Distr.
RESTRICTED
A/HRC/8/WG.2/TF/CRP.6
21 December 2007
ENGLISH ONLY
HUMAN RIGHTS COUNCIL
Eighth session
Working Group on the Right to Development
High Level Task Force on
the implementation of the right to development
Fourth session
Geneva, 7-15 January 2008
Item 7 of the provisional agenda
THE COTONOU PARTNERSHIP AGREEMENT BETWEEN EUROPEAN UNION (EU)
AND AFRICAN, CARIBBEAN AND PACIFIC (ACP) COUNTRIES1
Application of the criteria for periodic evaluation of global development partnerships – as
defined in Millennium Development Goal 8 – from the right to development perspective:
the Cotonou Partnership Agreement between the European Union and ACP Countries
Prof. James Thuo Gathii2
1
Note by the Secretariat: The opinions, findings, interpretations or conclusions expressed in this paper are those of
the expert, do not necessarily represent the views of the United Nations and do not commit the United Nations. The
designations employed and the presentation of the material in this paper are those of the expert and do not imply the
expression of any opinion whatsoever on the part of the United Nations concerning the legal status of any country,
territory, city or area of its authorities, or concerning the delimitation of its frontiers or boundaries.
2
Professor James Thuo Gathii is a Professor of Law at Albany Law School, Albany, New York. He is an
international lawyer and legal scholar on human rights, development and trade.
A/HRC/8/WG.2/TF/CRP.5
Page 2
Summary
The Cotonou Agreement does not specifically incorporate the Right to Development
(RtD). However, the Cotonou Agreement makes human rights an essential element and one of
the five pillars of the EU-ACP partnership and it incorporates most of the rights contained in the
Declaration on the Right to Development. While human rights are not explicitly made a part of
the other four pillars of the EU-ACP partnership, certain provisions of the Cotonou Agreement
that positively impact on human rights could arguably be read to be cross-cutting across all five
partnership pillars. These provisions do not provide an explicit basis to assess the four other
pillars of the Cotonou Partnership. That means new mandates like the Economic Partnership
Agreements, (EPAs), are not bound by the human rights mandate within the Cotonou
Agreement. This is especially so since they are being negotiated as stand alone agreements that
unlike the four other partnership pillars will be governed by a separate treaty regime.
From a RtD perspective, EPAs are being negotiated under conditions that undermines the
full participation of ACP States from determining their development objectives. They will result,
at least in the short run, in huge losses in revenue and restricted access to the EU market making
it highly likely that the social and economic human rights of millions will be adversely affected.
Other human rights concerns include expanding negotiations into new areas like competition and
government procurement that will impose a heavy cost burden on ACP countries that far
outweighs the potential dynamic benefits that the new commitments will impose.
EPA negotiations on trade need to take into account the special needs of developing and
least developed countries particularly the need for preferential treatment in trade relations which
are increasingly becoming the dominant pillar of EU-ACP relations. Human rights and in
particular those recognized in the Declaration on the Right to Development ought to take center
stage in EPA negotiations as well as in the EU-ACP partnership. This is consistent with Section
177(2) of the EC Treaty which provides that EU development cooperation should contribute to
the respect for human rights and fundamental freedoms. Similarly, Article 11 of the Treaty of the
European Union provides that one of the objectives of the EU’s ‘foreign and security policy is to
develop and consolidate democracy and the rule of law and respect for human rights and
fundamental freedoms.’ These human rights concerns ought to take center stage in EPA
negotiations.
A/HRC/8/WG.2/TF/CRP.5
Page 3
CONTENTS
Paragraphs
Page
Background
I.
1-9
4-7
10-18
7-9
III.
MAIN OBSTACLES TO THE INCORPORATION OF
19-27
HUMAN RIGHTS, CONCEPTUALLY, NORMATIVELY,
AND OPERATIONALLY INTO THE COTONOU
PARTNERSHIP AGREEMENT
9-12
IV.
IMPACT OF THE PRESENT NEGOTIATIONS ON
ECONOMIC PARTNERSHIP AGREEMENTS ON
HUMAN RIGHTS WITHIN ACP COUNTRIES FROM
A RIGHT TO DEVELOPMENT PERSPECTIVE
28-35
12-16
POTENTIAL AREAS OF CONGRUENCE AND
SYNERGY OF THE COTONOU PARTNERSHIP WITH
THE RIGHT TO DEVELOPMENT
36-39
16-17
SPECIFIC STEPS THAT CAN BE TAKEN TO FACTOR 40-44
ESSENTIAL ELEMENTS OF THE RIGHT TO
DEVELOPMENT INTO THE COTONOU PARTNERSHIP
AGREEMENT’S OPERATIONAL FRAMEWORK
17-18
PROPOSED REFINEMENTS OF THE CRITERIA
ADOPTED BY THE WORKING GROUP ON
RIGHT TO DEVELOPMENT
45
18-19
HOW THE CRITERIA CAN BETTER MEET THE AIM
OF IMPROVING THE EFFECTIVENESS OF THE
COTONOU AGREEMENT FOR THE REALIZATION
OF THE RIGHT TO DEVELOPMENT
46
19
47-48
19-20
II.
V.
VI.
VII.
VIII.
IX.
THE RIGHT TO DEVELOPMENT
HUMAN RIGHTS IN THE FIVE PILLARS OF
THE COTONOU PARTNERSHIP WITH SPECIAL
REFERENCE TO THE RIGHT TO DEVELOPMENT
CONCLUSIONS
A/HRC/8/WG.2/TF/CRP.5
Page 4
Background
I. THE RIGHT TO DEVELOPMENT
1.
The Declaration on the Right to Development3 provides that the human person is ‘the
central subject of development’ and an ‘active participant and beneficiary of the right to
development’4 both individually and collectively.5 It makes the right to development an
‘inalienable human right’ through which all persons can come to enjoy ‘all human rights and
fundamental freedoms’6 as well as ‘the right of peoples to self-determination,’ including “the
exercise of their inalienable right to full sovereignty over all their natural wealth and resources.”7
The Declaration also provides that the promotion, implementation, and protection of the right to
development shall not justify ‘the denial of other human rights and fundamental freedoms.’8
2.
Although the legal status of the right to development has continued to be debated among
members of the United Nations as well as in academic circles, its importance continues to be
reflected in the reaffirmation and its reiteration in subsequent United Nations General Assembly
Resolutions9, in the African Charter on Human and Peoples Rights as well as in the Millennium
Development Goals. As I note below, the European Union has stated its ‘continued attachment’
to the Right to Development.10 The continued relevance of the Right to Development is also
evidenced in the appointment and work of the High Level Panel on the Right to Development
and before that in the appointment of an Independent Expert, (who produced eight reports), and
an Open Ended Working Group (that had five sessions) by the U.N. Commission on Human
Rights.11 The Human Rights Council has continued giving attention to the recognition of the
Right to Development. In international law, the reiteration of a right is recognized as additional
evidence of its existence.12 Further, given the especially important nature of the rights protected
by the right to development both to human dignity as well as to human survival, debates about
their legal validity have not reduced the recognition of moving vigorously towards the realization
of the underlying objectives and principles in the Declaration on the Right to Development even
3
The Declaration on the Right to Development, G.A. Res. 128 G.A.O.R., 41 st Sess., Supp. No. 53, at 186, U.N. Doc.
A/41/53(1986)
4
Id. Article 2(1)
5
Id. Article 2(2)
6
Id. Article 1(1)
7
Id. Article 1(2)
8
Id. at 10th preambular paragraph
9
For example by Resolution 57/223, the General Assembly requested the Secretary General of the United Nations to
bring the Resolution on the Right to Development to the attention of all members of the United Nations, the
International Financial Institutions and other specialized agencies of the United Nations as well as NonGovernmental Organizations and that these constituencies report back to the General Assembly on the progress
made in the achievement of the objectives of the Declaration on the Right to Development, see Secretary General of
the
United
Nations,
Report
on
the
Right
to
Development,
A/58/276
available
at
http://daccessdds.un.org/doc/UNDOC/GEN/N03/468/41/PDF/N0346841.pdf Notably, in this report, Japan affirmed
the existence of the right to development, as did the Republic of Cuba and Guatemala. Germany stated the steps it
was taking consistent with the right to development without explicitly affirming it as a right.
10
Infra note_28 and accompanying text.
11
See Stephen Marks, “The Human Right to Development: Between Rhetoric and Reality,” 17 Harvard Human
Rights Journal, 139-140 (2004)
12
On how reiteration and elucidation of a norm can affirm its existence in a different context, see See Para 188 of
Case Concerning Military and Paramilitary Activities in and Against Nicaragua ICJ 1986 ICJ 14
A/HRC/8/WG.2/TF/CRP.5
Page 5
among its critics.13 Let me briefly outline the attributes of the Right to Development that have
continued to be reiterated or affirmed as rights or principles.
3.
The Food and Agriculture Organization’s World Food Summit’s Plan of Action has
recognized “the right of everyone to have access to safe and nutritious food, consistent with the
right to adequate food, and the fundamental right of everyone to be free of hunger.”14 The FAO’s
work in this respect affirms Article 8 of the Declaration on the Right to Development which
obliges States to undertake ‘all necessary measures’ for the realization of the right of access to
food.15
4.
The Millennium Declaration explicitly acknowledge a commitment to ‘making the right
to development a reality for everyone and to freeing the entire human race from want.’16 The
adoption of these goals which include the elimination of poverty, disease, illiteracy, elimination
of discrimination against women and environmental degradation demonstrates that States accept
the responsibilities set out in the Declaration of the Right to Development to “have the primary
responsibility for the creation of national and international conditions favourable for the
realization of the right to development”17; to take steps “individually or collectively to formulate
international development policies with a view to facilitating the full realization of the right to
development,”18 as well as to formulate, adopt and implement “policy, legislative and other
measures at the national and international levels” to realize the “progressive development of the
right to development.”19
5.
The interdependence and indivisibility of social and economic rights, on the one hand,
and civil and political rights, on the other, was reaffirmed in the United Nations World
Conference on Human Rights in 1993.20 The indivisibility and interdependence of human rights
is also recognized in the Declaration on the Right to Development. Notably, the Vienna
Declaration and Programme of Action also recognizes ‘all aspects of the Right to Development’
contained in the Declaration on the Right to Development thereby indicating the Declaration on
the RtD and the outcome of the 1993 Vienna conference are in harmony with regard to the
attributes of the RtD.21
6.
While the Right to Development has continued to be reiterated and reaffirmed, the
criticisms of its existence as a right have also. The Right to Development however remains to be
Stephen Marks, “The Human Right to Development: Between Rhetoric and Reality,” 17 Harvard Human Rights
Journal, 139-140 (2004)
14
Statement of the FAO’s Second Session of the Working Group on the Right to Development, 29 th January to 2nd
February, 2001 available at http://193.43.36.103/legal/rtf/statemts/dev00.htm
15
There has been and continues to be a Rapporteur on the Right to Food.
16
G.A. res. 55/2, U.N. GAOR, 55th Sess., 8th plen. Mtg., Agenda Item 60(b), Para. 11, U.N. Doc. A/RES/55/2(2000)
17
The Declaration on the Right to Development, supra note 1 at Article 3(1)
18
Id. Article 4(1). See also Article 5 obliging States to “take steps to eliminate the massive and flagrant violation of
the human rights of peoples and human beings” in certain circumstances; Article 6 seeking States to promote all
rights on the basis of equality; Article 7 obliging States to cooperate in the ‘establishment, maintenance and
strengthening of international peace and security,’; Article 8 obliging States to ensure rights to ‘basic resources,
education, health services, food, housing, employment and the fair distribution of income.”
19
Id. Article 10
20
Id. Articles 6(1) (2); 9 and the 10th preambular paragraph.
21
Id. Article 9(1). See also Vienna Declaration and Programme of Action: Note By the Secretariat, World
Conference on Human Rights, Part I, U.N. Doc. A/CONF. 157/23(1993)
13
A/HRC/8/WG.2/TF/CRP.5
Page 6
fulfilled as evidenced by the more than one billion people who continue living in absolute
poverty, without access to basic necessities like clean water, health, education and shelter. As the
Independent Expert on the Right to Development noted in his sixth report, there continues to be a
need to put in place appropriate policies for realizing the right to development.22 Notably, while
the United States has objected to recognizing the Right to Development as a right, in the 2002
U.N. Conference on Financing for Development, it proposed a New Millennium Challenge
Account “devoted to projects in nations that govern justly, invest in their people and encourage
economic freedom.”23 Thus, whether recognized as rights or as principles, there has been an
undoubted commitment to meeting the objectives of the Right to Development. Continuing the
effort to imbue the concerns of the Declaration on Development with rights language would
certainly add moral significance to its legal efficacy, but as the Independent Expert noted in his
sixth report, the challenge lies in the fact that development policies in the current phase of
globalization do not frequently adopt goals that would promote the realization of the Right to
Development.24
7.
It is also important to emphasize that while the Declaration on the Right to Development
frames the various rights by using words like should and shall which suggest a heightened
obligation to comply very much like the International Covenant on Civil and Political Rights, the
Declaration also recognizes that these Rights ought to be realized progressively. 25 Progressive
achievement in the context of the International Covenant on Economic, Social and Cultural
Rights has been interpreted as not indefinitely postponing the realization of the rights in the
Covenant. This principle arguably applies to the Declaration on the Right to Development.
However, unlike with the International Covenant on Economic, Social and Cultural Rights, the
Declaration on the Right to Development does not contain the stipulation that the rights
enshrined in the Declaration should be realized within ‘available resources.’ As such, the
development policies adopted by States and International Financial Institutions ought to be
directly tied to the realization of the Right to Development.
8.
On a hopeful note in this regard are two important developments. First, the new World
Bank President Robert Zoellick has recognized that the current phase of globalization has left
many behind and that they continue to fall behind notwithstanding the fact that 300 million
people are better off. He has therefore called for an ‘inclusive and sustainable globalization’ that
would be fostered by global institutions like the World Bank, the International Monetary Fund
and the World Trade Organization.26 In addition, the World Bank has recently released a report
22
Preliminary Study of the Independent Expert on the Right to Development, Mr. Arjun Sengupta, on the Impact of
International Economic and Financial Issues on the Enjoyment of Human Rights, Submitted in Accordance with
Commission Resolutions 2001/9 and 2002/69 Para. 39, U.N. Doc. E/CN.4/2003/WG.18/2(2002)
23
President George W. Bush, Remarks at the International conference on Financing for Development, available at
http://www.un.org/ffd/statements/usaE.htm
24
Preliminary Study of the Independent Expert on the Right to Development, Mr. Arjun Sengupta, on the Impact of
International Economic and Financial Issues on the Enjoyment of Human Rights, Submitted in Accordance with
Commission Resolutions 2001/9 and 2002/69 Para. 39, U.N. Doc. E/CN.4/2003/WG.18/2(2002)
25
The Declaration on the Right to Development, supra note 1, at Article 10
26
Robert Zoellick, “An Inclusive and Sustainable Globalization,” speech delivered to the National Press Club,
October
10,
2007
Washington
DC
available
at
http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:21504730~pagePK:34370~piPK:42770~t
heSitePK:4607,00.html
A/HRC/8/WG.2/TF/CRP.5
Page 7
that acknowledges its programs have long neglected African Agriculture27, the mainstay of many
African economies. Fortunately, the World Bank’s 2007 World Development Report focuses on
Agriculture as the primary way of reducing poverty and increasing the productivity of small
scale farmers.28 This self examination by the Bank and the recognition that the challenges of
meeting the right to development arise both within the international and national contexts, shows
that the challenges of meeting the Right to Development will need a reconsideration of
development policies that stand in the way of the realization of the Right to Development.
9.
The Declaration on the Right to Development is defined by the significance it places on
removing barriers of a civil, political, economic, social and cultural nature both in the
international and national contexts to the realization of all human rights – social, economic, civil,
political as well as those relating to self determination and to a clean environment. In addition,
the Declaration is based on achieving these human rights objectives within the context of the
principles of equity, non-discrimination, participation, transparency and accountability.
II. HUMAN RIGHTS IN THE FIVE PILLARS OF THE COTONOU
PARTNERSHIP WITH SPECIAL REFERENCE TO THE RIGHT TO
DEVELOPMENT
Right to Development not Specifically Incorporated in the Cotonou Agreement: But the EU and
ACP States Acknowledge their Commitment to the Right to Development
10.
The Right to Development does not appear in the text of the Cotonou Agreement.
However, both the EU and ACP States have affirmed their support and commitment to the Right
to Development. For example, the EU Presidency’s Statement at the 58th Session on the
Commission on Human Rights in 2002 noted that the EU had in the past ‘repeatedly stated’ its
attachment to the Right to Development.”29 In this statement, the EU Presidency noted that the
“human person is the central subject of development and should be the active participant and
recipient of the right to development.”30 The centrality of the human person as a subject of
development is repeated word for word in the 13th preambular paragraph of the Declaration on
the Right to Development. Similarly, the EU-ACP Joint Assembly has emphasized the role of
the EU-ACP Group in seeking to change World Trade Organization rules to more fully protect
the ACP’s Right to Development.31 While these and other EU and ACP statements acknowledge
27
World Bank (Independent Evaluation Unit), World Bank Assistance to Agriculture in Africa: An IEG Review,
2007 available at http://siteresources.worldbank.org/EXTASSAGRSUBSAHAFR/Resources/ag_africa_eval.pdf
(October 22, 2007)
28
World Bank, World Development Report 2007: Agriculture for Development, available at
http://econ.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/EXTWDRS/EXTWDR2008/0,,conte
ntMDK:21410054~menuPK:3149676~pagePK:64167689~piPK:64167673~theSitePK:2795143,00.html (October
22, 2007)
29
EU Presidency Statement to the Commission on Human Rights: Right to Development, 58 th Session of the
Commission
on
Human
Rights,
16th
April,
2002
available
at
http://www.europa-euun.org/articles/en/article_1296_en.htm (October 25, 2007)
30
Id.
31
ACP-EU Joint Parliamentary Assembly Resolution on Cotton and Other Commodities, ACP-EU 3668/04/fin
available at http://www.europarl.europa.eu/intcoop/acp/60_07/pdf/resolution04_en.pdf (October 24, 2007). See
ACP Joint Assembly, Session Report on Agriculture and Mining (Committee on Economic Development, Trade and
Finance),
16th
September
2005,
ACP-EU/3765/05/fin,
available
at
http://www.nirjdeva.com/ACP%20Rept%20on%20Agric%20&%20Mining.doc (October 25, 2007)
A/HRC/8/WG.2/TF/CRP.5
Page 8
the importance of the Right to Development, it is important to emphasize the commitment to
make the right an inalienable one in which the “equality of opportunity for development is a
prerogative both of nations and of individuals who make up nations,”32 is not explicitly
acknowledged in the Cotonou Agreement.
11.
Although the Right to Development is not specifically provided for in the Cotonou
Agreement, most of the rights protected in the Declaration on the Right to Development are also
incorporated in the text of the Cotonou Agreement as I more specifically elaborate below.
Specific Rights That Are Part of the Right to Development Incorporated in the Cotonou
Agreement
12.
In this section, I outline those rights recognized in both the Declaration on the Right to
Development and the Cotonou Agreement
13.
Human rights are incorporated in the Cotonou Agreement as an ‘essential element’ that
underpins EU-ACP relations.33 Article 9(1) of the Cotonou Agreement which lays the basis for
EU-ACP political dialogue provides that “respect for all human rights and fundamental
freedoms, including respect for social rights, democracy based on the rule of law and transparent
and accountable governance are an integral part of sustainable development.” Article 9(2)
reiterates the EU-ACP States’, ‘deep attachment to human dignity and human rights’ including
reaffirming the equality of men and women. EU-ACP States also undertake ‘to protect and
promote all human rights.’34 Article 9(2) of the Cotonou Agreement provides that human rights
are universal, indivisible and inter-related. Article 9(2) further provides that the partnership
“shall actively support the promotion of human rights.”
14.
Similarly, the Declaration on the Right to Development reflects these human rights that
are specifically incorporated in the Cotonou Agreement. Article 6(2) of the Declaration on the
Right to Development recognizes the indivisibility and interdependence of all human rights and
further calls on States to give equal attention and urgent consideration to the implementation,
promotion and protection of civil, political, economic, social and cultural rights. Article 9(1) of
the Declaration also provides that all aspects of development are “indivisible and interdependent
and each of them should be considered in the context of the whole.”
15.
Article 96 of the Cotonou Agreement, also known as the non-execution clause, provides
for consultations on human rights where political dialogue under Article 8 and 9(4) of the
Cotonou Agreement have been exhausted.35 Failure to “fulfill an obligation stemming from
respect for human rights” triggers EU-ACP States to enter into consultations “that focus on the
measures to be taken or to be taken by the Party concerned to remedy the situation.”36 If
consultations fail, ‘appropriate measures’ such as aid suspension could follow.
32
16th Preambular paragraph of the Cotonou Agreement.
Article 2 of the Cotonou Agreement
34
Id. Article 9(2)
35
See also Article 4 of Annexe VII (Political Dialogue As Regards Human Rights, Democratic Principles and the
Rule of Law) of the Cotonou Agreement.
36
Article 96(2)(a) of the Cotonou Agreement
33
A/HRC/8/WG.2/TF/CRP.5
Page 9
16.
This consultation procedure arguably reflects the Declaration on the Right to
Development’s provision that “States have the primary responsibility for the creation of national
and international conditions favorable for the realization of the Right to Development.”37 The
consultation procedure also certainly reflects the obligation in Article 10 of the Declaration on
the Right to Development which provides that States have an obligation to formulate, adopt and
implement ‘policy, legislative and other measures at the national and international levels’ to
‘ensure the full exercise and progressive enhancement of the right to development.’
17.
Article 96(2)(a) of the Cotonou Agreement provides that in cases of ‘special urgency’
which involve ‘exceptional cases of particularly serious and flagrant violation’38 of human rights,
‘appropriate measures may be taken.’39 This provision allows the suspension of the partnership
between the EU and a particular ACP member country. In such cases, the Cotonou Agreement is
not regarded as having been abrogated but rather remains operational40 though arguably
suspended as between the EU and the country subject to a suspension of commitments pursuant
to action taken under Article 96 of the Agreement.41 This happened with Sudan in 1990 and
Zaire (presently the Democratic Republic of Congo) in 2002.42 Similarly, under the EU Common
Position on Burma/Myanmar of 1996, the EU imposed sanctions on Myanmar, which suspended
all non-humanitarian assistance and banned visas for government officials from that country
under the non-execution clause of the Cotonou Agreement.43
18.
Finally, Article 8(4) of the Cotonou Agreement makes ethnic, religious or racial
discrimination as well as the respect for human rights part of the EU-ACP political dialogue.
Article 5 of the Declaration on the Right to Development also obliges States to eliminate all
forms of racism and racial discrimination. Article 6 (1) of the Declaration requires States to
promote, encourage and strengthen all human rights and fundamental freedoms for all without
any distinction as to race, sex, language or religion.
III. MAIN OBSTACLES TO THE INCORPORATION OF HUMAN RIGHTS,
CONCEPTUALLY, NORMATIVELY AND OPERATIONALLY INTO THE
COTONOU PARTNERSHIP AGREEMENT
19.
As noted, the Cotonou Agreement explicitly incorporates human rights as an essential
element of the EU-ACP partnership. However, the Cotonou Agreement does not explicitly
incorporate the Right to Development. More significantly, the Cotonou Agreement primarily
restricts the scope of human rights to political dialogue and to consultations where dialogue fails.
37
Id. Article 3(1)
Id. Article 96(2)(b)
39
The other circumstances under which appropriate measures may be taken include where consultation is refused
and where consultations do not lead to a solution acceptable to both parties, Article 96(2)(a) of the Cotonou
Agreement.
40
See EU Commission Communication Com (95) 216 of 23 May 1995 on Inclusion of Respect for Democratic
Principles and Human Rights in Agreements Between the Commission and Third Countries, available at
http://ec.europa.eu/external_relations/human_rights/doc/com95_216_en.pdf (October 28, 2007)
41
Moussounga I. Mbadinga, “The Non-Execution Clause in the Relationship Between the European Union and
African Caribbean and Pacific States,” 3 German Law Journal, No. 11 (2002) available at
http://www.germanlawjournal.com/article.php?id=210
42
Id.
43
For a complete background including current efforts to support civil society, see EC, The EU’s Relations With
Burma/Myanmar, http://ec.europa.eu/external_relations/myanmar/intro/index.htm (October 28, 2007)
38
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Page 10
Human rights concerns are restricted to political dialogue and consultations since they are not
explicitly included in the other four pillars of the EU-ACP partnership in the Cotonou
Agreement. The other of the EU-ACP partnership are: Involvement of Civil Society, the Private
Sector and other Non-State players; Poverty Reduction within the Context of Objectives and
Targets Agreed at the International Level such as the Millennium Development Goals; the
Economic and Trade Cooperation framework; and the Rationalization of Financial Instruments
and a System of Flexible Programming. However, as I will note below, other provisions of the
Cotonou Agreement could be construed to suggest that at least some human rights are intended
to be cross-cutting concerns within the other pillars of the EU-ACP cooperation under the
Cotonou Agreement.
20.
Since the main text of the Cotonou Agreement does not explicitly make the human rights
provisions in articles 8, 9 and 96 cross-cutting issues within the other pillars of the partnership,
those human rights specifically incorporated in the Cotonou Agreement may be regarded as
having no operational relationship to the other pillars of the partnership. For example, it does not
appear that where a specific EU-ACP economic and trade cooperation program undermines the
observance of human rights, that there is any consequence contemplated under the Cotonou
Agreement to remedy the situation. In fact, it does not appear that where an EU-ACP
cooperation program undermines the observance of human rights that either the political
dialogue or consultation procedures were contemplated to be invoked. If this is the case, then
political dialogue and consultation procedures may appear to be a framework for EU-ACP
collaboration on human rights unrelated to the other pillars of the partnership.
21.
Viewing development cooperation as being strictly separate from human rights is
inconsistent with the relationship between development and human rights contemplated in
Declaration on the Right to Development. Under the Declaration, in order to promote
development, States are urged to give “equal attention and urgent consideration…to the
implementation, promotion of, respect for and enjoyment of certain human rights and
fundamental freedoms.”44 Thus contrary to what is contemplated in the Declaration on the Right
to Development, the Cotonou Agreement arguably separates its development mandate contained
in four of the partnership’s pillars from its fifth pillar – dialogue and consultation on human
rights.
22.
Further, the criteria identified in the Agreement for allocation of resources in the EUACP partnership are insufficient from two human rights perspectives. First, the criteria for
resource allocation do not include consideration of human rights but is based exclusively on
needs and performance indicators and criteria.45 Some of these indicators and criteria are closely
related to issues of human rights like poverty alleviation and reduction. However, some of the
other criteria such as allocations for macroeconomic support may not necessarily be consistent
with human rights especially if macroeconomic support is used to support economic programs
that reduce public spending that might undermine “access to basic resources, education, health
services, food, housing, employment and the fair distribution of income.”46 Fortunately, Article
67 of Title II of the Financial Cooperation Chapter of the Cotonou Agreement provides that EU44
It is also significant to note that under the Declaration of the Right to Development, the promotion of certain
rights cannot justify the denial of other human rights and fundamental freedoms,’ Declaration of the Right to
Development, 10th Preambular Paragraph.
45
Article 3 of Annexe IV (Implementation and Management Procedures) Cotonou Agreement
46
Article 8(1) of the Declaration of the Right to Development
A/HRC/8/WG.2/TF/CRP.5
Page 11
ACP countries “shall ensure that adjustment is economically viable and socially and politically
bearable.” Though this provision does not provide an explicit basis to assess macroeconomic
programs against human rights norms, it nevertheless directs such reforms not to undermine
social and economic conditions in a manner that may arguably be inconsistent with the
protection of social and economic rights.
23.
Second, the criteria and indicators of resource allocation do not limit allocation of
resources in the EU-ACP partnership on the basis that a beneficiary ACP State has engaged in
human rights abuses. Article 5(7) of the Cotonou Agreement’s Implementation and Management
Procedures provides that reviews of resource allocations in light ‘current needs’ and performance
of ACP States.47 This emphasis on using criteria and indicators that do not include human rights
in allocating resources reflects that human rights are not an important priority as other criteria
specifically alluded to in the Cotonou Agreement in determining resource allocations.
24.
Political dialogue under Article 9 and consultations that may lead to resources being
suspended or cut off under Article 96 of the Cotonou are the only ways in which the EU-ACP
partnership explicitly requires human rights to be taken into account. This does not of course
prevent human rights to be seen as a cross-cutting issue across all the pillars of the EU-ACP
partnership since Article 9 refers to human rights as an essential element of the relationship.
However, the EU-ACP approach of leaving political dialogue and consultations outside the other
equally important programmatic areas of partnership arguably formally relegates human rights to
the sidelines within the other four pillars of the partnership.
25.
Another potential adverse effect of the EU-ACP partnership on human rights is that new
mandates of EU-ACP relations such as those relating to EPAs, are currently not independently
funded under the European Development Fund. As such, resources that may have been
previously designated for existing pillars and programs of EU-ACP cooperation like the
Governance Initiative which more explicitly embraces human rights as a consideration could
receive a relatively lower monetary allocation since there is no additional allocation of resources
in the partnership to fund the EPA mandate. The EU has indicated to Pacific countries that unless
they sign an EPA on time, programmed assistance for the 2008-2014 period would be
reprogrammed. Thus, the EU is now linking access to committed aid to signing an EPA.48
26.
Another issue on which ACP States have long expressed concern is the continuation of
the EU’s Common Agricultural Policy particularly subsides to agricultural products which ACP
farmers would otherwise have a comparative advantage in. Together with other developing
countries at the WTO, ACP States have not been able to get EU concessions on agriculture that
will remove trade distorting subsidies and other farm support measures even though they are
detrimental to ACP farmers.49 One example where EU subsidies have an adverse impact on the
comparative advantage that ACP farmers have is sugar. Though the EU has a Sugar Protocol that
addresses this issue, the impact of the subsidies continues to adversely affect the ability of ACP
farmers to compete with the cheaper subsidized EU sugar that ends up getting dumped in ACP
countries. This is a good example where the social and economic rights of ACP farmers and the
47
Annexe IV (Implementation and Management Procedures) Cotonou Agreement
ICTSD and ECDPM, “EU, Pacific Clash Over EPA Funds,” Trade Negotiations Insights, Vol. 5 No. 5 September
2007 at 10-11
49
See generally, James Gathii, “The High Stakes of WTO Reform,” 104 Michigan Law Review 1361 (2006) (Book
Review)
48
A/HRC/8/WG.2/TF/CRP.5
Page 12
poor are directly affected by EU trade policy. 50 Another example of how EU policies adversely
affect social and economic rights of ACP countries are the extremely stringent sanitary and
phytosanitary measures (SPS), that are imposed on access to the EU market of products from
ACP countries.51 Given the huge dependence of ACP countries on agriculture and the
importance of agriculture to rural economies where the majority of people in poor countries live,
the continuation of subsidies and non-tariff measures –including SPS measures – which makes it
difficult for the farmers to access world markets at competitive prices not only exacerbates their
poverty but also contributes to the deterioration of their social and economic rights. The impact
of these subsidies and distortions is actually much broader. They also adversely affect the poor
populations in the rural areas that rely on the incomes farmers otherwise connected to world
markets make in the absence of these distortions.52
27.
Some ACP States are very vulnerable to pressures from the EU since their budgets are
heavily dependent on EU program assistance. This is particularly so since the indicators used in
EU budget support for ACP countries do not necessarily reflect the concerns of the Right to
Development and are not explicitly required to take human rights considerations into account.
The indicators used in budget support programs are primarily of a quantitative rather than a
qualitative nature especially insofar as they do not specifically include human rights
considerations. Further, the EU has not been especially transparent in designing the criteria for
its budget support programs. The participation of ACP countries in decisions on budget support
has therefore not reflected the Cotonou Agreement’s commitment to underpin EU-ACP relations
on the basis of the principle of “equality of the partners and ownership of the development
strategies.”53 This is also inconsistent with the Declaration of the Right to Development
requirement that States “should realize their rights and fulfill their duties in a manner as to
promote a new international economic order based on sovereign equality, interdependence,
mutual interest and co-operation among all States.’54
IV. IMPACT OF THE PRESENT NEGOTIATIONS ON ECONOMIC
PARTNERSHIP AGREEMENTS ON HUMAN RIGHTS WITHIN ACP
COUNTRIES FROM A RIGHT TO DEVELOPMENT PERSPECTIVE
28.
In 2000, EU-ACP countries agreed to negotiate EPAs pursuant to Article 36 of the
Cotonou Agreement. One objective of negotiating EPAs was to design trading arrangements that
were compatible with the rules of the World Trade Organization, (WTO), by “removing
progressively barriers to trade between them and enhancing cooperation in all areas relevant to
trade.”55 EPAs will end the current non-reciprocal trade preferences that ACP countries enjoy
from the EU by the end of 2007, at the same time when a WTO waiver of the Most Favored
Nation norm that in effect allows the EU’s trade preferences will come to end.56 The current
50
WORLD BANK, GLOBAL ECONOMIC PROSPECTS: REALIZING THE DEVELOPMENT PROCESS OF THE DOHA AGENDA
114 (2003) (noting that though subsidies have on the whole been reducing, they have effectively been on the rise
because of increases in domestic support measures)
51
Id. at 104
52
For further reading see James Gathii, “Process and Substance in WTO Reform,” 56 Rutgers Law Review, 885
(2004)
53
Article 2 of the Cotonou Agreement
54
Article 3(2) of the Declaration of the Right to Development
55
Article 36 (1) and 34(4) of the Cotonou Agreement
56
Article 37(1) provides that EPAs “shall be negotiated during the preparatory period which shall end by 31
December 2007.”
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negotiations on Economic Partnership Agreements, (EPAs), between ACP regions and the EU as
of this writing in October 2007 are incomplete but ongoing.57
29.
The other objectives of enacting EPA’s are to: integrate ACP States into the world
economy while promoting sustainable development and contributing to poverty reduction58;
enable ACP States to play a full part in international trade in part by ensuring that they ‘manage
the challenges of globalization’ and that they ‘adapt progressively to new conditions of
international trade;59 and finally to strengthen ACP States trade and investment policies as well
as to improve their capacity to handle trade issues.60
30.
One of the major concerns with regard to the current EPA drafts is that none of them
explicitly incorporates human rights either as standalone entitlements or as cross-cutting
concerns. It may be argued that the provisions of Article 8, 9 and 96 of the Cotonou Agreement
would apply to EPAs. Yet, EPAs are going to in an important respect recast EU-ACP relations
within a trading framework without simultaneously explicitly making human rights norms an
essential element. Thus while the objectives of the EPAs as we have seen above have laudable
goals such as poverty reduction, the Cotonou Agreement does not explicitly make human rights
an objective to be met within or to be promoted by the EPAs.
31.
Since reciprocal trading relationships may well become the defining feature of EU-ACP
relations it would be important to be cognizant of the experience developing countries the last
time they assumed broad ranging trade commitments. In 1994 at the conclusion of the Uruguay
Round, several new trade treaties came into effect including in the areas of intellectual property
and trade in services. Research since then has shown that the cost of implementing these new
treaties far outweighed the dynamic benefits the treaties would confer on developing countries. 61
Further, this research showed that the trade-liberalization mandates contained in these new trade
treaties were working at cross-purpose with the World Bank’s poverty reduction programs.62
Such an impact on new trade commitments made by ACP States would almost certainly
adversely affect poverty elimination programs and invariably make it harder for ACP countries
to meet their social and economic rights obligations to their citizens.
32.
The EPA’s are being negotiated by ACP countries on a regional rather than a bilateral
63
level. The other issues that EPA negotiations raise that will potentially affect human rights in
no particular order include:
57
Article 35(2) and 37(5) provide a basis conducting EPA negotiation with the regions rather than bilaterally as part
of the Cotonou Agreement’s goal of strengthening regionalism as a strategy of integrating ACP countries better
within the international trading system.
58
Article 34(1) of the Cotonou Agreement
59
Article 34(2) of the Cotonou Agreement
60
Article 3(4) of the Cotonou Agreement
61
J. Michael Finger and Philip Schuler, Implementation of Uruguay Round Commitments: The
Development Challenge, 1, World Bank Working Paper No. 2215, Oct. 1, 1999 available at
http://econ.worldbank.org/docs/941.pdf
62
Id.
63
Article 35(2) of the Cotonou Agreement provides that “economic and trade cooperation shall build on regional
integration initiatives of ACP States, bearing in mind that regional integration is a key instrument for integration of
ACP countries into the world economy,” id.
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64
(a)
Market access commitments. ACP countries have difficulties making market
access commitments to the EU because of different interpretations of the
obligation in Article XXIV of the WTO’s General Agreement on Tariffs and
Trade (1994) to “substantially liberalize all trade.” 64 ACP States are construing
this provision in a manner that allows them not to make concessions on market
access with respect to areas of their economies like in agriculture and in particular
sensitive products where they would not be able to compete effectively with the
more superior EU agricultural sector. The argument of the ACP countries is that
they are not ready to compete on a level playing field in areas of their economy
that would be essentially be decimated by EU competitors unless there is phased
implementation of the commitments. The basis for this accommodation ACP
countries are seeking is the commitment in Article 37 (7) of the Cotonou
Agreement, which obliges the EU “to improve market access for ACP countries.”
The EU has shown little inclination to give ACP countries more access. Lack of
market access or reductions of levels of current market access for ACP countries
after the expiry of the non-reciprocal arrangements is going to result in losses of
revenue and export opportunities in a manner that will adversely impact the social
and economic rights of those affected.
(b)
None of the draft EPAs contains binding commitments on capacity building and
technical support, yet ‘lack of capacity to conduct complex negotiations’ within
the tight time frame for concluding EPA negotiations65 has been a major barrier in
various ACP regions.66 The right of the ACP to participate effectively in the EPA
negotiations will therefore be undermined by their lack of capacity to effectively
participate. This is also inconsistent with the right to participate in formulating
policies relating to development anticipated in the Declaration on the Right to
Development as noted above.
(c)
The EU has sought to include a set of new generation issues for trade known as
the Singapore issues. These new issues that are currently not part of the
multilateral treaty framework of the WTO are: rules regulating government
procurement; rules regarding competition law in the WTO; rules regarding trade
facilitation such as those relating to how effectively and efficiently ports process
imports and exports; and last rules relating to liberalizing foreign investment.
Developing countries objected to expanding the trade agenda to these new areas
before they had fully implemented their previous commitments following the end
of the Uruguay Round in 1994. As such, in the context of the Doha Round of
negotiations, developing countries managed to secure a commitment that these
issues would only be negotiated only if there was ‘explicit consensus’ to proceed
Final Report of the Meeting of Legal Experts of the ACP on EPA Negotiations October 9-11th 2007,
ACP/00/051/07
Rev.
1,
(Para.
4.3)
available
at
http://www.africaunion.org/root/UA/Conferences/2007/octobre/TI/11%20oct/0005107%20Rev1%20Report%20ACP%20Legal%20E
xperts%20(3).doc (October 27, 2007)
65
Jane Kelsey, “Going Nowhere in a Hurry? The Pacific's EPA Negotiations with the European Union,” Wellington
Law Review, (2007)
66
Final Report of the Meeting of Legal Experts of the ACP on EPA Negotiations October 9-11th 2007,
ACP/00/051/07 Rev. 1, supra note_ at para. 4.3. Notably, capacity building in trade negotiations is an objective
specified in Article 34(3) of the Cotonou Agreement.
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Page 15
with negotiations on these issues. ACP States regard the EU’s pushing these
issues as trying to achieve in the context of EPAs a trade agenda that they cannot
in the WTO. While negotiations on competition policy are contemplated in
Article 45 of the Cotonou Agreement, negotiations on government procurement
are not expressly contemplated as a negotiating item in the Cotonou Agreement.
Yet, there are ongoing negotiations on Government Procurement in the various
EPAs. These additional commitments will, if included in the EPAs, cost ACP
countries much more in the short term than any gains they may reap from these
commitments. These additional costs will affect the ability of ACP States to
provide budgetary support for sectors like education and health as well as other
human rights obligations. Further, commitments in Government Procurement will
require ACP States to source goods and services to corporations other than their
own – thereby undermining their ability to support local companies and in effect
keep their revenue to support the domestic economy. This is inconsistent with the
Declaration on the Right to Development’s premise of self determination in
economic management.
(d)
Although consultation of all stakeholders, including non-State actors is
anticipated in the Cotonou Agreement, this has been a source of concern. In
Kenya, a suit has been filed by a Small Scale Farmers Association and a human
rights organization seeking to prevent the Government from signing on to the East
African (ESA) EPA primarily on the basis that negotiations on the ESA EPA have
not widely consulted all stakeholders.67
(e)
ACP States have also noted that inadequate attention has been given the
development chapters of the EPAs68 and the heavy hand of the EU in pushing
ACP countries to sign onto the EPAs even while they may not represent the best
interests of ACP countries.69
33.
One of the dangers that needs to be avoided is for EPAs to look like a Bill of Rights for
investors as has been the case of the North American Free Trade Agreement (NAFTA). In
addition, it may be unlikely that investor and trade rights would be widely respected in a context
where there is no simultaneous commitment to the respect for human rights.
34.
One of the ways in which human rights concerns within EPAs could be safeguarded is
through a monitoring of their ‘socio-economic impact’ on ACP countries as contemplated in
Article 37(7) of the Cotonou Agreement. In addition, the Cotonou Agreement anticipates that
negotiations should take into account “the level of development’ of ACP countries.70 Indeed, the
Mark Agutu, “Lobby Files Suit to Stop EU Pact,” Daily Nation, Saturday October 27, 2007 also at
http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1&newsid=109223 (October 27, 2007)
68
African Union, Addis Ababa Declaration on Economic Partnership Agreement Negotiations (Report of the
Conference of Ministers of Trade of the African Union) , 15-16 January 2007, Ext/Exp/Trade/Decl.(2) III available
at http://www.uneca.org/eca_resources/news/2007/EPA_Addis_Ababa_Ministerial_Declaration.pdf (October 27,
2007)
69
UN Conference on Ministers of Trade, Nairobi Declaration on Economic Partnership Agreements,
TI/TIMIN/MIN/Decl.2
(IV)
(14th
April,
2006)
available
at
http://www.africaunion.org/root/AU/Conferences/Past/2006/April/TI/Nairobi%20Declaration%20on%20EPAs.pdf
(October
27,
2007)
70
Id.
67
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Cotonou Agreement provides flexibility in the commitments that ACP countries may assume in a
variety of ways. First, as noted above, economic and trade cooperation has an objective of
poverty eradication in ACP States.71 Second, economic and trade cooperation is provided to take
into account ‘the current level of development of ACP countries so that they can ‘adapt
progressively to the new conditions of international trade.’72 This provision anticipates that EPAs
will not lead to sudden revenue losses for ACP States since the new commitments are required to
be adapted over time rather than suddenly. Third, the Cotonou Agreement also requires the
inclusion of special and differential treatment as well as to take into account the respective levels
of development of the different countries.73 These provisions do not suggest the inevitability of
reciprocal free trade on 1st January 2008, rather they contemplate a phased and gradual easing of
ACP States into a new trading relationship sensitive to their levels of development and in
particular to the social and human rights impacts of a new trading relationship between the EU
and ACP States. This principle of flexibility is further contained in Article 39(3) of the Cotonou
Agreement which notes the “importance of flexibility in WTO rules to take into account of the
ACP’s level of development as well as the difficulties faced in meeting their obligations.”
35.
What is more, it is not entirely implausible to try to seek an extension of the WTO that
the EU is claiming compels it to conclude the EPAs by December 2007. The WTO has in the
past granted all sorts of waivers and one relating to the least well off members of the WTO to
accommodate negotiations on mutually agreeable EPAs would even if controversial merit
serious consideration.
V. POTENTIAL AREAS OF CONGRUENCE AND SYNERGY OF THE
COTONOU PARTNERSHIP WITH THE RIGHT TO DEVELOPMENT
36.
One of the most significant areas in which there is potential congruence and synergy
between the Right to Development and the Cotonou Agreement is the Incentive Tranche which
the EU uses to reward countries that observe certain human rights standards. Under the Incentive
Tranche those countries that ratify the core Labor Conventions for example get more money.
Such positive incentives have potential to have greater influence on human rights observance
than negative pledges such those contained in the political dialogue and consultation procedures
of the EU-ACP relation or aid suspension. At the moment, the EU takes into account a
governance profile that includes human rights criteria.
37.
Another potential area of synergy between the Cotonou Agreement and the Declaration
on the Right to Development is the recognition of the requirement in the Cotonou Agreement to
“integrate a gender-sensitive approach and concerns at every level of development cooperation
including macro-economic policies, strategies and operations.”74 This provision is reinforced by
a 2005 amendment to the Cotonou Agreement that included “the protection of sexual and
reproductive health and rights of women.”75 In addition, the Cotonou Agreement provides that
the promotion of ‘human dignity, social justice and pluralism’ as requiring ‘systematic attention’
in all aspects of EU-ACP cooperation.76 Even more directly, Article 33(1)(c ) of Title 1 of the
71
Article 34(1) of the Cotonou Agreement
Article 34(2) of the Cotonou Agreement
73
Article 34(4) of the Cotonou Agreement
74
Article 31(a) of Title 1: Development Strategies of the Cotonou Agreement
75
Article 25(d) of Title 1: Development Strategies of the Cotonou Agreement.
76
Article 33(1) of Title 1: Development Strategies of the Cotonou Agreement
72
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Page 17
Development Strategies of the Cotonou Agreement provides that the promotion and sustenance
of “universal and respect for all and observance and protection of all human rights and
fundamental freedoms,” in all aspects of EU-ACP relations. These and similar provisions reflect
an ample opportunity for a more robust presence of human rights within EU-ACP relations.
38.
The EU requires sustainable impact assessments of its programs including those funded
by the EU-ACP partnership. This provides additional space of taking human rights into account
more systematically and as an integral element in the EU-ACP partnership. The use of
independent monitors who would include persons with a human rights background has potential
to highlight human rights in the context of EU-ACP relations.
39.
Article 25 (1) (g) (social sector development) of Title 1 (Development Strategies) of the
Cotonou Agreement provides that cooperation on social sector development shall encourage
‘respect for basic social rights.’77 This provision is consistent with the Declaration of the Right to
Development’s call for ‘effective international cooperation to ‘foster comprehensive
development.’78
VI. SPECIFIC STEPS THAT CAN BE TAKEN TO FACTOR ESSENTIAL
ELEMENTS OF THE RIGHT TO DEVELOPMENT INTO THE
COTONOU PARTNERSHIP AGREEMENT’S OPERATIONAL
FRAMEWORK
40.
There are a number of ways in which the Right to Development can be fitted within the
Cotonou Partnership’s operational framework. One of the most significant is to find ways of
bringing reform of the EU’s Common Agricultural Policy, (CAP), in so far as it adversely affects
ACP States within the ambit of the Cotonou Agreement’s EPA negotiation mandate rather than
leaving CAP as something that falls outside of Cotonou’s objectives. This way the trade
obligations would have an appearance of evenness between the EU and the ACP States. In other
words, the EPAs would have obligations applying to both the EU and the ACP countries in an
evenhanded manner. Currently, by leaving out the possibility of interrogating how the EU’s
Common Agricultural Policy adversely affects ACP countries, there is an element of unevenness
in the obligations that may be assumed.
41.
Negotiations on trade need to take into account the special needs of developing and least
developed countries especially the need for preferential treatment in trade relations which are
increasingly becoming the dominant pillar of EU-ACP relations.79 As noted above Article 39 of
the Cotonou Agreement emphasizes the principle of special and differential treatment suggesting
that though the goal of full reciprocity is the ultimate goal of the EU-ACP relationship,
flexibility in getting there is a primary principle moving forward. Trade between industrialized
countries with economically vulnerable countries like Least Developed Countries, (LDCs),
which dominate the ACP group, can hardly be conducted on the basis of reciprocity since LDC
share in international trade is very limited – LDCs have hardly the market power the EU has to
impose its economic interests on ACP States. Thus, without effective reciprocity, EPAs are
77
Article 25 (1) (g) of Title 1: Development Strategies of the Cotonou Agreement
Article 4(2) of the Declaration of the Right to Development
79
See Cosmas Milton Ochieng, “The EU-ACP Economic Partnership Agreements and the ‘Development Question’:
Constraints and Opportunities Posed By Article XXIV and Special and Differential Provisions of the WTO,” 10 J.
Int’l Econ L. 363 (2007)
78
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Page 18
likely to merely open up ACP countries to EU goods and services without giving any
corresponding benefits to LDCs.80
42.
With reference to EPAs, the EU ought to reiterate its commitment that LDCs will get the
duty and quota free access under the Everything But Arms Initiative, (EBA), even if the EPAs
that affect them come into force. For ACP countries that will not enjoy EBA, any liberalization
they make will need to be reciprocated by equivalent levels of market access concession on EU’s
part. In addition, non-LDC low income ACP countries should benefit from the EU’s GSP+
program if EPAs are not concluded by the end of 2007.
43.
The conclusion of EPAs ought to come with generous trade-related adjustment
assistance, trade-related development and infrastructure support as well as support to build
productive capacity and the financing of trade law and policy making in ACP States. Such Aid
for trade measure may offset some of the losses that would accompany ending preferential
agreements when EPAs come into effect.
44.
It would also be important to ensure that human rights take primacy within the
negotiations of the EPAs. In the Declaration on Economic, Social and Cultural Rights adopted
by the African Commission on Peoples’ and Human Rights on December 7, 2004, States were
urged to make human rights a priority in negotiating trade treaties. This is consistent with
Section 177(2) of the EC Treaty which provides that EU development cooperation should
contribute to the respect for human rights and fundamental freedoms. Similarly, Article 11 of the
Treaty of the European Union provides that one of the objectives of the EU’s ‘foreign and
security policy is to develop and consolidate democracy and the rule of law and respect for
human rights and fundamental freedoms.’ These human rights concerns ought to take center
stage in EPA negotiations.
VII.
45.
PROPOSED REFINEMENTS OF THE CRITERIA ADOPTED BY THE
WORKING GROUP ON RTD
The following additional criteria are proposed for inclusion in the present criteria
adopted by the Working Group on RtD for evaluation of Global Partnerships:
(a)
The extent to which the design of partnership programs is specifically informed
by human rights
(b)
The extent to which the partnership actually takes into account the special
vulnerability of Least Developed Countries
(c)
The extent to which human rights can serve as a justifiable exception to
partnership obligations similar to the provisions of Article XX(a) (morals
exception to trade obligations) of the General Agreement on Trade and Tariffs
(1994)
Aadittya Mattoo and Arvind Subramanian, “The WTO and the Poorest Countries: The Stark Reality,” 3 World
Trade Review 385 (2004). For proposed solutions, see Dominique Njinkeu, “Uniform Treatment for Africa in the
DDA,” 3 World Trade Review (2004) 433
80
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46.
(d)
The extent to which all elements of the partnership which adversely affect human
rights can be reviewed and addressed
(e)
The extent to which the partnership specifically incorporates the promotion of
human rights not merely as an essential element but as a cross cutting objective
across all areas of cooperation.
(f)
The extent to which a partnership in designing a human rights monitoring
mechanism decides to include a representative of one of the UN Human Rights
agencies.
(g)
The extent to which a partnership development programs work in tandem with
rather than at cross purposes with other development programs designed to
address poverty.
VIII.
HOW THE CRITERIA CAN BETTER MEET THE AIM OF IMPROVING
THE EFFECTIVENESS OF THE COTONOU AGREEMENT FOR THE
REALIZATION OF THE RIGHT TO DEVELOPMENT
There are a variety of ways in which these criteria for periodic evaluation of Global
Development Partnerships can help in the realization of the right to development. These
include:
(a)
Involving as many of the stakeholders as possible in the process of continued
refining of the criteria with a view to seeking their approval of or ‘buy-in’ of the
criteria so that the criteria can become regarded as providing a basis upon which
to measure partnership performance
(b)
Conducting a baseline study using these criteria of each partnership in close
collaboration with each partner and then using this study as a future reference for
periodic assessments that can follow how well the criteria have been met. Such a
baseline study could first be conducted within each region and later in each
country that is a beneficiary of the partnership.
(c)
Seeking the endorsement and adoption of the criteria by development partners as
a basis upon which to conduct self assessments of their partnership on an agreed
periodic basis
(d)
Encouraging development partners to agree to external review of their partnership
by independent mutually agreed upon evaluators. This could be done for the
already negotiated interim EPAs and such evaluations could lay a basis to inform
final versions of negotiated EPAs at the end of 2008.
IX. CONCLUSIONS
47.
While human rights are an essential element in EU-ACP relations, the Cotonou
Agreement does not explicitly make them binding on the operationalization of the other pillars of
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Page 20
the partnership. Thus even though elements of the RtD are evident in the partnership’s definition
of human rights as an essential element, the Cotonou Agreement cannot be persuasively read to
protect human rights across all the areas of the partnership. This is particularly worrisome in
view of the fact that negotiations on EPAs are recasting the partnership within a trade and
economic framework and become a major if not the most significant aspect of EU-ACP
relations. In this respect, the measurement of the partnership in general and the EPAs in
particular against the criteria developed by the High Level Task Force as could play a crucial
role in giving human rights a central place in EU-ACP relations.
48.
The more significant a role human rights plays in EU-ACP relations, the more likely the
Right to Development would be realized. This would be consistent with Millennium
Development Goal 8 insofar as it aims at addressing the needs of least developed countries who
comprise of 40 of the 77 ACP States.81
***
81
Articles 84-90 of the Cotonou Agreement which provide for special measures for LDCs, land locked countries as
well as small island developing ACP States. See also Annexe VI: List of the Least Developed and Island ACP States
(Cotonou Agreement)