What's the state of play in post-Cotonou Agreement talks?

BRUSSELS — Ten months into talks between the European Union and the bloc of 79 African, Caribbean, and Pacific states on their post-2020 relationship, negotiators remain divided on migration and a host of other issues. “If you look at the triathlon, I think we’ve run the marathon.” --— Koen Doens, deputy director-general, DEVCO Both sides say they were largely expecting the sticking points, but with a chief negotiators’ meeting initially slated for this week now postponed until September to allow for progress among the negotiating teams, the existing Cotonou Agreement seems sure to be extended beyond its Feb. 29, 2020 end date. The Cotonou Agreement sets the framework for relations between the EU and ACP countries in the areas of development cooperation, political dialogue and trade. The new deal is to include a common foundation text and three regional pillars, though the foundation is yet to be agreed, with the section on migration the most problematic. When asked separately by Devex to rate their progress so far, the two sides nonetheless struck a harmonious note. Koen Doens, who leads the Post-Cotonou Taskforce at the European Commission’s development arm, DEVCO, put progress at eight out of 10. “If you look at the triathlon, I think we’ve run the marathon,” Doens said, referring to three regional consultations and the largely-settled foundation texts on peace and security; human and social development; environmental sustainability and climate change; and human rights, democracy, and good governance. “We’re going to now get on the bike and do the Mont Ventoux, and then we will be in for a surprise when it comes to the swimming.” Patrick Gomes, secretary general of the ACP group, offered 7.5 out of 10, saying the only discouraging sign was the slipping timeframe. The new accord will likely be called the Apia Agreement, Gomes said, after the capital of Samoa where ACP has resolved it will be signed. But no one knows when that will be. When the talks began last September, the commission said that a new agreement should be finalized and approved by the end of the Cotonou period in February 2020. A summary of negotiations in Chad in April this year maintained that “the bulk of the work” should be done by the summer break, with only “sticking points requiring intense political debate” left for September, in order to wrap up negotiations by October. However, neither side now believes the October deadline is achievable and transitional arrangements are being prepared to extend the Cotonou agreement beyond February next year. Interviews with officials on both sides have shed light on some of the most problematic areas. Migration A commission official, authorized to speak on condition of anonymity, told Devex that the toughest issue was the readmission and return of migrants to Africa. That’s already covered by Article 13 of the Cotonou Agreement, but the official acknowledged this “didn’t work, because there was no mechanism to implement [it].” The official said the hope now is that the processes created in recent years to try and stem migrants’ coming to Europe from Africa can be used to “make operational” the Cotonou commitment for both sides to accept the return of undocumented migrants upon request “and without further formalities.” The negotiating mandate from EU member states, which was delayed after Hungary insisted on stronger language on stopping irregular migration, states that the final deal must include “concrete provisions” to translate countries’ legal obligation to readmit nationals living irregularly elsewhere. Meanwhile, the ACP mandate calls for voluntary return and readmission processes, and more focus on intra-ACP migration. A senior ACP official, who spoke to Devex on condition of anonymity, said it was not realistic to expect ACP as a group to commit to readmission of irregular migrants to all of its states when this is a competency for individual countries. The official added that attempts to refer to the global migration compact signed in Marrakech, Morocco, last year have been shot down by the EU side because “some of their member states don’t want to see it.” Bracketed issues Among the other headings of the common foundation text, some difficult issues have also been placed in brackets, to be used in horse-trading later in the talks. “[Once] we have discussed 100% of the agreement, we will have a kind of end-game,” the commission official said. “We can ... say ‘OK, I can accept this but you should accept this.’” On culture, for instance, the senior ACP official said the disagreement turns on EU member states’ fears about being forced to send back cultural artefacts now held in Europe — a particular issue in France and Belgium. “The ACP pushed a lot for having some language on return and restitution of cultural properties,” the commission official told Devex. “This was not in the mandate. It is a national competence of our member states, so we will have to see … You know, there is no agreement at international level. UNESCO is covering some of these issues through specific protocols and conventions but there is not an agreed language on this subject, nor is there an agreed policy. Because it is a competence of the [individual] member states we cannot go beyond what the member states could accept.” The ACP official said the artefacts need not be returned immediately, as some countries are not yet able to keep them in adequate conditions, but they said, “the idea is to work also through our [development] cooperation to build those conditions, develop the museums.” On anti-discrimination, the commission official said some African countries were concerned about references to gender identity, while adding that this is also problematic for some Eastern European member states. “Some [states] cannot accept that there are more gender identities than two,” the official said. The Cotonou Agreement envisages political dialogue aimed at ending “discrimination of any kind,” followed by a list of the types of discrimination. However, at a chief negotiators meeting earlier this year, European development commissioner Neven Mimica read the full text of Article 21 of the Charter of Fundamental Rights of the European Union, which includes sexual orientation and genetic features as part of a longer list of potential grounds for discrimination. Other brackets range from ACP efforts to stem what it calls “external interference” — a reference to foreign NGOs’ perceived involvement in elections; to African concerns over the Rome Statute that allows heads of state to be tried for war crimes in The Hague; to anger from Pacific and Caribbean states who were put on the EU’s tax haven blacklist without consultation; to the future of the controversial Article 96 under the Cotonou Agreement, which can see development aid suspended from governments and instead channelled through NGOs if political dialogue aimed at improving human rights, democracy, and the rule of law, is unsuccessful. Institutional battle The talks have also generated internal tensions between the European External Action Service and the commission, who together make up the EU side in the negotiations. The commission official described the EEAS contribution as a support role, saying: “The EEAS structure is mirroring a lot of what is existing in the commission, without having necessarily the expertise on the internal policies.” Asked what is the added value of EEAS to the post-Cotonou talks, the official answered: “Don’t ask me. I cannot say.” An EEAS official countered that development policy “can’t be floating on its own” and emphasized EEAS’s role in ensuring EU external action remains “coherent.” “On the commission side, there is the conviction — which is not entirely untrue — that ‘all the knowledge is here,’” said one senior EU official, who spoke on condition of anonymity. “On the EEAS [side] there is the perception and conviction — which is also not entirely untrue — that they have been given the task to coordinate or steer the coherence of our foreign policy.”