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Max Planck Encyclopedia of Public International Law [MPEPIL]

Common Market for Eastern and Southern Africa (COMESA)

Magnus Killander

Regional co-operation — Goods — Regional trade — Tariffs — Technical barriers to trade

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Historical Background

In October 1965 ministers of the independent States of Eastern and Southern Africa met in Lusaka, Zambia, under the auspices of the Economic Commission for Africa (‘ECA’) of the United Nations. An interim council of ministers was established to negotiate a treaty for the establishment of an economic community of Eastern and Southern African States (Economic Integration, Comparative Analysis; Economic Organizations and Groups, International ; Economic Community of West African States [ECOWAS]). The project was however put on hold as attention focused on the East African Community (‘EAC’). With the collapse of the latter in 1977 there was a renewed interest in the ECA initiative. In March 1978, a declaration of intent to create a preferential trade area in Eastern and Southern Africa was signed by 12 States. In December 1981 heads of State and representatives of Comoros, Djibouti, Ethiopia, Kenya, Malawi, Mauritius, Somalia, Uganda, and Zambia signed the Treaty for the Establishment of the Preferential Trade Area (‘PTA’) for Eastern and Southern Africa (‘PTA Treaty’). The PTA Treaty entered into force in September 1982 when it had been ratified by seven States (International Law, Regional Developments: Africa).

B. Establishment of COMESA

Art. 29 PTA Treaty provided that the PTA should be succeeded by a common market and eventually developed into an economic community. The Treaty Establishing the Common Market for Eastern and Southern Africa (‘COMESA Treaty’) was adopted in November 1993 by the heads of State of the PTA Member States. The COMESA Treaty entered into force in December 1994. The Common Market for Eastern and Southern Africa (‘COMESA’) is one of eight Regional Economic Communities (‘RECs’) recognized by the African Union (AU) (Regional Co-operation and Organization: African States; Regional Trade Agreements).

C. Main Purposes and Fields of Activities

COMESA has six main objectives:

a) to attain sustainable growth and development of the Member States by promoting more balanced and harmonious development of its production and marketing structures;

b) to promote joint development in all fields of economic activity and the joint adoption of macro-economic policies and programmes to raise the standard of living of its peoples and to foster closer relations among its Member States (Standard of Living, Promotion of);

c) to co-operate in the creation of an enabling environment for foreign, cross border and domestic investment including the joint promotion of research and adaptation of science and technology for development;

d) to co-operate in the promotion of peace, security and stability among the Member States in order to enhance economic development in the region;

e) to co-operate in strengthening the relations between the common market and the rest of the world and the adoption of common positions in international forums; and

f) to contribute towards the establishment, progress and the realization of the objectives of the African Economic Community.

To achieve these objectives the COMESA Treaty provides for the establishment of a customs union (Customs Unions; Customs Law, International) and the abolition of all non-tariff barriers among Member States, convertibility of the currencies of Member States and the harmonization of monetary policies with the aim of establishing a monetary union (Monetary Unions and Monetary Zones). Obstacles to the free movement of services, capital and labour should be removed and the right to establishment for investors and the right of residence within COMESA should be guaranteed (Services, Trade in; Capital, Free Flow of; Goods, Free Circulation of). Member States shall also harmonize laws as required for the effective functioning of the organization and adopt policies that facilitate transport and communications, improve agricultural development and enhance food sufficiency (Traffic and Transport, International Regulation; Food, Right to, International Protection). Member States shall co-operate in social and cultural affairs, tourism and wildlife management, development and management of natural resources, energy and the environment (Conservation of Natural Resources; Environment, International Protection; Environment, Multilateral Agreements).

According to the PTA Treaty, tariffs on trade between PTA Member States should have been removed 10 years from the entry into force of the PTA Treaty. This was not achieved and the goal was moved forward to 2000. A free trade area was launched in October 2000 with nine members: Djibouti, Egypt, Kenya, Madagascar, Malawi, Mauritius, Sudan, Zambia, and Zimbabwe (Rhodesia/Zimbabwe); Burundi and Rwanda joined the free trade area in 2004, Comoros and Libya in 2006 (Free Trade Areas), Seychelles in 2009, Uganda in 2015, and the Democratic Republic of the Congo (Congo, Democratic Republic of the) in 2016 (with full implementation by 2018). Three Member States remain outside the free trade area: Eritrea, Ethiopia, and Swaziland. Swaziland is exempted due to its membership in the Southern African Customs Union (‘SACU’). Trade remedy regulations were adopted in 2001 which set out when temporary trade barriers to safeguard domestic industries and offset the effects of dumping and export subsidies are allowed (Technical Barriers to Trade; Anti-Dumping; Subsidies, International Restrictions). However, the application of non-tariff barriers remains a problem. The COMESA Council of Ministers (‘Council’) in June 2006 decided that a customs union should be established by December 2008 (International Organizations or Institutions, Decision-Making Bodies). It is anticipated that not all COMESA members will join the customs union at its inception. The 2007 Summit of the COMESA Authority of Heads of State and Government (‘Authority’) approved a common external tariff of 10% to apply on intermediate products and 25% on finished products. No external tariff should apply to raw materials and capital goods. This is the same external tariff as the EAC customs union, established in 2005. An agreement establishing a Tripartite Free Trade Area (‘TFTA’), adopted in 2015 and covering the Southern African Development Community (SADC), EAC, and COMESA, had by early 2018 been signed by 22 States: Angola, Burundi, Botswana, Comoros, the Democratic Republic of the Congo, Djibouti, Egypt, Kenya, Libya, Madagascar, Malawi, Mauritius, Namibia, Rwanda, Seychelles, South Africa, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe. Eritrea, Ethiopia, Lesotho, Mozambique, and South Sudan have not yet signed the agreement. The TFTA requires 14 ratifications to enter into force. As of early 2018 only Egypt and Uganda had ratified the agreement.

The Protocol Establishing the COMESA Fund entered into force in 2006 after having been ratified by seven Member States—Burundi, Ethiopia, Kenya, Malawi, Mauritius, Rwanda, and Sudan. The COMESA Fund will provide funds for infrastructure development and give support to members experiencing budget problems because of trade liberalization.

A number of measures have been introduced to ease transit of goods (Transit of Goods over Foreign Territory). A common customs document and a common tariffs nomenclature have been adopted. A programme has been set up to harmonize customs and trade statistics systems. A regional transit bond guarantee scheme eliminates the need for customs bond guarantees for each transit country. Harmonized road transit charges, axle load and maximum vehicle dimensions have been implemented. Not all Member States participate in all of these arrangements.

The Protocol on the Free Movement of Persons, Labour, Services, Right of Establishment and Residence adopted in 2001 has not yet entered into force. This protocol will replace the Protocol on the Gradual Relaxation and Eventual Elimination of Visas, adopted in 1984. A Model Law on Immigration was adopted by the chief immigration officers of COMESA in 2006 and endorsed by the Council. Despite not having ratified the freedom of movement protocol, in 2016 Zambia and Zimbabwe established National Monitoring Committees to measure implementation of the protocol.

In 2002 the Authority adopted a COMESA Gender Policy. The Council decided in 2006 that the COMESA Secretariat should undertake an audit of Member State legislation that discriminates against women and develop indicators to measure progress towards gender mainstreaming and economic empowerment of women (International Organizations or Institutions, Secretariats; Women, Rights of, International Protection). A Gender Mainstreaming Strategic Action Plan adopted by the COMESA Secretariat in 2009 provides sectoral guidelines to guide policymakers.

10 COMESA has developed a work plan and regional compact programme under the Comprehensive Africa Agriculture Development Programme of the New Partnership for Africa’s Development (NEPAD). COMESA has not been very active with regard to peace and security. Instead other organizations in the region such as the Intergovernmental Authority on Development (‘IGAD’) and the EAC have taken the lead regarding these issues. However, COMESA has in recent years taken an increased interest in peace and security as exemplified by the COMESA early warning system (‘COMWARN’) and the development by the Secretariat of the COMESA Peace and Prosperity Index (‘CPPI’).

D. Legal Status and Membership

11 Art. 1 Common Market for Eastern and Southern Africa Treaty provides that any State which was a member of the PTA can become a member of COMESA. In addition, the COMESA Treaty provides that Botswana and South Africa can apply for membership. Neither of these countries has joined COMESA, with South Africa opting to join only the SADC upon achieving democracy in 1994.

12 COMESA currently has 19 Member States. The latest States to join are Egypt (1999), Seychelles (2001), and Libya (2005). A number of States which have been members of COMESA have withdrawn from the organization. Lesotho and Mozambique withdrew in 1997, Tanzania in 2000, Namibia in 2003 and Angola in 2007. In accordance with Art. 191 Common Market for Eastern and Southern Africa Treaty, withdrawal takes effect one year after notification to the COMESA Secretary-General. Swaziland is now the only member of COMESA that is at the same time a member of the Southern Africa Customs Union.

E. The Main Organs of COMESA and Their Powers

13 According to Art. 7 Common Market for Eastern and Southern Africa Treaty COMESA has the following organs: the Authority, the Council, the Court of Justice (‘Court’), the Committee of Governors of Central Banks, the Intergovernmental Committee, the Technical Committees, the Secretariat, and the Consultative Committee.

14 The Authority meets once a year, but can hold extraordinary sessions when needed. The Council consists of ministers designated by the Member States. The decisions, regulations and directives of the Authority and the Council are taken by consensus and are binding on Member States and the organs of COMESA except the Court in the exercise of its jurisdiction. Ministers responsible for specific sectors also meet regularly. The Intergovernmental Committee is composed of high level civil servants and prepares programmes and action plans in the various sectors in which co-operation takes place. The Committee of Governors of Central Banks is responsible for co-operation on finance and monetary policies. The Consultative Committee is made up of members of the business community and other interest groups and acts in an advisory capacity to the COMESA policy organs. The Secretariat is based in Lusaka, Zambia.

15 A number of specialized institutions have also been established. These include the Eastern and South African Trade and Development Bank and the COMESA Reinsurance Company based in Nairobi, Kenya, the COMESA Clearing House based in Harare, Zimbabwe, and the Leather and Leather Products Institute in Addis Ababa, Ethiopia. The Eastern Africa Power Pool was established in 2005 through a memorandum of understanding between Burundi, Democratic Republic of the Congo, Egypt, Ethiopia, Kenya, Rwanda, and Sudan. In 2006 the Council decided to set up a monetary institute which works among others with strengthening the capacity of national central banks.

F. External Relations

16 Art. 183 Common Market for Eastern and Southern Africa Treaty provides that ‘Member States may together negotiate with any third country with a view to the association of that country with the Common Market’. 16 Member States have been negotiating since 2002 with the European Union for an Economic Partnership Agreement (‘EPA’) (European Community and Union, Party to International Agreements). The EPA will function as a free trade area and replace the trade aspects of the Cotonou Agreement of June 2000 (Lomé/Cotonou Conventions). The remaining three COMESA Member States are negotiating an EPA as part of SADC. An interim EPA was concluded with Madagascar, Mauritius, Seychelles, and Zimbabwe in 2009.

17 COMESA has established a joint task force with the EAC and the SADC to avoid duplication of efforts and harmonize policies. This is necessary since Democratic Republic of the Congo, Madagascar, Malawi, Mauritius, Swaziland, Tanzania, Zambia, and Zimbabwe are all members of both COMESA and SADC. Kenya and Uganda are both members of COMESA and EAC. COMESA also co-operates with the IGAD and the Indian Ocean Commission. Almost all the members of these organizations are also members of COMESA.

G. Settlement of Disputes

18 Chapter five of the COMESA Treaty provides for the establishment of a court of justice (International Courts and Tribunals). In 2003 the Authority decided that the Court’s seat should be moved from Lusaka to Khartoum, Sudan. The Court took up its new seat in January 2006. After an amendment of the COMESA Treaty in 2004 it consists of a first instance division and an appellate division (Treaties, Amendment and Revision). Despite the official transfer of the Court to Khartoum, the first session of the first instance division was held in Lusaka in July and August 2006.

19 Complaints over an alleged violation of the COMESA Treaty can be referred to the Court by a Member State or the Secretary-General. The Court also has jurisdiction over disputes with COMESA employees. In addition, any resident of a Member State,

may refer for determination by the Court the legality of any act, regulation, directive, or decision of the Council or of a Member State on the grounds that such act, directive, decision or regulation is unlawful or an infringement of the provisions of this Treaty (Art. 26 Common Market for Eastern and Southern Africa Treaty).
If the complaint is about national legislation exhaustion of local remedies is required before an individual can bring a complaint to the Court (Local Remedies, Exhaustion of; International Law and Domestic [Municipal] Law). However, if issues of COMESA law are raised before a national court then that court can refer that question to the Court for a preliminary ruling (Art. 30 Common Market for Eastern and Southern Africa Treaty). The Court can also give advisory opinions at the request of the Authority, the Council or a Member State. The Court can issue interim measures. A judgment handing down a pecuniary obligation is automatically enforceable in the Member State (Judgments of International Courts and Tribunals). The Court may also ‘prescribe such sanctions as it shall consider necessary to be imposed against a party who defaults in implementing the decisions of the Court’ (Art. 34 (4) Common Market for Eastern and Southern Africa Treaty).

H. Evaluation

20 COMESA is the second largest of the eight African RECs which have been recognized by the AU. Its membership stretches from Egypt in the north to Swaziland in the south with, as noted above, overlapping membership with other RECs. Both COMESA and SADC are on the verge of establishing customs unions, though implementation has been much slower than rhetorical commitment. This means that States with membership in both organizations will have to choose to which customs union they want to belong as it is not possible to belong to more than one customs union. Alternatively, the customs unions would have to set the same external tariff, as already seen by COMESA in relation to EAC, and agree on rules of origin. It has been reported that the EAC Member States, in particular Kenya, are trying to persuade Tanzania, the only EAC Member State that is also not a member of COMESA to come back to the organization that it left citing lack of competitiveness in a free trade area and high membership costs. This way the whole EAC would form part of the COMESA customs union which would in practice take over the functions of the EAC customs union, while the EAC would be left to focus on political integration.

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