Africa: The Risk of Politicisation of AGOA's Expanded Rules of Origin for North African Countries

23 November 2023
allAfrica.com
guest column By Michael Walsh

Earlier this month, United States Senator Chris Coons publicly released a discussion draft for proposed legislation that would extend the African Growth and Opportunity Act (AGOA) beyond 2025.

Among other things, the discussion draft calls for a change in AGOA's rules of origin that would permit inputs from African Continental Free Trade Agreement (AfCFTA) members "to count toward the requirement that 35% of a product's value originate in the region." This would benefit North African countries who are not eligible for preferential trade benefits under AGOA.

The African Union Mission to the United States has been advocating for the expansion of AGOA to all member states of the African Union.

Although the discussion draft does not go that far, the proposed extension in the rules of origin would likely strengthen the economic integration of the African continent. And that would align with the Agreement Establishing the AfCFTA.

Under the terms of the discussion draft, "North African countries would be required to meet AGOA's eligibility requirements related to governance, human rights, and foreign policy." Otherwise, they will not be able to "participate in the expanded rules of origin."

Interestingly, this proposed statutory language has become a cause for concern.

Some observers worry that it will be difficult for North African countries that have authoritarian regimes to be able to meet these criteria. This includes Algeria, Egypt, and Libya.

Consider Libya. Per the Democracy Index, it is one of the more authoritarian governments in the world. Last year, the only African countries that received lower democracy scores were the Central African Republic, Chad, Democratic Republic of Congo, Equatorial Guinea, and Eritrea.

While North African countries that have authoritarian regimes may face additional challenges with meeting the proposed eligibility requirements, it is extremely unlikely that any will be excluded solely on the basis of authoritarian governance.

As argued elsewhere, there are no automatic triggers for disqualification. AGOA eligibility criteria have not been defined using objective criteria: "There are no benchmark indices. This leaves the eligibility status of any particular sovereign state open to textual interpretation by political actors in the executive branch."

The historical record suggests that these political actors often have to strike a balance between criteria that pull in different directions. These criteria can include governance and human rights, on the one hand, and U.S. national security and foreign policy interests, on the other.

When striking this balance, the Biden Administration has been putting disproportionate weight on U.S. national security and foreign policy interests. It is therefore not surprisingly that the White House has a mixed record of non-compliance actions against countries with authoritarian regimes:

  • In some cases, it has withdrawn the eligibility of Sub-Saharan countries that have authoritarian regimes. Examples include Burkina Faso, Central African Republic, Ethiopia, Gabon, Guinea, Mali, and Niger.
  • In other cases, it has maintained the eligibility of Sub-Saharan countries that have authoritarian regimes, including Angola, Chad, Comoros, Democratic Republic of Congo, Djibouti, Eswatini, Guinea-Bissau, Mozambique, Republic of the Congo, Rwanda, and Togo.

When it comes to North African countries that have authoritarian regimes, observers should start worrying less about the determinations made by the executive branch and more about the oversight conducted by the legislative branch.

Although the United States Congress is selective in its exercise of oversight on AGOA determinations made by the President of the United States, Members of Congress have demonstrated a willingness to publicly question the rationales of particular determinations on the basis of governance and human rights concerns (e.g., Mauritania).

Should the rules of origin be expanded, North African countries will need to constantly mitigate against this risk of politicization in order to realize the full potential of participation in the expanded rules of origin.

Of course, this risk extends well beyond authoritarian governance. Look at the lively debates over the future eligibility of Uganda and South Africa. Those are less about governance and more about other eligibility criteria related to domestic and foreign policies.

Morocco and Tunisia will need to be mindful of this reality.

Michael Walsh is a Visiting Scholar at the Center for Middle Eastern Studies at the University of California, Berkeley.

Previously published in The Democracy-Security Paradox

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