Gender as a Trade Concern

The African continent is currently witnessing the creation of the largest regional free trade area in the world, in terms of geographical scope, number of states parties, and population. The African Continental Free Trade Area (AfCFTA) represents a significant milestone in Africa’s socio-economic development and provides unique opportunities for exploring new approaches to international economic law-making. The latest achievement is that in February, at its 37th summit, the African Union’s (AU) General Assembly adopted a special Protocol on Women and Youth in Trade which has the potential to blaze the trail for gender-transformative intra-African trade.¹⁾ This post takes a closer look at the protocol, its background and salient features, and potential challenges along the road to its implementation.

Background: Gender inequality as a barrier to intra-African trade

In recent years, the notion that trade is not inherently gender-neutral has gained traction in international, regional, and national fora; there is a growing awareness that trade policies affect men and women differently, due to structural inequalities, discriminatory social and legal norms, and harmful cultural practices and beliefs. Not only does trade-related gender inequality raise concerns from a human rights perspective. It has measurable effects on overall economic stability and growth. For example, according to the 2016 Africa Human Development Report, between 2010 and 2014, economic losses due to widespread gender inequality amounted to approximately US $95 billion per year in sub-Saharan Africa (see here, p. 6). This is even more noteworthy considering that women participate very actively in trade in most African countries, be it as producers, cross-border traders, or entrepreneurs. However, lack of access to finance, education and training, information, and protection from harassment and maltreatment constrain and undermine their economic potential. Removing barriers for women in trade requires coordinated efforts; states cannot tackle these problems on their own. The Protocol on Women and Youth in Trade (PWYT) is the AU’s cooperative attempt to make trade more responsive to women’s needs.

The African Continental Free Trade Agreement

The PWYT is part of the newly established African Continental Free Trade Area (AfCFTA), the largest free trade area in the world in terms of membership, geographic size, and population. The AfCFTA is a central flagship programme of the African Union’s Agenda 2063 which envisions “transforming Africa into the global powerhouse of the future”. The Agreement establishing the AfCFTA has already been hailed as a “trade deal that is changing global trade“ in that it sets new standards for international economic law. The AfCFTA-Agreement, which was adopted on March 21, 2018, in Kigali, Rwanda, and entered into force in May 2019, covers trade in goods, trade in services, investment, intellectual property rights, and competition policy (Art. 6 AfCFTA-Agreement). Immediate objectives are focused on reducing tariffs and removing non-tariff barriers to establish a single market for goods and services across the African Continent (see Art. 4 AfCFTA), but the AfCFTA is also aiming to create a customs union at a later stage.

Women in the AfCFTA-Agreement

While the AfCFTA-Agreement refers to a number of different groups (e.g. people with disabilities, indigenous peoples, and other disadvantaged groups), it puts a special focus on women and youth. This is in accordance with Aspiration 6 of the AU’s 2063 Agenda, which depicts an “Africa, whose development is people-driven, relying on the potential of African people, especially its women and youth, and caring for children“. A key objective of the AfCFTA-Agreement is to promote “sustainable and inclusive socio-economic development, gender equality and structural transformation of the State Parties“ (Art. 3 (e)). According to Article 27 of the Protocol on Trade in Services, state parties pledge to improve the “export capacity of both formal and informal service suppliers, with particular attention to micro, small and medium size; women and youth service suppliers“ (Art. 27 (2) (d)). In a similar manner, the Protocol on Investment recognizes the “importance of encouraging investment activities that benefit […] underrepresented groups, including women and youth” in its preamble, and stipulates a corresponding obligation of the states parties to promote investments that contribute to gender equality and the empowerment of women (Art. 6 (g) Protocol on Investment). However, beyond these somewhat scattered provisions, there have been no further attempts to effectively mainstream gender-specific aspects into the several legal instruments of the AfCFTA. Instead, the AfCFTA follows the approach of a growing number of international FTAs by adding a separate instrument (usually chapters) on trade and gender equality, making gender the only genuine non-trade concern to which a separate protocol has been dedicated so far.

The Protocol on Women and Youth in Trade

The PWYT focuses less on the general socio-economic situation of women in Africa and more on the specific situations of women participating in the import and export of goods and services (Art. 1 (o) PWYT). Its main objective is to enhance participation and inclusion of women in intra-African trade, as well as into regional and continental value chains. In working towards these goals, states parties will be guided by the principles of affirmative action, elimination of discrimination, equality, and inclusiveness (Art. 4 PWYT). To address the elimination of discrimination for women in trade, states parties will be obligated to progressively eliminate gender-specific non-tariff barriers (Art. 7 PWYT) as well as legislations, regulations and discriminatory practices against women in trade (Art. 8 PWYT). While the PWYT aims to “support measures that promote the formalisation of trade activities of Women and Youth” (Art. 2 (f)), the text of the protocol also takes due account of the informal sector, where women account for almost 90 percent of the labour force. Across the African continent, the informal sector is both the primary source of employment and a main source of the overall GDP (see The Futures Report 2020, p. 94). People in the informal sector are neither registered nor taxed, and generally lack social protection. Trade agreements cannot ignore the scale and significance of informal cross-border trade for intra-African trade. More than 70 percent of informal cross-border traders are women (see The Futures Report, 2020, p. 88). For them to benefit from the AfCFTA, information, assistance and training, as well as access to social protection systems, are critical.

Advancing gender-sensitive trade governance across the continent

The PWYT builds on existing standards set by the AU and some Regional Economic Communities (RECs) that are already comparably well-developed. In 2023, the AU celebrated the 20th anniversary of the Maputo Protocol on the Rights of Women in Africa, one of the most progressive legal instruments for women’s rights in the world. The Maputo Protocol stipulates detailed and clear obligations for states parties in the areas of economic and social welfare rights (Art. XIII) and sustainable development (Art. XIX), demanding inter alia equal remuneration, equal access to employment and credit, protection from exploitation, and the establishment of social insurance systems for women working in the informal sector.

At the sub-regional level, some of the eight RECs recognized by the AU developed strategies on gender long before the issue was taken on by the WTO. Some of these instruments, such as the 2008 Protocol on Gender and Development by the Southern African Development Community (SADC), contain particularly progressive provisions that can still serve as a blueprint for other international trade agreements today. However, the ways in which the RECs have addressed the nexus between trade and gender varies significantly. In this regard, a continental protocol on women in trade could simultaneously help harmonize existing frameworks and set new standards for those RECs that have made little or no progress in addressing this issue (see here, p. 144). This is an important side effect as the RECs will continue to exist and serve as building blocks under the AfCFTA  (Art. 5 (b) AfCFTA-Agreement).

Walking the talk

However, success or failure of the PWYT does not depend upon yet another array of legal norms and standards, but rather on the willingness of states parties to put them into practice. The AfCFTA could make a real difference specifically regarding the institutionalization and formalization of processes promoting gender equality and women’s empowerment in trade. To get a glimpse of the gender-transformative potential of the AfCFTA, it is instructive to draw on a framework developed by Amrita Bahri to measure the gender-responsiveness of free trade agreements (see Bahri, Global Trade and Customs Journal 14 (2019), p. 517). Bahri distinguishes five levels of maturity, which are: ‚limited‘ (I), ‚evolving‘ (II), ‚acceptable‘ (III), ‚advanced‘ (IV), and ‚optimizing‘ (V). For gender-related measures to register at least as ‚acceptable‘, it is necessary that states parties commit to some kind of cooperation and consultations. The PWYT takes important steps in this direction. For instance, the Protocol foresees the designation of National Women and Youth in Trade Focal Points by each State Party (Art. 22). It also obliges states to establish and strengthen mechanisms to redress grievances on issues of harassment and to implement mechanisms to prevent, discourage, and address all forms of harassment (Art. 17). In addition, and contrary to most other international free trade agreements with chapters or provisions on gender or women in trade, it is remarkable that the provisions of the PWYT are subject to the dispute settlement system of the AfCFTA. This means that states parties could be held accountable if they do not act in accordance with their obligations under the protocol.

However, to meet the needs of women in business, their voices must be heard. The PWYT remains rather vague on how to effectively institutionalize a gender perspective in matters of trade. Representation of women in processes relating to an agreement’s negotiation and implementation is key if trade agreements want to aim for a higher level of gender-responsiveness. Legal instruments must be clear with regard to the modalities of women’s representation. For instance, in order to mainstream a gender perspective in the working procedures of all AfCFTA committees (and not just the committee on women and trade) and the relevant national authorities, quota systems might present a helpful tool. Some African states, such as Rwanda, have already successfully introduced quotas to increase the number of women in leadership positions.

A technical sticking point: single undertaking or cherry picking?

At this moment, it is difficult to predict how, or even for whom, the protocol will eventually enter into force. The legal texts of the AfCFTA Agreement and its protocols are ambiguous as to whether a protocol, once ratified by the necessary number of states parties, will enter into force for all states parties, or just for the states that accede to a certain protocol. In principle, the protocols and their annexes and appendices each constitute an integral part of the AfCFTA-Agreement (Art. 8 AfCFTA-Agreement). At least this is true for the protocols on trade in goods, trade in services, investment, intellectual property rights, competition policy, and rules and procedures on the settlement of disputes. They shall form part of a single undertaking – a principle tried and tested by the WTO to avoid normative fragmentation. If this applies to the PWYT, in practice, this would mean that all states parties are obligated to apply a gender-sensitive lens on trade issues. This development would have the potential to advance economic and social rights of women in an unprecedented manner. While the PWYT does not stipulate any subjective rights, it would be the first gender-specific legal instrument applicable to nearly the entire continent.

However, Art. 23 AfCFTA-Agreement places doubt as to whether such a reading is correct. While acceding to the Agreement automatically entails accession to the Protocols on Trade in Goods, Trade in Services, and the Protocol on Dispute Settlement (Art. 23 (3)), the situation appears to be different for the accession to any other protocol. Art. 23 (4) stipulates that:

“[f]or Member States acceding to the Protocols on Investment, Intellectual Property Rights, Competition Policy, and any other Instrument within the scope of this Agreement deemed necessary, shall enter into force on the date of the deposit of its instrument of accession“

This indicates that states do have a choice as to whether they want to submit to any of these protocols. This unresolved issue also poses risks for the uniform applicability of other Phase II and III-protocols, none of which have yet reached the threshold for entry into force. Some states, such as South Africa, have already announced that they only consider themselves bound by protocols they specifically ratify. Accordingly, the AfCFTA dissolving into yet another “Balkanized” patchwork of loosely overlapping legal instruments is a disconcerting, but very real possibility.

Preliminary conclusion

It is currently too early to speculate as to how this dilemma will be resolved. For the time being, it can be stated that the PWYT presents an important confirmation of the general trend in international economic law to acknowledge and address the gendered nature of trade. Women’s economic empowerment is pivotal for the social and economic well-being of any society, and the PWYT reaffirms this fact while also accounting for the specific challenges faced by women in intra-African trade. In practice, it will be up to the Committee on Women and Youth in Trade and any other relevant AfCFTA committee to put law into practice by developing bespoke plans of action in cooperation with their yet-to-be-established national counterparts. While effectively mainstreaming gender into trade policies requires continuous and coordinated efforts, the PWYT offers a promising basis for embarking on this joint endeavor