By Junior Lodge
The African, Caribbean and Pacific (ACP) Group and European Union (EU) began negotiations in September 2018 to replace their current Cotonou Partnership Agreement (CPA) that expires on February 29, 2020. These negotiations – often referred to as the “Post-Cotonou negotiations” – have yielded significant progress as can be gleaned from the existence of stabilised texts. Notwithstanding the progress already made a series of outstanding differences remain while substantive treatment of additional areas in the negotiations are yet to commence. In this context, negotiations are unlikely to be concluded in time for the March 1, 2020 deadline and accordingly, transitional arrangements are being crafted to legally extend application of the CPA to December 31, 2020.
Post-Cotonou negotiations are being impacted by a number of global, EU- and ACP-specific factors. First, notwithstanding the recent conclusion of global agreements, multilateralism remains severely challenged as can be evinced from rising political weight of nationalist cum populist parties in the EU. In this context, signs of a sustained realignment of EU trade and development policy should be closely tracked. A number of EU Member States failed to sign the UN Global Pact on Migration while others concluded bilateral agreements with select third countries to repatriate African migrants. These are only two recent examples of the EU’s failure to fully embrace multilateralism.
Second, the EU’s main objective in forging a post-Cotonou relationship with the ACP remains that of overturning the traditional donor-client relationship. The EU had signalled a shift in its development policy in the 2018 EU Council decision on Overseas Countries and Territories which noted, inter alia, the “special relationship between the Union and OCTs is moving from a development cooperation approach towards a reciprocal partnership to support OCTs’ sustainable development.” The following extract from the EU negotiation mandate for post-Cotonou negotiations is instructive – “[t]he Parties will cooperate to create an enabling economic environment to significantly increase the level of sustainable and responsible investment flows to their mutual advantage”. That statement stands in stark contrast with the stated objective of the CPA “to promote and expedite the economic, cultural and social development of the ACP States”.
Third, the ACP is facing a major existential challenge as evinced by both the review of the Georgetown Agreement that established the Group in 1975 and the thrust of post-Cotonou negotiations. The ACP is seeking to transform itself into an intergovernmental organisation, develop relationships beyond the EU by forging partnerships with BRICs, promote South-South and triangular cooperation and position itself as the leading global advocate for development policy. Allied to this, the current crafting of EU regional protocols with the three constituent regions, i.e. Africa, Caribbean and Pacific constitutes a radical realignment of its relationship with the ACP. ACP Group efforts to reinvent itself should be framed by Africa’s stated objective of forging its own relationship with the EU, independent of the longstanding Lomé/Cotonou framework. Africa’s political stance is strengthened by recent developments, most notably, the conclusion of the African Continental Free Trade Area, establishment of an African peace and security architecture resulting in AU field operations in Somalia, Sudan, Comoros and Central African Republic, and sustained economic growth that could result in a US$2.6 trillion continental economy by 2020.
Fourth, the United Kingdom’s withdrawal from the EU (i.e. BREXIT) tempers the value of the Caribbean-EU partnership. The UK remains the export destination in the EU for most CARIFORUM States. For example, UK merchandise imports from Grenada, Guyana and Jamaica in 2017 were 97.2%; 63.5% and 76.6%, respectively and therefore the commercial value of the CARIFORUM-EU Economic Partnership Agreement (CEPA) will significantly decline after Brexit. In addition, the UK’s prospective exit from the EU would dispossess the Caribbean of its main ally within the EU given the UK’s support during the longstanding EU-US dispute on bananas, and more recently on securing advanced commitments for Caribbean services suppliers to access the EU market under the CEPA. BREXIT will also diminish the value of the CARIFORUM-EU partnership given the fact that 5 of the 16 EU territories in the Caribbean are British. The shared CARIFORUM-EU objective of strengthening trade and functional cooperation with the EU overseas territories and OCTs will be negatively impacted by BREXIT.
Negotiation Process and Results
Post-Cotonou negotiations have been structured into two distinct phases. The first phase seeks to treat with All-ACP-EU issues with results to be captured in a Foundation Agreement. The All-ACP-EU negotiations addresses overarching themes defining the relationship such as General Provisions, Strategic Priorities, Means of Cooperation, International Cooperation, Institutional Framework and Final Provisions and would be applicable to all signatory states. The second phase centres on the negotiation of regional protocols with the three constituent regions of the ACP. The conclusion of these EU protocols with Africa, Caribbean and the Pacific would allow for the centre of gravity of ACP-EU relations to be shifted to regional partnerships. The three regional protocols will be annexed to the Foundation Agreement to constitute a single, legally binding ACP-EU Partnership Agreement.
- Negotiation of the Foundation Agreement
Negotiation of the Foundation Agreement has thus far resulted in the emergence of stabilised texts on most of areas of the Strategic Priorities. More specifically, advanced texts have emerged on Human Rights, Democracy and Governance in People Centred and Rights-based Societies (Title I); Peace and Security (Title II); Human and Social Development (Title III); Inclusive Sustainable Economic Growth and Development (Title IV); and Environmental Sustainability and Climate Change (Title V). A series of negotiations has been conducted on Migration and Mobility (Title VI) with initial exchanges held on General Provisions; Global Alliances and International Cooperation; Development and Means of Implementation; Institutional Framework and Final Provisions.
The existence of stabilised text in the Foundation Agreement notwithstanding, considerable differences remain on a number of salient issues. For example, the ACP objects to the reference under Title I (Human Rights, Democracy and Governance in People Centred and Rights-based Societies) obliging Parties to “promote and respect sexual orientation and gender identity”. Also under that title, ACP proposed language barring EU unilateral and coercive action with respect to tax governance is yet to meet EU accord. In Title II (Peace and Security), the most notable issues concern ACP insistence on maintaining the principles of sovereignty, non-intervention, and non-interference, especially in the context of internal conflicts or crises and the EU demand that Parties should cooperate with the International Criminal Court. In Title III (Human and Social Development), there is no agreement on sexual health and reproductive rights. Under the same Title, the EU has withdrawn its earlier consent to the restitution and return of cultural artifacts by contending that this is an area within the competence of individual Member States as opposed to the Union.
With respect to Title IV (Inclusive Sustainable Economic Growth and Development), recent exchanges have resulted in a narrowing of outstanding gaps between the ACP and EU. However, a number of stark differences remain with the EU seeking to incorporate trade-related provisions already enshrined in EPAs and in some instances exceed them. It appears that the EU is seeking to use post-Cotonou negotiations to frame the terms of any future trade agreement with Africa. Beyond this, the EU appears bent on securing additional access to ACP markets without offering anything tangible in return. For example, while the EU has tempered its original demand for the ACP to liberalise its public procurement markets, it still demands transparency requirements and non-discriminatory treatment among competing firms (that is, regardless of national origin).
Yet another EU demand is for ACP countries to liberalise their respective markets for environmental goods. In tabling such a proposal, the EU wants ACP WTO Members to assume commitments under the Environmental Goods Agreement (EGA). This is a WTO exercise with the aim of settling on an open plurilateral thereby extending the benefits of liberalised trade in environmental goods to all WTO Members. However, the current draft text of Title IV lacks provisions to allow for sustained capacity-building support (both productive and regulatory capacity) to seize additional market access opportunities.
The EU text on public procurement mirrors the Union’s approach to EGA by seeking to require the ACP to exceed the Group members’ current WTO commitments. Moreover, such ACP deeper commitment would be accompanied without the Group securing any tangible benefit in return. This is a primary example of the EU seeking commercially relevant commitments from the ACP by arguing the need for a mature relationship or one based on a partnership of equals. However, in contrast, such a seemingly noble pursuit is negated by the EU failing to support the economic empowerment of the ACP. Such an imbalance could be addressed, inter alia, through the provision of concrete measures to assist ACP firms to contest the EU public procurement market. Here the EU patently demands reciprocal trade liberalisation but fails to facilitate the Group’s economic empowerment by committing to the requisite capacity building support and maintain policy space.
The treatment of development cooperation (Part IV) constitutes the final area of ACP-EU major divergences. The EU is averse to using the traditional Lomé/Cotonou construct of “development cooperation and means of implementation” and instead proposes “means of cooperation.” This language, in part, reflects the bloc’s preference to advance other development cooperation instruments, such as domestic resource mobilisation, tax reform and remittances as prioritised sources for development support. Beyond differences over nomenclature, no substantive negotiation on development cooperation has taken place due to the state of internal EU consideration of its 2021-2027 Multi-Annual Financial Framework (MFF). The European Commission (EC) tabled its MFF proposal in May 2018 that included, inter alia, collapsing all EU aid instruments to support external action into one development cooperation instrument. It is anticipated that an EU decision will be made at the December 12-13, 2019 meeting of the European Council.
Negotiation of a Caribbean-EU Regional Protocol
CARIFORUM States have agreed to a two-tiered negotiation structure to craft the region’s post-Cotonou relations with the EU. At the Ministerial level, negotiations are overseen by a Central Negotiating Group (CNG) comprising the Dominican Republic, Guyana, Jamaica and Saint Lucia. Technical negotiations are marshalled by an Ambassadorial CNG whose members mirror that of the Ministerial CNG and chaired by Guyana. In addition, a slate of technical negotiators manned by Brussels-based Ambassadors has also been established whose work is being complemented by capital-based officials and technical experts at relevant Caribbean regional institutions. Another plank of technical support stems from regular meetings of the CARIFORUM Technical Advisory Group (TAG) convened by the CARIFORUM Directorate. It should be noted that the TAG membership extends beyond capital-based senior officials and experts at regional organisations to non-state actors such as the UWI and Caribbean Policy Development Centre.
The Caribbean and the EU have developed an indicative slate of sensitive issues to be developed in their regional partnership. Nevertheless, key critical areas such as mobility and migration; international business services; tax governance; and actors remain bracketed. Both sides have developed their respective versions of consolidated texts in key strategic priorities in order to facilitate the start of formal negotiations. It has also been agreed that prioritised treatment of issues will be reserved for those sufficiently advanced in the negotiations of the Foundation Agreement. Thus far, negotiations have been held on Title IV (Human Development and Social Cohesion) and Title III (Human Rights, Peace and Security) resulting in the emergence of stabilised text. Negotiations of the regional protocol have been adversely affected by the limited traction in the negotiation of the Foundation Agreement, itself partially due to the switch to a new EU College of Commission. The current contemplation remains that negotiations can be completed by April 2020 but this remains subjected to progress at the level of Foundation Agreement negotiations.
In its negotiation of a Regional Protocol with the EU, the Caribbean has developed a number of cardinal objectives. First, the region-specific commitments should deliver the effective operationalisation of the ACP-EU Foundation Agreement to advance Caribbean sustainable development. Second, notwithstanding Caribbean tabling textual proposals on trade and economic cooperation, the integrity of the CEPA should not be compromised through the adoption of additional commitments in the Regional Protocol. Third, regional integration and cooperation should be supported while also recognising the differing integration and cooperation streams within the Caribbean. Fourth, the provisions of the recalibrated partnership with the EU should support seek to address the myriad forms of CARIFORUM economic and environmental vulnerabilities. Fifth, concrete support measures across the span of specialised disciplines of the regional protocol should be crafted for Haiti to reflect that country’s status as the sole UN-designated least developed country (LDC) in the Western Hemisphere. Sixth, in light of the overall aim that the renewed partnership with the EU should be transformative and therefore the EU best-endeavour commitments will be resisted.
Beyond this, CARIFORUM should seek to leverage the Sustainable Development Goals (SDGs) framework to harvest concrete measures supportive of its sustainable development ambition. Indeed, the bi-regional negotiations should result in the harnessing of global public goods, albeit specific to the region’s needs. Outside of the SDG framework, the Caribbean could consider operationalising other multilateral initiatives.
Developing the WHO’s Global Skills Partnerships would be illustrative of both CARIFORUM and the EU harnessing global frameworks to deliver concrete results. Specifically, a skills pact would allow Caribbean health professionals to temporarily work in the EU (up to 36 months) and return to their respective countries with enhanced earnings and improved professional experience. A recent study of Malawi-UK partnership for nurses highlighted a number of benefits, most notably, increased income, strengthened professional competence and the partner country (i.e. the UK) benefitting from reduced training costs. A Caribbean-specific approach could also entail securing increased EU investment to increase the Caribbean-based training facilities for health professionals and attracting EU nationals to study in the region that would pay market-based tuition fees. Such an initiative could generate an additional stream of income for CARIFORUM States. From a development policy perspective, there would also be real value of implementing this cluster of measures to mitigate the long-term damage of wealthy EU States (and other industrialised countries) poaching Caribbean nurses to work in their respective jurisdictions. However, the real import comes from CARIFORUM empowering itself by developing new and radical initiatives to address its own development challenges. The unrestricted movement of Caribbean health professionals constitutes not only a transfer of wealth from poor Caribbean states to their wealthier industrialised counterparts – a condition compounded by the absence of financial compensation to affected governments that are all fiscally constrained. The development of global skills partnership could therefore become a benchmark to gauge the results of CARIFORUM-EU intent to recalibrate their longstanding partnership.
Junior Lodge has advised CARIFORUM on post-Cotonou negotiations and was formerly Technical Coordinator on both EPA and DDA negotiations for the CARICOM Office of Trade Negotiations. The views expressed here should not be attributed to the CARIFORUM Directorate.