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The Regulation of South-South RTAs: An Analysis of AFTA and COMESA
tory procedures and internal taxes are not levied as protectionist measures
(Hafez 2004, 211). Some countries within AFTA are also members of
the WTO and therefore can apply Article III of the GATT (Hafez 2004,
211). However, several member-states of AFTA are not members of the
WTO and thus have no obligation to apply national treatment to regional
trading partners (Hafez 2004, 211). These countries—namely Cambo-
dia, Laos, and Vietnam—are not restricted under any international trade
laws from applying domestic tax and regulatory policies for protectionist
purposes (Hafez 2004, 211). Therefore, AFTA does not provide uniform
conditions for imported goods that must compete with similar domestic
products (Hafez 2004, 211). This absence of a legal infrastructure for
non-WTO members increases the potential for internal barriers to trade,
weakens the free flow of intra-regional trade within AFTA, and thus al-
lows protectionist measures to outweigh fundamental principles of free
trade agreements.
Article 9 of the CEPT-AFTA Agreement is another legality that can
serve protectionist purposes. Under Article 9, member-states are able to
implement regulations for the protection of public morals, national security,
human, animal or plant life, or health (Hafez 2004, 213). These excep-
tions are similar to those outlined in Article XX of the GATT and several
exceptions in the Sanitary and Phytosanitary Measures (SPS). Yet, national
treatment under the WTO can counter any protectionist manipulations of
WTO exceptions. In contrast, since national treatment is not an obligation
for several CEPT-AFTA signatories, the potential for abuse of Article 9 is
enhanced by AFTA’s weak legal framework. The WTO does not stipulate
that WTO members in South-South RTAs must impose GATT rules on
non-member states. This lack of enforcement and direction by the WTO
permits South-South RTAs to construct incomplete legal frameworks that
permit barriers to intra-regional trade.
Another flaw of the CEPT-AFTA Agreement, which persists under
multilateral regulations, is its poor enforcement of non-tariff barrier (NTB)
reductions. This is a key defect of the legal framework because removing
tariffs can encourage the free flow of goods only to the extent that NTBs
are limited. Article 5 obligates member-states to gradually remove NTBs
and quantitative restrictions (Hafez 2004, 213). However, Article 5 has
not been implemented with much success. A 1999 survey of private firms
in ASEAN, conducted by the ASEAN Secretariat, concluded that several
types of NTBs still exist in the region (e.g. length procedures for import
licenses, non-publicized frequent regulatory changes, inconsistent customs
valuation, quota restrictions and privileges provided to selected compa-