14 EU Relations with Fiji
|Council Decision amending and extending the period of application of Decision 2007/641/EC concluding consultations with the Republic of Fiji Islands under Article 96 of the ACP-EC Partnership Agreement and Article 37 of the Development Cooperation Instrument
|Article 96 of the Cotonou Agreement and Article 37 of Regulation (EC) No 1905/2006 establishing a financing instrument for development cooperation; QMV
|Foreign and Commonwealth Office
|Basis of consideration
|Minister's letter of 22 October 2010
|Previous Committee Report
|HC 428-iii (2010-11), chapter 4 (13 October 2010); also see (30874) 12744/09: HC 19-xxvii (2008-09), chapter 25 (14 October 2009); and (28857) 12379/07: HC 41-xxxiii (2006-07), chapter 17 (2 October 2007)
|Discussed in Council
|27 September 2010
14.1 Fiji is a signatory of the African Caribbean and Pacific-European
Community (ACP-EC) Partnership Agreement, signed in Cotonou on
23 June 2000 (and known as the Cotonou Agreement). This provides
a framework for relations between the EU and 77 countries of the
African Caribbean and Pacific group of states (ACP). Article 96
of the Cotonou Agreement allows for consultations between the
EU and an ACP state where a breach of any of Cotonou's "essential
elements" respect for human rights, democratic principles
or the rule of law is perceived to have taken place.
14.2 Article 3(1) of the Development Cooperation Instrument (DCI)
confirms these same elements as general principles of the EU that
it will seek to promote in partner countries through dialogue
and cooperation. Article 37 of the DCI details the process where
a breach of these principles is deemed to have taken place.
14.3 Fiji was allocated 60 million under the DCI thematic
programme for ACP sugar protocol countries for the period 2007-2010,
which money was directed at reforming Fiji's sugar sector.
Council Decision 2007/641/EC
14.4 On 2 October 2007, the previous Committee cleared the Council
Decision in question. It was adopted in the face of adverse political
developments in Fiji, which are set out in detail in its earlier
Report. In sum, on 5 December 2006, members of the Fiji Military
Forces staged a coup, led by Commander Frank Bainimarama, which
removed the democratically elected government, and the Commander
appointed himself briefly as President and later as Prime Minister.
In the following months the Commander sacked many key figures,
including the Chief Justice. He appointed military figures to
key positions in government ministries and put an interim Cabinet
in place; and then suspended the Great Council of Chiefs after
they refused to accept the President's (effectively, the Commander's)
nomination for the role of Vice-President. Many people speaking
out against the coup, including those in the media, were detained
by the military and intimidated. There were numerous accounts
of human rights abuses, including two deaths in military custody.
The independence of the judiciary was also compromised.
14.5 Against this background, the EU considered the coup in Fiji
constituted a violation of Cotonou's essential elements and the
DCI's general principles and on 27 February 2007 accordingly opened
consultations with Fiji. During these consultations, representatives
of Fiji's Interim Government agreed to a number of commitments
designed to return Fiji to democracy and the rule of law
the key commitment being to hold free and fair elections by March
14.6 The Council accordingly agreed to conclude consultations
and adopt appropriate measures under Article 96 of the Cotonou
Agreement and Article 37 of the DCI. These included:
the finalisation, signing and implementation of the 2008-2013
Country Strategy Paper, for which funding would be made available
under the 10th European Development Fund (EDF), subject
to the interim government meeting agreed commitments in respect
of human rights and rule of law;
Fiji's 2007 allocation under the DCI thematic programme for ACP
sugar protocol countries zero and tying the provision of assistance
under this programme in 2008, 2009 and 2010 to the return to democratic
cooperation activities already underway or in preparation for
funding under the 8th and 9th EDFs were to continue,
likewise implementation of the 2006 sugar assistance provided
under the Regulation establishing accompanying measures for Sugar
Protocol countries affected by the reform of the EU sugar regime
for activities which would help the return to democracy and improve
governance would also be permitted as would humanitarian aid and
direct support to civil society; Fiji would also continue to be
able to participate in regional cooperation activities;
with the European Investment Bank and the Centre for Development
Enterprise would continue subject to the timely fulfilment of
EU would follow the situation closely, and enhanced political
dialogue with the interim Fijian authorities would be conducted
to ensure respect for human rights, restoration of democracy and
respect for the rule of law.
The previous Committee's assessment
14.7 In clearing the document, the previous Committee
noted that the interest it had hitherto taken in the application
and effectiveness of the "Article 96" process had now
amplified by the addition of similar "governance" provisions
in the new Development Cooperation Instrument. Given the widespread
interest in the House in EU development assistance policy and
activity, it considered that the stage now reached in the EU and
the Government's endeavours to return Fiji to the path of democracy
and the rule of law warranted a Report to the House.
The extension to Council Decision 2007/641/EC
14.8 In his Explanatory Memorandum of 24 September
2009, the then Minister of State at the Foreign and Commonwealth
Office (Mr Ivan Lewis) reported that: the situation worsened again
in April 2009, when the Fiji Court of Appeal declared Bainimarama's
regime illegal; the following day the President, at Bainimarama's
behest, abrogated the constitution, suspended the courts and re-appointed
Bainimarama Prime Minister; and since then the military had restricted
public gatherings, severely censored the media and ensured impunity
for abuses by military personnel. Moreover, Bainimarama had announced
that no elections would be held until 2014 after fundamental land
and electoral reform.
14.9 The Council Decision noted that:
review of the current Decision, which was to expire on 1 October
2009, coincided with an ongoing joint initiative by the United
Nations and the Commonwealth to mediate, to which the EU had given
its full support, but which was then stalled;
interim Prime Minister had recently presented a roadmap for reforms
and elections; while the roadmap was insufficient as it stood,
it might be worthwhile to engage in dialogue regarding it and
to consider whether it might serve as a basis for new consultations;
and said that, taking into account the above considerations,
the Commission could only, at that stage, propose an extension
of the current policy.
14.10 The then Minister said that, as a result of
Fiji's failure to meet the commitment to hold free and fair elections
by March 2009, the EC had announced on 18 May 2009 that it had
taken the decision to cancel the 2009 sugar allocation for Fiji
(totalling 24 million); though this action would have serious
impact on Fiji's failing economy, the then Government fully supported
the Commission's approach. The Article 96 consultations had offered
the opportunity to promote a return to democratic government and
rule of law in Fiji and to demonstrate the importance that the
EU attached to upholding the essential elements of the Cotonou
Agreement and the general principles in the Development Cooperation
Instrument. The then Minister also noted that the UK currently
held the local EU Presidency in Suva and had, he said, played
an important role in monitoring progress; it would continue to
use every opportunity to press the Fiji authorities to behave
transparently, respect human rights and the rule of law and return
the country to democratic rule as soon as possible. The measures
outlined in this Council Decision would aid these efforts. He
strongly believed tangible "next steps" were necessary
to avoid the current agreement continually being extended. Discussions
on what these next steps should be would take place in Brussels
over the next six months, with a view to having a decision in
place before the end of the extended period.
The previous Committee's further assessment
14.11 The previous Committee reported these latest
unfortunate developments to the House for the same reasons as
two years ago.
14.12 It also asked the then Minister to write to
the previous Committee when he knew what the "next steps"
were likely to be.
14.13 The then Minister for Europe having forewarned
it in a letter, which it had considered on 22 July 2009, that
it might be necessary to adopt this Council Decision during the
upcoming summer recess if the situation were to develop in the
way that it had, the previous Committee agreed not to take issue
with the then Minister for having agreed to its adoption before
scrutiny had been completed.
14.14 It then cleared the document.
The proposed Council Decision
14.15 This Council decision extends the current Article
96 arrangements for Fiji for six months, until 31 March 2011.
14.16 In his Explanatory Memorandum of 29 September
2010, the Minister for Europe (David Lidington) supported the
proposed extension, which he said would allow the opportunity
for possible further consultations.
14.17 After rehearsing the background in similar
terms to the previous Minister, he too supported the Commission's
approach, similarly saying that the Article 96 consultations offered
the opportunity to promote a return to democratic government and
rule of law and demonstrate the importance that the EU attached
to upholding the essential elements of the Cotonou Agreement and
the general principles in the Development Cooperation Instrument.
14.18 He also said that:
UK mission in Suva would continue to use every opportunity to
press the Fiji authorities to behave transparently, respect human
rights and the rule of law and return the country to democratic
rule as soon as possible, and that the measures outlined in this
Council Decision would aid these efforts;
last six months had not provided conditions suitable for further
negotiations but he expected substantive discussions between Fiji
and the EU to start again soon in Brussels with the aim of moving
the EU/Fiji relationship forward; and
review of the Cotonou arrangements in six months' time would ensure
that these intractable issues remain on the EU's agenda.
14.19 In a separate letter of 24 September 2010,
the Minister wrote "with regret" that:
"due to time constraints, and the need to maintain
a legal basis for the current EU measures being taken against
Fiji, it has been necessary for me to agree the UK's abstention
from this Council Decision as agreement through Scrutiny clearance
could not be obtained in time.
"The Decision is for an extension only; no changes
to the current arrangements will take place during the six months.
Member States are in agreement. I would like to emphasise that
any documents on new arrangements will be put before the Committee
for scrutiny in the normal way prior to agreement. I will make
every effort to avoid a similar situation arising in the future,
and have instructed officials to review the events which led to
the conclusion that this matter could not be considered at the
Commons and Lords Scrutiny Committee meetings of 15th and 20th
14.20 We found the Minister's explanation unsatisfactory.
Neither the previous Committee nor we had heard anything for a
year, notwithstanding the request to the previous Minister for
further information after the forthcoming discussions in Brussels
to which he had referred. Now, the Minister's Explanatory Memorandum
said nothing about what had happened in the interim, either in
Fiji or in the discussions between the Commission and those in
charge there. Nor did the Minister's letter explain why this Council
Decision had appeared on the eve of renewal, when the timeline
was well-established long in advance.
14.21 We therefore asked the Minister to address
these issues, and in the meantime retained the document under
The Minister's letter of 22 October 2010
14.22 The Minister begins his letter by saying that
the previous Committee's request had been interpreted as meaning
that the Committee would not need an update unless there were
substantive developments, and then says:
"At the time, we expected that there would be
progress to report. Unfortunately this has not been the case.
The Commission continues to consider options for future EU relations
with Fiji, but has not yet put specific proposals to Member States."
14.23 The Minister then recalls what has happened
since the coup in December 2006, and says:
"UK officials continue to work closely with
the Commission and key regional partners, especially Australia
and New Zealand, to ensure a coordinated response to the challenges
posed by an increasingly entrenched military regime. Our common
goal remains to encourage Fiji to an early return to a civilian-led
democratic state with full respect for human rights and the rule
"I will ensure that the Committee is fully informed
of any substantive developments on this issue during the current
six-month extension period or provide an appropriate update should
a further extension be required."
14.24 On the timing issue, the Minister again regrets
that it was not possible for the Committee to consider this matter
prior to the Council meeting. He refers to a letter concerning
issues that were likely to require scrutiny over the summer recess,
including Fiji, which he says were followed up in conversations
with the Committee's staff. The Minister also regards the timing
of the recesses in August and September as unhelpful with regard
to enabling consideration of the matter before the Council. The
Minister concludes by recalling similar problems in previous years
and, "anxious to avoid the need for scrutiny overrides whatever
the circumstances", offers to discuss with the Committee
how best to approach this matter.
14.25 It seems that what the then Minister feared
12 months ago the current agreement continually being
extended in the absence of tangible "next steps"
has in fact materialised. We are none the wiser as to what the
options for future EU relations with Fiji might be, nor why the
Commission has yet to put specific proposals to Member States.
We should therefore like the Minister to ensure that, when he
writes during the current six-month extension, he provides an
update or, should a further extension be required, an Explanatory
Memorandum, that deals with this matter.
14.26 With regard to the timing issue, the point
we were endeavouring to make is that, with the expiry date well-known
in advance and there having been no developments in Fiji that
were likely to affect its nature, it is still not clear why putting
forward this Council Decision was left to the last minute. Welcome
as "heads up" letters and informal conversations are,
there is no substitute for the timely submission of the relevant
Council Decision with a fully comprehensive Explanatory Memorandum.
14.27 This having been said, we see no need to
retain the Council Decision under scrutiny any longer, and now
76 See headnote (28857) 12379/07: HC 41-xxxiii (2006-07),
chapter 17 (2 October 2007). Back
See headnote (30874) 12744/09: HC 19-xxvii (2008-09), chapter
25 (14 October 2009). Back