State Sovereignty and Dispute Settlement in the AfCFTA

The African Continental Free Trade Area (AfCFTA) is the largest free trade agreement outside the World Trade Organisation (WTO) in terms of number of member states. It has been touted as a possible gamechanger in Africa's developmental aspirations and contribution to international trade through emphasis on intra-African trade. For these aspirations to be realised, the treaty provisions aimed at liberalising trade on the continent must be backed by a rules-based system of dispute settlement to ensure the certainty and preservation of rights and obligations provided for in the Agreement Establishing the African Continental Free Trade Area and its annexed Protocols and their Appendices. The Protocol on Rules and Procedures on the Settlement of Disputes establishes the rules-based system that can deliver the needed certainty and preservation of rights and obligations and potentially contribute to the realisation of improved intra-African trade. In this regard, understanding and appreciating the principles that underpin the Dispute Settlement Protocol is fundamental to the effective functioning of the AfCFTA dispute settlement mechanism. Also, any need for a reform of the Dispute Settlement Protocol in the future must be premised on a justification of the specific principle or principles that have failed to deliver and hence necessitate amendment or abrogation. This chapter conducts analyses of the fundamental role the concept of sovereignty plays as a fundamental principle that underpins the Dispute Settlement Protocol. It argues that in order for the great aspirations vested in the AfCFTA project to be achieved, there must be a good workable balance between protection of state sovereignty and the effective functioning of the dispute settlement system.