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The Regulation of South-South RTAs: An Analysis of AFTA and COMESA
Article 56(1) of the COMESA treaty outlines MFN treatment (Oduor
2005, 192). Similar to GATT Articles I and III, Article 57 states that the
members of COMESA must “refrain from enacting legislation or applying
administrative measures which directly or indirectly discriminate against
the same or like products of member-states” (Oduor 2005, 192). Moreover,
Article 56(1) typifies GATT language by requiring member-states to “ac-
cord one another the most favored nation treatment” (Oduor 2005, 192).
This language demonstrates that COMESA has chosen to reproduce key
content from the WTO’s legal framework for trade in goods.
However, COMESA’s replication of the WTO’s legal framework has
not ensured a steady reduction of barriers to trade and the continuous
liberalization of its trade regime. For instance, WTO-type provisions on
subsidies, anti-dumping and countervailing duties have not been sup-
ported with the proper enforcement (Oduor 2005, 193). The WTO has
demonstrated that a legitimate dispute settlement body is an effective
way of enforcing trade regulations. COMESA offers a dispute settlement
mechanism designed to gain domestic political approval by granting non-
state and private actors procedural and substantive rights (Oduor 2005,
202). This mechanism has yet to effectively enforce the various WTO-style
obligations in the COMESA treaty.
COMESA does not have to provide a legitimate mechanism to solve
disputes among member-states on its own. WTO jurisprudence under
Article XXIV (e.g. the Turkey Textiles Case) conveys that the WTO is
capable of intervening in disputes involving RTAs (Oduor 2005, 206).
However, in the case of South-South RTAs such as COMESA, the WTO
has not made key interventions in such disputes. As developing states
liberalize their trade regimes and overcome domestic political influence,
they must be supported by legitimate regional laws and regulatory bodies.
Current multilateral regulations of South-South RTAs have not made these
institutions and laws an imperative aspect of FTAs under the GATT.
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