The Cotonou Agreement

Background: Signed in 2000, the Cotonou Agreement⁵⁴¹ is a free trade agreement between the European Union (EU) and the African, Caribbean and Pacific (ACP) group of countries. The

EU-538 See section 3.5.1 above.

539 Compare Chapter XIII of the ARIPO Protocol which provides for Appeals and Enforcement procedures and Chapters VI, VIII-XII of the Arusha Protocol which contain detailed provisions on the examination of PBR, Fees, Transfers and Licenses relating to PBRs.

540 Enyinna Nwauche, “The Swakopmund Protocol and the Communal Ownership and Control of Expressions of Folklore in Africa” (2014) 17:5-6 The Journal of World Intellectual Property 191, at 191.

541 Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the One Part, and The European Community and its Member States of the Other Part, [Cotonou Agreement]. Signed in Cotonou on 23 June 2000, revised in Luxemburg on 25 June 2005, and revised in Ouagadougou on 22 June 2010.

ACP partnership has its historical roots in the trade linkages between various EU member states and former colonies, including West African countries.⁵⁴² From 1975-2000, this relationship was governed by the Lomé Conventions, a group of agreements under which the EU granted duty free access to the European market for a number of export products from ACP countries on a non-reciprocal basis.

However, with the dawn of the multilateral trade system instituted by the WTO, such preferential treatment became problematic, as it went contrary to the WTO principle of non-discrimination in trade between countries. This issue came to a head in the successive challenges by various Latin American countries (and the US) to the EU’s banana regime designed to provide preferential market access to bananas from ACP countries.⁵⁴³ The resulting difficulty in getting a waiver for the post Lomé trade arrangements, coupled with the fact that the preferences granted did not lead to significant economic development in ACP countries, persuaded the EU that its future trading arrangements with the ACP countries would have to be WTO-compatible and based on an alternative model for development.⁵⁴⁴

The desire for a new approach resulted in the negotiation of the Cotonou agreement in 2000, which replaced the Lomé IV Convention.⁵⁴⁵ The Cotonou agreement aims to “promote and expedite the economic, cultural and social development of the ACP States, with a view to contributing to peace and security and to promoting a stable and democratic political

542 Stephen R. Hurt, “Co-operation and Coercion? The Cotonou Agreement between the European Union and ACP States and the End of the Lome Convention” (2003) 24:1 Third World Quarterly, 161 at 165.

543 European Communities-Regime for the Importation, Sale and Distribution of Bananas (EC-Bananas III), 22May 1997, WT/DS27/R/ECU, WT/DS27/R/GTM, WT/DS27/R/HND, WT/DS27/R/MEX, WT/DS27/R/USA. See also the Appellate Body decision, WT/DS27/AB/R.

544European Commission’s Directorate-General for Trade, “The Economic Impact of the West Africa-EU Economic Partnership Agreement”, March 2016, at 13; FAO, “Regional Integration and Food Security in Developing

Countries”, TCAS Working Document No.50, April 2003, at 55-56.

545 Economic Commission for Latin America and the Caribbean (CEPAL), The Cotonou Agreement: Selected Issues, Effects and Implications for the Caribbean Economies, 14^th December 2005, LC/CAR/L.066 (2005) at 4 [Cotonou Issue Paper].

environment”. It spells out new orientations regarding economic and trade cooperation. A key objective is to promote the gradual integration of the ACP States into the world economy.⁵⁴⁶ The treaty reflects a policy shift in EU-ACP trade relations as it moves from preferential market access to requiring reciprocal free trade between the EU and the African, Caribbean and Pacific (ACP) regions.⁵⁴⁷

Under the Lomé Conventions, ACP countries were 'entitled' to a given amount of aid, irrespective of their development performance. The Cotonou Agreement established a European Development Fund, which made the grant of European aid a subjective 'reward', given depending on the success of ACP countries in fulfilling certain conditions (such as sound economic policies, governance, effective implementation, support to non-state actors) as assessed by the European Community.⁵⁴⁸ ACP countries were persuaded to adopt World Bank-imposed structural adjustment programmes (SAPS) under the increasing management and supervision by the EU of its financial assistance.⁵⁴⁹

Some ACP States are extremely susceptible to pressures from the European Union since their budgets are heavily dependent on European Union programme assistance.⁵⁵⁰ Consequently, some scholars view the negotiations of the Cotonou Agreement as being unbalanced, as the fear of being cut off from aid influenced ACP states into adopting western norms and systems related to trade and IP represented in the Cotonou Agreement.⁵⁵¹ The following section examines the

546 Commission of the European Communities, “Green Paper Promoting a European framework for Corporate Social Responsibility”, DOC/01/9, Brussels, 18 July 2001, p. xiii [Green Paper].

547 Pannhausen, Economic Partnership Agreements and Food Security, supra note 130, at i.

548 The Cotonou Agreement, Articles 36 and 96.

549 Hurt, supra note 555, at 163-164.

550 James Gathii, “The Cotonou Agreement and Economic Partnership Agreements”, in UN-OHCHR, Realizing the Right to Development (New York: UN, 2013) 259-273, at 270

551 Hurt, supra note 555, at 162-163.

provisions of the agreement relevant to food security and that guide its relationship with other multilateral and regional treaties.

Content: The main objective of the Cotonou agreement is the “eradication of poverty in a consistent manner with the objectives of sustainable development and the gradual integration of the ACP countries in the world economy.”⁵⁵² The methods adopted for achieving its objectives include the progressive dismantling of trade barriers and preferences, integrating ACP countries into the multilateral system, and making the EU-ACP trade relations WTO compatible.⁵⁵³ However, contemporary studies question the viability of these tools for poverty eradication in ACP countries. ⁵⁵⁴

RTAs can be justified to support food security under Article 29(3)(b) of the Cotonou Agreement, which declares that “In the area of regional policies for sustainable development, cooperation shall support the priorities of ACP regions and, in particular: food security and agriculture.” The fact that these articles are framed in general terms, without stating legal obligations or commensurate actions, greatly reduces the capacity of states to utilise and to enforce these provisions to meet their contextual food security interests.

The provision that offers the greatest potential for factoring food security into the regional agreement is Article 23 of the 2010 revision of the Cotonou agreement, which states that:

Cooperation shall support sustainable policy and institutional reforms and the investments necessary for equitable access to economic activities and productive resources, particularly: The development of strategies with a view to enhancing agricultural production and productivity in ACP States by providing, in particular, the necessary financing for agricultural research, agricultural inputs and services, supportive rural infrastructure,

552 Cotonou Agreement, Article 1, p.7.

553 Cotonou Issue Paper, supra note 558, at 7.

554 Hurt, supra note 555, at 173-174.

and risk reduction and management. Support shall include public and private investments in agriculture, encouragement to develop agricultural policies and strategies, strengthening of farmer and private sector organisations, management of natural resources, and development and functioning of agricultural markets. The agricultural production strategies shall reinforce national and regional food-security policies and regional integration. In this context, cooperation shall support ACP efforts to enhance the competitiveness of their commodity exports and to adapt their commodity export strategies in the light of evolving trade conditions.⁵⁵⁵

Despite acknowledging the importance of supporting agricultural production, the provision limits itself to supporting the changes necessary for access to economic activity (specified as finances) and productive resources. It stops short of acknowledging farmers rights, but only requires a strengthening of farmers’ organizations. This provision appears to have been written to support breeders and PBRs, rather than smallholder farmers whose primary interest lies in protecting local genetic resources from access, except on equitable provisions. Also, the provision entrenches the multilateral IP principle, found in TRIPS and the UPOV, of the separation of breeder’s rights from farmer’s rights and the proprietary control of agricultural produce. The latter idea runs contrary to the practices of smallholder farmers in West Africa where open access to agricultural knowledge within a community and free exchange of farm saved seeds is the norm, and where the farmer’s right includes the right to benefit from breeding activities. ⁵⁵⁶ This greatly reduces the potential for the agreement to support food security in West Africa, as it runs contrary to the traditional agricultural processes in the region.

Implications for Food Security in West Africa: While the agreement emphasizes the need of adherence to TRIPS and the CBD, as well as the need to accede to all relevant international

555 The Cotonou agreement, Ouguadaga revision, 22 June 2010, Article 23(d) [Emphasis added].

556 Oguamanam, Breeding Apples for Oranges, supra note 122, at 167.

conventions on intellectual, industrial and commercial property as referred to in Part I of the TRIPS Agreement, it does not give details on how interrelations between the agreements should be managed.⁵⁵⁷ This indicates that it does not see the provisions of TRIPS and the CBD relevant to intellectual property, food security and development as being contradictory, but as mutually supportable. The non-regulation of the topic allows for relations between TRIPS and the CBD to be structured at the regional or domestic level.

In Article 36.1, “the Parties agree to take all the necessary measures to ensure the conclusion of new WTO-compatible Economic Partnership Agreements”. This prioritizes the international regulations of the WTO over future regional treaties.⁵⁵⁸ This reduces the flexibility offered to ACP countries in adopting sui generis treaties in order to achieve domestic food security. The Cotonou agreement presents Economic Partnership Agreements (EPAs) and trade liberalization as the only viable method for achieving development, an assumption that a Canadian study relating to Africa continues to challenge.⁵⁵⁹

Conformity to the multilateral standards of IP protection, rather than differentiation is reinforced in Articles 39(1) and 46 of the Cotonou agreement, which emphasize that parties should become WTO members, follow the WTO agenda, and recognize “the need to ensure an adequate and effective level of protection of intellectual, industrial and commercial property rights, and other rights covered by TRIPS including protection of geographical indications, in line with the international standards with a view to reducing distortions and impediments to bilateral trade.”

557 Cotonou Agreement, Articles 46(2) and 46(3).

558 Cotonou Agreement, Article 36.

559 See Konrad von Moltke, Implications of the Cotonou Agreement for Sustainable Development in the ACP Countries and Beyond (Winnipeg, Manitoba, Canada: International Institute for Sustainable Development (IISD), 2004), at 16-21.

The importance of harmonizing relations between various bilateral, regional, and multilateral IP related agreements cannot be denied. However, the insistence that countries adopt TRIPS standards of IP protection, without demanding the requisite preservation of TRIPS exceptions and limitations to IPRs, reduces the flexibility of countries to adopt alternative regional agreements. Also, TRIPS adopts the national treatment principle, which requires WTO members to grant the same level of IP protection to other countries as it does within its own borders; along with the most favoured nation principle, which prohibits countries from differentiating in the provision of trade concessions across countries or regions. This curbs the room for application of the differentiation principle in RTAs.

Article 37A(1) of the Cotonou Agreement, permits the EU and the ACP States to “take part in negotiations and implementation of agreements leading to further multilateral and bilateral trade liberalisation.” This permission is granted even where such liberalization may lead to the erosion of the preferences granted to the ACP States and affect their competitive position in the EU market, as well as their development efforts. This prioritization of trade above competition and development does not acknowledge the holistic effects of contemporary IP related RTAs, making it more difficult to obtain balanced regional treaties that protect food security interests.

The suitability of the Cotonou Agreement for advancing food security in West Africa is questionable, as the agreement does not specifically provide for differentiation relating to agricultural production and trade, that ACP countries have indicated as being of primary importance in the African context.⁵⁶⁰ For example the Cotonou Agreement does not make substantial provision for special and differential measures providing flexibility to apply measures

560 See proposals in WTO document submitted during the “analysis, information and exchange” process in the lead up to Seattle and the current Article 20 WTO Agreement on Agriculture mandated review negotiations, in AIE/52 (10/3/99), WT/GC/163, WT/GC/233, Job(99)/3169.

to safeguard small farmers against import surges and unfair trade practices, particularly those affecting production of staple food products; lacks policy instruments aimed at protecting and enhancing developing countries domestic food production capacity particularly for staples, and providing or at least maintaining existing employment for the rural poor; nor does it protect farmers rights or prevent the dumping of cheap and subsidized imports on developing countries.⁵⁶¹

Under the Cotonou agreement the West African region would continue to be obliged to open up 80% of their markets to EU trade. Considering the inadequacy of West Africa’s small sector agricultural farmers to compete with global production rates, this is not advised. The final hope is in the volume of agricultural products that the region can put on its list of sensitive products. To stay alive, the region should give itself extra protection through adopting antidumping tariffs and compensation levies.

Studies indicate that drops in tariff rates will most likely result in an enlarged amount of highly subsidized cheaper agricultural imports from Europe on the West African markets, which will thereby increasingly compete with domestic and presumably less competitive production. This development runs counter to objectives of ECOWAS Agricultural policy relevant to food security that seeks to reduce dependence by West Africa on imports. The situation is likely to be amplified by an EPA as it would result in an abolishment of tariffs for EU agricultural exports.⁵⁶²

Though supposedly aimed at African development, the Cotonou agreement does not provide differentiation that caters specifically to West Africa’s food security interests. Instead the agreement reduces the flexibility of ACP countries to form models for development that suits their

561 United Nations Conference on Trade and Development (UNCTAD), “Trade Negotiation Issues in the Cotonou Agreement, Agriculture and Economic Partnership Agreements” UN New York and Geneva 2003,

UNCTAD/DITC/TNCD/2003/2, at 68-69; African Centre for Biodiversity, “Towards national and regional seed policies in Africa that recognize and support farmer seed systems”, Policy Discussion Document, 2018, at 3-7;

Alliance for Food Sovereignty in Africa (AFSA), Resisting Corporate Takeover of African Seed Systems and Building Farmer Managed Seed Systems for Food Sovereignty in Africa (Kampala: AFSA, 2017) at 5-6.

562 Pannhausen, Economic Partnership Agreements and Food Security, supra note 130, at ii-iii.

contexts. As such, the trade framework contained in the Cotonou agreement is more noticeable for its potential to hinder, rather than advance, food security in the West African region.