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    A/HRC/8/WG.2/TF/CRP.6

    21 December 2007

    ENGLISH ONLY

HUMAN RIGHTS COUNCIL

    Eighth session

    Working Group on the Right to Development

    High Level Task Force on

    the implementation of the right to development

    Fourth session

    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.

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    Summary

    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.

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     Page 3

    CONTENTS

     Paragraphs Page

Background

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

    PARTNERSHIP AGREEMENT

    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

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Background

    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

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     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

     13 Stephen Marks, “The Human Right to Development: Between Rhetoric and Reality,” 17 Harvard Human Rights Journal, 139-140 (2004) 14thnd Statement of the FAO‟s Second Session of the Working Group on the Right to Development, 29 January to 2

    February, 2001 available at http://193.43.36.103/legal/rtf/statemts/dev00.htm 15 There has been and continues to be a Rapporteur on the Right to Food. 16thth G.A. res. 55/2, U.N. GAOR, 55 Sess., 8 plen. Mtg., Agenda Item 60(b), Para. 11, U.N. Doc. A/RES/55/2(2000) 17 The Declaration on the Right to Development, supra note 1 at Article 3(1) 18 Id. Article 4(1). See also Article 5 obliging States to “take steps to eliminate the massive and flagrant violation of the human rights of peoples and human beings” in certain circumstances; Article 6 seeking States to promote all rights on the basis of equality; Article 7 obliging States to cooperate in the „establishment, maintenance and strengthening of international peace and security,‟; Article 8 obliging States to ensure rights to „basic resources, education, health services, food, housing, employment and the fair distribution of income.” 19 Id. Article 10 20 Id. Articles 6(1) (2); 9 and the 10th preambular paragraph. 21 Id. Article 9(1). See also Vienna Declaration and Programme of Action: Note By the Secretariat, World Conference on Human Rights, Part I, U.N. Doc. A/CONF. 157/23(1993)

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    fulfilled as evidenced by the more than one billion people who continue living in absolute poverty, without access to basic necessities like clean water, health, education and shelter. As the Independent Expert on the Right to Development noted in his sixth report, there continues to be a 22need to put in place appropriate policies for realizing the right to development. Notably, while

    the United States has objected to recognizing the Right to Development as a right, in the 2002 U.N. Conference on Financing for Development, it proposed a New Millennium Challenge Account “devoted to projects in nations that govern justly, invest in their people and encourage 23economic freedom.” Thus, whether recognized as rights or as principles, there has been an undoubted commitment to meeting the objectives of the Right to Development. Continuing the effort to imbue the concerns of the Declaration on Development with rights language would certainly add moral significance to its legal efficacy, but as the Independent Expert noted in his sixth report, the challenge lies in the fact that development policies in the current phase of globalization do not frequently adopt goals that would promote the realization of the Right to 24Development.

    7. It is also important to emphasize that while the Declaration on the Right to Development frames the various rights by using words like should and shall which suggest a heightened

    obligation to comply very much like the International Covenant on Civil and Political Rights, the 25Declaration also recognizes that these Rights ought to be realized progressively. Progressive

    achievement in the context of the International Covenant on Economic, Social and Cultural Rights has been interpreted as not indefinitely postponing the realization of the rights in the Covenant. This principle arguably applies to the Declaration on the Right to Development. However, unlike with the International Covenant on Economic, Social and Cultural Rights, the Declaration on the Right to Development does not contain the stipulation that the rights enshrined in the Declaration should be realized within „available resources.‟ As such, the development policies adopted by States and International Financial Institutions ought to be directly tied to the realization of the Right to Development.

    8. On a hopeful note in this regard are two important developments. First, the new World Bank President Robert Zoellick has recognized that the current phase of globalization has left many behind and that they continue to fall behind notwithstanding the fact that 300 million people are better off. He has therefore called for an „inclusive and sustainable globalization‟ that would be fostered by global institutions like the World Bank, the International Monetary Fund 26and the World Trade Organization. In addition, the World Bank has recently released a report

     22 Preliminary Study of the Independent Expert on the Right to Development, Mr. Arjun Sengupta, on the Impact of International Economic and Financial Issues on the Enjoyment of Human Rights, Submitted in Accordance with Commission Resolutions 2001/9 and 2002/69 Para. 39, U.N. Doc. E/CN.4/2003/WG.18/2(2002) 23 President George W. Bush, Remarks at the International conference on Financing for Development, available at http://www.un.org/ffd/statements/usaE.htm 24 Preliminary Study of the Independent Expert on the Right to Development, Mr. Arjun Sengupta, on the Impact of International Economic and Financial Issues on the Enjoyment of Human Rights, Submitted in Accordance with Commission Resolutions 2001/9 and 2002/69 Para. 39, U.N. Doc. E/CN.4/2003/WG.18/2(2002) 25 The Declaration on the Right to Development, supra note 1, at Article 10 26 Robert Zoellick, “An Inclusive and Sustainable Globalization,” speech delivered to the National Press Club,

    October 10, 2007 Washington DC available at

    http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:21504730~pagePK:34370~piPK:42770~theSitePK:4607,00.html

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     27that acknowledges its programs have long neglected African Agriculture, the mainstay of many

    African economies. Fortunately, the World Bank‟s 2007 World Development Report focuses on

    Agriculture as the primary way of reducing poverty and increasing the productivity of small 28scale farmers. This self examination by the Bank and the recognition that the challenges of meeting the right to development arise both within the international and national contexts, shows that the challenges of meeting the Right to Development will need a reconsideration of development policies that stand in the way of the realization of the Right to Development.

    9. The Declaration on the Right to Development is defined by the significance it places on removing barriers of a civil, political, economic, social and cultural nature both in the international and national contexts to the realization of all human rights social, economic, civil,

    political as well as those relating to self determination and to a clean environment. In addition, the Declaration is based on achieving these human rights objectives within the context of the principles of equity, non-discrimination, participation, transparency and accountability.

    II. HUMAN RIGHTS IN THE FIVE PILLARS OF THE COTONOU

     PARTNERSHIP WITH SPECIAL REFERENCE TO THE RIGHT TO

     DEVELOPMENT

    Right to Development not Specifically Incorporated in the Cotonou Agreement: But the EU and ACP States Acknowledge their Commitment to the Right to Development

    10. The Right to Development does not appear in the text of the Cotonou Agreement. However, both the EU and ACP States have affirmed their support and commitment to the Right thto Development. For example, the EU Presidency‟s Statement at the 58 Session on the

    Commission on Human Rights in 2002 noted that the EU had in the past „repeatedly stated‟ its 29attachment to the Right to Development.” In this statement, the EU Presidency noted that the

    “human person is the central subject of development and should be the active participant and 30recipient of the right to development.” The centrality of the human person as a subject of thdevelopment is repeated word for word in the 13 preambular paragraph of the Declaration on

    the Right to Development. Similarly, the EU-ACP Joint Assembly has emphasized the role of the EU-ACP Group in seeking to change World Trade Organization rules to more fully protect 31the ACP‟s Right to Development. While these and other EU and ACP statements acknowledge

     27 World Bank (Independent Evaluation Unit), World Bank Assistance to Agriculture in Africa: An IEG Review, 2007 available at http://siteresources.worldbank.org/EXTASSAGRSUBSAHAFR/Resources/ag_africa_eval.pdf

    (October 22, 2007) 28 World Bank, World Development Report 2007: Agriculture for Development, available at http://econ.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/EXTWDRS/EXTWDR2008/0,,contentMDK:21410054~menuPK:3149676~pagePK:64167689~piPK:64167673~theSitePK:2795143,00.html (October

    22, 2007) 29th EU Presidency Statement to the Commission on Human Rights: Right to Development, 58 Session of the thCommission on Human Rights, 16 April, 2002 available at http://www.europa-eu-

    un.org/articles/en/article_1296_en.htm (October 25, 2007) 30 Id. 31 ACP-EU Joint Parliamentary Assembly Resolution on Cotton and Other Commodities, ACP-EU 3668/04/fin available at http://www.europarl.europa.eu/intcoop/acp/60_07/pdf/resolution04_en.pdf (October 24, 2007). See

    ACP Joint Assembly, Session Report on Agriculture and Mining (Committee on Economic Development, Trade and thFinance), 16 September 2005, ACP-EU/3765/05/fin, available at

    http://www.nirjdeva.com/ACP%20Rept%20on%20Agric%20&%20Mining.doc (October 25, 2007)

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    the importance of the Right to Development, it is important to emphasize the commitment to make the right an inalienable one in which the “equality of opportunity for development is a 32prerogative both of nations and of individuals who make up nations,” is not explicitly

    acknowledged in the Cotonou Agreement.

    11. Although the Right to Development is not specifically provided for in the Cotonou Agreement, most of the rights protected in the Declaration on the Right to Development are also incorporated in the text of the Cotonou Agreement as I more specifically elaborate below.

    Specific Rights That Are Part of the Right to Development Incorporated in the Cotonou Agreement

    12. In this section, I outline those rights recognized in both the Declaration on the Right to Development and the Cotonou Agreement

    13. Human rights are incorporated in the Cotonou Agreement as an „essential element‟ that 33underpins EU-ACP relations. Article 9(1) of the Cotonou Agreement which lays the basis for EU-ACP political dialogue provides that “respect for all human rights and fundamental freedoms, including respect for social rights, democracy based on the rule of law and transparent and accountable governance are an integral part of sustainable development.” Article 9(2) reiterates

    the EU-ACP States‟, „deep attachment to human dignity and human rights‟ including reaffirming the equality of men and women. EU-ACP States also undertake „to protect and promote all 34 Article 9(2) of the Cotonou Agreement provides that human rights are universal, human rights.‟

    indivisible and inter-related. Article 9(2) further provides that the partnership “shall actively support the promotion of human rights.”

    14. Similarly, the Declaration on the Right to Development reflects these human rights that are specifically incorporated in the Cotonou Agreement. Article 6(2) of the Declaration on the Right to Development recognizes the indivisibility and interdependence of all human rights and further calls on States to give equal attention and urgent consideration to the implementation, promotion and protection of civil, political, economic, social and cultural rights. Article 9(1) of the Declaration also provides that all aspects of development are “indivisible and interdependent and each of them should be considered in the context of the whole.”

    15. Article 96 of the Cotonou Agreement, also known as the non-execution clause, provides for consultations on human rights where political dialogue under Article 8 and 9(4) of the 35Cotonou Agreement have been exhausted. Failure to “fulfill an obligation stemming from

    respect for human rights” triggers EU-ACP States to enter into consultations “that focus on the 36measures to be taken or to be taken by the Party concerned to remedy the situation.” If

    consultations fail, „appropriate measures‟ such as aid suspension could follow.

     32th 16 Preambular paragraph of the Cotonou Agreement. 33 Article 2 of the Cotonou Agreement 34 Id. Article 9(2) 35 See also Article 4 of Annexe VII (Political Dialogue As Regards Human Rights, Democratic Principles and the Rule of Law) of the Cotonou Agreement. 36 Article 96(2)(a) of the Cotonou Agreement

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    16. This consultation procedure arguably reflects the Declaration on the Right to Development‟s provision that “States have the primary responsibility for the creation of national 37and international conditions favorable for the realization of the Right to Development. The

    consultation procedure also certainly reflects the obligation in Article 10 of the Declaration on the Right to Development which provides that States have an obligation to formulate, adopt and implement „policy, legislative and other measures at the national and international levels‟ to

    „ensure the full exercise and progressive enhancement of the right to development.‟

17. Article 96(2)(a) of the Cotonou Agreement provides that in cases of „special urgency‟ 38which involve „exceptional cases of particularly serious and flagrant violation‟ of human rights, 39„appropriate measures may be taken.‟ This provision allows the suspension of the partnership

    between the EU and a particular ACP member country. In such cases, the Cotonou Agreement is 40not regarded as having been abrogated but rather remains operational though arguably

    suspended as between the EU and the country subject to a suspension of commitments pursuant 41to action taken under Article 96 of the Agreement. This happened with Sudan in 1990 and 42Zaire (presently the Democratic Republic of Congo) in 2002. Similarly, under the EU Common

    Position on Burma/Myanmar of 1996, the EU imposed sanctions on Myanmar, which suspended all non-humanitarian assistance and banned visas for government officials from that country 43under the non-execution clause of the Cotonou Agreement.

    18. Finally, Article 8(4) of the Cotonou Agreement makes ethnic, religious or racial discrimination as well as the respect for human rights part of the EU-ACP political dialogue. Article 5 of the Declaration on the Right to Development also obliges States to eliminate all forms of racism and racial discrimination. Article 6 (1) of the Declaration requires States to promote, encourage and strengthen all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion.

    III. MAIN OBSTACLES TO THE INCORPORATION OF HUMAN RIGHTS,

    CONCEPTUALLY, NORMATIVELY AND OPERATIONALLY INTO THE

    COTONOU PARTNERSHIP AGREEMENT

    19. As noted, the Cotonou Agreement explicitly incorporates human rights as an essential element of the EU-ACP partnership. However, the Cotonou Agreement does not explicitly incorporate the Right to Development. More significantly, the Cotonou Agreement primarily restricts the scope of human rights to political dialogue and to consultations where dialogue fails.

     37 Id. Article 3(1) 38 Id. Article 96(2)(b) 39 The other circumstances under which appropriate measures may be taken include where consultation is refused and where consultations do not lead to a solution acceptable to both parties, Article 96(2)(a) of the Cotonou Agreement. 40 See EU Commission Communication Com (95) 216 of 23 May 1995 on Inclusion of Respect for Democratic Principles and Human Rights in Agreements Between the Commission and Third Countries, available at http://ec.europa.eu/external_relations/human_rights/doc/com95_216_en.pdf (October 28, 2007) 41 Moussounga I. Mbadinga, “The Non-Execution Clause in the Relationship Between the European Union and

    African Caribbean and Pacific States,” 3 German Law Journal, No. 11 (2002) available at

    http://www.germanlawjournal.com/article.php?id=210 42 Id. 43 For a complete background including current efforts to support civil society, see EC, The EU‟s Relations With Burma/Myanmar, http://ec.europa.eu/external_relations/myanmar/intro/index.htm (October 28, 2007)

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    Human rights concerns are restricted to political dialogue and consultations since they are not explicitly included in the other four pillars of the EU-ACP partnership in the Cotonou Agreement. The other of the EU-ACP partnership are: Involvement of Civil Society, the Private Sector and other Non-State players; Poverty Reduction within the Context of Objectives and Targets Agreed at the International Level such as the Millennium Development Goals; the Economic and Trade Cooperation framework; and the Rationalization of Financial Instruments and a System of Flexible Programming. However, as I will note below, other provisions of the Cotonou Agreement could be construed to suggest that at least some human rights are intended to be cross-cutting concerns within the other pillars of the EU-ACP cooperation under the Cotonou Agreement.

    20. Since the main text of the Cotonou Agreement does not explicitly make the human rights provisions in articles 8, 9 and 96 cross-cutting issues within the other pillars of the partnership, those human rights specifically incorporated in the Cotonou Agreement may be regarded as having no operational relationship to the other pillars of the partnership. For example, it does not appear that where a specific EU-ACP economic and trade cooperation program undermines the observance of human rights, that there is any consequence contemplated under the Cotonou Agreement to remedy the situation. In fact, it does not appear that where an EU-ACP cooperation program undermines the observance of human rights that either the political dialogue or consultation procedures were contemplated to be invoked. If this is the case, then political dialogue and consultation procedures may appear to be a framework for EU-ACP collaboration on human rights unrelated to the other pillars of the partnership.

    21. Viewing development cooperation as being strictly separate from human rights is inconsistent with the relationship between development and human rights contemplated in Declaration on the Right to Development. Under the Declaration, in order to promote development, States are urged to give “equal attention and urgent consideration…to the implementation, promotion of, respect for and enjoyment of certain human rights and 44fundamental freedoms.” Thus contrary to what is contemplated in the Declaration on the Right to Development, the Cotonou Agreement arguably separates its development mandate contained in four of the partnership‟s pillars from its fifth pillar – dialogue and consultation on human

    rights.

    22. Further, the criteria identified in the Agreement for allocation of resources in the EU-ACP partnership are insufficient from two human rights perspectives. First, the criteria for resource allocation do not include consideration of human rights but is based exclusively on 45needs and performance indicators and criteria. Some of these indicators and criteria are closely

    related to issues of human rights like poverty alleviation and reduction. However, some of the other criteria such as allocations for macroeconomic support may not necessarily be consistent with human rights especially if macroeconomic support is used to support economic programs that reduce public spending that might undermine “access to basic resources, education, health 46services, food, housing, employment and the fair distribution of income.” Fortunately, Article

    67 of Title II of the Financial Cooperation Chapter of the Cotonou Agreement provides that EU-

     44 It is also significant to note that under the Declaration of the Right to Development, the promotion of certain rights cannot justify the denial of other human rights and fundamental freedoms,‟ Declaration of the Right to thDevelopment, 10 Preambular Paragraph. 45 Article 3 of Annexe IV (Implementation and Management Procedures) Cotonou Agreement 46 Article 8(1) of the Declaration of the Right to Development

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