspond to their low level of integration, although they are victims of dumped products in their markets; absence of domestic laws and regulation for trade remedies; and, low world trade shares and limited trade with countries from other regions. On the latter, Africa's total merchandise export to the world in 2010 was at 0.4 per cent; there was also a low level of intra-Africa trade at 11.7 per cent17. In addition, very few African countries have been the target of trade remedy measures – anti-dumping or countervailing measures. Exports from eight African countries18 were the subject of anti-dumping initiations by other countries in the period 1995 to 2010. It could also be argued that the low number of individual proposals tabled tends to confirm the proposition that there is an inverse relationship between the degree of complexity and specialisation, on the one hand and tabled proposals on the other. The more complex and specialised the negotiating area, the lower the number of tabled proposals. This tends to be more adversely felt by regions/delegations with limited technical competencies and capacity constraints.

52At the group level, African WTO Members have sponsored proposals on the platforms of the African Group, Commonwealth Group of Developing Countries and Small and Vulnerable economies. The majority of proposals have focused on special and differential treatment in the imposition of trade remedies against developing countries or in new disciplines to be developed in the area of fisheries subsidies to take into account their special situations and concerns and the importance of the fisheries sector for livelihood and food security.

6.7. TRIPS negotiations

  • 19  Mauritius; Egypt; Morocco, Zambia, Uganda, Senegal, Rwanda and Togo.

53In the TRIPS negotiations, the common position of African Members was to seek an amendment to Article 31 of the TRIPS Agreement on the use without authorization of the right holder of the subject matter of a patent for the purpose of promoting access to medicines to address public health concerns, particularly for the cases of HIV/AIDS, tuberculosis and malaria. This position was achieved in December 2005 with a Decision by Members (WTO, 2005). However, only eight African Members had ratified acceptance of the protocol amending the TRIPS Agreement19, as of March 2012. This is a low level of engagement for an amendment that African countries vigorously pursued with the involved support of civil society groups and other lobbies.

54Although the negotiations in the Special Session of the TRIPS Council are about the establishment of a multilateral system for the registration and notification of geographical indications for wines and spirits, some Members have made linkages in the discussions with two other issues. The extension to other products of the higher level of protection of geographical indications accorded to wines and spirits, and, the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), including bio-piracy concerns.

55In period 2002-2010, in the TRIPS Council Special Session, African WTO Members had tabled a total of four proposals (by Namibia, Nigeria, Mauritius and South Africa). This was a very low level of participation in relation to proposals from Members from other regions and the huge volume of statements by African Members on the TRIPS and public health debate in the TRIPS Council in the period 2001 to 2003. Part of the explanation could be that very few African Members have real export advantage/interest in the area of wines and spirits which is the focus of the work of the TRIPS Council Special Session.

56On the group platform, as part of the "W52 Group" the African Group has supported a proposal to begin text-based negotiations on the issue of disclosure of source of genetic resources used in inventions prior to grant of patents, an area of offensive interest because of the Continent's rich genetic resources. The Group also supports the extension of the higher protection of Geographical Indications for wines and spirits to other products, including for a number of African products such as handicrafts, coffee and tea.

6.8. Trade and environment negotiations

57In the trade and environment negotiations, the individual engagement of African WTO Members in the period 2002-2010 in terms of tabling proposals has been very low to non-existent. With the exception of their expressed group interest that the negotiations should take account of concerns of developing countries, there seems to be no formulated common negotiating position on this relatively complex, contemporary,critical and substantive inter-relationship between trade and environment. Complexity of work in this area seems to have been enhanced by overlapping and unresolved issues in multilateral negotiations in two different arenas, namely multilateral environmental agreements (MEAs) and the WTO Doha negotiations. In addition to the technical and intellectual complexity of negotiating issues in the two different arenas, African WTO negotiators have been further handicapped by minimal to non-existing levels of domestic coordination amongst line ministries and departments accounting for insufficient to zero concrete negotiation instructions from their capitals.

58On the group platform, the African Group tabled one proposal in the period 2002-2010 on the paragraph 31(i) negotiations, proposing the establishment of a group of experts to assist Members in implementing specific trade obligations under multilateral environment agreements. It suggests that the establishment of such a group, as a trade related technical assistance and capacity building mechanism would be a concrete outcome in strengthening the relationship between WTO agreements and MEAs.

6.9. Trade and development negotiations

59The position on trade and development by African WTO Members is all encompassing. It is configured around policy space and flexibility; special and differential treatment; trade solutions to "correct" preference erosion; trade rules that accommodate poverty reduction strategies; and, livelihood concerns that take into account the needs of net food importing developing countries, LDCs and commodity producers. The development dimension is also based on the concept of differentiation of countries in the trading system. Technical assistance, training and capacity building, Aid for Trade and the Enhanced Integrated Framework (EIF) are the supply-side dimensions.

60As the main demanders for strengthening and making special and differential treatment provisions in WTO agreements "more precise, operational and effective", the African Group and LDC Group have tabled the most proposals in the period 2002-2010. Their proposals have cut across the GATT and several multilateral agreements on trade in goods, GATS; TRIPS and the Dispute Settlement Understanding (DSU). They have sought deeper, better and more secure preferential market access and requested for mobilization of more development assistance funding to improve supply capacity.

61It could be argued that African Members and LDCs consider that they have already achieved a degree of progress from their proposals, even at this stage of the negotiations. Examples include the adoption at the Sixth Ministerial Conference in Hong Kong of Decisions in Annex F, containing five LDC-specific proposals, including the decision to improve preferential market access for LDCs through duty free, quota free market access; Decision to enhance the Integrated Framework for Trade-Related Assistance (IF) for LDCs; the launch of work on Aid for Trade; a "Doha Round for free for LDCs" who are exempt from undertaking new market access commitments; and the 2011 Ministerial Decision on preferential treatment for services and service suppliers of Least Developed Countries. However, work remains on achieving consensus on the substance of the majority of their Agreement-specific proposals on special and differential treatment and on a monitoring mechanism.

6.10. Trade facilitation negotiations

62Trade facilitation is an area in the Doha negotiations that has been the least divisive, attracted proposals across different Members and where African WTO Members have joined in building consensus. The trade facilitation negotiations have generally been viewed as win-win for all WTO Members. The common position of African WTO Members is premised on the benefits that would accrue from trade facilitation measures for enhanced competitiveness in African economies and the promotion of intra-Africa trade. The common position links the "potential benefits" with associated costs and availability of financial and technical resources for capacity building to implement outcomes.

  • 20  Benin, Egypt, Morocco, Namibia, Nigeria, Rwanda, South Africa, Swaziland and Uganda.

63However, participation of African Members in these negotiations by tabling individual proposals has been low in light of indicated priority, with a total of 16 individual proposals by nine African countries20 in the period 2002-2010. They have compensated for weaknesses in tabling individual positions through increased participation on the Group platform, including participation in the trade facilitation informal group known as the Core Group of Developing Countries. Landlocked African countries have been most active in these negotiations, with their activism driven by persistent transit problems which have negatively impacted their trade. The cases of Uganda, Rwanda and Zambia are illustrative. Although studies have indicated that, historically, landlocked countries have been poorer than littoral states, they have sought to overcome this disability through bilateral trade and co-operation agreements. The present reality however is that landlocked countries inevitably, because of their situation have become trading countries and are more outward looking as evidenced in the trade facilitation negotiations where African landlocked countries have been at the forefront. LDCs have been very active in the trade facilitation negotiations, including the three landlocked countries above, Benin and Tanzania.

6.11. Reform of the dispute settlement understanding

64The common position of African countries in the DSU negotiations is to improve participation in WTO dispute settlement through enhanced affordability and accessibility. This has included a specific proposal to establish a fund for WTO dispute settlement. The position of African Members is also predicated on the effective enforcement of the recommendations and rulings of the Dispute Settlement Body where the African Group has advocated for collective retaliation on behalf of an affected developing or least-developed country, where such suspension of concessions would negatively impact its economy. Despite the fact that dispute settlement negotiations are as much a function of commercial interest as systemic considerations in which all Members, regardless of trade shares and commercial interests, should engage in maximally, the reality is a very low level of participation in the DSU negotiations by African WTO Members.

65In the period 2002-2010, no African WTO Member had tabled an individual proposal in the DSU negotiation. Egypt, Tanzania and Zimbabwe co-sponsored proposals with other Like-Minded Group of developing countries. Proposals from African countries in these negotiations had been mainly at group level through the African Group and LDCs' Group. It could be argued that the underutilization and therefore lack of experience with the procedures and practice of the WTO dispute settlement by African WTO Members explain in part the low level of individual/group engagement in the negotiations. In addition, it is observed that the level of African engagement further reduced as the negotiations advanced, became more detailed and required more in-depth technical knowledge and experience to identify lacuna in the system beyond "access".

66African WTO Members have tried to correct and compensate for their individual weaknesses in this area in various ways. First, resort has been made to the Advisory Centre on WTO Law which has provided both open and private advice in several areas. Second, the WTO legal internship system has increased opportunity and space for Africans to gain more insight and understanding of the workings of the system. Third, several institutions have provided policy and quasi-legal advice on negotiations including the South Centre. But, African WTO Members are yet to fully seize the opportunity provided by some Geneva-based law firms for pro-bono legal services. In the final analysis, even if more has to be done to increase supply of legal training from providers, greater coordinated efforts and associated responsibility are also required from African consumers of legal supply of training and advice to ensure sustained accumulation and expert application of knowledge and skills acquired.

7. African participation in regular WTO bodies

67The behavioural engagement and participation by African negotiators follows the pattern in the other two areas of core WTO work: multilateral trade negotiations in Doha, and dispute settlement. At the core, the level of engagement by African WTO Members in regular work has been low in terms of share of individual statements made; submission of proposals, and, notification compliance. The striking nature of regular committee work (different from the negotiating environment) is that it constrains Members, including African countries to participate at the individual level. As a consequence, persistent capacity constraints, such as at the "implementation of obligations phase" are revealed. Work in regular WTO bodies involves the promotion of very specific country interests within the context of already established rules by committees. Differently, in "negotiations" the dynamics for bargaining are different, strongly linked to the "balance of trade and economic power" and where coalitions become important for negotiating gains. Regular WTO work has re-gained prominence because of the serious difficulties in the Doha negotiations. A few of the findings from an extensive research are set-forth in this article.

68Although overall the level of African engagement in regular WTO committees has been low, there have been exceptions reflecting relatively higher participation levels in particular bodies and by a limited group of countries. Three committees stand out with relatively high participation by African WTO Members – the General Council; Committee on Trade and Development and the TRIPS Council. Participation of African WTO Members in these committees is further elaborated in the paragraphs below.

7.1. Observations of African participation in regular WTO bodies

69In most regular committees, the primary data collected, tabulated and analysed revealed several patterns. For African Members, there seemed to be an inverse relationship between higher number of oral statements and lower number of written proposals. Preparation of oral statements in general seems technically easier than of written proposals which require greater effort.

70Observation and available data also revealed a puzzling paradox with very low participation levels in areas indicated as being of priority. African participation in four committees is illustrative. These are the Trade Policy Review Body; regular work in the area of agriculture; rules of origin; and, Trade-Related Investment Measures (TRIMS).

71There is also the observed pattern of lower participation level in areas of perceived specialised complexity. Two WTO regular bodies stand out namely, the Council for Trade in Services; and, the Committees on Trade remedies committees.

72The third observation is instances of relatively higher levels of participation have been exhibited at a particular phase, but with no substantive follow through. Three regular WTO bodies could fall into this category. These are the Council for TRIPS regarding the issue of TRIPS and public health; the SPS; and TBT Committees regarding specific trade concerns.  

8. African participation in WTO dispute settlement

73The dispute settlement system has established itself as the most powerful pillar in the WTO, and one of the most, if not the most powerful institution in international law. Professor Jackson's position is well stated that the dispute settlement system (the judicial arm) has had its authority and power magnified by the continuing inability of the legislative arm (WTO membership in the Ministerial Conference and the General Council) to "legislate"; that is, conclude the Doha negotiations to either establish new rules, close lacuna in existing rules or clarify existing rules.

8.1. African Member participation as complainants in WTO dispute settlement

74Data shows that in the 15 years researched, no African WTO Member has instituted a dispute against any other WTO Member. What accounts for this situation and does it impair Africa's ability for effective participation? The WTO dispute settlement system has been in operation for over 15 years which is adequate time for African WTO Members to have trained or developed competent "in-house" trade law counsel to institute disputes where benefits or rights are perceived to have been nullified or impaired. Why does a legal capacity deficit still exist?

75A number of factors and explanations have been argued to explain the lack of initiation of disputes by African WTO Members. It has been argued that the majority of African WTO Members might be less interested in pursuing dispute settlement proceedings to uphold or clarify systemic principles of WTO law, because most of them trade extensively under preferential arrangements that are covered by waivers or other "allowed" exceptions from general WTO principles.

76The high cost of WTO dispute settlement has been articulated by several scholars as a hindering factor. Three types of potential costs have been alluded to – direct out of pocket costs for hiring outside counsel; costs for hiring and dedicating government personnel with expertise to oversee and provide necessary support; and, the opportunity cost of expending scare government resources and personnel time in relation to other immediate social priorities, especially where future benefits are uncertain.

77The lack of technical expertise and associated high costs has been argued as a limitation to dispute settlement initiation. Some scholars have stressed that it is during the "upstream" stage that these elements play an important role because information about a case has to be gathered and analysed in order to make an informed decision about whether or not it is worth pursuing a dispute (Hoekman and Mavroidis, 2000). However, a question that logically arises is, as plausible as these explanations are, for how long over time will they retain cogency and relevance. While plausible in the early years of dispute settlement, the strength of these arguments have become weaker over time, particularly with more than 15 years of existence of the WTO dispute settlement system.  

78It has been argued that effectively functioning trade policy infrastructure is critical for engagement in dispute settlement. Government/industry coordinating frameworks and institutional linkages between private companies and government officials, such as in the United States and EU, have provided originating impetus for dispute settlement. In general, such structures, even when extant, are weak in most African countries.

79The habit of dispute initiation and dispute settlement has also been argued as a constraining factor. Due to less frequent use of the WTO dispute settlement system, developing countries, including African countries, have had less incentives to develop internal legal expertise (Shaffer, 2003). This is evident in the analysis of African Members' participation in the dispute settlement system.

  • 21 Atelier de réflexion sur le règlement des différends: un atout ou une contrainte pour la négociatio (...)

80It is argued that a strong explanatory factor is the cost in time and staying power, the latter related to the factor of political reluctance. As illustrated in the United States-Upland case (WTO, 2009), there is an interrelated dynamic of WTO dispute settlement, political staying power and trade negotiations. The duration of process and a sustained position over time are essential requirements that a potential litigant has to take into account. This was illustrated by the Brazilian experience in the United States-Upland case During a ten year time span from the initiation of the dispute, Brazil, went through the panel and Appellate Body processes, Article 21.5 compliance procedure, the arbitrator's ruling and the final 21 June 2010 Framework Agreement with the United States to obtain satisfaction21. The question to consider is whether there is any African country able to exhibit the staying power with associated costs both in time and resources before final satisfaction?

81There is political reluctance on the part of "small" developing countries, such as African countries, to initiate disputes against large trading partners. This is a factor that hinders initiation of disputes. African countries are subject to the vagaries and pressures of global asymmetries, as many of them receive aid or some form of development assistance from more advanced economies (Mosoti, 2006). This situation erodes their strength to litigate. However, dissenting views argue that the threat of retaliation is more ambiguous.

82Effective enforcement of a ruling in favour of a small country against a larger partner has also been cited as a hindering factor. The remedy of withdrawal of equivalent concessions in particular has been highlighted as one where only the economically powerful would have leverage. To the contrary, the economically weak would be hurt. The majority of African countries are dependent on continuing trade relations with the rest of the world to whom they supply mostly commodities or unprocessed goods. They do not have a large basket of alternatives for retaliation. However, one could also argue that enforcement issues arising out of the Antigua and Barbuda Gambling dispute mitigates the enforcement argument. The facts of this case, which are on-going, seem to suggest that the operative factor goes beyond the "size" of the country to the larger factor of trade policy willingness and determination to invoke the system and sustain the process until satisfaction.

83Finally, a number of scholars have argued that the probability of having disputable trade measures is proportional to the diversity of a country's exports over products and partners. Shares in world trade, number of traded products and trading partners are determinants of participation in WTO dispute settlement. Therefore, the more diversified one's exports are, the greater the chances of initiating complaints and vice versa. A number of African countries have a small share of world trade and most of them have less diversified exports which benefit from preferential treatment in major markets. This economic condition has been used to explain their inactive participation in WTO dispute settlement. However, as argued in this research, the use of the DSU is as much about commercial relations as about systemic concerns, including through third party roles.

8.2. African Member Participation as respondents in WTO dispute settlement

84African use of the DSU as respondents is at a very low level. Two African WTO Members (4.7 per cent of African WTO membership) have accounted for the seven times that African WTO Members have been respondents in WTO dispute settlement in 15 years. These are Egypt (four times) and South Africa (three times). Why?

85In addition to the factors already outlined above on initiation of disputes, three other possible explanations have been posited namely, limited market access commitments qualified with the ability to invoke special and differential treatment provisions as a defence; litigation against low-income countries is perceived as "expensive" in economic terms in contrast to the potential gains to a foreign exporter; and, high political cost of litigation for higher-income countries that prefer not to be seen as "picking on" low-income economies for WTO dispute settlement.

8.3. African Member Participation as third-parties in WTO dispute settlement

  • 22  Areas of Third Party Rights included: cotton, sugar and bananas, trade remedies and environmental/ (...)

86Primary data collected and analysed showed that from 1995 to 2010, there were a total of 1370 third-party positions taken, of which African WTO Members accounted for 41 (2.9 per cent)22. This article argues that this is a very low percentage of participation for an area that carries huge dividends in understanding the functioning of the rules-based multilateral trading system. It is strongly argued that this low level of participation has magnified negative effects in other areas of WTO work. It is further argued that the lower the level of engagement in dispute settlement, such as by invoking third party rights, the lower the overall level of systemic effectiveness.

87It is also somewhat revealing that the regression run for the larger study did not suggest a strong positive correlation between trade shares or GDP level and third-party participation. A Member's trade share or GDP level did not seem relevant for third party participation. Whether a Member's trade share was high, medium, low or very low did not seem to matter (Apecu, 2011). This was an interesting finding which confirms the value of the practice of systemic intervention. It is argued that African WTO Members' understanding of and participation in the dispute settlement system can make an important contribution to their overall ability to benefit from their rights and obligations under WTO Agreements. African WTO Members ought to participate more regardless of (low) level of trade shares.

8.4. African Member Participation as panellists in WTO dispute settlement

  • 23  H.E. Yonov Agah (2010) WTO Dispute Settlement Body Chairman, noted that "An interesting statistic (...)

88In terms of panellist participation in WTO dispute settlement, data gathered and analysed indicates that in the period 1995 to 2010, there were a total of 706 panel positions. African WTO Members accounted for 43 of these (6 per cent). However, panellists from Africa originated only from four countries – Egypt, Mauritius, Morocco and South Africa – traditionally active African WTO Members with previous involvement in WTO dispute settlement. This is a low percentage of engagement in light of the overall increasing role of developing country panellists (Yonov Agah, 2010)23. What accounts for this low level of panellist participation by African WTO Members?

89The core requirement for panellist participation is well-qualified individuals with experience in trade law, economics and policy. Participation does not entail originating from a major trading economy; neither does it require being a trade lawyer. In addition, none of the typical factors explaining Africa's low level of participation in the WTO appear to be operative in explaining low participation levels, except for what appears to be a long-standing systemic habit of drawing on panellists from the traditional regional pools. Remedying this situation is a combined duty for the WTO Secretariat, including the Director-General ex-officio on the one hand, and, African governments to nominate panellists on the other. Urgent action on both sides can be mutually reinforcing. On the part of African delegations rests the duty to nominate to the roster of panellists competent and experienced individuals. On the side of the Secretariat and the Director-General, there is wide scope for increasing the number of both Africans nominated and appointed (in those cases where the disputants cannot reach an agreement) to panels. An increased number of panellists from Africa should have positive knock-on effects, including enhancing Africa's ownership and membership of the rules-based trading system.

8.5. African Member Participation as Appellate Body Members in WTO dispute settlement

90Article 17.3 of the Dispute Settlement Understanding provides that the composition of the Appellate Body should be broadly representative of the membership of the WTO. There has been systemic compliance with this provision. For the 15-year period studied, there has always been an African representative on the Appellate Body. African Appellate Body Members have originated from two countries – Egypt (serving the most); and recently, South Africa.

91The WTO dispute settlement system is the pierre angulaire of the rules-based multilateral trading system. Over the 15-year period analysed, the credibility of the WTO has come to rest on this pillar. In many respects, it is the key that opens the door to a complete understanding of how the rules-based MTS functions and was designed to function. This article argues that participation in WTO dispute settlement has a leverage effect on the overall systemic level of participation in the three areas of negotiations, regular work and dispute settlement. Being the central element in the security and predictability of the System through its rulings and recommendations that stand implicitly or explicitly on jurisprudence, this article argues that African WTO Members would be better served to concentrate and increase their resources in this vital area of WTO work in the allocation of resources and choices that must be made between regular work, negotiations and dispute settlement.

9. Observations and conclusion on African level of participation across the three WTO core areas

92Overall, although there have been variations and exceptions, the level of African WTO Members' engagement in the three areas of the Doha negotiations, WTO regular committee work and Dispute Settlement has been low.

9.1. The Doha Round multilateral trade negotiations.

93In comparison, the "level of engagement" has been relatively higher in the Doha negotiations. African countries approached the Doha Round negotiations as a policy engagement, to rectify rule and policy imbalances, in their view, from the results of the Uruguay. They pursued a development approach.

94The level of African WTO Member engagement/participation in the Doha Round was therefore relatively higher than in previous rounds and in relation to the other two core areas partly because it was perceived as an opportunity to correct previous imbalances resulting from the Uruguay Round. Priority to the negotiations was therefore accorded. In reality, it could be said that the "Doha-Group" of African trade negotiators were the "first real generation of African trade negotiators" at the multilateral level.

  • 24  These have included Benin; Burkina Faso; Chad, Cote d'Ivoire, Egypt, Gabon, Ghana, Kenya, Lesotho, (...)

95Negotiating weaknesses were corrected through regional group and issue-specific coalitional behaviour. Of the 42 African Members of the WTO, it is observed that only a limited universe of them have been relatively active mainly in the Doha negotiations and to varying degrees in regular WTO committees and dispute settlement24. These have emerged to set the foundation for African participation in the WTO. With the exception of the "traditionally" active African Members from the GATT era that have remained active in the WTO, some of the observed features of the relatively more active African Members, include having a dedicated mission; a specially accredited ambassador to the WTO; tight Geneva-capital coordination and support; personal commitment and professional engagement of individual delegates; being coordinators of groups (African Group; ACP Group; or, LDC Group); a record of high competitiveness ranking; and, specific commercial interest to pursue (the Cotton-four or landlocked African LDCs in the trade facilitation negotiations).

  • 25  This has been the case for technical assistance and support provided by inter-alia Third World Net (...)

96Engagement levels have also been relatively higher in specific areas where support has been provided by non-WTO multilateral institutions, civil society and, in some cases, the pro-bono support of law firms. The active participation of African WTO Members' in the specific areas of TRIPS and public health and cotton provide justifying evidence.25 However, beyond these exceptional cases, the net level of engagement remains low. In other words, the analysis suggests that in the few cases of relatively high levels of engagement, the activity engine has come from "elsewhere". While per se this has been useful as a process of "jump starting" engagement/participation, this has neither been sustained by African WTO Members nor been fully owned. One of the reasons for this inability to sustain a high level of participation is that there are still huge gaps in a fundamental understanding of the technical balance of rights and obligations and the direction of accumulating jurisprudence of the rules-based system. Papers are prepared for African and LDC delegations by several organisations and civil society and then passed on them to advocate and "push". This pattern is also manifest in WTO Article XII Accession negotiations.

97On balance, whilst it could be concluded that in the Doha negotiations, African countries have so far achieved some results and made some gains from their collective participation/engagement, the results have been disappointing largely because of persistence with seeking exemptions from the core rules. Although some commenters view achievement of exemptions from rules in areas such as agriculture, NAMA or services negotiations as gains, it is argued in this article and as evidence over the years has shown, an exemption-seeking orientation has not served African countries well in integrating fully into the multilateral trading system. It is argued that greater engagement in the global economy and the rules-based multilateral trading system through taking on commitments would carry greater welfare and competitive gains.

9.2. WTO regular committee work.

98Over the 15-year period analysed, the priorities of African Members in regular WTO committee work have revolved around three broad categories – (i) process and appointments of officers to the WTO including WTO Directors-General; (ii) substantive issues particularly, textiles and clothing, outstanding implementation issues and concerns from the Uruguay Round, TRIPS and Public Health, LDC matters including duty free, quota free market access, agriculture, SPS, TBT, TRIMS and local content issues, balance of payment consultations, customs valuation, accession matters and trade and development issues; and (iii) technical assistance and capacity building.

  • 26  Issues have included technical assistance and capacity building; implementation issues, measures a (...)

99Participation of African countries in regular committee work to administer existing rules and disciplines under WTO Agreements has at the core been low. However, there have been exceptions and variations reflecting higher levels of participation in particular regular bodies. The Committee on Trade and Development best reflects the latter, with issues discussed being of priority for several African countries26. However, there has not been sustained follow through of some of these issues with concrete proposals to achieve consensus and concrete outcomes. The TRIPS Council is another example where African participation was relatively high in 2001 in the period leading up to the adoption of the Doha Declaration on TRIPS and Public Health. However, there has been failure to follow up and utilize an amendment so fiercely sought. Only a handful of African countries have notified their acceptance of the amendment to the TRIPS Agreement.

100Unlike the Doha negotiations, the nature of regular committee work has constrained African Members to participate individually and not through coalitional. Few exceptions of coalitional behaviour in regular bodies exist, notably in the General Council where group political statements have been delivered by the African, ACP or LDC Groups and in the TRIPS Council on the issues of TRIPS and Public Health. Part of the explanation for individual engagement is that the nature and substance of regular work involves the implementation of obligations and commitments already "accepted" by a Member and the promotion of very specific interests affecting Members' individually within the context of established rules in agreements administered by committees. Participating on an individual platform in regular committees has exposed the continuing individual capacity constraints that African Members face in WTO engagement/participation.

101A puzzling paradox of very low levels of participation in areas of stated high WTO trade policy priorities has been observed in participation in regular work by African Members. Participation in the committees of agriculture, rules of origin, sanitary and phytosanitary measures, technical barriers to trade and import licensing best reflect this paradox. In the agriculture committee for instance, the level of mandated notifications, particularly of domestic support and export subsidies has been very low for African Members, even in situations where only a nil notification is required. SPS and TBT measures of other trading partners have often been cited by African countries as curtailing their exports and market access. The work of these committees is therefore of high priority for several African Members. Although participation in the SPS and TBT committees have been relatively higher than other committees, such as trade remedies ones, it has still been relatively low in light of the attached priority, including regarding raising of specific trade concerns that affect market access or sustained follow through of trade concerns raised. Participation by capital-based experts in these Committees should enhance participation and not lessen it because domestic standards would be more closely aligned, competitively, with international standards.

9.3. Dispute settlement

102In the 15-year period researched, developing countries have been complainants in WTO dispute settlement in 62 per cent of disputes and respondents in 56.1 per cent of the disputes, depicting an increasing use of the dispute settlement system. African Members have rarely been part of this trend. The level of African participation in WTO dispute settlement has been abysmally low as illustrated below.

Table 2. African Members’ participation in WTO dispute settlement

  • 27  Benin, Cameroon, Chad, Cote d'Ivoire, Egypt, Ghana, Kenya, Madagascar, Malawi, Mauritius, Nigeria, (...)

Complainant participation

0

Respondent participation

7 (Egypt & South Africa)

Third Party participation

41 (16 African Members)27

Panellist participation

42 (Egypt, Mauritius, Morocco & South Africa

Appellate Body Member

Egypt & South Africa

source : author

  • 28  Charts 15 and 16 in Annex II: Regression results- African participation at the WTO, Legal and Inst (...)

103A key finding from a regression analysis run for a broader study on this topic found no strong positive correlation between a country's trade shares and third party participation28. A Member's trade share did not seem relevant for third party participation. This was an interesting finding which confirms the value of the practice of systemic engagement/participation, something that African WTO Members should consider embracing.

104The analysis of the data also showed that this low level of participation had had ripple effects in other areas of WTO work. The lower level of participation in dispute settlement such as in invoking third party rights had magnified negative effects with a consequence for the overall level of systemic effectiveness. This article argues that effective use and therefore full understanding of the dispute settlement system is key and indispensable for the understanding and effective use of the rules-based multilateral trading system. It provides deeper technical, jurisprudence-based insights into the workings of the System. African WTO Members would be served well if they invested more in dispute settlement participation, even only for systemic reasons. The system is based on a balance of rights and obligations; it is a system based on the rule of law.

105Several factors have been argued to explain the very low level of African participation in dispute settlement. However some of the factors, it appears, have been more argued and conceptualized with minimal bearing on empirical reality. Analysis of the situation and interviews with non-lawyer delegates who have repeatedly participated in WTO dispute settlement suggest that the high cost factor is overstated. While it is true that service charges of law firms are high, some observers have also pointed to the fact that WTO law is "diplomatic law" of the kind that allows competent technical participation by professionally diligent diplomats (non-lawyers). In addition, a number of top law firms now recruit non-lawyers in recognition of the diplomatic character and interdependence of lawyers and trade diplomats in WTO dispute settlement. The hindrance to participation posed by the high cost factor has been curtailed for developing countries and LDCs with the establishment of the ACWL and the provision of pro bono legal services by law firms. WTO Dispute Settlement is an area of high priority for allocation of the resources of African Governments, even more so as multilateral rule-making falters and stumbles.

9.4. Explanations for low participation levels

106It is argued that a number of critical variables have operated in combination to influence low participation levels of African WTO Members in the WTO. Rare specific instances of relatively high levels of engagement have not been sustained. Why this situation?

107Overall, it is argued that, since the establishment of the WTO, across the three core areas of work, the minimal participation of African WTO Members (in contrast to its large membership share and at variance with its identified areas of priority) is explained by the continuing inertia of a “special and differential exemption orientation. In the Doha negotiations, the exemption-seeking orientation has continued and been the focus of several of the proposals by African WTO Members in the different negotiating areas. This has not served African countries well in fully integrating into the multilateral trading system. African Members would be better served by engaging and focusing on rules qua rules rather than on exceptions through special and differential treatment, with the risk of unraveling the balance of rights and obligations. This could serve as reason to lock in domestic reforms and forestall policy reversals, uncertainty and unpredictability in national trade policy and domestic markets.

108Consistent and strong capital-Geneva coordination is important for effective and active participation in the WTO. This factor has explained why only a limited universe of African WTO Members has been active. Misalignment in coordinating capital-driven domestic trade policy and economic reforms with the African WTO "Geneva frontline" can be a factor negatively impacting on effective participation.

109It has also been observed that the degree of engagement and impact of participation of African WTO Members has been explained by the personal commitment and professional engagement of individual negotiators despite existing constraints and weaknesses. This factor has explained the active engagement by some delegations within the limited universe of active WTO African Members. This has been the case for instance of the Kenyan delegates (on special and differential treatment, agriculture or industrial market access); C4 countries (on cotton); landlocked LDCs such as Rwanda, Uganda and Zambia (trade facilitation) or a number of other African delegates with regard to the issue of the fluctuation in the price of commodities. The observed impact has been that, with the departure of these individual delegates from Geneva, the level of participation from within respective delegations on specific areas/topics returns to low levels of engagement.

110Evidence indicates that up to a certain point in time, longer tenures in Geneva to cover the WTO has increased the quality of participation and effectiveness. This has been the case with some of the active African delegations. The relatively high turnover of African delegations contributed to lower and ineffective participation levels. Longer tenures in Geneva have been consistent with deeper specialisation and knowledge, more familiarity with procedures, better peer recognition and more stable networks that have enhanced effectiveness. However, it is also the case as suggested by evidence, that beyond a certain threshold in time, complacency, fatigue and cynicism set in requiring a vital rotation of the negotiator and a "refresh" of the Member.

  • 29  Author's own calculations based on existing data in the WTO's TRTA database

111Technical assistance and capacity building have been extensively addressed. The results of analysis suggests that to a lesser extent, specialised capacity handicaps have continued to account for the low level of African WTO participation/engagement in the three core areas of WTO work. African WTO Members have benefited the most from WTO Secretariat technical assistance and capacity building. Data analysed indicates that the WTO specific technical assistance and capacity building increased from a cumulative total of 324 activities in 2000 (the selected baseline) by 281 per cent to a total of 1235 activities in 2005 and by 366 per cent to 1513 activities in 201029. These were massive increases in technical assistance and capacity building by the WTO Secretariat alone, excluding many other providers of technical assistance and capacity building to African delegations. But despite these massive increases in WTO technical assistance and capacity building, presumed to have mitigated the technical knowledge handicap, the participation of African Members in WTO work has remained low. This suggests that other factors in combination are also at play. While African Delegations have continued to ask for more, the real questions relates to their appropriate use of assistance provided and the appropriate deployment of those trained. Also, there is wide scope for self-training and own specialisation improvements by sustained participation at meetings.

112Within the above overarching explanatory framework, specific variables have intervened in different combinations to explain particular outcomes in the three areas of work regarding levels of engagement. For instance from regression analysis, low levels of trade shares (ipso facto low level of commercial interest) tended to suggest explanations for low levels of engagement in MFN market access negotiations. However, it also has to be kept in mind that for many African countries the low trade share level is largely accounted for by a higher proportion of preferential trade. Low trade shares also appeared to suggest explanations for low dispute settlement participation with the exception of third party systemic participation.

  • 30  It has also been suggested that the important variable to use is trade as a percentage / proportio (...)

113Although the regression analysis suggested statistical correlation between the variables of trade shares and GDP on the one hand, with levels of participation/engagement on the other, the logical relationships between variables were much more complex. It did not always logically follow that a Member with a low trade share and GDP30 would have a low level of engagement/participation. The relationships were not always clear nor was there clarity in the direction of causality. For instance, could it be concluded that a Member's level of engagement/participation was low (such as for African Members and LDCs) because trade shares and GDP levels were low? Or, should it have been expected that the level of engagement/participation of a Member with low trade shares and GDP would be high (very active) for the reason of wanting to increase trade shares and GDP? This article argues that those with low trade shares and GDP would have greater incentive for more active participation. But at the core of the problem is the persisting orientation of African Members with special and differential treatment and exemption from core rules.

114Competitiveness rankings (WEF, 2011) of individual African Members when high, suggested why their level of engagement across the three areas studied was high, and compared to other active WTO Members, regardless of trade share or GDP. Tunisia and Mauritius were examples. These examples strongly suggested that the variable of economic/trade competitiveness had intervened to modify/influence the variable of low trade shares in explaining performance in regular work and negotiations.

115It was also observed from regression analysis that negotiators from municipal systems with low rule of law rankings, with fragile democracies and weak governance structures had been hugely inactive and ineffectual in WTO engagement partly because their priorities were elsewhere (EIU, 2010; TI, 2010).

116Although there have been some improvements in the past 15 years, the level of African Member participation in the WTO in the three core areas of the Doha negotiations, regular committee work and WTO dispute settlement has remained low. It is difficult to forecast with certainty the future of African Trade Policy and participation at the WTO. Overall, the performance has remained disappointing without much evidence that the future will be better than the past. The ability to manage effective national trade policies has always been linked to sustained and coordinated domestic reform. This domestic trade policy reform can be trigged by WTO binding rules. Ample evidence has been provided in recent research on accessions (Cheidu, 2011). In addition, more traditionally, WTO rules have had the impact of locking-in policy and forestalling policy reversals and uncertainty and unpredictability in national trade policy and domestic markets. The views that the WTO mechanism reinforces the credibility of domestic policy reform in the eyes of the exporter, importer or investor and that International Agreements strengthen the hand of governments and shift the balance of interest group politics within the domestic sphere is shared by this article (Razeen, 2000)i.

117This is why it has been argued that effective Geneva-capital coordination, up to date information on relevant trade policy issues and much higher levels of professionally motivated, diligent and expert African delegations will underpin any improvements in Africa's trade policy future and participation in the WTO. Africa requires a change in approach and orientation to trade policy. A change in orientation will drive export dynamism with the eventual knock-on effect that there could be increased incentive for active WTO participation.

In 2012, four new Members acceded to the WTO: Montenegro, Samoa, the Russian Federation and Vanuatu. This however, does not affect this study, which was conducted on the basis of a membership total of 153.

 WTO Members for the purpose of a wider research on which this article is based were grouped into six regions by the author – Africa; Asia Pacific; Europe; Latin America and Caribbean; Middle East; and North America.

 For a larger research, a questionnaire was administered to the 39 African WTO Members resident in Geneva that participate at the weekly meetings of the WTO African Group.

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References

Apecu, J. (2011) African Participation in the World Trade Organization, Legal and Institutional Aspects (1995-2010)’, Thesis no 918, The Graduate Institute of International and Development Studies, Geneva,

Cairo Declaration (2005) Cairo Declaration and Road Map on the Doha Work Programme, AU Conference of Ministers of Trade, 3rd Ordinary Session, Cairo, Egypt, para 16.

Chiedu, O. (2011) ‘Developing Countries and GATT/WTO Rules: Dynamic Transformation in Trade Policy Behaviour and Performance’, Minnesota Journal of International Law, 29(2).

EIU (Economist Intelligence Unit) (2010) Democracy Index 2010: Democracy in Retreat (London: EIU).

Hoekman, B.M. and P.C. Mavroidis. (2000) ‘WTO dispute settlement, transparency and surveillance’, The World Economy, 23(4), pp. 527-542.

Mosoti, V. (2006). ‘Africa in the first decade of WTO dispute settlement’, Journal of International Economic Law, 9(2), pp. 427-453.

Razeen, S. (2000) ‘Developing country trade policy reform and the WTO’, Cato Journal, 19(3).

Shaffer, G.C. (2003) ‘Defending interests: Public-private partnerships in WTO litigation’, (Washington, D.C.: Brookings Institution Press).

TI  (Transparency International) (2010) Corruption Perceptions Index 2010 (Berlin: Transparency International).

WEF (World Economic Forum). (2010) Global Competitiveness Index 2010-2011 (Cologny: WEF).

WTO (World Trade Organization) (1998) Annual Report, 1998 (Geneva: WTO)

WTO (2001)  World Trade Organization, Organization of African Unity/African Economic Community, Fourth Ordinary Session of the Committee on Trade, Customs and Immigration, 19-23 September, 2001, Abuja, Nigeria, Communication from Zimbabwe, WT/L/423 (Geneva: WTO).

WTO (2005) Decision on Amendment of the TRIPS Agreement, WT/L/641 (Geneva: WTO).

WTO (2009) DS267- US-Subsidies on Upland Cotton (Complainant by Brazil). (Geneva:WTO).

WTO (2010) WTO Annual report, 2010 (Geneva : WTO), pp.117

Yonov Agah, H.E. (2010) WTO Dispute Settlement Body Chairman, WTO Dispute Settlement Body Developments in 2010, Fourth Annual update on WTO Dispute Settlement, the Graduate Institute of International and Development Studies, Geneva, 8 March.

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Appendix

ANNEX I: Regression Results

Trade Shares

Trade shares were based on WTO Secretariat calculations. The ranking excluded intra-EU trade.  Regression results for the explanatory variable of "trade shares" suggested the following with regard to the dependent variable of "level of engagement and participation":

 (i) Interventions, Statements and Proposals: Regular work and negotiations (Charts 1-8)

A positive correlation between trade shares and statements/interventions/proposals in regular work and in negotiating engagement. The results showed that the higher a Members' trade share, the higher the number of interventions/statements, although this was mediated with competitiveness rankings as was illustrated in the case of Mauritius.

Exceptions seemed to exist where Members with high trade shares made fewer interventions. This was the case for South Africa with the highest trade share in Africa of 0.68 %, but making fewer interventions than other African Members with lower trade shares, on development questions in the Committee on Trade and Development.  

Exceptions also existed where those with low trade shares made relatively more interventions. This was the case for Kenya with a relatively lower trade share of 0.08%, but intervened the most in the TNC and General Council.

Most African Members barely intervened. All of them have low trade shares (less than one per cent).

One African Member with a trade share of 0.4%, that is Egypt (relatively high by African standards) had the highest level of African Members' interventions in regular work (the General Council)

Other factors, beyond trade share level, or in combination, must also be at play such as the experience and diligence of individual diplomats, professional exposure, tenure, commercial stake in subject area.

 (ii) Dispute settlement:

Complainants: the results suggested that, in general, the higher a Members' trade share, the higher the number of times a Member was likely to institute a dispute against another Member/s. Trade shares of all African WTO Members are very low. They have not instituted any complaints against any Member/s. (Charts 11 and 12)

Respondents: the results suggested that the higher a Members' trade share, the higher the number of times disputes were instituted against that Member. However few exceptions existed where Members with relatively low trade shares had been "sued" a couple of times, for example Dominican Republic with a trade share of 0.10% had been sued 7 times. (Chart 13). With very low trade shares, only two African Members have been respondents in WTO dispute settlement. These were Egypt and South Africa (Chart 14)

Third Parties: the result did not suggest a strong positive correlation between trade shares and third party participation. (Charts 15 and 16). This is an interesting finding; which confirms the value of the practice of systemic interventions. As a consequence, it is recommended that African WTO Members should intervene more regardless of (low) level of trade share. A Members' trade share did not seem relevant for third party participation. Whether a Members' trade share was high, medium, low or very low did not seem to matter. However, for African Members whose trade shares are in general very low, the number of third party participation has been lower than that of other Members in the low trade share category (less than one per cent).

Other factors, beyond the level of a Members' trade share, or in combination, must be at play with regard to decisions to undertake third party participation.

GDP Per Capita

GDP Per Capita (GDP per Capital (current $ US) was based on figures in the World Bank Database – World Development Indicators. Regression results for the explanatory variable of GDP suggested the following with regard to the dependent variable of "level of engagement and participation":

 (i) Interventions, Statements and Proposals: Regular work and negotiations (Charts 17-24)

Overall, a positive correlation between GDP per capita and statements/interventions/proposals in regular work and in negotiating engagement seemed to exist. The results suggested that a higher a Members' GDP per capita, the higher the number of interventions/statements, although this was mediated with competitiveness rankings as was illustrated by the case of Mauritius.

African Members with low GDP intervened less. Very few exceptions existed where no more than two (2) African Members with low GDP shares registered relatively higher levels of intervention/proposals. This was case for Benin and Burkina Faso; again confirming the argument, based on the facts, that low trade and GDP shares should not necessarily inhibit systemic engagement/participation.

 (ii) Dispute settlement.

With regard to dispute settlement the regression showed a mixed result as follows:

Complainants: the result did not seem to suggest a strong positive correlation between GDP and participation as complainant. A Members' GDP did not seem to matter much. Whether a Members' GDP was high, medium, low or very low seemed irrelevant for participation as complainant. Some Members with very high GDP levels had not been complainants in WTO dispute settlement; some with very low GDP had also not been complainants (the case for all African WTO Members). However, some Members with relatively low GDP levels had been complainant on a number of occasions, while those with "medium" level GDP had also been complainant more times than those with higher levels. (Charts 27 and 28)

Respondents: the results suggested a positive correlation between GDP levels and number of times a Member was respondent, only for African Members (the two Members that have been respondents). (Chart 30). For all other Members, the correlation was not positive. (Chart 29). The results suggested that GDP levels did not appear to influence behaviour as respondents. Irrespective of GDP levels, Members had been or not been respondents. In other words the nature of the functioning is very "systemic", regardless of levels of trade and economic development.

Third Parties: the result did not seem to suggest a strong positive correlation between GDP and third-party participation. A Members' GDP did not seem to influence behaviour as third-party. Whether a Members' GDP was high, medium, low or very low appeared to be of little relevance for third-party participation. (Charts 31 and 32).

 (iii) Mission Size:

Although the results showed that in the minority of cases, the higher the GDP, the larger the mission size, in the majority of cases, the result suggested that GDP did not affect mission size. (Chart 25). Some Members with low GDP had mission sizes larger than or comparable to with those Members with higher GDP levels. This is the case for Nigeria and Kenya. (Chart 26)

Democracy Level

A Members' democracy level was based on the Economist Intelligence Unit's Democracy Index 2010. The scores measured the level of democracy as follows: full democracies (score 10-8); flawed democracies (scores 7.9-6); hybrid regimes (scores 5.9-4); authoritarian regimes (scores below 4). Regression results for the explanatory variable of "democracy level" suggested the following with regard to the dependent variable of "level of engagement and participation:

 (i) Interventions, Statements and Proposals (Regular work and negotiations) and Mission Size

Most African Members ranked low (i.e. less democratic) as per the EIU democracy index and intervened less in regular work and negotiating engagement.(Charts 34, 36, 38,40)

The results suggested that the less democratic a Member was, the less the level of interventions/participation.

There were some exceptions where a few that were ranked low had intervened more ( for instance Djibouti with a score of 2.2 had intervened 34 times in the General Council and Egypt with a score of 3.07 had intervened 218 times). There were also opposite exceptions where those that ranked high (more democratic) had made very few statements. (For example, Iceland with a score of 9.65 had made only 5 interventions in the CTD in the 15 years studied. Cape Verde, with a score of 7.94 had not intervened in the CTD)

The results seemed to suggest that a Members' level of democracy did not affect mission size. (Charts 41 and 42)

Other factors in combination with the level of democracy seem to be at play.

Corruption Level

A Members' level of corruption was based on the Corruption Perceptions Index 2010 of Transparency International. Regression results for the explanatory variable of "corruption level" suggested the following with regard to the dependent variable of "level of engagement and participation:

 (i) Interventions, Statements and Proposals (Regular work and negotiations) and Mission Size

Most African Members ranked low (more corrupt) as per the CPI index. They intervened less in regular work. (Charts 44, 46)

The results for the explanatory factor of "level of corruption" seemed to suggest a "weaker" correlation, to participation levels compared to all other explanatory variables in this regression. A Members' corruption score did not seem to matter for participation in terms of interventions/statements/proposals or mission size. (Charts 43-52)

Other factors, including in combination, must therefore be at play

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Notes

1  In 2012, four new Members acceded to the WTO: Montenegro, Samoa, the Russian Federation and Vanuatu.  This however, does not affect this study, which was conducted on the basis of a membership total of 153.

2  WTO Members for the purpose of a wider research on which this article is based were grouped into six regions by the author – Africa; Asia Pacific; Europe; Latin America and Caribbean; Middle East; and North America.  

3  For a larger research, a questionnaire was administered to the 39 African WTO Members resident in Geneva that participate at the weekly meetings of the WTO African Group.

4  Annex III: Questionnaire and results- African Participation at the WTO, Legal and Institutional Aspects 1995-2010, Thesis no 918, Graduate Institute, Geneva. Annex III available upon request.

5  Use of coalitional behaviour including issue-specific groups and technical assistance provided by other IGOs and NGOs are examined in detail in the sections on negotiating engagement under the Doha negotiations and participation in regular work, where it was more employed.

6  The same treatment for African countries with regard to the supply of technical assistance holds for the early days of the WTO.  In 1998, it was reported that "since the creation and entry into force of the World Trade Organization, over 600 technical co-operation activities have been organized through mid-1998.  Major efforts have been directed towards assisting African countries, while activities for countries in other regions have been maintained.  Africa continues to be covered in large measure under specific programmes".  WTO Annual Report, 1998, p.128.

7  Kenya, Tanzania, Tunisia and Nigeria

8  African Members that had made individual statements in the TNC from 2002-2010 were: Benin, Botswana, Chad, Cote d'Ivoire, Djibouti, Egypt, Gabon, Ghana, Guinea, Kenya, Lesotho, Mali, Mauritania, Mauritius, Morocco, Nigeria, Rwanda, Senegal, South Africa, Tanzania, Tunisia, Uganda, Zambia, and, Zimbabwe.

9  The Cairns Group is a Group of agricultural exporting nations to further agricultural trade liberalization. The Group was formed in 1986 in Cairns, Australia

10  Congo; Cote d'Ivoire, Egypt; Ghana; Kenya; Madagascar; Mauritius; Morocco; Namibia; Nigeria; Rwanda; Senegal; South Africa; Tanzania; Tunisia; Uganda; Zambia; Zimbabwe.

11  For the purpose of this research, a group proposal was attributed to each member of the group.  For example, one African Group proposal was counted as 42, attributing it to each of the 42 African WTO Members.

12  "Increasing participation of developing countries".  This paragraph provides for the increased participation of developing country members in world services trade through "negotiated specific commitments by different Members"; and, establishment of contact points by developed country Members, within two years of the entry into force of the WTO Agreement, to facilitate the access of developing country Members' services suppliers to information related to their respective markets.  This article provides that special priority will be accorded to LDCs.

13  Djibouti; Egypt; Gambia; Kenya; Mauritius; Nigeria; Senegal; Tanzania; Uganda; Zambia; and, Zimbabwe.

14  WT/L/847,Preferential treatment to services and service suppliers of Least-developed countries.   This waiver, which will last for 15 years from the date of adoption, releases developing and developed-country Members from their legal obligation to provide non-discriminatory treatment to all trading partners (GATS Article II: Most-Favoured-Nation Treatment), so as to give them legal cover when they give preferential treatment to LDCs.

15  Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries.

16  Egypt; South Africa; Mauritius; Kenya; and, Morocco.

17  WTO International Trade Statistics, 2010: Table 1.4, intra and inter-regional merchandise trade, 2009, p.13.

18  Algeria, Egypt, Libyan Arab Jamahiriya, Malawi, Mozambique, Nigeria, South Africa, and Zimbabwe.

19  Mauritius; Egypt; Morocco, Zambia, Uganda, Senegal, Rwanda and Togo.

20  Benin, Egypt, Morocco, Namibia, Nigeria, Rwanda, South Africa, Swaziland and Uganda.

21 Atelier de réflexion sur le règlement des différends: un atout ou une contrainte pour la négociation? Le cas du Coton à l'OMC, samedi 12 février 2011.

22  Areas of Third Party Rights included: cotton, sugar and bananas, trade remedies and environmental/extra-territorial concerns as illustrated in the Shrimp-Turtle dispute.

23  H.E. Yonov Agah (2010) WTO Dispute Settlement Body Chairman, noted that "An interesting statistic for 2010 relates to panellists.  Historically, in the 15 years of WTO dispute settlement, a little less than half of the panellists have come from developing countries".  He notes that at the end of 2010, 21 of the 33 panellists serving on active panels were from developing countries- presentation made at the WTO Dispute Settlement Body Developments in 2010, Fourth Annual update on WTO Dispute Settlement, the Graduate Institute of International and Development Studies, 8 March 2010.

24  These have included Benin; Burkina Faso; Chad, Cote d'Ivoire, Egypt, Gabon, Ghana, Kenya, Lesotho, Mali, Mauritius, Morocco, Namibia, Nigeria, Senegal, Tanzania, Tunisia, Zambia and Zimbabwe.

25  This has been the case for technical assistance and support provided by inter-alia Third World Network, South Centre, ICTSD, Oxfam for TRIPS and Public Health; and, Ideas Centre for cotton to the Cotton-four countries.

26  Issues have included technical assistance and capacity building; implementation issues, measures and initiatives to assist and expand trade and investment opportunities in developing countries and LDCs, fluctuating commodity prices, regional trade agreements under the Enabling Clause, duty free, quota free market access for LDCs.

27  Benin, Cameroon, Chad, Cote d'Ivoire, Egypt, Ghana, Kenya, Madagascar, Malawi, Mauritius, Nigeria, Senegal, South Africa, Swaziland, Tanzania, and, Zimbabwe

28  Charts 15 and 16 in Annex II: Regression results- African participation at the WTO, Legal and Institutional Aspects 1995 to 2010, thesis no 10, the Graduate Institute. Annexes are available upon request.

29  Author's own calculations based on existing data in the WTO's TRTA database

30  It has also been suggested that the important variable to use is trade as a percentage / proportion of GDP, and not absolute trade or GDP figures.  This adjustment of the trade / GDP variable is possible.

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Cite this article

Bibliographical reference

Joan Apecu, « The Level of African Engagement at the World Trade Organization from 1995 to 2010. »,International Development Policy | Revue internationale de politique de développement, 4.2 | -1, 29-67.

Electronic reference

Joan Apecu, « The Level of African Engagement at the World Trade Organization from 1995 to 2010. », International Development Policy | Revue internationale de politique de développement [Online], 4.2 | 2013, Online since 10 June 2013, connection on 24 November 2017. URL : http://poldev.revues.org/1492 ; DOI : 10.4000/poldev.1492

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About the author

Joan Apecu

Joan Apecu is an Economic Affairs Officer in the Council and Trade Negotiations Committee Division at the WTO. The views expressed in this paper are those of the author. They neither represent the views of the WTO, nor its Members, individually or collectively, nor its Secretariat. This article is based on extensive research undertaken by the author, submitted as a requirement for the PhD, titled "African Participation at the World Trade Organization, Legal and Institutional Aspects", 1995 to 2010, Graduate Institute of International and Development Studies, Thesis no 918.

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Copyright

Creative Commons Attribution-NonCommercial 3.0 Unported License.

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