5. RESTRICTIVE MEASURES AGAINST ZIMBABWE
(a)
(24272)
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(b)
(24273)
—
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Draft Council Regulation implementing renewed Common Position 2002/145/CFSP concerning restrictive measures against Zimbabwe.
Common Position renewing Common Position 2002/145/CFSP concerning restrictive measures against Zimbabwe.
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| Legal base: | (a) Articles 60 and 301 EC; qualified majority voting
(b) Article 15 EU; unanimity
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| Department: | Foreign and Commonwealth Office
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| Basis of consideration: | EMs of 13 February 2003 and Minister's letter of 14 February
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| Previous Committee Report: | None; but see (24183) — : HC 63-ix (2002-03), paragraph 13 (22 January 2003) and HC 63-xii (2002-03), paragraph 9 (12 February 2003)
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| Discussed in Council: | Adopted on 18 February 2003
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| Committee's assessment: | Politically important
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| Committee's decision: | (a) Cleared (decision reported on 22 January 2003)
(b) Not cleared
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Document (a)
5.1 The draft Regulation (document (a)) implements the
draft Common Position at document (b). The Minister for Europe,
Mr Denis MacShane, expected it to be adopted by written procedure
before 18 February, when he expected the Council to adopt the
Common Position.
Document (b)
5.2 Common Position 2002/145/CFSP imposing sanctions
on Zimbabwe came into force on 18 February 2002.[5]
It expired on 17 February 2003. Apart from an arms embargo and
a ban on the supply of equipment which might be used for internal
repression, it included a travel ban and asset freeze on the Zanu-PF
ruling elite. It also banned technical training or assistance
related to the provision, manufacture, maintenance or use of items
subject to the arms embargo. Amendments have since been made to
the list of those subject to the travel ban and asset freeze.
5.3 We cleared a draft Common Position on 22 January
which would have renewed the Common Position for a period of 12
months. It was expected to be adopted on 26/27 January, although
the Minister anticipated that the text might need amendment to
secure a consensus. On 13 February, we considered the proposal
again on the basis of a letter of 7 February from the Minister
in which he brought us up to date. The January General Affairs
and External Relations Council (GAERC) had not reached agreement
on the proposal and the Committee of Permanent Representatives
(Coreper) had been tasked with working on a text which would command
a consensus and be ready for adoption at the 18 February ECOFIN
Council.
5.4 In a letter dated 14 February, the Minister said
that Coreper had reached agreement in principle on a Common Position,
which he expected the Council to adopt by 18 February. He commented
that the Government had been determined to secure renewal of the
measures before they expired so as to send a signal to President
Mugabe and the Zanu-PF elite that the EU was determined to maintain
pressure on them. He did not expect that there would be time to
secure scrutiny clearance and hoped that we would understand that
he did not propose to hold up adoption of such important measures.
The draft Common Position
5.5 The Minister attaches an undated unofficial text
of the draft Common Position. It provides for Article 3 of Common
Position 2002/145/CFSP to be replaced by a new text which:
- amends the procedure so that a qualified majority in favour
of granting the exemption is now required if one or more members
object within 48 hours of receiving notification of the proposed
exemption;
- clarifies the grounds for exemptions to the travel ban. Paragraph
1 is unchanged and provides for Member States to prevent the entry
into, or transit through, their territories of the persons listed
in the annex. Article 3(3)(4) and (5) read:
"Paragraph 1 shall be without prejudice to the cases where
a Member State is bound by an obligation of international law,
namely:
(i) as a host country of an international intergovernmental
organisation;
(ii) as a host country to an international conference convened
by, or under the auspices of, the United Nations; or
(iii) under a multilateral agreement conferring privileges
and immunities.
"The Council shall be duly informed in each of these cases.
"Paragraph 3 shall be considered as applying also in cases
where a Member State is host country of the Organisation for Security
and Co-operation in Europe (OSCE).
"Member States may grant exemptions from the measures imposed
in paragraph 1 where travel is justified on the grounds of urgent
humanitarian need, or on grounds of attending intergovernmental
meetings, including those promoted by the EU, where a political
dialogue is conducted that directly promotes democracy, human
rights and the rule of law in Zimbabwe."
The Minister's letter
5.6 In his Explanatory Memorandum of 13 February, the
Minister comments further that the situation in Zimbabwe had continued
to deteriorate over the last year. The Government welcomed the
EU's agreement on renewal of the sanctions:
"The renewal sends a strong signal that the ruling Zanu-PF
elite bears collective responsibility for the situation and will
ensure that international attention and pressure continues to
be placed on those responsible for serious violations of human
rights and of the freedom of opinion, of association and peaceful
assembly."
5.7 The Minister appears to have taken note of the remarks
we made when we considered the earlier draft of this Common Position
on 12 February, in that he names France, Portugal and Belgium
as Member States which were particularly concerned that any one
of the Member States could block the granting of an exemption
to the travel ban. He then comments:
"The Government has therefore agreed to a clarification of
the grounds for exemption to the travel ban as well as to a change
to the procedures for granting an exemption. This clarification
is simply a codification of existing practice; we have not previously
blocked on the grounds laid out in Article 3(3) (as amended) because
in these instances international law prevents host countries from
interfering with the composition of delegations at multilateral
meetings. The procedural change requires there to be a qualified
majority in favour of granting an exemption if one or more partners
object. This ensures that there will only be exemptions to the
travel ban when there is a majority opinion of the EU in favour
of it being granted. Using a qualified majority vote to grant
an exemption to the travel ban brings the Common Position more
closely into line with Article 23(2) of the Treaty on European
Union, which states that 'the Council shall act by qualified majority...
when adopting any decision implementing a joint action or a common
position'."
Conclusion
5.8 Whilst we are aware of obligations attaching to
hosting conferences convened by, or under the auspices of, the
United Nations, we are concerned at the implications of the provisions
of amended Article 3(3) (i) and (iii). We ask the Minister to
give us a more specific indication of which texts impose such
obligations and how numerous and tightly drawn they are. The text
of the draft Common Position does not require the Council to take
a decision on these cases and it would appear to offer host countries
considerable scope for exempting the named individuals from the
travel ban. Furthermore, the adoption of this text could well
influence the text of other travel ban measures drafted in future.
We note that it has been replicated as Article 1 in the draft
Common Position on restrictive measures against the leadership
of the separatist regime in Transnistria.[6]
5.9 We also ask the Minister whether the international
meeting hosted earlier this month by the French Government qualified
for exemption on these grounds. If so, were the reports of the
Government's opposition to the granting of an exemption to President
Mugabe inaccurate? Since the Minister has repeatedly stressed
the Government's wish for the travel ban to be renewed without
a break in order to maintain pressure on the Mugabe regime, why
did it decide to agree to the amended procedure, given that it
was aware that other Member States would be likely to apply for
an exemption and to secure it under qualified majority voting?
5.10 We understand that the postponement of the EU-Africa
summit which was due to be hosted by the Portuguese Government
later this year was part of the deal to secure agreement to this
proposal. We ask the Minister what other deals were made? We note
for instance that the EU issued a Declaration on 19 February condemning
the suppression of human rights in Zimbabwe. Did some Member States
insist on this Declaration being issued at this time? Did they
include the UK?
5.11 This draft differs in two important respects,
as outlined above, from that submitted by the Minister in January.
He gave us no indication in his letter of 7 February that the
final text would contain such important amendments, and when he
wrote again on 14 February he would have been aware that we would
not be in a position to scrutinise the amended draft before 18
February. We recognise that the amendments may not have
been agreed before the Coreper meeting of 12 February but he makes
no mention of the vote and whether a UK reserve would have prevented
adoption. In these circumstances, we are bound to regard his agreement
to the adoption of this Common Position, without either ensuring
that we had an opportunity to scrutinise the proposed amendments
beforehand or placing a reserve on the text, as a scrutiny failure.
5.12 We ask the Minister to respond to these comments
and questions and meanwhile do not clear the document.
5 (23141)
5951/02; see HC 152-xviii (2001-02), paragraph 14 (6 February
2002). Back
6 (24271)
- ; see paragraph 4 of this Report. Back
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