Cotonou is the economic capital of the West African state of Benin. In this city was signed in 2000 an agreement between the European Union (EU) and the African, Caribbean and Pacific (ACP) states. The Cotonou Agreement was signed for twenty years and was extended to be replaced by another partnership agreement, the so-called 'post-Cotonou' agreement. This new agreement, for the next twenty years, has already been signed by the chief negotiators of the EU and the ACP States on 15 April 2021.[1] The agreement is controversial and has not yet been definitively adopted.
The post-Cotonou agreement, the content of which was made public, sets out a framework for cooperation between the EU and the ACP States. It includes a common ground, as well as three regional protocols (Africa, Caribbean and Pacific). It covers very broad areas: human rights, democracy and governance, peace and security, human development including health, education and gender equality, as well as environmental sustainability, climate change, sustainable development and growth, migration and mobility.
In order to be adopted and enter into force, the agreement must still be subject to the parties' internal procedures. As far as Europe is concerned, it requires the approval of the Council of the European Union as well as the European Parliament.[2] The Slovenian EU Presidency has made the agreement a priority of its six-month term,[3] but rapid adoption is far from assured. Some states[4] and parliamentarians have several objections to the content of the agreement, which will probably be at the heart of the future French presidency of the EU from January 2022.
A European desire to impose abortion?
Before the adoption of the agreement, some MEPs, alerted by the ECLJ, demanded precise answers from the EU institutions on some of its provisions. In particular, they questioned Article 29 § 5, which commits the parties to "supporti[ng] universal access to sexual and reproductive health commodities and healthcare services, including for family planning, … and the integration of reproductive health into national strategies and programmes."[5]
When the European Commission uses the concept of sexual and reproductive health, it explicitly includes abortion.[6] On the contrary, for many of the states concerned by the post-Cotonou agreement, abortion is not included in this same concept, nor in that of "family planning". This is the opinion of the signatory states of the Geneva Consensus Declaration of October 2020, which includes 15 ACP states[7] and even two EU member states (Poland, Hungary). There is therefore no consensus on the meaning of Article 29(5).
This is why Polish MEP Izabela-Helena Kloc (ECR) asked the EU Council: " Is abortion included in ‘sexual and reproductive health’ in the new post-Cotonou agreement negotiated by the Council? Could the Council confirm that this partnership will never impose the legalisation of abortion on its Parties?".[8] The EU Council's response is expected in the coming weeks and will determine whether or not the States Parties to this agreement will be required to legalise abortion.
Disregard for state competences
More generally, health protection is neither an exclusive competence of the EU, nor a competence shared between the EU and the Member States. In answers to parliamentary questions in February and March 2021, the European Commission clearly recalled that "Legislative powers on sexual and reproductive health and rights, including abortion, lie with the Member States."[9]
Yet, Article 29(5) of the agreement does indeed refer to health, in its so-called "sexual and reproductive" dimension. Consequently, Spanish MEP Margarita de la Pisa Carrión (ECR) and three other MEPs tabled the following written question to the European Commission: "given that the European Union has no competence of over such subjects, and the autonomy of Member States to define their own health policy, how does the Commission justify the European Union’s competence to negotiate on such issues in the OACP agreement?"[10]
This question of the EU competence arises more globally at the level of the ratification of the agreement. Indeed, the post-Cotonou agreement (2021) will be ratified by the 79 ACP states, but not by the EU member states, contrary to their wishes.[11] The EU is committing itself on their behalf,[12] even though it does not have the competence to do so, because of the areas covered by the agreement.[13] On the contrary, the Cotonou Agreement (2000) was 'mixed', i.e. concluded jointly by the Member States and the EU.[14] It had therefore been ratified by each state.[15]
The threat to suspend development aid
While historically the agreements between Europe and the ACP states were mainly economic and commercial, their political dimension has gradually increased. Since the Cotonou Agreement (2000), human rights obligations have been included in the 'essential parts' of the partnership, which means that, according to general international law, their violation leads to sanctions.[16] The agreement was sometimes even referred to as an international human rights convention.[17]
The post-Cotonou agreement (2021) states that "respect for human rights, democratic principles and the rule of law … constitute an essential element of this Agreement." (Art. 9 § 7).[18] The provisions on "sexual and reproductive health" appear to be part of this element, as the agreement includes them in "development" and specifies that the "right to development" is a human right including health.[19] In the event of a violation of its obligations by a state party, the other parties may suspend the agreement in whole or in part (Art. 101 §§ 6-8).
In practice, the possibility for the UE of suspending official development assistance provides a strong means of pressure on the ACP countries.[20] Indeed, this is the only unilateral commitment of the EU in the Agreement (Art. 82). This conditionality of European development policy is not new; it dates back to decolonisation, which transformed this policy from a "granted" to a "contractual" regime.[21] This conditionality sometimes takes more subtle forms than sanctions, but nonetheless effective.[22]
An institutional Heath Robinson machine
In the EU Council's negotiating mandate, it was stated that it was necessary to ensure that "all Parties are held accountable in relation to the fulfilment of their obligations".[23] To this end, the post-Cotonou agreement maintains the common institutions already established in 2000: an ACP-EU Council of Ministers, the supreme institution of the partnership; an ACP-EU Committee of Ambassadors, assisting the Council of Ministers; an ACP-EU Joint Parliamentary Assembly, a consultative body.[24]
The post-Cotonou agreement establishes nine new structures, as well as several smaller ones, in addition to the existing institutional architecture. A Council of Ministers, a Joint Committee and a Parliamentary Assembly are established for each of the three regional protocols.[25] All these institutions will meet regularly to operate mechanisms for monitoring and controlling the implementation of the agreement and its protocols. This reform adds to an already complex institutional set-up.
Each Council of Ministers has the power to adopt decisions that are binding on the parties to the agreement or to each of the protocols. These four institutions are at the heart of the 'legally binding system' that the EU Council was supposed to organise according to its negotiating mandate.[26] Among the decisions of the ACP-EU Council of Ministers published since 2000, several concern the allocation of the European Development Fund (EDF), the main source of funding for aid programmes to ACP countries.[27]
Ideological and cultural colonisation?
Human rights obligations, negotiated in the framework of partnerships with Europe, have always provoked irritation and reservations in ACP countries.[28] They are often seen as a means for interference by European countries. This drift feeds a criticism of human rights, which are reduced to a Western imperialism denying the diversity of peoples and cultures.[29] Such imperialism is particularly noticeable in matters of morality, such as so-called "sexual and reproductive health".
Still, it is interesting to note that this vision of health was included in the negotiating mandate adopted by the ACP countries.[30] The majority of African countries have also signed and ratified the Maputo Protocol to the African Charter on Human and Peoples' Rights (2003), which includes specific commitments on so-called 'sexual and reproductive rights', including abortion.[31] Be it "colonisation" or not, it is in any case often with the consent of states that the 'Western' mores are imposed, to the detriment of ACP societies.
The hope for a resistance to the questionable provisions of the post-Cotonou agreement cannot lie within the states but within the societies. In particular, the majority of African peoples are opposed to so-called 'sexual and reproductive rights', according to a 2013 Pew Research Center study.[32] As the bishops of Burundi had expressed to Western states: "we ask you not to use your help as an instrument of pressure against our cultural identity and the family and social values handed down to us by our ancestors."[33]
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[1] The negotiations were officially opened on 28 September 2018 in New York by the chief negotiators Robert Dussey, Togo's Foreign Minister, and Neven Mimica, European Commissioner for International Cooperation and Development. The latter was replaced by his successor, Jutta Urpilainen, European Commissioner for International Partnerships. Mr Dussey and Ms Urpilainen signed an agreement on 16 April 2021, marking the official conclusion of the negotiations.
[2] Treaty on the Functioning of the European Union (TFEU), Article 218, § 6.
[3] See the Programme of the Slovenian Presidency of the Council of the EU, available here, p. 43
[4] See: Vince Chadwick, "Exclusive: European Commission battles to sell post-Cotonou deal at home", Devex, 14 January 2021.
[5] The agreement signed on 15 April 2021 is available here.
[6] See the European Commission's answer of 9 March 2021 to Written Question E-005924/2020, on the "Situation of the right to abortion in Poland", available here.
[7] See the list of signatories, including: 13 African states (Benin, Burkina Faso, Cameroon, Republic of Congo, Democratic Republic of Congo, Djibouti, Eswatini, Gambia, Kenya, Niger, Senegal, Uganda, Zambia), one Caribbean state (Haiti) and one Pacific state (Nauru).
[9] See the answer to the written question quoted in footnote 6 as well as the answer of 9 February 2021 to four written questions on "The regression of women's rights" - E-005297/2020, E-005939/2020, E-006029/2020, P-006345/2020. The European Commission's response is available here.
[11] See: Vince Chadwick, "EU institutions in power struggle over Africa, Caribbean, Pacific pact", Devex, 15 June 2021.
[12] See pp. 4-6 of the agreement.
[13] The division of competences between the Union and the states is also reflected at the international level. Thus, when the Union negotiates and concludes an international agreement, it has either exclusive competence or shared competence with the States. See : TFEU, Articles 3, 4, 207, 216.
[14] See Cotonou Agreement, available here, p. 5. For further explanation, see: Jean-Claude Gautron, 'Historique des accords A.C.P.', in Olivier Delas, Relations commerciales internationales : l'Union européenne et l'Amérique du Nord à l'heure de la Nouvelle Route de la soie, Bruylant, 2020, p. 174.
[15] For example, the French Parliament had discussed and voted a bill authorising this ratification: Law n° 2002-289 of 28 February 2002 authorising the ratification of the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, JORF of 1 March 2002.
[16] Vienna Convention on the Law of Treaties, 1969, Article 60. See also: Corinne Balleix, L'aide européenne au développement, La Documentation française: collection "Réflexe Europe", 2010, pp. 173-174: examples of countries sanctioned for their non-respect of human rights are mentioned (Haiti, Côte d'Ivoire, Zimbabwe, Mauritania, Madagascar, Niger, Guinea).
[17] See: Adam Abdou Hassan, "L'accord de Cotonou : une convention relative aux droits de l'Homme ?", Revue du droit de l'Union européenne, n° 1, 2013, pp. 85-119, in particular pp. 89-90 and 114-115.
[19] See Articles 9 § 6 and 29 §§ 1 and 5 of the Agreement.
[20] See: Stefano Manservisi, "60 years of European Development Policy: an essential and ambitious instrument of the European Union's external policy", Revue du droit de l'Union européenne, No. 1, 2019, p. 252.
[21] Ibid., p. 43.
[22] See : Mulry Mondélice, "EU-Caribbean relations beyond trade: an evolving partnership in a complex context", This text is the result of a presentation made by the author at the 2019 Autumn School of the Cercle Europe and the Jean Monnet Chair in European Integration of Laval University, p. 227.
[23] See "Negotiating Directives for a Partnership Agreement between the European Union and its Member States, of the one part, and the African, Caribbean and Pacific Group of States, of the other part", EU Council document, available here, Brussels, 21 June 2018, p. 6.
[24] See Articles 14-17 of the Agreement.
[25] See Articles 92-94 of the Agreement, as well as Article 4 of the African Regional Protocol, Article 5 of the Caribbean Regional Protocol and Article 5 of the Pacific Regional Protocol.
[26] See "Negotiating Directives...", EU Council document, op. cit, p. 6.
[27] For example: Decision No 4/2005 of the ACP-EC Council of Ministers of 13 April 2005 on the allocation of the reserve of the long-term development envelope of the ninth European Development Fund (2005/460/EC).
[28] See : Gautron, op. cit. p. 170.
[29] See Emmanuelle Jouannet and Hélène Ruiz Fabri (ed.), Impérialisme et droit international en Europe et aux États-Unis, Société de législation comparée, 1 April 2007.
[30] See 'ACP Negotiating Mandate on a Post-Cotonou Partnership Agreement with the European Union', ACP Council of Ministers document, accessible here, Lomé, Togo, 30 May 2018, §§ 143a and 150.
[31] See Article 14 of the Protocol.
[32] Pew Research Center, "Global Attitudes survey", 2013, see the section entitled "Global Morality", accessible here. See also the analysis of this study in Obianuju Ekeocha, The Abortion Agenda in Africa, Issues in Law & Medicine, October 2017, pp. 317-319. This opposition to so-called 'sexual and reproductive rights' was also manifested in the strong reactions of the people and the Church against the ratification of the Maputo Protocol (see: Martial Jeugue Doungue, 'La garantie des droits de la femme par le Protocole de Maputo comme condition du développement durable en Afrique', Revue trimestrielle des droits de l'homme, No. 99, July 2014, pp. 584-586; Lison Guignard, La fabrique de l'égalité par le droit. Genèse et usages transnationaux du protocole de Maputo sur les droits des femmes de l'Union africaine (thesis), Institut Francophone pour la Justice et la Démocratie, 10 December 2019, pp. 215-254).
[33] Catholic Bishops' Conference of Burundi, 'Message from the Catholic Bishops of Burundi to the People of God on Birth Control', Gitega, 6 December 2012, proclaimed in all churches in Burundi on 30 December 2012. Free translation.
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