under the Enabling Clause. However, it is still important to discern whether they
that industrialized countries have suggested aligning the Enabling Clause with
234
Steven Buchta
will demonstrate that AFTA and COMESA have not integrated sufficiently to
comply with WTO standards. However, this article will also demonstrate that the
WTO does not adequately enforce its standards, thus permitting RTAs to limit
flows to intra-regional trade.
Article XXIV of the GATT stipulates RTA requirements, but much of
the article has not been defined. Consequently, little is known about the
precise requirements for WTO-approved FTAs. Future interpretations
of Article XXIV may stipulate that COMESA and AFTA do not meet
all the conditions for FTAs. This uncertainty further demonstrates the
WTO’s inability to offer enforceable trade regulations for RTAs. A lack
of evaluation and enforcement allows protectionist measures to embed
themselves within South-South RTAs, thus preventing trade creation
within the multilateral system.
It should also be noted that many other RTAs, both North-North and
North-South, are arguably infringing upon future interpretations of Article
XXIV. For example, the Appellate body decision on the Turkey-Textiles
case notes that:
[N]either the GATT Contracting Parties nor the WTO Mem-
bers have ever reached an agreement on the interpretation of
the term ‘substantially’ in this provision. It is clear, though,
that ‘substantially all the trade’ is not the same as all the trade,
and also that ‘substantially all the trade’ is something consider-
ably more than merely some of the trade (Anonymous WTO
Analytical Index).
The Appellate body explains that the WTO has not identified the extent
to which customs unions must liberalize their trade regime under Article
XXIV, paragraph 8(a). Thus, one can conclude that a future WTO panel
will have to decide the meaning of “substantially all trade” in paragraph
8(b), which points out the degree to which FTAs must reduce barriers to
trade (Mathis 2002, 217). Should a panel judge “substantially all trade”
in an FTA to mean a high percentage of liberalization, many RTAs—both
North-North and South-South—could be in jeopardy of violating Article
XXIV.
In addition to the ill-explained paragraph 8(b), AFTA and COMESA
could also be in violation of Article XXIV, paragraph 5(c). The obligation
on schedules of integration states:
[A]ny interim agreement referred to in subparagraphs (a) and
(b) shall include a plan and schedule for the formation of such
a customs union or of such a free-trade area within a reasonable
length of time (Anonymous WTO Analytical Index).
235
The Regulation of South-South RTAs: An Analysis of AFTA and COMESA
AFTA and COMESA both have outlined timelines for their trade
liberalization process, but delays have occurred in the implementation of
agreements. Consequently, extensions are frequently granted for stages of
liberalization. Paragraph 5 maintains that FTAs must be formed within a
“reasonable length of time.” If the WTO were to outline definite schedules
of integration, South-South RTAs such as AFTA and COMESA would
likely struggle to meet specific WTO deadlines.
While COMESA and AFTA may be deemed inconsistent with
Article XXIV at a future date, there are other obligations that both agree-
ments have fulfilled. Paragraph 5(b) of the article states:
[W]ith respect to a free-trade area, or an interim agree-
ment leading to the formation of a free-trade area, the
duties and other regulations of commerce maintained in
each of the constituent territories and applicable at the
formation of such free-trade area or the adoption of such
interim agreement to the trade of contracting parties not
included in such area or not parties to such agreement
shall not be higher or more restrictive than the corresponding
duties and other regulations of commerce existing in the same
constituent territories prior to the formation of the free-trade
area, or interim agreement as the case may be (Anonymous
WTO Analytical Index).
Duties and tariffs have been lowered to some degree in several sectors
of AFTA and COMESA. While their level of integration may not cover
substantially all trade, neither agreement was created to increase barriers
to trade between member-states. Paragraph 7(a) is another provision that
both RTAs have followed. It states:
[A]ny contracting party deciding to enter into a customs union
or free-trade area, or an interim agreement leading to the forma-
tion of such a union or area, shall promptly notify the contracting
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