21 December 2007
HUMAN RIGHTS COUNCIL
Working Group on the Right to Development
High Level Task Force on
the implementation of the right to development
Geneva, 7-15 January 2008
Item 7 of the provisional agenda
THE COTONOU PARTNERSHIP AGREEMENT BETWEEN EUROPEAN UNION (EU) 1AND AFRICAN, CARIBBEAN AND PACIFIC (ACP) COUNTRIES
Application of the criteria for periodic evaluation of global development partnerships – as
defined in Millennium Development Goal 8 – from the right to development perspective:
the Cotonou Partnership Agreement between the European Union and ACP Countries
2Prof. James Thuo Gathii
1 Note by the Secretariat: The opinions, findings, interpretations or conclusions expressed in this paper are those of the expert, do not necessarily represent the views of the United Nations and do not commit the United Nations. The designations employed and the presentation of the material in this paper are those of the expert and do not imply the expression of any opinion whatsoever on the part of the United Nations concerning the legal status of any country, territory, city or area of its authorities, or concerning the delimitation of its frontiers or boundaries. 2 Professor James Thuo Gathii is a Professor of Law at Albany Law School, Albany, New York. He is an international lawyer and legal scholar on human rights, development and trade.
The Cotonou Agreement does not specifically incorporate the Right to Development (RtD). However, the Cotonou Agreement makes human rights an essential element and one of the five pillars of the EU-ACP partnership and it incorporates most of the rights contained in the Declaration on the Right to Development. While human rights are not explicitly made a part of the other four pillars of the EU-ACP partnership, certain provisions of the Cotonou Agreement that positively impact on human rights could arguably be read to be cross-cutting across all five partnership pillars. These provisions do not provide an explicit basis to assess the four other pillars of the Cotonou Partnership. That means new mandates like the Economic Partnership Agreements, (EPAs), are not bound by the human rights mandate within the Cotonou Agreement. This is especially so since they are being negotiated as stand alone agreements that unlike the four other partnership pillars will be governed by a separate treaty regime.
From a RtD perspective, EPAs are being negotiated under conditions that undermines the full participation of ACP States from determining their development objectives. They will result, at least in the short run, in huge losses in revenue and restricted access to the EU market making it highly likely that the social and economic human rights of millions will be adversely affected. Other human rights concerns include expanding negotiations into new areas like competition and government procurement that will impose a heavy cost burden on ACP countries that far outweighs the potential dynamic benefits that the new commitments will impose.
EPA negotiations on trade need to take into account the special needs of developing and least developed countries particularly the need for preferential treatment in trade relations which are increasingly becoming the dominant pillar of EU-ACP relations. Human rights and in particular those recognized in the Declaration on the Right to Development ought to take center stage in EPA negotiations as well as in the EU-ACP partnership. This is consistent with Section 177(2) of the EC Treaty which provides that EU development cooperation should contribute to the respect for human rights and fundamental freedoms. Similarly, Article 11 of the Treaty of the European Union provides that one of the objectives of the EU‟s „foreign and security policy is to
develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms.‟ These human rights concerns ought to take center stage in EPA negotiations.
I. THE RIGHT TO DEVELOPMENT 1-9 4-7
II. HUMAN RIGHTS IN THE FIVE PILLARS OF 10-18 7-9
THE COTONOU PARTNERSHIP WITH SPECIAL
REFERENCE TO THE RIGHT TO DEVELOPMENT
III. MAIN OBSTACLES TO THE INCORPORATION OF 19-27 9-12
HUMAN RIGHTS, CONCEPTUALLY, NORMATIVELY,
AND OPERATIONALLY INTO THE COTONOU
IV. IMPACT OF THE PRESENT NEGOTIATIONS ON 28-35 12-16
ECONOMIC PARTNERSHIP AGREEMENTS ON
HUMAN RIGHTS WITHIN ACP COUNTRIES FROM
A RIGHT TO DEVELOPMENT PERSPECTIVE
V. POTENTIAL AREAS OF CONGRUENCE AND 36-39 16-17
SYNERGY OF THE COTONOU PARTNERSHIP WITH
THE RIGHT TO DEVELOPMENT
VI. SPECIFIC STEPS THAT CAN BE TAKEN TO FACTOR 40-44 17-18
ESSENTIAL ELEMENTS OF THE RIGHT TO
DEVELOPMENT INTO THE COTONOU PARTNERSHIP
AGREEMENT‟S OPERATIONAL FRAMEWORK
VII. PROPOSED REFINEMENTS OF THE CRITERIA 45 18-19
ADOPTED BY THE WORKING GROUP ON
RIGHT TO DEVELOPMENT
VIII. HOW THE CRITERIA CAN BETTER MEET THE AIM 46 19
OF IMPROVING THE EFFECTIVENESS OF THE
COTONOU AGREEMENT FOR THE REALIZATION
OF THE RIGHT TO DEVELOPMENT
IX. CONCLUSIONS 47-48 19-20
I. THE RIGHT TO DEVELOPMENT
31. The Declaration on the Right to Development provides that the human person is „the
central subject of development‟ and an „active participant and beneficiary of the right to 45development‟ both individually and collectively. It makes the right to development an
„inalienable human right‟ through which all persons can come to enjoy „all human rights and 6fundamental freedoms‟ as well as „the right of peoples to self-determination,‟ including “the 7exercise of their inalienable right to full sovereignty over all their natural wealth and resources.”
The Declaration also provides that the promotion, implementation, and protection of the right to 8development shall not justify „the denial of other human rights and fundamental freedoms.‟
2. Although the legal status of the right to development has continued to be debated among members of the United Nations as well as in academic circles, its importance continues to be reflected in the reaffirmation and its reiteration in subsequent United Nations General Assembly 9Resolutions, in the African Charter on Human and Peoples Rights as well as in the Millennium Development Goals. As I note below, the European Union has stated its „continued attachment‟ 10to the Right to Development. The continued relevance of the Right to Development is also
evidenced in the appointment and work of the High Level Panel on the Right to Development and before that in the appointment of an Independent Expert, (who produced eight reports), and an Open Ended Working Group (that had five sessions) by the U.N. Commission on Human 11 The Human Rights Council has continued giving attention to the recognition of the Rights.
Right to Development. In international law, the reiteration of a right is recognized as additional 12evidence of its existence. Further, given the especially important nature of the rights protected by the right to development both to human dignity as well as to human survival, debates about their legal validity have not reduced the recognition of moving vigorously towards the realization of the underlying objectives and principles in the Declaration on the Right to Development even
3st The Declaration on the Right to Development, G.A. Res. 128 G.A.O.R., 41 Sess., Supp. No. 53, at 186, U.N. Doc.
A/41/53(1986) 4 Id. Article 2(1) 5 Id. Article 2(2) 6 Id. Article 1(1) 7 Id. Article 1(2) 8th Id. at 10 preambular paragraph 9 For example by Resolution 57/223, the General Assembly requested the Secretary General of the United Nations to bring the Resolution on the Right to Development to the attention of all members of the United Nations, the International Financial Institutions and other specialized agencies of the United Nations as well as Non-Governmental Organizations and that these constituencies report back to the General Assembly on the progress made in the achievement of the objectives of the Declaration on the Right to Development, see Secretary General of the United Nations, Report on the Right to Development, A/58/276 available at
http://daccessdds.un.org/doc/UNDOC/GEN/N03/468/41/PDF/N0346841.pdf Notably, in this report, Japan affirmed
the existence of the right to development, as did the Republic of Cuba and Guatemala. Germany stated the steps it was taking consistent with the right to development without explicitly affirming it as a right. 10 Infra note_28 and accompanying text. 11 See Stephen Marks, “The Human Right to Development: Between Rhetoric and Reality,” 17 Harvard Human Rights Journal, 139-140 (2004) 12 On how reiteration and elucidation of a norm can affirm its existence in a different context, see See Para 188 of Case Concerning Military and Paramilitary Activities in and Against Nicaragua ICJ 1986 ICJ 14
13among its critics. Let me briefly outline the attributes of the Right to Development that have continued to be reiterated or affirmed as rights or principles.
3. The Food and Agriculture Organization‟s World Food Summit‟s Plan of Action has recognized “the right of everyone to have access to safe and nutritious food, consistent with the 14right to adequate food, and the fundamental right of everyone to be free of hunger.” The FAO‟s
work in this respect affirms Article 8 of the Declaration on the Right to Development which obliges States to undertake „all necessary measures‟ for the realization of the right of access to 15food.
4. The Millennium Declaration explicitly acknowledge a commitment to „making the right 16to development a reality for everyone and to freeing the entire human race from want.‟ The
adoption of these goals which include the elimination of poverty, disease, illiteracy, elimination of discrimination against women and environmental degradation demonstrates that States accept the responsibilities set out in the Declaration of the Right to Development to “have the primary responsibility for the creation of national and international conditions favourable for the 17realization of the right to development”; to take steps “individually or collectively to formulate
international development policies with a view to facilitating the full realization of the right to 18 as well as to formulate, adopt and implement “policy, legislative and other development,”
measures at the national and international levels” to realize the “progressive development of the 19right to development.”
5. The interdependence and indivisibility of social and economic rights, on the one hand, and civil and political rights, on the other, was reaffirmed in the United Nations World 20Conference on Human Rights in 1993. The indivisibility and interdependence of human rights
is also recognized in the Declaration on the Right to Development. Notably, the Vienna Declaration and Programme of Action also recognizes „all aspects of the Right to Development‟
contained in the Declaration on the Right to Development thereby indicating the Declaration on the RtD and the outcome of the 1993 Vienna conference are in harmony with regard to the 21attributes of the RtD.
6. While the Right to Development has continued to be reiterated and reaffirmed, the criticisms of its existence as a right have also. The Right to Development however remains to be