Kenya’s Perspective on Fair and Equitable EU Trade Policy

From Kenya’s perspective, what does a fair and equitable EU trade policy mean for developing countries?

For developing countries, fair trade policy begins with one key distinction: we need equity, not equality. Equality would entail applying identical standards and obligations to all trading partners, regardless of prevailing circumstances. In contrast, equity acknowledges the different contexts and capabilities between parties, and actively intervenes to level the uneven playing field, rather than simply removing formal barriers. This is embodied through measures such as capacity building and asymmetrical liberalisation of markets.

Asymmetrical tariff elimination and liberalisation

In trade agreements negotiated between developed and developing countries, the different levels of development necessitate uneven tariff reductions rather than applying them across the board. The EU-Kenya EPA embodies this principle: it provides for immediate liberalisation of the EU market, allowing all Kenyan goods except arms to enter without tariffs or quotas, while Kenya commits to gradually reduce tariffs on EU imports over 25 years. This asymmetry is not charity, but recognition that building the industrial and regulatory capacity to compete equally with developed nations requires time and support. Such an agreement acknowledges the capacity and developmental gaps between Kenya and the EU without bringing about dependency. However, developed nations must still support developing nations in building capacity for equal competition.

Capacity building

Capacity building refers to the enhancement of a country’s ability to compete favourably in the market through improving its infrastructure, skills and institutional frameworks. It involves providing support and resources to developing countries for their economic growth and sustainable development, extending to areas such as sustainability and climate action, as provided for in the Paris Agreement. However, micro, small and medium-sized enterprises (MSMEs), which form the majority of entities in most economies, suffer disproportionately from trade-related fixed costs compared to large and multinational firms. Fair capacity building must therefore ensure that compliance costs are not overwhelming barriers that exclude the enterprises they are meant to help.

CBAM: A case study in inequitable policy?

From a developing country perspective, the EU's Carbon Border Adjustment Mechanism (CBAM) clearly shows the difficulty of ensuring equity in trade and climate policy. It imposes huge economic and financial burdens upon countries without consideration for their different circumstances and respective capabilities, and fails to mitigate the impact of these burdens in developing countries and LDCs. Kenya and other African countries face the challenge that, despite making minimal contributions to climate change both historically and currently, they are forced to bear a heavy cost imposed by the very nations which have made large contributions to the problem. This is cost without causation: as of 2024, per capita emissions in sub-Saharan Africa remain below one tonne per head, compared to more than five tonnes in the EU. Despite this, African countries are forced to bear the cost of the CBAM, estimated to reduce the continental GDP of Africa by 0.91%. Additionally, the use of revenues raises contentious issues, as 75% of the revenue is transferred to the EU budget each year, while 25% is retained by Member States, creating the perception that the EU is using a climate measure to fund itself at the expense of other countries.

Equitable trade policy would mean the EU differentiates obligations for developing countries and LDCs, and utilises revenues for climate change mitigation and adaptation purposes, specifically to offset the burden on developing countries and support their decarbonisation programs. While differentiation between countries has been contentious in the context of special and differential treatment at the WTO, the current approach fails to account for the respective capabilities of countries, and therefore falls short of the standard of equitable policy.

The recent ICJ Advisory Opinion clarified that Article 4 of the UNFCCC obliges State Parties to assist developing countries, particularly those vulnerable to the adverse effects of climate change, through capacity building and technical and financial support. This obligation may be understood to extend to the context of BCAs. By supporting decarbonisation campaigns in, and mitigating the negative effects of the CBAM on the economies of, developing countries and LDCs, the EU can both achieve carbon emission reductions and enhance its compliance with the CBDRRC Principle.

What can young legal minds from both Europe and Africa do?

For emerging young legal minds in both Europe and Africa, the professional environment offers unique opportunities to reshape trade relationships and resolve past trade issues. Today's legal professionals, working in governments, international organisations, private firms, civil society, and the policy space, operate in an interconnected environment and are often positioned to influence policy. Programs and competitions such as the John H. Jackson Moot Court Competition, the WTO Young Trade Leaders Program, and WTO and AfCFTA internship programs help identify and nurture young talent while giving them the requisite exposure to kickstart their careers in trade law.

## Bibliography

Article 11, Paris Agreement, 12 December 2015

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International Court of Justice, Advisory Opinion on the Obligations of States in respect of Climate Change, 23 July 2025, para. 217