Suspension of Treaties, Incorporation of Terminated Agreements & Human Rights Provisions in Economic Partnership Agreements.

Human Rights Provisions in Economic Partnership Agreements in light of the Expiry of the Cotonou Agreement in 2020 (Report of 13 July 2016 Briefing)

By: Ira Ryk-Lakhman (PhD student, UCL)

On Wednesday, 13 July 2016, the EU Committee on International Trade discussed the conditionality of human right in Economic Partnership Agreements (EPAs) post the Cotonou Agreement. The ACP-EU Partnership Agreement, signed in Cotonou on 23 June 2000, was concluded for a 20-year period from 2000 to 2020. It is the most comprehensive partnership agreement between developing countries and the EU. Since 2000, it has been the framework for EU’s relations with 79 countries from Africa, the Caribbean and the Pacific (ACP). And here’s the rub: By its own terms, the Cotonou Agreement is due to expire in 2020, yet the legal and practical ramifications thereof remain uncertain.

For over 20 years, the EU pursued a policy of ensuring that its trade and cooperation agreements are governed by a human rights clause. These human rights clauses comprise two main parts. The first part is an ‘essential elements’ clause, which establishes human rights and democratic principles as the basis for an agreement. The second part is an ‘appropriate measures’ clause. Under this latter part, the parties to the agreement may adopt ‘appropriate measures’ if the other party fails to comply with the essential elements of the agreement.

The Cotonou Agreement is an example of this EU model. Under Article 9(2)(4)  ‘Respect for human rights, democratic principles and the rule of law’ constitute ‘the essential elements’ of the Agreement. Next, subject to certain procedural preconditions, Article 96 allows ‘a Party [that] considers that the other Party fails to fulfil an obligation stemming from respect for human rights, democratic principles and the rule of law’, as set out in Article 9(2), to adopt ‘appropriate measures’. Notably, under this provision, any such ‘measures’ must be ‘taken in accordance with international law, and proportional to the violation,’ and ‘shall be revoked as soon as the reasons for taking them no longer prevail’.

According to EU practice, human rights clauses are incorporated in a framework agreement, and the substantive agreement makes reference to that human rights clause. In conformity with this practice, the four EPAs with the Cariforum, East African Community (EAC), Southern African Development Community (SADC) and West African regions, refer (inter alia) to the Cotonou Agreement and its human rights clause. Thus, the Cotonou Agreement functions as a framework agreement in this respect.

How would the expiry of the Cotonou Agreement affect the agreements incorporating and/or referring to its provisions?

For the foregoing, the EU Parliament debated several questions, which were addressed by a leading expert in the field. First, can the EPA references to the human rights clause in the Cotonou Agreement be used to suspend the EPAs after the expiry of the Cotonou Agreement? Second, if these clauses lack legal effect, does the EU have any alternative means at its disposal to react to violations of human rights, democratic principles and the rule of law by an EPA partner country? Third, how might this be done under EU law? And fourth, are there any other constraints under international law on such measures?

The expert report as well as the ad hoc briefing suggested that the EPAs do not incorporate the mechanism established under the Cotonou Agreement for the adoption of ‘appropriate measures’. However, the SADC, West Africa, and Cariforum EPAs do incorporate the principles set out in the essential elements clause of the Cotonou Agreement such that it can be said that these agreements are based on these principles. This means that, under international law of treaties, it is possible to suspend these agreements in the event that one of the parties violates these principles, even in the absence of an express possibility of adopting ‘appropriate measures’.

The situation with the EAC EPA is slightly distinct. The SADC, Cariforum and West Africa EPAs are based on the principles and essential elements ‘as set out’ in the relevant provisions of the Cotonou Agreement, not the actual provisions of the Cotonou Agreement, while the EAC EPA is based on ‘building on the acquis of the Cotonou Agreement’.  Dr Bartels analyzed the wording and interpretation of the relevant instruments provisions and opined that in light of other statements, objectives, and recitals in the EAC EPA, the acquis is in fact incorporated into the agreement. This would mean that all four agreements are governed by a similar legal position.

Suspension of EPAs on ground of fundamental change of circumstances and/or material breach

The practical meaning of holding the above suggested interpretation is that there is a basis for suspension of the agreements under international law, specifically under the Vienna Convention on the Law of Treaties (VCLT), in the event that the basis of the agreements is no longer there. This is all the more the case if the basis for the agreement disappears because of the conduct of one of the parties. The report presented to the committee addressed the legal options for suspending the agreements, namely – under the doctrine of fundamental change of circumstances (VCLT, Article 62) and material breach of a treaty (VCLT, Articles 60(3)(a) and (b)).

As for the first option, under the doctrine of fundamental change of circumstances, Dr Bartels noted that he is of the opinion that this is a weak route for a lawful suspension of the agreements. Pointedly, the doctrine of fundamental change of circumstances requires the triggering change to be “unforeseen”. A provision anticipating possible suspension in case a party failed to comply with the ‘essential elements’ ipso facto undermines the [un]foreseeability condition. As for the doctrines of material breach, these may serve as stronger legal basis for a lawful suspension of EPAs. Specifically, according to the ICJ in the Namibia Advisory opinion, repudiation can be manifested by factual circumstances and by the conduct of the parties. Thus, if one of the parties acts in a manner which displaces the ‘basis of the agreement’ (i.e., human rights violations) then, that party de facto repudiated the treaty. This, in turn, allows the other party to suspend the agreement. Additionally, under VCLT, Article 60(3)(b), if the party acts in a manner which removes the basis of the agreement and/or contradicts it, this conduct could be considered as a violation of a ‘provision essential to the accomplishment of the object or purpose of the treaty’. Under this constellation, the other party would be allowed to suspend the agreement on grounds of material breach.

Having established that, and given the basis notion that as only “obligations” may be violated, Dr Bartels addressed the more important question, which is whether these four ‘basis clause’ actually establish obligations?  According to him, these clauses do not establish obligations. The provisions prescribe that human rights ‘are’ the basis for the treaty, thus the clauses serve as a statement of fact and a presumption on which the treaty is predicated. The clauses do not give rise to an international obligation, and are not crafted as such. Nonetheless, posited Dr Bartels, on this point there is no substantive difference between a statement of fact and a stipulation of an obligation. In fact, the legal effect is the same in both cases. In other words, if a party acts so as to remove the basis of the agreement, the other party is entitled to suspend the agreement whether the ‘basis’ is coached as an obligation or not.

In outline, under international law, certainly for the SADC, Cariforum and West Africa EPAs can be considered to be based on the principles of respect for human rights, democratic principles, and the rule of law, with the legal consequences that this entails. The EAC EPA, however, is at most required to be consistent with these principles, without this having any bearing on the conduct of the parties outside the scope of that agreement.

The expert also addressed the possibility of suspending these agreements as a form of countermeasures due to a violation of human rights. On this point, Dr Bartels noted that countermeasures are legitimate under international law. Nevertheless this route would not achieve the same result as a human rights clause. The difficulty with following the countermeasures route is that countermeasures are only available for ‘injured’ States, and it is generally considered that, on the current state of international law, a State (or the EU) would only be ‘injured’ for these purposes if one of its nationals were affected by the conduct of the other party.

Full brief: http://www.europarl.europa.eu/ep-live/en/committees/video?event=20160713-1500-COMMITTEE-INTA