Article 96 of the Cotonou Agreement - consultation procedure
The Cotonou Agreement is the framework for EU relations with African, Caribbean and Pacific (ACP) countries. Adopted in 2000 for a 20 year period, it includes a political dimension, economic and trade cooperation, and development cooperation.
In this agreement, EU and ACP countries acknowledge that human rights, democratic principles, and the rule of law are essential elements of their partnership and key pillars for long-term development. They commit to protecting and promoting these areas, in particular through political dialogue.
They also establish a procedure which may be used in cases where one of the parties does not comply with the above fundamental principles. For this purpose, the EU is considered as one party and each specific ACP country as another party. The rules for this procedure are set out in article 96 of the agreement.
This article has been applied about 15 times since 2000, following violent government overthrows, escalation of violence or human rights violations. Past cases include Fiji (2000, 2007), Zimbabwe (2002), the Central African Republic (2003), Guinea-Bissau (2004, 2011), Togo (2004) and Madagascar (2010). A consultation process with Burundi was launched on 26 October 2015 and closed on 8 December 2015.
Conditions for launching consultations under article 96
If one of the parties to the agreement considers that another party is not fulfilling its obligations regarding human rights, democratic principles or the rule of law, it first has to attempt to address its concerns through intensified political dialogue (article 9 of the agreement). If all possibilities for dialogue have been exhausted and concerns over human rights, democratic principles or the rule of law still remain, the parties may launch a consultation process.
There are a few exceptional cases in which a consultation process may be started without previous political dialogue:
- cases of special urgency that require an immediate reaction
- persistent lack of compliance with commitments made during an earlier dialogue
- failure to engage in a dialogue in good faith
Launch of consultations under article 96
If all possibilities for dialogue have been exhausted and a party has still not complied with its obligations, the other party can launch a consultation process with the aim of finding a solution.
For the European Union to launch a consultation process, the Council has to formally invite the government of the country concerned to 'consultations'. This is done through an invitation letter approved by the Council. Consultations should then start within 30 days.
The consultation process
In practice, consultations under article 96 take place at governmental level. The parties should strive to have an equal level of representation during the consultations. The EU is represented in consultation procedures by the presidency of the Council and the European Commission.
The length of the consultation period depends on the nature and gravity of the violation and the development of the discussions. It is determined by mutual agreement of the parties and cannot be longer than 120 days.
Outcomes of consultation
During consultations, the EU will aim to reach a solution acceptable to both parties. In this case the participants will define a roadmap with the steps to be taken by both parties in order to return to a normal relationship. This roadmap will be reflected in a decision, adopted by the Council of the EU.
If no agreement is reached by the end of the consultations, the party which launched the consultation process may take appropriate measures. These measures must be proportional to the violation in question and be directed against those responsible for breaching the essential elements of the partnership, while having as little negative impact as possible on the population. They can include precautionary measures for ongoing cooperation projects and programmes or the suspension of projects, programmes and other forms of aid. As a last resort, the full application of development assistance under the agreement may be suspended.
In the EU these measures are adopted by a Council decision, comprising a letter addressed to the authorities of the concerned party. Appropriate measures are defined for a specific period of time and are conditional on the evolution of the situation. At the end of this period they may expire or, if the situation has not improved, be extended.
Article 96 in practice - the example of Guinea Bissau (2011)
On 1 April 2010, the deputy chief of staff of the army of Guinea-Bissau ordered a mutiny in which the army's chief of staff and the prime minister were detained. He became de facto chief of staff, and was then officially appointed to this position on 25 June 2010.
The EU condemned the mutiny and called on the authorities to restore normal democratic order. On 14 April, the Council's Africa working party asked the EU heads of mission in Bissau to engage in an enhanced political dialogue with the authorities on the following points:
- the release of the chief of staff and other detained persons
- the legal responsibility and disciplinary sanctions against those involved
- the necessary obedience due to the legitimate democratic authorities
In May 2010 there was a joint mission by the Commission, the Council and the Africa working party presidency to Guinea Bissau. This mission concluded that the authorities were not in a position to fulfil the EU request for a return to constitutional order.
On 31 January 2011, the Council agreed to open consultations with the authorities in Guinea-Bissau. The African Union, the Economic Community of West African States and the Community of Portuguese Language Countries were invited to take part in the consultations as observers. Pending the outcome of consultations, development cooperation was suspended.
The opening meeting of the consultation process took place in Brussels on 29 March 2011. On 18 July 2011, the Council concluded consultations with Guinea-Bissau and set a series of measures to gradually resume development cooperation with the country. It established that the decision would be reviewed regularly, at least once every six months and set an end date of 19 July 2012. Progress made by Guinea Bissau in the reform process would be reflected in a gradual resumption of EU development assistance.
On 10 July 2012, due to a worsening of the situation in Guinea-Bissau, including a coup d'état in April, the measures were prolonged for a year. They were once again extended in July 2013.
In 2014, following free elections in Guinea-Bissau, the Council suspended the measures limiting cooperation with the country. The original decision was finally repealed in March 2015.