AfCFTA State Parties currently negotiating Protocol on Digital Trade
By Freeman Ya Ngulu.
The Centre for the Study of the Economies of Africa provided researchers with a platform last week to discuss the findings and policy recommendations for AfCFTA State Parties to consider when negotiating potential rules on cross-border data flows.
Against the backdrop of the African Continental Free Trade Area (AfCFTA) secretariat recently announcing that the Digital Trade Protocol is expected to be concluded in July 2023, Franziska Sucker from the University of the Witwatersrand and another co-author has written a paper titled ‘Regulating cross-border data flows under the AfCFTA Protocol on Digital Trade: The what, why, how, where, and when’, which is currently undergoing peer review for publication in the Manchester Journal of International Economic Law.
It seems likely that negotiators will at least be considering whether to include rules on cross-border data flows (CBDFs) in the Protocol. The researchers’ tack is that negotiators must try to answer five key questions when negotiating rules of this kind.
The researchers elaborate on what they view as some of the most important considerations in relation to each of these questions. Ultimately, they conclude that AfCFTA State Parties should not rush to conclude a set of binding international rules on CBDFs that may be incongruent with their developmental needs.
The draft paper discusses what is viewed as key considerations that negotiators should keep in mind when working on the Protocol. “We hope it will be a helpful resource to those involved in the negotiations, and intend to use it as a yardstick of sorts for assessing the quality of the Protocol once concluded.” co-author, Alex Beyleveld, a Senior Researcher at the Mandela Institute said.
Caroline Ncube, Professor of Law at the University of Cape Town and Karishma Banga from the Institute of Development Studies make comments in the paper which is currently under review as well as John Stuart, an associate from the Trade Law Centre (tralac) who gave a presentation to the South African Institute of International Affairs.
While negotiations are underway, there is still much to be done before enacting continental-level rules on CBDFs. Some countries have yet to begin the process of setting their own agendas when it comes to CBDFs, while others are still in the early stages.
Without proper evidence on CBDFs in African contexts, the paper highlights that it may be difficult for African countries to draft carefully-considered agendas in the first place. As a guiding post, the paper provides five premises which it suggest, all African countries must cover in their agendas.
In their view, the researchers say that the regulation of CBDFs at continental level is not yet ‘treaty ready’, and, thus, negotiations must proceed slowly, carefully, and with a thorough understanding of the issues at hand, such as, which State Parties are doing more, especially at the national level, to ensure transparency in the negotiating process.
“While we are aware that the proverbial ship may well already have charted its course or even be proceeding to its destination at pace, there is still time for course correction. The stakes are high and we do not have the time to get things wrong.” Ncube stated in the report.
