Cotonou agreement’s refurbishment

The Cotonou agreement is an all-embracing legal framework that aims to enhance and promote the cooperation between the European Union and the African, Caribbean and Pacific countries (referred as ACP countries). The EU-ACP agreement was adopted in 2000 as a further development of the pre-existing Lomé IV Convention, the latter developed on the grounds of the Yaoundé Convention. The agreement will expire in December 2020, bringing the EU Commission, the EU Member States and the ACP countries to refurbish the Cotonou framework, to promote and improve the EU social and economic assistance toward the developing countries.

As already mentioned, the Cotonou agreement is the result of a long historical process that begun in the decades after the Second World War, in the time of the decolonization and dismantlement of European colonial empires, heavily impaired after the war.

In 1963 a first treaty was signed, named Yaoundé Convention, between the European Economic Community and the French-speaking African countries, as a first generation of economic cooperation agreement. This original deal aimed to extend the provisions of the EEC Treaty to the newly founded African countries, thanks to the active commitment of France in setting out a new framework to retain its relations with the former colonies. 

The Yaoundé Convention was drafted around two main axes: the progressive suppression of custom duties and quota restrictions, and the promotion of financial cooperation mechanisms through the creation of the European Development Fund (EDF). The Member States of the EEC provided a total of US$ 730 million of financial assistance, partially delivered through loans by the European Development Bank. The EDF could thus either finance development projects presented by African governments (infrastructure, social and cultural investments, etc.), or grant aid for agricultural production or crop diversification. Furthermore, the Convention also set up several joint institutions to provide the enforcement of the agreement and an enduring cooperation.

In 1969 the Yaoundé Convention expired and a new agreement was adopted for the next five years. In this phase the UK joined the EEC in 1973, bringing along its former colonies in Africa, the Caribbean and the Pacific. Consequently, in 1975 the ACP Group was funded, gathering 46 developing countries. In the same year a new major agreement was adopted, the Lomé I Convention. It was conceived as a comprehensive partnership agreement that sought to provide a framework to structure the trade and aid relations between the EEC and the ACP Group. This convention was much more than a common trade deal, standing as a ‘major turning point in history of the international economic relations’ as declared by the then President of the Council François-Xavier Ortoli.

Indeed, the convention embraced a large number of countries in different regions, tackling a wide range of issues with innovative types of provisions and legal mechanisms, on the base of complete equality between partners. The chapter on export earnings from commodities stood as one of the main groundbreaking features, which sought to establish a mechanism to stabilize the export revenues from important commodities. Moreover, the agreement set the principles and criteria for financial and technical cooperation that would direct the distribution of the economic assistance. Additionally, through information sharing, technical and logistic support, the industrial sector would have been supported toward product diversification and competitiveness. The convention was also designed in order to leverage the European foreign direct investments and grants to the ACP countries. 

The Lomé I Convention was also characterized by non-reciprocity provisions. In other words, while the EEC’s Member States committed themselves to opening up their market for products from the ACP countries, the latters had no obligations towards the EEC: the ACP countries could freely choose the tariffs and duties they imposed on EEC products. To guarantee a proper enforcement of evaluation of the provisions, the agreement also set up a network of institutions on the blueprint of the Yaoundé Convention.

From 1979 to 1990 the Lomé Convention was revised every five years, in a sort of follow-up procedure that further developed and broadened the agreement’s framework. In 1985 the first ‘human rights clause’ was introduced, shifting the focus of the convention from the promotion of industrial development to self-reliant development on the basis of self-sufficiency and food security. The Lomé IV Convention was the last one and covered a period of ten years with an attached financial protocol of that lasted five years.

At the time of the mid-term review of the Lomé IV Convention that took place in 1994-95, major changes were introduced to better face the needs rising from a geopolitical context that was rapidly changing after the ending of the ‘bipolar rivalry’. In Africa, a wave of civil wars and tribal conflicts (still ongoing) led to the violent collapse of the economy and society of many African countries, with a further deterioration of their feeble public institutions. On the other hand, in Europe the newly formed European Community (nowadays the European Union) was in a difficult transition phase, with the re-unification of Germany and the EC enlargement toward the Eastern European countries.

As a result of all these factors, the convention was revised in order to improve its political stance. The amendments introduced new provisions on human rights, democratic principles and the rule of law, meaning that the ACP countries that did not fulfill these values risked the retrieval of allocated aids and founds. Furthermore, more attention was given to decentralized cooperation in the form of participatory partnership including a variety of actors from civil society.

When the Lomé IV Convention expired in 2000, the EC Member States together with the ACP countries agreed to draft a new convention that should have lasted twenty years. Therefore, the Cotonou Convention was adopted by 79 developing countries in concert with the EC. The agreement gave birth to a new set of rules and a revised legal framework that further increased the parties’ political commitment to bind economic assistance with social and political requirements.

The Article 1 of the Convention recognize as the strategic objective the reduction and the eventual eradication of poverty. The agreement does not define in a narrow sense the concept of ‘poverty’, instead it aims to improve a wide range of factors (such as political, social, cultural and environmental circumstances) that will ultimately increase the welfare of the developing countries. 

In order to accomplish the agreement’s goals, the new legal framework is rooted around three pillars. The first one is the Development Cooperation, that aims to provide financial and technical assistance to support cooperation priorities jointly agreed upon by the partners. The cooperation between the EU and the ACP group follows a five-year cycle, indeed the financial protocol attached to the agreement has a life span of five years. The protocol indicates how much money the EU will put at the disposal of the ACP countries. Actually, the resources listed in the protocol are not funded by the regular budget of the European Union, but a separate funding mechanism is provided by the EDF as established since the Yaoundé Convention. Therefore, each country’s budget share in the EDF is negotiated between EU Member States.

The Cotonou Convention also drastically rationalized and reduced the number of cooperation instruments that existed under the previous Lomé Conventions. Indeed, all the resources of the EDF will be channeled only through two facilities: a Grant Facility and an Investment Facility. The first mechanism is used for financing a wide range of activities and programs, such as macro-economic support, sector policies (mainly education and health), democracy programs, debt relief or regional cooperation and integration. Non-state entities are also financed through this means. On the other hand, the Investment Facility finances mainly private sector development operations, trough the management expertise of the European Investment Bank (EIB).

The second pillar is about Trade. This subject has been the cornerstone of every agreement signed between the EU and the ACP countries. The Cotonou agreement provide the adoption of Economic Partnership Agreements (EPAs) as the main ‘trade instrument’ to manage the EU-ACP trade relations. An EPA covers a wide range of topics compared with a Free Trade Agreement (FTA), with the main outcome to introduce reciprocity clause in the EU-ACP trade relations. The developing countries could maintain and improve their access to the EU single market only if they will gradually open up their own markets to EU products over a period of up to 12 years. An EPA also regulate trade in services and other trade-related matters such as investments, government provisions, product standards, intellectual properties and so on. Furthermore, these provisions are accompanied by development cooperation measures to support the adjustment process, in which reciprocity clauses are not fully implemented for the ACP states due to their status of developing countries.

Trade negotiations are carried out by the European Commission on the EU side, and by the ACP Council of Ministers that assume the political leadership for all the ACP group. The ACP council is also assisted by the Ministerial Trade Committee (art. 38 of the Cotonou agreement), that has only an advisory duty, and the Committee of ACP Ambassadors, that deals with the day-to-day trade talks.

The third pillar of the convention is the Political Dimension. The Cotonou agreement has widened the range of political issues talked by the previous treaties. The dialogue can take place in either formal or informal settings and at different levels, also with the active involvement of non-state actors. Moreover, the ACP countries can discuss the coherence of EU politics, their policy impact and other related issues. The Cotonou agreement has also introduced the concept of ‘good governance’ that harmonized the ‘essential elements’ (human rights, democratic principles and rule of law) defined by the Lomé IV Convention. Additionally, the good governance is elevated as the fundamental element that should characterize any action carried out by the EU and the ACP group.

The contracting parties had also agreed to pursue an active role in the pace-building process in certain war-theaters through a comprehensive and integrated policy. Capacity building and conflict preventions are also put on the top of the political agenda of the EU and ACP countries, with a particular emphasis placed on targeting the root causes of conflicts. The Cotonou agreement has also established assessing performances mechanisms with annual, mid-term and end-of-term reviews on the ACP countries’ conduct.

The Cotonou Convention was expected to expire in February 2020, but the parties have jointly agreed to extend its application to December 2020, in order to set proper negotiations. On 9 March 2020 the European Commission, together with the High Representative for Foreign Affairs and Security Policy, published their own proposal for a new EU-ACP agreement. The new European strategy toward the developing countries is based on five main areas that to some extent mirror the political agenda of the European Commission: green transition, digital transformation, sustainable growth and jobs, peace and governance, migration and mobility.

Therefore, the Commission proposed a set of actions that the new agreement should implement. First of all, the Commission suggest to boost the green transition by maximizing its social and ecological benefits and minimize threats to the environment in full compliance with the Paris Agreement.

Then, the EU set to achieve new standards for evaluating investments, by increasing their social, environmental and financial sustainability.  The Commission has also the priority to boost the regional economic integration among the ACP group, especially for the African countries, by supporting the merge of existing regional FTAs (like the ECOWAS/CEDEAO and the CEMAC). The investments should also be promoted by introducing innovative financial mechanisms and by sustaining investments opportunities.

Furthermore, the EDF five-years financial cycle is coming to end, and the next EDF’s budget will be adopted within the legal framework of the new agreement. The EU Member States allocated an amount of € 35.6 billion for the EDF 2014-2020, that marked a substantial increased from the € 22.7 billion of the EDF 2008-2013 budget. Due to the financial constraints imposed by the COVID-19 epidemic is worth to assess that for the next five years the resources of the EDF will not further increase.

Thirdly, new provisions are required on education and research. The new agreement should enhance knowledge and skills by promoting innovation capacities, especially for women and youth. These initiatives should come together with enforced rules on social rights and young labor. Moreover, the ACP countries should be more actively supported in enforcing policies and regulatory reforms that will improve the business environment by guaranteeing a better protection of investments and a level-playing field for businesses.

The Commission proposes also to enhance conflict-resolution cooperation, in order to jointly coordinate the efforts toward regions where vulnerabilities are the highest. The next agreement should promote interventions in all stages of the cycle of conflicts and crises, leveraging on the resilience of humanitarian, development and peace assistance. In the security area, capacity-building and capacity-enforcing should be better coordinated in strict coordination with EU and UN agencies, in order to increase the effectiveness of each national initiative.

Additionally, the Commission wishes to ensure a balanced, coherent and comprehensive partnership on migration and mobility. The Cotonou agreement already covers this major issue at art. 13. The latter declare that the EU shall support, through national and regional cooperation programs, the training of ACP nationals in their countries of origin, as a means to improve their condition and prevent emigration. On the other hand, the Council of Ministers (which comprise the members of the EU Council, the EU Commission and a member of the government of each ACP country) is charged to examine issues arising from illegal migration with a view to establishing, where appropriate, the means for a prevention policy.

Furthermore, according to the current legal framework, every ACP country should accept the return and the readmission of their nationals who are illegally present within the territory of an EU Member State at the request of the latter and without further formalities. Therefore, each ACP country should provide their nationals with appropriate identification documents to enable the proper enforcement of such provision.   

The Cotonou agreement and its forerunners had always the distinguished feature to cover a broader geographic area, characterized by a ‘macro-polarity’ between the EU Member States and the ACP countries. The next treaty will surely have to deal with the several differences and clivages that outline this wide area, enhancing the transition from a purely-economic agreement to a more political-involved convention, aiming to find broad consensus on the key principles that should guide the EU action towards the ACP group. As said by Robert Dussey, the Togolese minister of foreign affairs and the ACP’s Chief Negotiator and Chair of the Ministerial Central Negotiating Group, “Regional protocols that focus on the needs and aspirations of African, Caribbean and Pacific countries will ensure that the new agreement is inclusive and at the same time sensitive to the diversity of the ACP group”.