House of Commons - Documents considered by the Committee on 11 March 2009

Documents considered by the Committee on 11 March 2009 - European Scrutiny Committee Contents

7 Breach of Cotonou Agreement by Republic of Guinea

(a) (26227) 16041/04 COM(04) 804

(b) (29544) 7499/08 COM(08) 138

Draft Council Decision concluding consultations with Guinea under Article 96 of the Cotonou Agreement

Draft Council Decision amending Decision 2005/321/EC concluding the consultation procedure with the Republic of Guinea under Article 96 of the Cotonou Agreement

Legal base Articles 9 and 96 of the Cotonou Agreement; QMV

Department Foreign and Commonwealth Office

Basis of consideration Minister's letter of 28 November 2008 and 5 March 2009

Previous Committee Report (a) HC 38-iv (2004-05), chapter 13 (19 January 2005) and HC 34-xiv (2005-06), chapter 18 (11 January 2006)
(b) HC 19-i (2008-09), chapter 16 (10 December 2008); HC 16-xx (2007-08), chapter 13 (30 April 2008) and HC 16-xviii (2007-08), chapter 12 (2 April 2008)

Discussed in Council 31 January 2005 and 14 April 2008 General Affairs and External Relations Councils

Committee's assessment Politically important

Committee's decision Cleared (reported on 10 December 2008); further information provided and requested

Background

7.1 The Cotonou Agreement[27] provides the framework for relations between the EU and 77 countries of Africa, the Caribbean and the Pacific (ACP). It is based on five interdependent pillars:

— a comprehensive political dimension;[28]

— participatory approaches;

— a strengthened focus on poverty reduction;

— a new framework for economic and trade cooperation; and

— a reform of financial cooperation.

7.2 Article 96 provides for consultations between the EU and an ACP State if the ACP State is considered to be in breach of an "essential element" of the agreement (respect for human rights and fundamental freedoms, as set out in Article 9 of the Agreement). If no remedy is found, "appropriate measures" may be taken including, as a last resort, total or partial suspension of the Agreement.

7.3 On 30 March 2004 the European Union decided to open Article 96 consultations with the Government of Guinea (GOG). This decision (which our predecessors cleared on 17 December 2003) was taken because of the deterioration of democracy and the rule of law, failure to respect human rights and fundamental freedoms and the lack of good economic governance, culminating in the December 2003 presidential elections, held in contentious conditions and without real electoral competition — so much so that the regional African body, ECOWAS, refused to monitor them in order to avoid giving them legitimacy.

Council Decision 2005/321/EC

7.4 This Council Decision contained a letter from the EU to the GOG, saying that Article 96 consultations were now to be concluded and that the measures specified had been adopted as appropriate within the meaning of Article 96(2)(c) of the Cotonou Agreement. The GOG gave certain undertakings including:

i) a return to democracy through resumption of dialogue with the traditional opposition and civil society, including revision of the electoral arrangements; and holding local and parliamentary elections based on the new electoral arrangements in June 2005 and June 2007 respectively;

ii) upholding the Constitution and the law, so guaranteeing respect for human rights and fundamental freedoms, including the rights of political parties to organise, meet, demonstrate and speak in public; launching discussion on a legal framework for liberalisation of the airwaves;

iii) promoting decentralisation; and

iv) enhancing macroeconomic management and implementing sectoral reforms.

7.5 Late in 2004, a joint Presidency/Member States/Commission implementation evaluation found some positive first signs; however, as the then Minister for Europe at the Foreign and Commonwealth Office (Mr Denis MacShane) explained, most of the GOG undertakings were to be implemented, and needed to be monitored, over an extended period. So, an enhanced political dialogue would be conducted over a 36-month period, with the EU Presidency and the Commission carrying out bi-annual evaluations. In accordance with Articles 9 and 96 of the Cotonou Agreement, the Commission accordingly proposed, and the 31 January 2005 GAERC adopted, a letter concluding the consultations and beginning this period of enhanced dialogue and monitoring.

7.6 In clearing the Decision on 19 January 2005, the then Committee noted that, while they did not judge the opening of consultations as of sufficient political importance to warrant a substantive Report to the House, they considered that their closure, and the beginning of a three-year process that would, in many ways, indicate the practicability of the "conditionality" approach enshrined in the Cotonou process — assistance accompanied by, but not in the absence of, democratic progress — warranted a Report to the House.

7.7 They also asked the Minister to inform the Committee of the outcome of each of the periodic evaluations and to give his view on it.[29]

7.8 In January 2006, the then Minister for Europe (Mr Douglas Alexander) informed the Committee that an evaluation report (which was consistent with reporting from the British Embassy in Dakar, which covers Guinea-Bissau) had concluded that the major GOG commitment — to organise free and fair elections — had been met. But the measures in the field of economy and public finances had not been sufficient, and much remained to be done with regard to the fight against corruption, independence of the judiciary and restoration of civilian control over the armed forces; all in all, the political situation in the country remained fragile, and the Government believed that "focused and intensive dialogue between the EU and Guinea-Bissau authorities" should continue.

7.9 While not wishing to labour the point, the then Committee said that it had expected a somewhat fuller report from the Minister — more information on the elections, and how they were judged to be free and fair; and the extent to which progress had been made, or was yet to be made, in the other key areas and why. The Committee noted that these were all areas in which success, or failure, in Guinea Bisseau might well have much wider lessons, or repercussions, and not just for the Cotonou Process but also European Security and Defence Policy; a number of other countries in the region were similarly challenged, against a background in which the inter-relationship between development, security and good governance was now widely acknowledged. The Committee also said that it would also have expected a fuller exposition of the Minister's views on progress so far than the single sentence at the end of his letter, and asked for the next such report to be somewhat more comprehensive and analytical.[30]

The second Council Decision

7.10 In his Explanatory Memorandum of 26 March 2008, the then Minister for Europe at the Foreign and Commonwealth Office (Mr Jim Murphy) explained that this proposed amendment would extend the Article 96 monitoring period for a further 12 months. He described the proposal as "a safety mechanism in order to prevent a potential legal void if the Council decides to extend the Guinea monitoring period at short notice." He noted that the ACP Working Group in Brussels on 1 April would make a recommendation "taking into consideration developments on the ground up until 31 March, a report from the joint Commission/Presidency mission to Conakry and views from partners." He described the Commission's proposal as "a sensible precaution for now", and said that he could agree to maintain Article 96 monitoring for a further 12 months; if, he continued, "further discussions planned for 1 April result in a recommendation that Guinea has made sufficient progress to proceed to the next stage (Article 8)", he would "update" the Committee "as necessary." We had no wish to hold up the proceedings, and therefore cleared the proposed amendment.

7.11 However, the Minister made no mention of the Commission's own Explanatory Memorandum attached to draft amendment, in which it made clear that the political process in the intervening years had been decidedly mixed, with flawed local elections; the authorisation of private radio stations in August 2006, and a consensus at the end of the year on a framework for parliamentary elections (which seemed to have led the EU to decide to make available envelope A of the 9^th EDF, some €85.8 million); then more setbacks in 2007, involving strikes, the violent repression of peaceful demonstrations (with between 138 and 183 dead and over 1500 wounded) and the postponement of the June 2007 parliamentary elections several times, with no official date yet fixed. We found it odd, therefore, to see the reason for this extension portrayed as to prevent a legal void; and hard to see a basis upon which a recommendation might be made "that Guinea has made sufficient progress to proceed to the next stage (Article 8)" — whatever that next stage was, about which the Minister said nothing.

7.12 The Committee also noted that it had heard nothing from him or his predecessors about developments since January 2006 and would have found it particularly interesting to have known the basis upon which the decision was made to release EDF9 funds in 2006, and asked the Minister for an explanation.[31]

7.13 In his letter of 25 April 2008, the then Minister for Europe:

— explained the process of transfer to Article 8 dialogue following completion of the review period of procedures under Article 96: political dialogue under Article 8 being the normal state of relations between the EU and the ACP countries, involving intensified dialogue between the two parties if the political situation in an ACP country deteriorates, with the aim of resolving the situation and avoiding initiation of Article 96 consultations; even when Article 96 consultations do take place, political dialogue under Article 8 continues; when the EU decides to end Article 96 consultations, intensified political dialogue under Article 8 continues to monitor progress on the commitments made before the normal state of affairs/dialogue between the EU and the ACP is resumed;

— supported the Council Decision to extend the review period of procedures under Article 96, other improvements notwithstanding, because of the delay in a key requirement of the original Council Decision, viz., setting a date for the parliamentary elections;

— apologised that neither his predecessors nor he had written about the evaluation missions, as requested by the Committee in January 2005, and detailed the findings of four such missions between May 2005 and March 2008 (which are set out in our previous Report);[32] and

— explained that three key reports (EU Heads of Mission report of 23 October 2006, Commissioner Michel's report of his visit to Guinea of 25 October 2006, and the report by the EU Presidency Special Representative for the Mano River Union of 21 November 2006) had concluded that sufficient progress had nonetheless been made to meet the conditions for implementation of the 9^th EDF.

7.14 In thanking the then Minister for his comprehensive response, the Committee noted that the Commission itself described the Cotonou Agreement as "a global and exemplary agreement", within which the political dimension, and particularly respect for human rights and fundamental freedoms, plainly has a central position; hoped that the next twelve months would see the Guinea authorities finally arrange free and fair elections, and thus enable the political dialogue between them and the EU to return to a more normal basis; and asked the then Minister to ensure that we were informed of the outcome of any further evaluations.[33]

The Minister's letter of 28 November 2008

7.15 In her letter of 28 November 2008, the Minister for Europe (Caroline Flint) informed the Committee that the October 2008 Council/Commission monitoring mission had found little subsequent progress on the reform agenda. President Conté had dismissed the consensus Prime Minister Lansana Kouyaté in May leading to protests and strikes, although these had since died down; the new Prime Minister, Dr Ahmed Tidiane Souré, had done little so far to move Guinea towards legislative elections, which were due under the constitution by December but would not take place on time. A number of reforms and preparations for the elections had been delayed; as a result the GOG claimed the elections could be held before the end of March 2009. On the positive side, the media continued to be free and open and there was good access to international media. Subsequent EU action had included a joint Council/Commission letter to the Prime Minister of Guinea outlining the EU's continuing concerns and offering increased support to the electoral process; a joint EU/ECOWAS statement expressing concern with the political, social and economic situation in Guinea; and agreement with EU partners that "we should consider carefully the disbursement of 10^th EDF funding in the light of the current situation." A further monitoring mission would visit Guinea in February 2009.

7.16 We looked forward to hearing from the Minister after the next monitoring mission. We asked for detailed information on what had been decided with regard to the disbursement of 10^th EDF funding. We also noted that the achievements of the "focused and intensive dialogue between the EU and Guinea-Bissau authorities", now a year after the original three year process was extended, remained far from encouraging, particularly with regard to fulfilling the key undertaking given by the Guinea authorities — to arrange free and fair national elections. We therefore asked the Minister for her assessment of the effectiveness of the Article 96 process, at least in the context of Guinea, or more widely if this was possible.

7.17 If this wider assessment was not available, we asked when the Council and the Commission proposed to carry out such an assessment, given that it had now been in operation for some years, had involved a very large input of human and other resources but, on the surface at least, appeared to have had very limited influence on the subsequent developments in the countries subjected to it.[34]

The Minister's letter of 9 March 2009

7.18 The Minister divides her letter into two parts:

DISBURSEMENT OF 10^TH EDF

The Minister says that no decision has yet been taken on the disbursement of the 10^th EDF:

"Prior to the military coup in Guinea on 23 December 2008 a joint Council and Commission letter was sent to the former Prime Minister of Guinea on 10 November explaining that the disbursement of the 10th EDF would be tied to the holding of elections.

"The UK, however, will not support disbursement of the 10th EDF whilst a military regime remains in de facto charge of the country. This would obviously not affect any humanitarian assistance and the Africa, Caribbean and Pacific (ACP) Working Group in Brussels has agreed that Envelope B could, subject to agreement from member states, be made available to support elections."

EFFECTIVENESS OF THE ARTICLE 96 PROCESS

With regard to her assessment of the effectiveness of the Article 96 process, both in Guinea and more widely, the Minister says:

"The European Union made clear its condemnation of the coup d'etat in Guinea in December. This was a major internal political development within Guinea and it is clear that Article 96 proceedings alone could not prevent it. However, the influence and leverage that Cotonou buys the EU is far greater than any leverage that the UK might have bilaterally.

"The essential elements of the Cotonou agreement; human rights, rule of law and democracy are vital to development and the achievement of the Millennium Development Goals. Article 96 provides a way to demonstrate the importance attached to these essential elements. This is perhaps most clearly illustrated in the fact that Article 96 has always been used in instances of coup d'etats.

"In the case of Guinea, the Article 96 process has delivered real positive steps including liberalisation of the airwaves, greater political dialogue and the formation of an independent electoral committee. It is notable that these developments have often taken place in the lead up to or even during visits by the EU monitoring mission. However, as you are aware, neither we nor the EU were content with the speed of the reforms and the EU had written to the former Prime Minister in November expressing these concerns and notifying him that disbursement of the 10^th EDF could not take place without progress on elections.

"Article 96 has been invoked on 11 occasions since the coming into force of the Cotonou agreement. There has been wide divergence amongst the circumstances that have led to article 96 consultations and the responses to both the call for consultations and any following appropriate measures. There has been most coherence in respect to coup d'etats.

"There is a consensus that Article 96 has been an effective tool in response to coup d'états, which has been confirmed in a 2007 study commissioned by the Commission.[35] Article 96 provides a useful way to engage with ACP states following a coup, and in providing a framework and timetable in which to establish a route to democratisation. It also provides an opportunity for critical feedback to be communicated in the democratisation process through the review processes.

"In cases other than coup d'etats it is more difficult to draw firm conclusions as the situations are so varied. However, overall Article 96 has been effective in its role as part of a partnership agreement with the ACP countries, and in providing an opportunity to facilitate intensified political dialogue and frameworks for action to be initiated and implemented in partnership.

"This was demonstrated in Togo (2004) when it was the Togolese government who initiated Article 96 proceedings as they sought a route to normalise relations with the EU. This led to a 22 point framework and timetable that eventually led to a resumption of normal relations.

"Even where outcomes are not as demonstrably effective Article 96 does provide a useful forum for engagement with ACP governments that would not otherwise exist. Also whilst Article 96 is primarily an avenue for negotiation and facilitation, it can play a useful role in conjunction with the EU sanctions procedures in ensuring comprehensive and coherent actions on the part of the EU.

"The UK has played an active part in striving for greater effectiveness of Article 96, both in respect to coup d'etats and other breaches of the essential elements. Our views helped shape the amendments to Article 8 and 96 in the 2005 Cotonou revision. We believe that these amendments provide the opportunity for a more effective political dialogue with ACP countries, which is vital for sustainable development and meeting the MDGs. We will continue to work with the EU to improve the effectiveness of the implementation of Article 96 (and Article 8) in the future.

"You also asked whether the Council and Commission proposed to carry out a review of the effectiveness of the Article 96 process. It is not known at present if and when the Council or Commission intends to undertake such a review. The Cotonou agreement is due to be revised in 2010 and this may lead to a further review of Article 96 either formally in a commissioned study, or informally through debates in the ACP working group."

Conclusion

7.19 The Cotonou Agreement is clear: respect for human rights, democratic principles and the rule of law are essential elements of the partnership. On the Agreement website, the Commission characterises the revision of the political components in 2005 as "strengthening the political dimension by placing greater emphasis on effective dialogue and results". Against the yardstick set out in those last four words, and despite the Minister's valiant efforts to the contrary, it is difficult to find much persuasive evidence that the Article 96 process has had much significant success in facilitating sustained democratic development. After over five years engagement in Guinea, the country would seem to be no nearer than it was then to a functioning democratic and law-based society. We consider the consequences of the latest setback in a separate chapter of this report.[36]

7.20 In the meantime, we find it disheartening that, despite there being only a limited academic study thus far, the Minister seems uninterested in whether or not the 2010 review of the Agreement will address the effectiveness of a much-trumpeted and resource-intensive component of the 2005 revision. We accordingly ask her to write to us either now, or when it is available, about the proposed process and timetable for the 2010 revision, and to explain why she has not pressed for a proper assessment of the effectiveness of Article 96 process, and how it might be modified, if it is not part of that process and timetable.

Annex 1: The political dimension of the Cotonou Agreement

"EMPHASIS ON THE KEY ROLE OF POLITICAL DIALOGUE

Dialogue should allow ACP and EC to address all issues of mutual concern and to ensure consistency and increased impact of development cooperation.

It will be conducted in a flexible manner: within and outside the institutional framework, at national, regional or ACP level.

PEACE-BUILDING POLICIES, CONFLICT PREVENTION AND RESOLUTION

Dialogue and cooperation strategies will address peace-building policies and conflict prevention. The partnership will focus in particular on regional initiatives and the strengthening of local capacities.

ESSENTIAL ELEMENTS

Respect for human rights, democratic principles and the rule of law are essential elements of the partnership.

A new procedure has been drawn up to deal with violations. It puts more emphasis on the responsibility of the State concerned and allows for greater flexibility in the consultation process. In cases of special urgency — serious violations of one of the essential elements — measures will be taken immediately and the other party notified.

GOOD GOVERNANCE

Commitment to good governance as a fundamental and positive element of the partnership, a subject for regular dialogue and an area for active Community support.

The EC and the ACP have also agreed on a new specific procedure to be launched in serious cases of corruption. This is a real innovation, both in the EC-ACP context and in international relations. It is not confined to EC activities. It will be applied in cases of corruption involving EDF money and more widely, in any country where the EC is financially involved and where corruption constitutes an obstacle to development. This is a very important aspect, as public finance constitutes a whole, regardless of the source of finance; corruption involving other sources of financing therefore indirectly affects EDF funding. The EC and the ACP States are together sending a clear and positive signal to European taxpayers and investors, and legitimate beneficiaries of aid."