Multilateral Matters #7: Intellectual Property Rights in the African Continental Free Trade Agreement (AfCFTA): Initial Observations

wendland_wendby Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, wend.wendland@uct.ac.za, @WendWendland

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy


Key points

The continent-wide free trade zone created by the Agreement Establishing the African Continental Free Trade Area (the AfCFTA) has the potential to catalyse intra-African trade, boost economic development and lift tens of millions of Africans out of poverty.

From a trade and development perspective, the AfCFTA advances a fresh trade model focused on inclusive and sustainable development. In recognizing the centrality of intellectual property (IP) protection in today’s economy, and the benefits of continental cooperation on IP, the AfCFTA will include a Protocol on IP. Finalization of the IP Protocol holds the promise of a home-grown, single, coherent and Africa-centred IP regime. This could harmonize the fragmented IP landscape of today while safeguarding national policy space on key issues, strengthen the hands of African negotiators in international forums and even help propel currently deadlocked international negotiations towards the finish line. It is hoped that the IP Protocol will realise its promise and advance the policy objectives, principles and transformative potential of the AfCFTA.

Introduction

In 2012, the African Union decided to establish an Africa-wide free trade area. The Agreement Establishing the African Continental Free Trade Area (the AfCFTA) came into force in May 2019, 30 days after the requisite number of countries had deposited their instruments of ratification.  As of today, 30 of the African Union’s 55 members have signed and ratified the AfCFTA.1

Trading was set to commence under the AfCFTA in July 2020, but this has been delayed by the COVID-19 pandemic.

In the words of the recently-elected Secretary General of the AfCFTA, Wamkele Mene, the AfCFTA is:

“. . . a critical response to Africa’s developmental challenges. It has the potential to enable Africa to significantly boost intra-Africa trade, improve economies of scale and to establish an integrated market. It has the potential to be a catalyst for industrial development, placing Africa on a path to exporting value-added products, improving Africa’s competitiveness both in its own markets and globally. It also sends a strong signal to the international investor community that Africa is open for business, based on a single rulebook for trade and investment”.2

A mega-regional trade pact

Indeed, according to the African Union (AU) and the UN Economic Commission for Africa (UNECA), the AfCFTA aims to integrate the currently fragmented markets of the 55 AU member countries, with 1.3 billion people, into a single USD 2.5 trillion market.  This will propel much-needed industrialization, support food security through increased intra-African trade in agricultural and food products, take advantage of Africa’s forecasted population growth, pivot away from extractive commodities to more diversified export products, provide jobs for Africa’s youth through promoting labour-intensive trade and supporting informal traders, especially women traders, and assist Africa to speak with one voice in international trade negotiations.3

The expected economic boost to be provided by the AfCFTA will be even more critical given the downward economic shock caused by the COVID 19-induced supply chain disruptions, production stoppages, trade and travel restrictions and lockdowns.

A recent World Bank report has concluded that the AfCFTA represents a major opportunity for countries to boost growth, reduce poverty, and broaden economic inclusion. According to the report, if implemented fully, the trade pact could boost regional income by 7% or $450 billion, speed up wage growth for women, and lift 30 million people out of extreme poverty by 2035.4

Focusing on the greater inclusion of women

Recognizing that women’s equal participation in international trade is critical, targeted initiatives, such as “SheTrades: Empowering Women in the African Continental Free Trade Area (AfCFTA)”5, are underway to provide women business associations and policy-makers with capacity building and advocacy support, and bringing them together for policy dialogues, including on IP issues.

Intellectual property in the AfCFTA

The first phase of the AfCFTA negotiations focussed on the framework agreement establishing the AfCFTA and negotiations on protocols on trade in goods and services and dispute settlement.  A second phase is dedicated to negotiations on investment, competition policy and IP.  Phase two is intended to be completed by June 2021 but this may be delayed by the pandemic.

Regarding IP, a draft “Protocol on Intellectual Property Rights” has been prepared.

The “Multilateral Matters” series will focus on only one aspect of the AfCFTA, namely its proposed provisions on IP.

The IP analysis will, first, be cognizant of the transformative quality of the AfCFTA, and of its aspiration to embody a new normative approach to trade and development that could affect global trade well beyond the African continent. As Katrin Kuhlmann and Akinyi Lisa Agutu write:

“The AfCFTA reflects both Africa’s new model of what a trade agreement should look like and aspects of the multilateral legal framework of the World Trade Organization (WTO). The AfCFTA has a strong development focus, highlighting economic and social development and legal harmonization among its objectives and incorporating aspects of the AU’s Agenda 2063, which prioritizes inclusive social and economic development and links Africa’s growth and integration to the Sustainable Development Goals (SDGs).”6

Second, the AfCFTA’s own guiding principles and objectives are also points of reference against which to examine the future IP provisions. Notable amongst these are the objectives and principles related to sustainable and inclusive socio-economic development, resolving the challenges posed by the crow’s nest of obligations arising from multiple and overlapping trade regimes (including IP regimes) that accompany the existing eight African regional economic communities (RECs) and existing IP organizations such as ARIPO and OAPI, expediting regional and continental legal harmonization, reaffirming countries’ rights to regulate within their territories and use flexibilities to achieve legitimate policy objectives,7 and drawing on best practices in the RECs, States Parties and international conventions binding the AU.8

Finally, Caroline Ncube, Tobias Schonwetter, Jeremy de Beer and Chidi Oguamanam remind that process is also critical. As they cogently write, it will also be critical that the process followed by negotiators in the finalization of the Protocol be “geared towards ensuring good, fair, balanced and widely-supported policy through democratic, open, transparent, inclusive and diligent processes, such as public consultation and debates”.9

Concluding remarks

The successful negotiation and adoption by all African countries of IP provisions in the AfCFTA could, for the first time, produce a home-grown, single, coherent, Africa-centred IP regime that, by also leaving national policy space, responds to and addresses the continent’s specific development realities, potentialities and aspirations. This would not only benefit the continent but also strengthen Africa’s hand in international IP negotiations. It may also help to propel those negotiations forward, especially in areas where they are encountering difficulties.

Hopefully, the IP provisions will align with the aspirations, objectives and principles of the AfCFTA. In particular, they will contribute to the continent’s socio-economic development, foster harmonization of the diverse existing IP regimes, draw effectively from the best practices of State Parties, strengthen Africa’s negotiating position in international negotiations and help uncork long-outstanding blockages in those negotiations.

Future “Multilateral Matters” blogs will follow both process and substance as the Protocol evolves.

 


Additional readings are listed on the Multilateral Matters portal.


This blog is written exclusively in the author’s capacity as Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town. Any views expressed are those of the author alone and do not necessarily represent the views of any organization or institution.

Endnotes

  1. African Union and the Economic Commission for Africa, “The African Continental Free Trade Area: Updated Questions and Answers”, January 2020, https://www.tralac.org/documents/resources/cfta/3226-afcfta-updated-questions-and-answers-atpc-auc-january-2020/file.html (accessed September 25, 2020).
  2. Mene, Wamkele, Statement made at swearing in as Secretary General, AfCFTA, March 19, 2020, https://www.tralac.org/documents/resources/cfta/3188-statement-of-h-e-mr-wamkele-mene-on-the-occasion-of-swearing-in-as-the-secretary-general-of-the-afcfta-secretariat-19-march-2020/file.html (accessed April 19, 2020).
  3. African Union and the Economic Commission for Africa, “The African Continental Free Trade Area: Updated Questions and Answers”, January 2020, https://www.tralac.org/documents/resources/cfta/3226-afcfta-updated-questions-and-answers-atpc-auc-january-2020/file.html (accessed September 25, 2020).
  4. World Bank, The African Continental Free Trade Area: Economic and Distributional EffectsJuly, 2020, reported on at https://www.tralac.org/news/article/14808-afcfta-trade-pact-could-boost-africa-s-income-by-450-billion-study-finds.html (accessed September 25, 2020).
  5. An initiative of the International Trade Centre (ITC), in partnership with the African Union Commission and the UNECA, and funded by the GIZ.
  6. Kuhlmann, K. and Agutu, AL, “The African Continental Free Trade Area: Toward a New Legal Model for Trade and Development”, 51 Geo. J. Int’l L. 4 (2020), p. 4.
  7. AfCFTA, Preamble and Article 3 General Objectives.
  8. AfCFTA, Article 5 (l).
  9. Ncube, C., Schonwetter, T., de Beer, J., and Oguamanam, C., “A Principled Approach to Intellectual Property Rights and Innovation in the African Continental Free Trade Agreement”, in Inclusive Trade in Africa: The African Continental Free Trade Area in Comparative Perspective, Luke, D. and Macleod, J. (Eds). Routledge, 2019.