Cotonou Agreement: briefing

Meeting report

FOREIGN AFFAIRS PORTFOLIO COMMITTEE AND TRADE & INDUSTRY PORTFOLIO COMMITTEE: JOINT MEETING
16 October 2001
COTONOU AGREEMENT: BRIEFING

Chairperson: Mr J Sithole

Documents Handed Out:
Cotonou Agreement Explanatory Memorandum (see Appendix)
Powerpoint presentation on Agreement

SUMMARY
The Cotonou Partnership Agreement was briefly discussed. All Committee members with the exception of one member who abstained from voting agreed to the Agreement.

MINUTES
The presenters from the Department of Foreign Affairs were Mr F Van Der Merwe, Mr V Zazeraj and Mr Hugo Lambrechts. The Cotonou Agreement is a successor to the Lome Convention which expired at the end of February 2001. The new Agreement has a lifespan of twenty years and can be revised after five years.

South Africa has acceded to the Lome Convention in June 1997as a qualified member. She was excluded from the trade regime of the Lome Convention governing the African, Caribbean and Pacific (ACP) trade arrangements with the EU such as non-reciprocal preferences, and access to the European Development Fund (EDF). Under the new Convention, there will still be similar exclusions. She will not enjoy preferences given ACP countries but will still be able to participate fully in political dialogues. Additionally, South Africans will be eligible for award of contracts in ACP countries funded from the EDF resources as allocated under the Cotonou Convention.

Discussion
Civil Society Involvement
A question was raised relating to how civil society is to be involved as provided for under this Agreement.

In response it was indicated that there are usually NGOs which participate but that generally institutions of civil societies are usually weak and hence their involvement will serve as a means of strengthening them.

A follow up question in that regard was how this idea of civil society participation would be sold to the public in such a way that will empower them.

The reply was that the European Development Fund (EDF), will pay for participation in seminars as an indirect benefit and that also through the European Programme for Reconstruction and Development (EPRD) society will be given assistance.

Additionally, surplus funds accumulated in EDF could be used as a vehicle for sponsoring projects even though it should be borne in mind that ACP is not only consisting of African countries and as such there needs to be a certain degree of proportionality in the usage of funds.

On a more direct basis, the channelling systems through government are going to be reduced. Ways of facilitating this are being explored.

Tendering for Projects
There was a question relating to whether South African firms would still be allowed to tender for projects as they did before under the Lome Convention.

An answer was that under the new Agreement the status remains the same and that South Africa is placed under the same terms as the European Countries not the ACP countries.

Protocol 3
A concern was raised concerning reference which is made to ‘precedence’ in Protocol 3.

It was made clear that it means that should there be a conflict between the EEU and ACP, EEU Agreement is likely to take precedence.

Projects by the African, Caribbean and Pacific Group of States
There was a question relating to whether projects are initiated by ACP.

The answer was that such is the position and that there is a country and regional indication programme in which these countries have to indicate their plans for inclusion in this programme.

Funds under the European Programme for Reconstruction and Development
It was inquired as to whether there are any funds available under the EPRD.

The reply was that there are funds and that they are being accessed and a whole variety of projects are being funded by the EPRD.

South Africa’s Contribution
An inquiry was made on the value which can be placed on the contribution which is being made by South Africa.

It was indicated that the value is R1.1m.

Migration
The Committee member felt that the issue of migration seems like a unilateral action to be taken by countries and the question is will there be negotiations in such an issue or will individuals have no recourse on the matter.

It was indicated that EEU wants a better mechanism of dealing with the issue and that South Africa would not be a problem to the EEU by virtue of being quite far off from it. In terms of the formulation of the Article it seems that nobody can object to deportation but that the best that the ACP countries can do is to follow the same procedure as and when the need arises.

It was then felt that the Article poses a problem for example in cases where one might have been married and settled in a country for twenty years only to be expelled without any recourse.

It was in turn explained that nothing could be changed but that however there could be cases in which probably even the European law would simply not depart, such as where one is sentenced to death.

Another question related to where a trial would take place in cases of corruption.

It was indicated that the Agreement does not specify but that it could be assumed that it would be where the alleged crime took place. It was further stated that reference to migration was not present in the Lome Convention and that this was a new issue. However, it was further explained that this does not in anyway change our law.

At this point the Presenter then explained that Parliament had to decide on the question of ratifying the Agreement and that the procedure would be in accordance with section 231(2) of the Constitution.

All the Committee members with the exception of one member who abstained from voting acceded to the Agreement.

The meeting was then adjourned.

Appendix:
OFFICE OF THE CHIEF STATE LAW ADVISER (INTERNATIONAL LAW)
DEPARTMENT OF FOREIGN AFFAIRS

RATIFICATION OF THE COTONOU PARTNERSHIP AGREEMENT BY PARLIAMENT
Your request for legal advice dated 18 September 2001 bears reference.

The State Law Advisers (IL) have studied the ACP-EU Partnership Agreement. including Protocol 3 on the Status of South Africa and wish to comment as follows:
- Our records indicate that the agreement had already been certified by the Office of the Chief State Law Adviser (IL) as being in order from an international law point of view on the 06 June 2000.
- Furthermore, the contents of Protocol 3 on the Status of South Africa are in order from an international law point of view. In this regard, this office would like to draw your attention to the legal opinion (ref no. 00caz00703 13.01).

The agreement is a multilateral agreement that has to be approved by Parliament in
terms of section 23 1(2) of the Constitution of the Republic of South Africa Act 108
of 1996.

The desk is therefore required to prepare the necessary documentation to enable Parliament to ratify the agreement.

T. LUJIZA
ASSISTANT STATE LAW ADVISER
PRETORIA
02 OCTOBER 2001

EXPLANATORY MEMORANDUM
1. Summary
Although South Africa is a full member of the African, Caribbean and Pacific (ACP) Group of States, its participation in the Cotonou Partnership Agreement (CPA) which governs the ACP-European Union (EU) partnership, is qualified by a special protocol which confers on South Africa a status similar to the qualified status it enjoyed under the Lome Convention, predecessor of the CPA. Deputy Minister Susan Shabangu signed the CPA on behalf of South Africa in Cotonou, Benin on 23 June 2000. The treaty was signed by all member states of the ACP and the European Union. It now has to be ratified by the respective Parliaments of the participating states, including South Africa.

The Cotonou Partnership Agreement, concluded between the seventy seven ACP states and the fifteen member states of the EU, builds on twenty-five years of AC P-EU cooperation under four successive Lome Conventions. The Fourth Lome Convention (Lome IV) expired at the end of February 2001.

The CPA has a life-span of twenty years and contains a clause allowing it to be revised every five years. Alongside the Agreement is a financial protocol covering each five-year period. This indicates the total resources that are available to the ACP through the European Development Fund (EDF). The current ( 9^th) EDF amounts to Euro 15.2 billion.

The partnership has a strong political foundation. Through political dialogue, the parties can discuss all possible issues of mutual concern. The partnership is underpinned by a set of core values or "essential elements" (respect for human rights, democratic principles and the rule of law), whose violation can lead to the suspension of aid. Good governance is considered to be a "fundamental element" of the Cotonou Agreement. Serious cases of corruption are grounds to suspend cooperation, but the CPA provides for prior consultation to prevent unilateral action.

2. Background
South Africa acceded to the Lome' Convention in June 1997 as a qualified member. This
meant it was essentially excluded from the trade regime of the Lome' Convention which
governs ACP trade arrangements with the EU (and provides the latter with non-reciprocal
preferences), as well as its provisions on development assistance (i.e. access to the EDF).
However, South Africa was fully included in all the provisions on political dialogue, i.e. it
participates in all political institutions of the ACP and its joint institutions with the EU. South
Africans could also tender for projects in all ACP countries, financed from the 8^th European
Development Fund (EDF), which was valued at some Euro 12 billion.

South Africa's accession to the Lome' Convention was governed by a special Protocol,
specifying the terms and conditions of its membership. Its accession to the CPA is likewise in
accordance with a Protocol defining its qualified status. Its position will be basically
unchanged, viz. it will remain excluded from most of the trade and aid provisions of the new
Convention, since the SA-EU trading relationship is determined by the SAEU Trade,
Development and Cooperation Agreement (TDCA) whilst development cooperation is
provided for by the European Programme for Reconstruction and Development (EP RD).
Thus in the areas of trade and development cooperation, the TDCA will take precedence over
the CPA. South Africa will again participate fully in the overall political dialogue and the joint
ACP-EC institutions and South Africans will also be eligible for the award of contracts in ACP
countries, funded from the new EDF resources allocated under the Cotonou Convention.
However, they will not enjoy the preferences accorded to ACP citizens.

3. Legal Status
The text of Protocol 3 on South Africa, annexed to the Cotonou Partnership Agreement, was approved by the Chief State Legal Advisor (International Law) on 6 June 2000.

4. ImpIications for South Africa
As a party to the CPA, South Africa will be able, and indeed expected, to influence the
relationship between the ACP (Africa in particular) and the EU. So for example the Millenium
Africa Recovery Programme could provide direction for the evolution of the partnership. South
Africa has a key role in facilitating and developing the existing cooperation between the parties, in the Southern African region as well as Africa in general and the ACP as a whole.

In this regard South Africa's participation in the ACP-EU political dialogue through the ACP-
EU Council of Ministers, the ACP-EU Committee of Ambassadors and the Joint Parliamentary
Assembly will provide an opportunity to engage not only the EU as most important trading
partner and source of investment of most of the ACP countries, but also the ACP countries
themselves with a view to fostering South-South cooperation also in these fora South Africa
has already demonstrated its commitment in this regard when in April 2001 it hosted a
meeting of the ACP Ministerial Trade Committee, despite not being a member of the
Committee and despite its own exclusion from the trade provisions of the Lome Convention
and CPA. This opportunity was used to brief the ACP Ministerial Trade Committee on South
Africa's experience of negotiating an FTA with the EU, given that the ACP will in September
2002 commence negotiations for Alternative Trading Arrangements (ATAs) ,to replace the
non-reciprocal preferences accorded under the Lome Convention that are not WTO
compatible. The EU's preferred alternatives, the so-called Economic Partnership Agreements
(EPAs), will entail negotiations on a regional basis and it is important to ensure that the TDCA
and its relationship to the Southern African Customs Union and the SADC Trade Protocol are
properly positioned in this process.

Like all other members of the ACP, SA makes a proportional contribution towards the
operational expenditure of the ACP Secretariat. This is budgeted for by the Department of
Foreign Affairs.

Ratification of the Cotonou Partnership Agreement will once again demonstrate South Africa's
commitment to solidarity with the ACP, the Africa Renaissance, North-South and South-South
cooperation.

Parliament is therefore requested to ratify the Cotonou Agreement as soon as possible.