Economic Partnership Agreements with ACP countries have less elaborate mechanisms to deal with violations of human rights and the rule of law than the Cotonou Agreement. So what happens when Cotonou expires in 2020? A new report sheds some light on this complex matter.
The EU and the group of African Caribbean and Pacific countries are working towards a new framework agreement to replace the existing Cotonou Agreement by 2020. Human rights promotion is a treaty obligation in the EU’s external action, including also in its trade policy. The Court of Justice confirmed this in a recent ruling regarding a 2012 agriculture and fisheries trade agreement with Morocco.
The Cotonou Agreement signed in the year 2000 is set to expire. The new relationship between a possible Cotonou successor deal between the EU and the 79 ACP countries and the Economic Partnership Agreements signed in the meantime between the EU and many countries from this group needs a to be looked at afresh.
“We will soon have more ACP countries that are parties to the EPAs than the other way round. The dynamics are going to change”, said Viwanou Gnassounou, Assistant Secretary General of the ACP secretariat in charge of sustainable economic development and trade ahead of a joint EU-ACP Joint Council of ministers to be held in early May in Brussels. “We will see how this is going to work out in practice”.
EPAs were signed by a large number of ACP countries and groups of countries in western, eastern, and southern Africa, and in the Caribbean. Only the EU-Cariforum and EU Southern African Development Community deals are in force alongside interim agreements with Ghana and Côte d’Ivoire. These pacts were concluded between 2008 and 2016. EPAs with the Eastern African Community and with ECOWAS are awaiting ratification.
Both the Cotonou Agreements and the EPAs contain human rights clauses. How to make these clauses work together is a question discussed by Lorand Bartels in his study Human rights provisions in Economic Partnership Agreements in light of the expiry of the Cotonou Agreement in 2020, (read here) commissioned by the European Parliament.
The Cotonou agreement says parties must abide by ‘essential elements’ in the area of human rights, democratic principles, and the rule of law. A ‘non-execution’ clause enables either party to take ‘appropriate measures’ and reduce or suspend the benefits they grant to the other party if they believe the ‘essential elements’ clause is infringed, explains Bartels, a Cambridge University international law scholar. The Cotonou has a staged approach to tackling human rights abuses, involving bilateral consultations. Importantly, these measures can involve the suspension of obligations outside of the Cotonou agreement such as EPAs.
The EU has used the consultation mechanism foreseen in the Cotonou pact to respond to human rights violations by the Burundi, leading to the suspension of development aid in 2016. There was no trade agreement yet to suspend, although the EU was criticised for pushing the East African Community EPA which also includes Burundi.
Then there are the EPAs themselves. These also contain human rights clauses. But in some ‘interim EPAs’ the Cotonou-style reference to the ‘essential’ elements is not explicit. Also EPAs do not contain very elaborate mechanisms to deal with specific situations before triggering the last-resort option of suspending the entire trade deal.
There are alternatives to full suspension of a trade agreement to respond to human rights violations, but most EU remedies in EPAs entail the total termination of the treaty. This “goes much further than would usually be desired”, writes Bartels. In addition, “none of these substitute for a ‘basis’ human rights clause” as included in the Cotonou Agreement, the scholar explains.
Improving human rights monitoring
The EU’s preferred successor agreement to the Cotonou arrangement would be an ‘umbrella’ plurilateral ACP-EU agreement. It would set binding, minimum human rights requirements for EPAs, with separate regional agreements. “This is the best way of preserving the acquis on respect for human rights, democratic principles and the rule of law”, Bartels believes.
The Bartels study also puts forward a number of improvements that could be added to the human rights clause.
One such improvements is monitoring. In the 2015 Court of Justice ruling Council v Polisario, the Advocate General stipulated that the EU was under an obligation to conduct a human rights impact assessment prior to the conclusion of a trade agreement with Morocco. Bartels says that as a result the EU also has an obligation to monitor the impact of an agreement throughout its lifespan on respect for human rights, democratic principles, and the rule of law.
Lorand Bartels also recommends to let the EU proactively act on a problematic human rights situation – not only after the fact. The EU “should have sufficient information before determining whether that is a discretion that it should exercise”, Bartels says.
Empowering civil society to initiate the enforcement process of human rights obligations under the EPAs could support this policy. Recent EU free trade agreements foresee a role for civil society. But civil society groups are not allowed to bring a complaint about human rights violations associated with a trade agreement. This “stands in stark contrast to the EU’s values”, says Bartels, which proposes to add a provision establishing civil society organs “with an even broader mandate to consider the human rights impacts of the agreement”.
Finally, the report considers the legality of such human rights provisions in light of the World Trade Organisation’s rules. EU trade restrictions “would almost certainly violate WTO obligations”, notes the report, “the question is whether such violations can be justified”. For Bartels, the EU should refer to ‘public morals’ in as far as they include the protection of human rights in third countries as per EU treaty commitments.
Under WTO rules proportionality and non-discrimination are crucial. Products and services subject to the measures should be carefully selected to avoid unwanted impacts on third countries. Products from countries with similar risks of human rights violations should be treated the same way.
By Hermine Donceel and Iana Dreyer