54 Breach of Cotonou Agreement by Madagascar
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9014/10
COM(10) 181
| Draft Council Decision concerning the conclusion of consultations with the Republic of Madagascar under Article 96 of the ACP-EC Partnership Agreement
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| Legal base | Articles 8, 9 and 96 of the Cotonou Agreement; QMV
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| Document originated | 26 April 2010
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| Deposited in Parliament | 25 May 2010
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 24 May 2010
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| Previous Committee Report | None; but see (30637) 9790/09: HC 19-xviii (2008-09), chapter 19 (3 June 2009); (26227) 16041/04 and (29544) 7499/08: HC 19-x (2008-09), chapter 7 (11 March 2009) and (30446) 6543/09: HC 19-x (2008-09), chapter 8 (11 March 2009)
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| To be discussed in Council | 25 May 2010
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| Committee's assessment | Politically important
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| Committee's decision | Cleared; relevant to debate in European Committee B on the latest revision of the Cotonou Agreement
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Background
54.1 The Cotonou Agreement 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;[227]
— participatory
approaches;
— a
strengthened focus on poverty reduction;
— a
new framework for economic and trade cooperation; and
— a
reform of financial cooperation.
54.2 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, democratic principles and the rule of law, 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.
54.3 The revised Agreement of 2005 makes provision
for what the Commission describes as "a more systematic and
formal dialogue under article 8 in relation to the three essential
elements [which] must now be held before the consultation procedure
under Article 96 can be launched — except in cases of special
urgency."[228]
54.4 Following the unconstitutional transfer of power
in Madagascar on 17 March 2009, the Commission proposed that the
Commission and the Council send a joint letter inviting the Republic
of Madagascar to hold consultations under Article 96 of the Cotonou
Agreement, and asked the Council to agree a draft letter.[229]
54.5 The then
Minister for Europe at the Foreign and Commonwealth Office (Caroline
Flint) set out the background in her Explanatory
Memorandum and letter of 22 May 2009. She noted that, in less
than a year, Africa had seen unconstitutional transfers of power
in Guinea, Mauritania and, now, Madagascar, as well as the irregular
transfer of power in Guinea Bissau. She explained that the coup
in Madagascar resulted from tensions between President Ravalomanana
and the opposition, led by the former Mayor of Antananarivo (the
capital) Andry Rajoelina; and that, after involving the military
and the Malagasy Constitutional Court, Rajoelina had set himself
up as leader of the "High Transitional Authority" (HTA).
54.6 All of this was immediately condemned by the
international community, including the African Union (AU), Southern
African Development Community (SADC), the US and the EU. An International
Contact Group (ICG) was formed (with UK participation, as a P5
member) to try and agree a political roadmap for the way forward.
In parallel, EU Member States had agreed to open Cotonou Agreement
Article 96 consultations and temporarily suspend all budgetary
aid provided for in the national indicative programmes of the
9th and 10th European Development Fund (EDF).
54.7 The Article 96 consultations would be consistent
with the ICG approach, to which there was an explicit reference
in the draft Article 96 letter. The consultations would "offer
the opportunity to promote democratic principles in Madagascar
and to demonstrate the importance the EU attaches to the 'essential
elements' of the Cotonou Agreement". The unconstitutional
transfer of power "demanded a swift and coordinated international
response, with the EU co-ordinating with other international pressure
on the coup leaders." In Madagascar, there was "currently
a sense of drift", with the lives and livelihoods of ordinary
people disrupted by the lack of effective government, unrest on
the streets and the threat of renewed violence. It was important
that the international community responded speedily and robustly
to ease the situation of some of the poorest people in the world.
Issuing the letter announcing the start of Article 96 consultations
at the earliest opportunity "would help to break the current
stalemate and send a strong signal of the seriousness of the EU's
intent to help Madagascar back to constitutional democracy and
the rule of law."
The previous Committee's assessment
54.8 The previous Committee pointed out that the
Cotonou Agreement is clear — respect for human rights, democratic
principles and the rule of law are essential elements of the partnership
— and that, on the Agreement website, the Commission characterised
the revision of the political components in 2005 as "strengthening
the political dimension by placing greater emphasis on effective
dialogue and results".
54.9 It went on to note discussion in March with
the then Minister about developments in Guinea commenting that,
against the yardstick set out in those last four words, and despite
her valiant efforts to the contrary, it found it difficult to
find much persuasive evidence that the Article 96 process had
had much significant success in facilitating sustained democratic
development. On the contrary: after over five years engagement,
Guinea seemed to be no nearer to becoming a functioning democratic
and law-based society; the first round of consultations, begun
in response to the events of 2003, had produced a host of commitments
on restoring democracy and the rule of law, notwithstanding which
fresh Article 96 consultations had been initiated in response
to the latest military coup.[230]
54.10 Against that unhappy background, it concluded
by expressing the hope that Madagascar would be able to demonstrate
that the Article 96 process could be made to work, and in the
meantime cleared the document.[231]
The Council Decision
54.11 This Council Decision proposes to end the consultations
and to suspend all development funds under the 9th
and 10th EDF.
54.12 As the Minister for Europe at the Foreign and
Commonwealth Office (Mr David Lidington) explains in his Explanatory
Memorandum of 24 May 2010, although the 120 day deadline for the
closure of consultations expired in November 2009, the EU agreed
to allow negotiations to remain open while it looked as if progress
was being made; however, since then there has been no political
agreement between the parties, mainly due to opposition from the
HTA (the coup regime). Consequently, the Commission has put forward
a proposal to close the consultations and to adopt appropriate
measures. This would formalise the temporary suspension of the
EU's budgetary support. Humanitarian and emergency aid would not
be affected. The European Commission would also be able to implement
certain projects and programmes that directly benefit the population.
The normal political dialogue between Madagascar and the EU provided
for in Article 8 of the Cotonou Agreement will be maintained and
conducted as far as possible in co-ordination with the ICG.
54.13 The Minister points out that the Annex to the
Decision sets out "clear steps that need to have been taken
to step up Article 8 of the Cotonou Agreement, and to consider
reversing the appropriate measures, e.g. resuming EU development
funding", including:
— a
consensual agreement for a transitional government;
— the
setting of a clear roadmap towards elections, which is acceptable
to the parties involved and which allows for a free and fair election
campaign; and
— fair
elections, recognised as such by the international community,
and which can provide democratic legitimacy to a new government.
54.14 The Commission proposes that these measures
should be adopted for an initial period of twelve months, but
reserves the right to examine and revise them in the light of
any developments, positive or negative, in Madagascar.
54.15 The Minister also says that he expects the
Commission shortly to submit a proposal for Member States at the
EDF Management Committee to identify which projects and programmes
the EC will undertake that directly benefit the population and
how this would be funded from the EU budget.
54.16 Finally, the Commission's proposal having been
discussed at the African, Caribbean and Pacific (ACP) working
groups in Brussels on 27 April and 4 May 2009, the Minister says
that he expects it be passed to the Council on 25 May 2010.
The Government's view
54.17 The Minister goes on to recall that, Rajoelina
having announced that he would amend the constitution (at 34 he
was six years too young to run for president) and hold elections
within 18-24 months, and having unilaterally set up his HTA, the
HTA has governed as a de facto authority ever since, despite
being unrecognised by the international community. He says that
the situation in Madagascar remains bleak: already with some of
the lowest Human Development Index indicators in the world (overall
145th from 177 countries); social and economic indicators are
continuing to decline. He also notes that, on several occasions,
the ICG has brought together Rajoelina and Ravalomanana, as well
as two other former Malagasy Presidents Ratsiraka and Zafy (each
of whom leads a political movement in Madagascar), leading to
the Maputo agreements of August 2009, and the Addis Ababa Additional
Act of November 2009, which set out a roadmap for a consensual
transitional government leading to inclusive and transparent elections
monitored by the international community. He continues as follows:
"But in December 2009 Rajoelina unilaterally
abandoned those agreements, and set out plans for the HAT to arrange
elections in March 2010 without the involvement of the other parties.
"Due to a continued lack of progress, largely
due to opposition from the HAT, on 17 March 2010, the AU announced
sanctions against 109 Malagasy political figures, including all
of the HAT and others close to Rajoelina.
"Sanctions include a travel ban within the AU,
the freezing of assets in African banks, and diplomatic isolation.
The AU has urged international partners to support the decision
and refrain from any activity which would undermine its actions.
"The French and South Africans hosted the leaders
of the four Malagasy parties in Pretoria from 26-28 April 2010.
Three days of meetings appear to have produced few results, but
it is possible the parties may return to Pretoria later in May."
54.18 Against this background, the Minister judges
that closure of Article 96 consultations is the right next step
for the EU, so as "to increase pressure on the Malagasy parties
to reach a consensual and transparent solution … [and] also
send a signal to other ACP states that the EU will act in response
to coups and that the EU will use the Cotonou Agreement to demonstrate
its commitment to democracy in Africa." He notes that the
closure of Article 96 consultations does not prevent the EU from
engaging with the parties in Madagascar, and the decision on suspension
of development aid can be reviewed if there is progress towards
a solution (viz., the Commission's benchmarks). He concludes thus:
"On 12 May 2010, Rajoelina announced he would
not stand in the possible presidential elections in November.
This move may open the way to a solution to the crisis. But Rajoelina
has not honoured previous promises and it is too early to use
his announcement as a reason not to close Article 96 consultations
at this time."
Conclusion
54.19 Our predecessors' hope that Madagascar would
in some way break the mould was, sadly, in vain.
54.20 On a number of occasions, usually involving
military coups or violence by military regimes, development cooperation
has been suspended, consultations have been entered into, benchmarks
have been agreed, progress has been monitored — and the
impact has been questionable. Even so, as noted elsewhere in this
Report in our consideration of the latest quinquennial revision
of the Cotonou Agreement, the then Minister at the Department
for International Development (Mr Gareth Thomas) makes clear that
the Commission found itself resisting requests for further changes
by the ACP that would have weakened the effectiveness of Article
96 or prolonged the process. This is discouraging, to say the
least.
54.21 We now clear the Council Decision, which
we consider relevant to the debate in the European Committee on
the revision of the Cotonou Agreement that we have recommended.[232]
54.22 In so doing, the Committee recognises that
the general election and consequent lack of a European Scrutiny
Committee militated against the Minister withholding agreement
to this Decision until it had been scrutinised, and does not object,
on this occasion and in these circumstances, to his agreeing to
its adoption prior to scrutiny.
Annex: 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."
227 Reproduced as the Annex of this chapter of our
report. Back
228
See http://ec.europa.eu/development/icenter/repository/Cotonou_EN_2006_en.pdf
for the full background to and text of the Cotonou Agreement.
Back
229
Reproduced at Annex 3 of chapter 19 of the then Committee's Report
of 3 June 2009; see headnote. Back
230
See headnote: (26227) 16041/04 and (29544) 7499/08: HC 19-x (2008-09),
chapter 7 (11 March 2009) and (30446) 6543/09 HC 19-x (2008-09),
chapter 8 (11 March 2009). Back
231
See headnote: (30637) 9790/09: HC 19-xviii (2008-09), chapter
19 (3 June 2009). Back
232
(31447); see chapter 1 of this Report. Back
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