Mr Junior Lodge: Presentation to European Parliament Joint INTA/DROI - - PDF document

Mr Junior Lodge: Presentation to European Parliament Joint INTA/DROI Hearing

• n African EPAs and Human Rights,

July 14, 2015

General Comments EPAs are about governance, in this case primarily economic governance. As a former senior DG Trade official once noted, trade negotiations in general entail a form of a mutual agreement to disarm in policy terms, i.e. not to apply certain measures that could be injurious in both economic and developmental terms. For example, the EU accepts not to deploy export

• subsidies. However, irrespective of the quality design bestowed on EPAs, an effective trade

governance framework cannot deliver the anticipated development impact if it is not complemented by, and anchored in a broader governance framework. In the case of EPAs, these innovative trade agreements are anchored within the legal construct known as the Cotonou Agreement. Recall that EPAs emerge as the articulation of efforts to address the unfinished agenda of the Cotonou Partnership Agreement’s Title II. In that context, EPAs cannot be decoupled from the overall objectives and instruments of the CPA. More specifically, significantly, the Cotonou Agreement draws a direct link between human rights and development and makes respect for human rights, democratic principles, and the rule of law essential elements of the partnership. Indeed, the paramountcy of the nexus between governance and development is captured in the CPA’s preamble: ACKNOWLEDGING that a political environment guaranteeing peace, security and stability, respect for human rights, democratic principles and the rule of law, and good governance is part and parcel of long-term development; acknowledging that responsibility for establishing such an environment rests primarily with the countries concerned; REFERRING to the principles of the Charter of the United Nations, and recalling the Declaration

• f Human Rights, Convention of the Rights of the Child, Convention against all forms of

discrimination against Women; and CONSIDERING the Convention for the Protection of Human Rights and Fundamental Freedoms

• f the Council of Europe, the African Charter on Human and Peoples’ Rights and the American

Convention on Human Rights as positive regional contributions to the respect of human rights in the European Union and in the ACP States; Article 1 (objectives of the partnership): Sustained economic growth, developing the private sector, increasing employment and improving access to productive resources shall all be part of this framework. Support shall be given to the respect of the rights of the individual and meeting basic needs, the promotion of social development and the conditions for an equitable distribution of the fruits of growth. Article 9 reiterates human rights, democracy, and the rule of law as essential elements and good governance as a fundamental element of the Cotonou Agreement. Breaches of any essential elements or fundamental element may ultimately lead to a country facing suspension as a measure of last resort.

2 Article 9.1 states that cooperation will be directed towards sustainable development centred on the human person and entails promotion of all human rights. The Parties reaffirm that democratization, development and the protection of fundamental freedoms and human rights are interrelated and mutually reinforcing. Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement. Article 9.2 The Parties reaffirm that democratization, development and the protection of fundamental freedoms and human rights are interrelated and mutually reinforcing. Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement. Furthermore, CPA Article 9.3 establishes human rights as part of the good governance framework that is sanctionable in case of any proven violation. The ACP-EU Partnership Agreement is very much consistent with one of main arguments of the Nobel Prize economist, Amartya Sen who stated that economic development is central to providing the economic means for the realization of human rights as well as the conditions necessary for political pressure for higher social standards. Development requires the removal

• f major sources of unfreedom: poverty as well as tyranny, poor economic opportunities as

well as the systematic social deprivation neglect if public facilities a s awe as intolerance or over activity if repressive states. Freedoms are not only the primary ends of development, they are also among its principal means. (Development as Freedom (1999), pp3-4; 10-11) Register that there is a deep concern that the current Cotonou Partnership Agreement ends in 2020 with the attendant consternation re the legal anchoring of human rights in EU-ACP are

• relations. While the contemplation on both sides (ACP and EU) remains incomplete, the Parties

have three options available; namely;

• a. The status quo (unlikely);
• b. Regional ACP/EU agreements, with one focussed on continental Africa and the C&P; or
• c. Revised Cotonou Agreement (i.e. all ACP-EU) but with more streamlined and limited focus

in terms of the areas of cooperation. In all three prospects, the centrality of observing good governance is central. There will be a future EU development, political and economic treaty with the ACP (and its constituent continents and or regions) also because the principal EU development cooperation instrument, i.e. the EDF, remains anchored in the current CPA. The CEPA Experience re treatment of Human Rights Preamble recognises that the CEPA primary objective is to promote the sustainable development of CARIFORUM Member States. A number of specific references to human rights underpin the pursuit of this central CEPA objective and reflected in numerous provisions on the environmental and social dimension of sustainable development.

3

• a. CEPA Human Rights Clauses

The term “human rights” stands only in the preamble of the CARIFORUM EPA, which refers to them as “the essential elements” of the Cotonou Agreement. However, Article 3 (“Sustainable development”) includes the commitment by the parties that “the application of this Agreement shall fully take into account the human, cultural, economic, social, health and environmental best interests of their respective population and of future generations”. Although this is not coterminous with a substantial anchoring of human rights, the formulation exhibits the Parties’ orientation re the central treatment of human rights within the context of a trade agreement. More specifically, the CEPA states that foreign direct investment should not be induced into the Caribbean by a reduction of either environmental or social standards (Articles 73 and 193). Furthermore, the parties and signatories “commit to not adopting or applying regional or national trade or investment-related legislation or other related administrative measures as the case may be in a way which has the effect of frustrating measures intended to benefit, protect

• r conserve the environment or natural resources or to protect public health” (Article 188).

Articles 191-195 enumerate a set of provisions deal in detail with social and labour standards. Article 191 reaffirms the ILO core labour standards, the declaration on full employment and decent work, the importance of employment and social policies, and the principle that “labour standards should not be used for protectionist trade purposes”. Article 192 underlines the right

• f the signatories to regulate their own social and labour standards and calls for further

improvements in this field. Article 193 demands that existing protections should not be lowered. Furthermore, Article 224(1)(a) (footnote 1) specifically allows for the use of trade-related measures necessary to combat child labour. Such measures are deemed as included among the measures necessary to protect public morals or measures necessary for the protection of health and thus covered by the general exceptions of the Agreement. This provision is accompanied by the traditional caveat that these measures should not constitute a disguised restriction on trade. It should also be noted that such a provision is consistent with the general exceptions on CARICOM intra-regional trade as outlined in Article 226(1) of the Revised Treaty

• f Chaguaramas.
• b. CEPA Institutional Provisions

In the dispute settlement mechanism, only a Party (i.e. the CARIFORUM States acting collectively or the EU) can initiate consultations, mediation and arbitration procedures (Articles 204, 205 and 206). The CEPA institutional framework is complemented by two advisory bodies aimed at fostering dialogue and cooperation across a wide range of stakeholders. First, the Parliamentary Committee is established to bring together members of European Parliament and of national parliaments of the CARIFORUM States. Here, it should be recalled that the EP adopted a decision on June 15, 2010 that stipulated that its Delegation should comprise of 15 MEPS, 9 from INTA and 6 from DEVE. This Parliamentary Committee may request the Joint Council to report

• n recent developments and it may make recommendations.

4 Second, the Consultative Committee is meant to promote dialogue with civil society

• rganisations (including the academic community). The Committee is tasked to discharge its

duties on the basis of consultation by the Council or its own initiative. It may make recommendations to the Joint Council and the Trade and Development Committee. This Committee, as the Parliamentary one, will be particularly important to ensure effective monitoring of the CEPA on the basis of a broad participation of stakeholders, so as to ensure that the main Agreement's objective, the pursuit of sustainable development is realised. CEPA Dispute Settlement and Avoidance The CEPA dispute avoidance and settlement provisions exceptionally do not cover two aspects

• f the CPEA, viz. (a) development finance cooperation as the Cotonou Agreement dispute

settlement mechanism applies; and (b) trade contingency measures. Beyond this, the dispute settlement provisions cover all aspects of the CEPA, including those covering the environment (Articles 183 to 190) and labour (Articles 191 to Article 196). These are subject to the specification provided in Article 204(6), which provides that a dispute on those chapters could

• nly be brought if the procedures established under those chapters have been exhausted and a

solution not reached within 9 months of the initiation of such procedures. Concluding Remark There is broad understanding that trade is best harnessed in support of development when rooted in a full governance framework. That entails, democracy, rule of law, respect of human rights and an effective governance machinery that can both protect and promote individual

• freedoms. We believe that at least in the case of the CEPA, there are genuine attempts to

promote the deepening of an effective trade governance framework, thereby contributing to CARIFORUM sustainable development. The CEPA constitutes the first trade agreement where CARICOM members have agreed to include specific provisions on trade and environment and tare and labour standards (the DR already made such concessions within the context of US-CAFTA. During the now comatose negotiations of NAFTA, CARICOM was heavily exposed to the demands of its North American partners to make strong provisions on both labour standards and environment. In the revamped attempt to impose even stronger human rights requirements in trade agreements, extremely due care should be made in not unleashing a wave of non-tariff barriers that ACP countries are unable to fulfil. Junior Lodge July 13, 2015 Brussels