Documents considered by the Committee on 20 January 2016 - European Scrutiny Contents


2 EU Afghanistan Cooperation Agreement on Partnership and Development

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; recommended for debate in European Committee B, together with the Joint Communication: Elements for an EU Strategy in Afghanistan 2014-16, already referred for debate on 25 February 2015 (decision confirmed on 21 July 2015)
Document details(a) Council Decision on the signing of the Cooperation Agreement on Partnership and Development between the EU and Afghanistan; (b) Council Decision on the conclusion of the Cooperation Agreement on Partnership and Development between the EU and Afghanistan
Legal baseArticle 37 TEU and Articles 207 and 209, in conjunction with Article 218(6)(a) and the second paragraph of Article 218(8) TFEU; unanimity
DepartmentForeign and Commonwealth Office
Document Numbers(a) (37417), 15503/15 + ADD 1, JOIN(15) 35;

(b) (37418), 15504/15 + ADD 1, JOIN(15) 36

Summary and Committee's conclusions

2.1 A 2014 Joint Communication, Elements for an EU Strategy in Afghanistan 2014-16, outlined the key objectives and initiatives upon which the EU would seek to focus on in support of the Government: promoting peace and security; reinforcing democracy; encouraging economic and human development; and fostering the rule of law and respect for human rights. It was designed principally to ensure that the EU and Member States could adopt a comprehensive and coordinated approach to activities on the ground in support of the Afghan Government.

2.2 Details of the context — particularly the 2012 Tokyo Conference, at which International Community pledged to improve aid effectiveness and provide US$16 billion to Afghanistan in return for the Government of Afghanistan meeting its commitments under the Tokyo Mutual Accountability Framework — are summarised below (see "Background" for full details).

2.3 Against this background, on 17 December 2015 the Commission submitted to the Council a proposal to sign and conclude a Cooperation Agreement on Partnership and Development (CAPD) between the European Union and the Islamic Republic of Afghanistan. It is described by the Minister for Europe (Mr David Lidington) as:

    "a framework for further engagement and cooperation between the EU and Afghanistan across a number of wider range of areas, including political cooperation, human rights, gender equality, civil rights, peace building, counter-terrorism, development, trade, rule of law, policing, migration, education, energy and the environment."

2.4 As the Minister also puts it:

    "The desire for an agreement was first expressed in 2011, and negotiations were held throughout 2011 and 2012. Following a break, they resumed in 2015 with the new National Unity Government. It was initialled in July 2015."

2.5 The Agreement is the first contractual relationship between the EU and Afghanistan and underpins the EU's commitment to supporting Afghanistan's future development during its "decade of transformation" agreed at the Bonn conference in 2011. By strengthening political dialogue and improving cooperation in a broad range of areas, the Agreement consolidates the European Union's engagement with Afghanistan. It acknowledges the results of the international conferences on Afghanistan held in Bonn, Chicago, Kabul, Tokyo and London.

2.6 The Agreement includes provisions on political dialogue and on cooperation in a broad range of areas. It draws on the EU's standard political clauses on human rights and the International Criminal Court, and includes commitments related to the rights of women and children. The Agreement builds on the principles of mutual accountability and reiterates the willingness of the parties to address shared concerns, including:

1) the fight against terrorism, international crime and illegal trafficking;

2) non-proliferation, disarmament and nuclear security;

3) Weapons of Mass Destructions (WMD);

4) Small Arms and Light Weapons (SALW); and

5) counter-narcotics.

2.7 The provisions on cooperation cover the following sectors: infrastructure development, energy, transport, health, natural resources, tax, education and culture, employment and social affairs, science and technology, and environment and climate change. The Agreement also emphasises the importance of legal cooperation and affirms the parties' commitment to fighting organised crime, money laundering and corruption.[6]

2.8 The Minister also describes the CAPD as "a high-level agreement framing the EU's intention to strengthen its relationship with Afghanistan", noting that the EU "has a significant role to play in the future of Afghanistan as a means to help develop the country in many areas including governance and the rule of law".

2.9 Afghanistan itself has, he says, "just finished the first year of its 'transformation decade', [h]aving taken responsibility for its own security in 2015". The National Unity Government headed by President Ghani "has committed to an ambitious reform agenda and has begun to pursue peace with the Taleban". In order to "continue down the path of peace and stability", the Afghan Government "requires the support of the international community, including the EU". The UK's bilateral contribution to Afghanistan is "significant", and the bilateral relationship "strong". The CAPD "does not commit the UK to greater cooperation", nor "prevent us pursuing our bilateral cooperation". The UK's objective in Afghanistan is "to prevent it from returning to being a haven for international terrorism, and to build the capacity of the government". The involvement of the UK, and the EU "is vital" and the CAPD "provides the framework for a partnership to endure".

2.10 As well as authorising the signature and conclusion of the CAPD, these Council Decisions include, in annexes, the detailed texts concerning the areas covered by the Agreement. But the Minister says nothing about these. Nor does he say anything about how the Agreement is to be carried out. Or about what expenditure is likely to be involved, other than that the CAPD does not have any financial implications as such, in that it "does not commit any funds directly".

2.11 We would therefore like the Minister to provide more information on the workings of the agreement. How much money is the EU committed to provide under which headings in order to enable the new Government to implement its "ambitious reform agenda"? In what ways will the EU be involved in the administration and control of these funds? How do these funds relate to those provided by other funders? In what ways will the Government of Afghanistan be held to account? Paragraph 11 of the Tokyo Mutual Accountability Framework says:

    "11. The Afghan Government and the International Community are to monitor performance for five major areas of development and governance according to the modalities described below. A timeline for these indicators is to be developed by the Afghan Government for the next JCMB meeting. The desired goals and initial indicators for each area are stated below."[7]

2.12 Are there similar provisions with regard to the work streams in the CAPD and the expenditure involved? In what sense is the sort of "conditionality" involved in similar EU work in the western Balkans and the "near neighbourhood" built into the CAPD?

2.13 We note that this is a wide ranging agreement entered into by the EU without the Member States participating separately. The Commission's Explanatory Memorandum implies that it may cover matters for which competence is shared.[8] We therefore ask the Minister whether the EU would be exercising shared competence by these Decisions. If so to what extent and what is the justification for departing from the normal Government policy that member States should exercise shared competence?

2.14 Although the Council Decisions and annexes are in final form, the Minister says that the "Council Decisions are not yet finalised and continue to be negotiated in Brussels". We understand that the EEAS/Commission have jumped the gun, in the sense that the texts were published in final form before all Member States had agreed to them at official level. This suggests that, though there may yet be some changes, these are unlikely to be substantive; in which case, the likelihood is that the Council Decisions will then move swiftly to adoption by the Council.

2.15 We note that it is nearly a year since the previous Committee recommended that the precursor to these Council Decisions — the Joint Communication referred to above — be debated in European Committee. At our first meeting, we endorsed their recommendation for the same reason: it would be appropriate to debate the role that, one way or another, the EU would be undertaking (with EU taxpayers' money) in post-2014 Afghanistan and the host of uncertainties surrounding the essentials for its successful implementation. Those uncertainties remain, particularly regarding the security situation. The financial uncertainties are outlined above. Nonetheless, that debate has yet to be arranged.

2.16 We therefore recommend that the Council Decisions containing this consequential CAPD be debated, in European Committee, as soon as possible, together with the Joint Communication: Elements for an EU Strategy in Afghanistan 2014-16, already referred for debate on 25 February 2015 (decision confirmed on 21 July 2015). It is important that the EU policy in Afghanistan embodied in these documents is subject to further examination, in debate, thereby enabling the Government to clarify and discuss the many uncertainties about the context in which, and how, this Agreement will operate, and interested Members to explore all the implications, including for the UK's own commitments.

2.17 In order to facilitate the best possible debate, we ask the Minister to respond to the queries raised above as speedily as possible, so that they may be reported to the House before the debate takes place.

2.18 In the meantime, we shall retain the Council Decisions under scrutiny.

Full details of the documents: (a) Joint Proposal for a Council Decision on the signing of the Cooperation Agreement on Partnership and Development between the European Union and the Islamic Republic of Afghanistan: (37417), 15503/15 + ADD 1, JOIN(15) 35; (b) Council Decision Joint Proposal for a Council Decision on the conclusion of the Cooperation Agreement on Partnership and Development between the European Union and the Islamic Republic of Afghanistan: (37418), 15504/15 + ADD 1, JOIN(15) 36.

Background

2.19 The Afghan Government and the International Community met on 8 July 2012 in Tokyo "to reaffirm and further consolidate their partnership from Transition to the Transformation Decade". The Tokyo Conference, together with the Chicago Summit of Afghanistan and ISAF contributing countries of May 2012, established what the Japanese Ministry of Foreign Affairs described as:

    "a renewed stronger foundation for partnership to support sustainable growth and development of Afghanistan throughout the Transformation Decade (2015-2024)."

2.20 Building on the London Conference in January 2010, the Kabul Conference in July 2010 and the December 2011 Bonn Conference, the Japanese and Afghan Governments, along with ministers and representatives from 55 countries and 25 international and other organizations "recognized the increasing roles of new partners and neighboring and regional countries for the sustainable development of Afghanistan". According to the Declaration:

"the Afghan Government and the International Community succeeded in transforming their mutual commitments made in Bonn to cooperate throughout the Transformation Decade into a solid and credible framework focused on the priorities of the Afghan Government as contained in its strategy paper Towards Self-Reliance."

2.21 Acknowledging the promulgation of its new Constitution, the Declaration pointed out that much nonetheless remained to be done to achieve a peaceful, stable and self-sustaining Afghanistan, including on such issues as security, with a focus on terrorism and counter-narcotics, poverty reduction, humanitarian needs, provision of basic social services, food security, protection of human rights in particular the rights of women and children, respect for individual dignity, promotion of education and culture, improvement of governance, reducing corruption, lessening reliance on international assistance, and promotion of private investment, thereby contributing to human security. The Bonn Conference had demonstrated a shared vision for long-term partnership between Afghanistan and the International Community to help Afghanistan attain sustainable economic growth and development and fiscal self-reliance from Transition through the Transformation Decade. Afghanistan and the International Community had accordingly established the Tokyo Mutual Accountability Framework (a.k.a. the "Tokyo Framework", or TMAF), which underpinned their partnership for the Transformation Decade.[9]

2.22 At the Conference, the International Community pledged to improve aid effectiveness and provide US$16 billion to Afghanistan in development assistance through 2015-17, to respond to Afghanistan's predicted budget shortfall following military transition. For Afghanistan to benefit fully from these funds, the Government of Afghanistan must meet its commitments under the TMAF.

2.23 The January 2014 Foreign Affairs Council Conclusions defined 2014 as a critical year. The Council called on the Government of Afghanistan to reciprocate the EU's commitment to Afghanistan by finalising negotiations on the Cooperation Agreement on Partnership and Development (CAPD). Sustained development would require the maintenance of security. With that in mind, finalisation of the Bilateral Security Agreement (BSA) with the United States of America was vital and would provide the basis for ongoing international support to increase the capability of the Afghan National Security Forces. The continued provision of significant international development assistance to the Afghan people across the country was dependent on a conducive security environment. The High Representative and the Commission was tasked with preparing, by the second quarter of 2014, a strategy to the end of 2016.[10]

2.24 On 30 April 2014, the Commission and EU High Representative for Foreign Affairs and Security Policy (HR; Federica Mogherini) published Joint Communication 9467/14, Elements for an EU Strategy in Afghanistan 2014-16.

2.25 The Joint Communication outlined the key elements for a future EU strategy. It covered the political context as well as the key objectives and initiatives upon which the EU would seek to focus on in support of the Government of Afghanistan. It focuses on four key areas, with critical sub-objectives: promoting peace and security; reinforcing democracy; encouraging economic and human development; and fostering the rule of law and respect for human rights. The authors noted that the strategic goal and objectives were developed in advance of clarity on the size and scale of any international military presence post-2014; expectations as to the degree of progress and the delivery of international assistance in support of the Government of Afghanistan's priorities in the event of a very limited international presence would necessarily have to be tempered accordingly (for details, see the previous Committee's June 2014 Report).[11]

2.26 Though there was nothing controversial about the proposed elements for an EU Strategy, the previous Committee felt that it would be appropriate to debate it in due course because of the role that, one way or another, the EU would be undertaking (with EU taxpayers' money) in post-2014 Afghanistan and the host of uncertainties surrounding the essentials for its successful implementation. But the Strategy had yet to be agreed; the outcome of Presidential elections was yet to be settled; and both USA and NATO post-2014 security agreements with the Government of Afghanistan were consequently still in limbo. Two key conferences were also on the horizon: first, the NATO Summit in Wales, and then the London Conference on Afghanistan. The Committee therefore asked the Minister for Europe to provide in due course: a copy of the Strategy; his thoughts on the outcome of the Presidential election; more details concerning the dates, location and nature of the two key events to which he referred; and an update on the US Bilateral Security Agreement (BSA) with Afghanistan, NATO's equivalent Status of Forces Agreement (SOFA), and the National Security Council's consideration of the UK's specific post-2014 military commitment.

2.27 In the meantime, the 20 October 2014 Foreign Affairs Council welcomed the formation of a Government of National Unity in Afghanistan, reiterated the EU's long-term commitment to Afghanistan and reaffirmed the comprehensive strategy agreed in June. It looked forward to working in close cooperation with the new government and international partners to safeguard the advances Afghanistan had made over the last 13 years and to support and incentivise urgently needed reforms. The EU recognised the important future role to be played by UNAMA in Afghanistan.[12] It pledged up to €1.4 billion (£1 billion) in assistance up to 2020, complementing the development assistance to be provided bilaterally by Member States. The EU restated its willingness to finalise the CAPD, as the basis for a wide-ranging long-term partnership between the EU and Afghanistan.

2.28 The Council also called for a clear and unequivocal commitment to respect human rights, in particular the rights of women and girls, and says that it is now imperative that the Government of Afghanistan enact the reforms necessary to restore economic confidence, promote job creation, increase revenue generation, reform the judicial system, tackle the twin threats from corruption and narcotics and improve the accountability of the state to ordinary Afghans.

2.29 The London conference would, the Council said, provide the opportunity both for the government to set out its reform commitment in these areas and for the international community to restate its long-term commitment to support Afghanistan.[13]

2.30 Eventually, in February 2015, the Minister provided the previous Committee with "an overview of the London Conference, the focus and formation of the new National Unity Government, an update on the security situation, Human Rights and the EU's work in Afghanistan".[14]

2.31 So far as the CAPD was concerned, the Minister said:

    "The successful transition to a new Afghan government augurs well for the EU to achieve its objectives over the next three years. The reform agenda, as outlined by the new Afghan government's paper 'Realising Self-Reliance' and set out by President Ghani at the London Conference, provides a credible framework for delivering economic security by tackling corruption; maintaining progress on national security; delivering political reform; and consolidating progress on human rights. These are the right priorities and closely align with the EU's 2014-16 strategy. The EU Strategy is designed principally to ensure that the EU and Member States can adopt a comprehensive and coordinated approach to activities on the ground in support of the Afghan Government.

    "As part of the EU's long term commitment to Afghanistan it will seek early agreement with the new Afghan government on the EU/Afghan Cooperation Agreement on Partnership and Development. If signed, the agreement will provide a legal underpinning for a long-term partnership between the EU and Afghanistan. This will be a priority for the EUSR[15] as he works to deliver his mandate objectives in 2015. Now that a new Afghan Government is in place, we will continue to work with the EU and Member States to reach an agreement."

2.32 With regard to the likely impact of the post 2014 security environment, the Minister said:

    "We acknowledge that the work of the EU will be constrained by the tough security environment. But the ratification of the BSA and SOFA and the successful standing up of the NATO Resolute Support Mission is a welcome backdrop for EU work and brings to an end a long period of uncertainty. As acknowledged by your Committee, it will be important for the EU and Member States to remain flexible. Over the coming months, we are encouraging partners to work closely with the new Afghan government, adapting our approaches as necessary. This will be an ongoing discussion."

The previous Committee's assessment

2.33 In February 2015, the previous Committee concluded that, in view of subsequent developments outlined above, the point had now been reached for the Joint Communication Elements for an EU Strategy in Afghanistan 2014-16 to be debated, and recommended that this should be held in European Committee B.[16]

Our assessment

2.34 At our first meeting on 21 July 2015, we endorsed our predecessors' recommendation. In the intervening six months, the Government has failed to arrange this debate.

The Council Decisions

2.35 In the meantime, these Council Decisions have now been deposited for scrutiny. As well as authorising the signature and conclusion of the Cooperation Agreement on Partnership and Development between the European Union and the Islamic Republic of Afghanistan, they incorporate the detailed text of the Agreement.

2.36 Notwithstanding the fact that, to all intents and purposes, these documents are in their final form, the Minister for Europe (Mr David Lidington) says that the Council Decisions "continue to be negotiated in Brussels and further detail will be provided once the final versions have been published", and that therefore the "timetable to sign and conclude the agreement is yet to be confirmed, and will be subject to finalising the agreement".

The Government's view

2.37 The Minister describes the CAPD as "a high-level agreement framing the EU's intention to strengthen its relationship with Afghanistan", noting that the EU "has a significant role to play in the future of Afghanistan as a means to help develop the country in many areas including governance and the rule of law".

2.38 So far as the country itself is concerned, the Minister says:

    "Afghanistan has just finished the first year of its 'transformation decade'. Having taken responsibility for its own security in 2015, following the first peaceful transfer of power in its history and the withdrawal of the International Security Assistance Force (ISAF) in 2014, the National Unity Government headed by President Ghani has committed to an ambitious reform agenda and has begun to pursue peace with the Taleban.

    "The continued progress made by the Afghan Government requires the support of the international community, including the EU, in order to continue down the path of peace and stability."

2.39 With regard to the UK-Afghanistan bilateral relationship, the Minister says:

    "The UK's bilateral contribution to Afghanistan is significant, and the bilateral relationship is strong. The CAPD does not commit the UK to greater cooperation, and does not prevent us pursuing our bilateral cooperation."

    "The UK's objective in Afghanistan is to prevent it from returning to being a haven for international terrorism, and to build the capacity of the government. The involvement of the UK, and the EU is vital and the CAPD provides the framework for a partnership to endure."

2.40 Finally, the Minister notes that Afghanistan has recently acceded to the WTO, and "thus provisions on trade will have a significant impact on the future of Afghanistan".[17]

Previous Committee Reports

None, but see (35996), 9467/14, JOIN(14) 17: Thirty-fourth Report HC 219-xxxiii (2014-15), chapter 1 (25 February 2015), Eighteenth Report HC 219-xvii (2014-15), chapter 5 (5 November 2014) and Third Report HC 219-iii (2014-15), chapter 5 (18 June 2014); also see (37191), —: Eighth Report HC 342-viii (2015-16), chapter 10 (4 November 2015) and (36033) —: Second Report HC 219-ii (2014-15), chapter 11 (11 June 2014).


6   See the Commission's Explanatory Memorandum. Back

7   The Tokyo Mutual Accountability Framework (TMAF) agreed in May 2012, establishes the mutual commitments of the Government of Afghanistan and the international community to help Afghanistan achieve its development and governance goals. Back

8   Shared competence can be exercised by either the EU or the Member States. Back

9   See The Tokyo Declaration 8 July 2012 for further information. Back

10   Available at 20 January 2014 conclusions on Afghanistan. Back

11   See Third Report HC 219-iii (2014-15), chapter 5 (18 June 2014). Back

12   The United Nations Assistance Mission in Afghanistan (UNAMA) is a political mission established by the Security Council in 2002 at the request of the Government to assist it and the people of Afghanistan in laying the foundations for sustainable peace and development in the country. UNAMA thus "provides political good offices in Afghanistan; works with and supports the government; supports the process of peace and reconciliation; monitors and promotes human rights and the protection of civilians in armed conflict; promotes good governance; and encourages regional cooperation". Its mandate is reviewed annually with the latest mandate renewal being on 16 March 2015 when the Security Council unanimously adopted Resolution 2210 (2015). Back

13   See 20 October 2014 Foreign Affairs Council Conclusions, pp.2-24. Back

14   See Thirty-fourth Report HC 219-xxxiii (2014-15), chapter 1 (25 February 2015). Back

15   Mr Franz-Michael Skjold Mellbin was appointed EU Special Representative (EUSR) in Afghanistan as of 1 September 2013 (he was previously Special Representative for Afghanistan and Pakistan for the Ministry of Foreign Affairs, Denmark and former Danish Ambassador to Afghanistan). His mandate is to promote EU policy objectives in Afghanistan. These include contributing to the implementation of the EU-Afghanistan Joint Declaration; leading the implementation of the EU Action Plan on Afghanistan and Pakistan, in so far as it concerns Afghanistan, thereby working with EU Member States' representatives in Afghanistan; and supporting the pivotal role played by the United Nations (UN) in Afghanistan with particular emphasis on contributing to better coordinated international assistance. See (37191), -: Eighth Report HC 342-viii (2015-16), chapter 10 (4 November 2015) for further information. Back

16   Thirty-fourth Report HC 219-xxxiii (2014-15), chapter 1 (25 February 2015). Back

17   See WTO News of 17 December 2015, Ministers approve Afghanistan's WTO membership, for further information. Back


 
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