The Negotiation on Mainstreaming a new Partnership Agreement between the EU and ACP countries into Sustainability Governance: Integrating Law and Policy

The European Union and the countries of the African, Caribbean and Pacific Group of States officially opened negotiations for the conclusion of a new Partnership Agreement in New York on 28 September 2018 in the margins of the UN General Assembly. The new agreement will enter into effect after 2020, following the expiry of the Cotonou Agreement on 29 February 2020[1]. The Cotonou Agreement was adopted in June 2000, and entered into force in April 2003. To date, it is the most comprehensive and balanced partnership agreement between the EU and developing countries. It determines the legal regime and general governance framework applicable to EU relations with ACP countries on a wide range of policy issues focused on: the eradication of poverty, the promotion of sustainable development from an economic, social, environmental and cultural perspective, and the progressive integration of ACP countries into the global economic system.[2] The Cotonou Agreement review process seeks to further deepen and modernise the EU-ACP partnership so that it can respond to and suitably adapt to current global and regional developments. In this context, the new EU-ACP agreement is required to fully align with Agenda 2030 for Sustainable Development (2015) and the UN Sustainable Development Goals (SDGs)[3], the Addis Ababa Action Agenda on Financing Development (2015)[4], the Paris Agreement, the new European Consensus on Development (2017) and the EU Global Strategy on Foreign and Security Policy (2016).

On the EU side, the negotiating process for the new EU-ACP Agreement is guided based on a framework of negotiating directives, which was approved by the Council of the EU on 22 June 2018 (negotiating mandate)[5]. The aforementioned negotiating directives of the EU[6] follow a specific structure covering a range of subject areas which will form an integral part of the regulatory regime of the future EU-ACP Agreement[7]. Among other things, they examine the scope of the agreement, the foundation of the agreement (objectives, principles, strategic priorities), the specific regulatory framework regarding EU relations with the three regions of Africa, the Caribbean and the Pacific (specific commitments and goals), and the overall institutional context of the agreement.

The negotiating directives stress that the future agreement must ensure that an integrated regulatory framework governing the EU-ACP relations is put in place, which will be based on the core principles of Agenda 2030 and Paris Agreement. As highlighted emphatically[8]:”The Agreement will aim to advance sustainable and inclusive development, based on the implementation of the 2030 Agenda for Sustainable Development and the Paris Agreement on Climate Change as the overarching frameworks guiding the partnership”. Consequently, it is clear that the central issue at stake in the new agreement is to further deepen the partnership between the two parties, to pursue mutually beneficial objectives and to fulfil common interests which simultaneously serve the environmental, social and economic aspects of sustainable development as set out in Agenda 2030. In light of that, the agreement being negotiated must integrate central aspects of the SDGs into the regulatory core, relating, inter alia, to the eradication of poverty, environmental protection, development of climate resilient economies, promotion of peaceful and resilient societies, attraction of private investments, the full respect of human rights, good governance and democratic principles[9].

In parallel, the negotiating directives highlight the absolute need for the new EU-ACP Agreement to further support and deepen the principles and values of the Cotonou Agreement, which primarily relate to bolstering political dialogue and safeguarding the essential and fundamental elements of the EU-ACP partnership being fully aligned with the economic, environmental, social and institutional dimensions of the SDGs. Moreover, it should be noted that the future agreement will favour the adoption of common positions and management approaches, in the context of addressing a series of modern global challenges. It will confirm, in particular, the strong commitment of both Parties to promoting multilateralism and a rule-based international order[10]. In addition, the new agreement will seek to provide ongoing support for open, representative and participatory decision-making procedures based on SDG 16 (peace, justice and strong institutions). To this end, special attention should be paid to the drafting of provisions in the new agreement which highlight the catalytic role played by local authorities, civil society, national parliaments, the social partners and the private sector, at both regional and national level, in the process of promoting the integrated governance of sustainable development[11].

At the heart of negotiations on the future EU-ACP Agreement lies a set of provisions which are generally applicable to all Parties in the partnership. These provisions constitute the common governance framework of the agreement or the common foundation of the agreement, and define the general objectives, principles, and strategic priorities of the two Parties[12]. With regard to the general objectives, the negotiating directives provide that the future agreement should be guided by the following three common objectives which directly and indirectly serve the central aims of Agenda 2030 and the SDGs[13]:

• Forging a comprehensive partnership focused on building peaceful, stable, well-governed, prosperous and resilient states and societies.
• Accelerating progress towards the attainment of the Sustainable Development Goals, and in particular poverty eradication, tackling discriminations and inequalities, and leaving no-one behind, allowing for the different needs and priorities of different countries.
• Building effective alliances in international settings, with a view to driving global action forward.

At a more specific level, the aforementioned general objectives are made more specific through targeted measures and actions which seek to achieve six individual objectives fully associated with the SDGs[14], which are to:

• Promote, respect, protect and fulfil human rights, fundamental freedoms, democracy, the rule of law and good governance.
• Foster human development and dignity for all, with particular attention to women and girls.
• Spur sustainable and inclusive growth and decent jobs for all.
• Protect the environment, fight climate change and promote sustainable energy.
• Promote peace, security and justice.
• Turn mobility and regular migration into opportunities, stem irregular migration and address its root causes, in full respect of international law and EU and national competences.

Furthermore, the negotiating directives focus on a grid of core principles, on which implementation and governance of the overall agreement will rest[15]. Based on these principles, the objectives of the Partnership, underpinned by a legally binding system, will be pursued in a spirit of equality, non-discrimination, solidarity, reciprocity, accountability and mutual respect. Moreover, it is also outlined that effective operation of the new EU-ACP partnership requires the continued, binding commitment of the parties to the agreement: to further deepen regular political dialogue at all levels[16], and to promote multilateralism and mutually beneficial partnerships at global level. At this point, the reference in the negotiating directives to the need to effectively reflect the holistic and global approach followed and promoted by Agenda 2030 in the overall spirit and regulatory framework of the agreement is particularly important. As pointed out specifically in the negotiating directives[17]: “The Agreement will attest that the objectives of the Partnership will be pursued through an integrated approach that integrates political, economic, social, cultural and environmental elements, in line with the 2030 Agenda for Sustainable Development”.

In addition, the negotiating directives presume the importance of strengthening certain horizontal aspects of the governance of the EU-ACP partnership for effective implementation of the agreement. These primarily relate to further support for cooperation in the context of official and ad hoc regional groupings (schemes), the promotion of multilateralism in the decision-making process, with the active involvement of civil society, local authorities and the private sector, and the adoption of mechanisms and means to monitor and evaluate the progress in implementing the agreement. The negotiating directives also highlight the added value that predictions to include provisions which promote the interlinkage and complementarity of various policies, and above all promote Policy Coherence for Development (PCD), have for the comprehensive integration of the SDGs into the new agreement. As stressed in a relevant section of the negotiating directives[18]: “The Agreement will acknowledge that the integrated and interlinked goals of the 2030 Agenda for Sustainable Development require an enabling policy framework at different levels and proactive approaches seeking synergies of different policies. To this end, the Parties will reaffirm their commitment to Policy Coherence for Development as a crucial element to achieve the Sustainable Development Goals (SDGs) and an important contribution to the broader objective of policy coherence for sustainable development”.

The negotiating directives indicate the strong intention of the EU that the new agreement should include an extensive set of provisions which will demonstrate the clear commitment of the parties to meeting the six (6) Strategic Priorities. These priorities, which are directly tied into the six specific objectives of the agreement and are fully in line with the provisions of Agenda 2030 and the objectives of SDGs, incorporate, in a balanced and integrated manner, all the economic, environmental, social and institutional dimensions of the SDGs. They focus, in particular, on the following topics[19]:

• Human rights, fundamental freedoms, democracy, rule of law and good governance.
• Human development and dignity.
• Inclusive sustainable economic development.
• Environmental sustainability, climate change and sustainable management of natural resources.
• Peace, security and justice.
• Migration and mobility.

More specifically, in relation to the strategic priority relating to environmental sustainability, climate change and sustainable management of natural resources, the negotiating directives emphasize the need for the regulatory framework of the new agreement to reflect and specify the close relationship between environmental protection, prosperity and sustainable economic development. In effect, it must crystallise the inextricable link between environmental degradation in the general sense, the undermining of sustainable development and the deterioration in the quality of life of both present and future generations[20].Moreover, the issues of environmental protection and the fight against climate change are central objectives of the future EU-ACP agreement being negotiated, with aspects and ramifications closely associated with other strategic objectives of the negotiations, including the promotion of sustainable and inclusive economic growth, and the consolidation of peace and security[21]. In this context, the negotiating directives make the SDGs and the Paris Agreement on climate change key points of reference of the environmental regulatory governance to be introduced by the new agreement. As pointed out in the negotiating directives[22]: “The Parties will commit to working together to accelerate progress towards the expansion of the Sustainable Development Goals that are related to environment and climate change, and towards the implementation of the Paris Agreement on climate change”. The new agreement will promote international cooperation between the parties on key environmental aspects of the SDGs which are related, inter alia, to sustainable energy, with emphasis on renewable energy and energy efficiency, ocean governance, water management, biodiversity, and climate change (SDGs 7, 13, 14, 15).

At the same time, on the basis of the negotiating directives, it is envisaged that the regulatory framework of the new agreement will incorporate, in an integrated and coherent manner, the parameter of policy coherence for sustainable development, which is advocated by SDG 17.14. To this end, the Parties are invited to agree on a set of provisions from which their commitment to continuously support measures and actions that promote the introduction of environmental sustainability into various sectoral policies, development strategies and investment plans will be presumed[23]. To this end, efforts must be made to ensure that issues relating to sustainable management and use of natural resources, biodiversity and ecosystems, sustainable production and consumption and the circular economy are interconnected and integrated into the governance of various economic, social and development policies. In this endeavour, the contribution of non-state actors (local authorities, civil society, the private sector) – through their constructive participation in law-making and decision-making processes at international, regional and national level – is considered to be decisive.

In addition, the negotiating directives make special reference to the issue of climate change (SDG 13) and ocean governance (SDG 14). Both climate change mitigation, and adaptation to such change are key priorities of the Parties, and must be at the core of the environmental provisions of the new agreement. These provisions will give rise to a strong commitment by the parties to take ambitious and quantified measures relating to climate change mitigation, climate change adaptation plans, green investments and the low-emission green economy[24].These measures should be suitably adjusted and harmonised based on the special conditions and needs of each partner country, placing emphasis on the least developed countries and small island developing states[25]. As far as ocean governance is concerned, the negotiating directives focus on the need for future agreements to highlight the interdependence between ocean health and productivity and achievement of the SDGs. In light of that, it is vital to include relevant provisions which regulate issues pertaining to the protection and rehabilitation of marine ecosystems, sustainable management of marine resources, sustainable fisheries and acidification of the oceans[26].

At a more specific level, the negotiating process for the new EU-ACP agreement seeks to adopt three separate protocols which will govern the EU partnership with the three African, Caribbean and Pacific regions[27]. The specially tailored partnerships for the three regions will be based on the general objectives, principles and strategic priorities of the joint part of the agreement, and will be further specified in specific objectives, priorities and commitments based on the special features and realities of each region[28].

Particular reference should be made to the thematic priority of the special protocols being negotiated for Africa, the Caribbean and the Pacific, which is tied into maintaining, protecting and improving the quality of the environment and ensuring environmental sustainability[29]. More specifically, based on the negotiating guidelines, the new regulatory regime governing EU partnerships with the three regions will focus on the optimal management of a set of environmental issues which lie at the core of the environmental SDGs. These issues relate to:

• climate (SDG 13),
• biodiversity and ecosystems (SDG 15), and
• ocean governance (SDG 14).[30]

As far as climate action is concerned[31], the Parties are called upon to adopt measures which contribute to speeding up the implementation of the Paris Agreement by adopting suitable national adaptation plans and nationally determined contributions. To that end, it is vital to link financial support to African countries with their efforts to reduce greenhouse gas emissions, to promote climate-resilient development, and to build suitable technical, scientific and institutional skills in partner countries which will permit better, technologically optimal monitoring of the environment and climate. Moreover, the regulatory framework contained in the new agreement will promote the development of long-term strategies to reduce greenhouse gas emissions and will encourage climate-related actions to move towards green and blue growth, placing emphasis on key sectors of economic activity such as agriculture and transport.

The new EU-ACP partnership also attaches particular importance to addressing another major environmental challenge, the loss of biodiversity and the restoration of ecosystems[32]. To this end, it articulates the need for the new legal regime of EU relations with the three regions to be governed by rules that promote the full implementation of the UN Convention on Biological Diversity (CBD, 1992), paying heed to the conservation, sustainable management and use of ecosystems and biodiversity, at global and local level. In addition, the Parties to the new agreement should step up their efforts to adopt appropriate policies, which seek: a) to protect wildlife and increase public awareness about wildlife protection, poaching and trafficking at all levels, in accordance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora CITES, 1973) – a focus that primarily concerns Africa, b) to promote sustainable water and waste management, and to address all forms of pollution, and c) to limit deforestation and ensure the sustainable management of forests. In this context, it is clear that sustainable management of ecosystem services will generate multiplier benefits not only for the environment but also for the economy and the societies of ACP countries, by creating new jobs and utilising the best economic opportunities available in the sustainable tourism sector.

At the same time, the issue of ocean governance also holds a distinct place in the special protocols being negotiated for Africa, the Caribbean and the Pacific[33]. One of the central challenges of the new EU-ACP partnership is to protect, preserve and restore marine and coastal areas and ecosystems. The Parties to the future legal regime governing the EU relations with ACP countries should favour the adoption of national strategies, policies and legislative measures for the marine and coastal environment, and the sustainable management of ocean and coastal resources. These actions will seek to: a) comprehensively address issues relating to the reduction of marine waste, marine noise and pollution from maritime transport, with emphasis on regulating CO2 emissions from the shipping industry, b) fight against illegal, unreported and unregulated fishing (IUU fishing), and promote sustainable management of fisheries resources, and c) promote key aspects of blue growth, paying heed to the design and implementation of appropriate policy and legislative measures, which foster the sustainable development of fisheries and tourism.

The negotiation process of the future EU-ACP Agreement lays the foundation for the establishment of an ambitious, coherent and progressive regulatory regime, which promotes, among others, the integrated governance of sustainable development and the optimal balance between the economic, social, environmental and institutional aspects of sustainability. For the EU, the further deepening of its relation with the ACP countries and the pursuit of mutually beneficial objectives, presuppose the integration in the provisions of the future EU-ACP Agreement, comprehensive rules, principles and strategic priorities which simultaneously touch upon different dimensions of sustainability governance: from addressing poverty, human rights, sustainable economic growth, the rule of law, good governance and effective institutions to environmental sustainability, climate change, ocean governance and sustainable management of natural resources. In this context, as the EU negotiating directives demonstrate, the holistic and all-encompassing approach advocated by Agenda 2030 and the SDGs plays an instrumental role in influencing and shaping critical components of the overall regulatory regime of the future EU-ACP Partnership Agreement.

1. Due to the fact that the negotiations on the new partnership agreement are still under way, the EU and the ACP Group of States have agreed on transitional measures to extend the application of the Cotonou Agreement until 31 December 2020.
2. 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, signed in Cotonou on 23 June 2000, OJ L 317, 15.12.2000. The Cotonou Agreement: A User’s Guide, Commonwealth Secretariat, 2004. Delreux, T., Keukeleire, S., The Foreign Policy of the European Union. Palgrave Macmillan, 2014, pp. 214-216
3. UN General Assembly: Transforming Our World: Τhe 2030 Agenda for Sustainable Development, A/RES/70/1, 25.9.2015.
4. UN General Assembly: Addis Ababa Action Agenda of the Third International Conference on Financing for Development (Addis Ababa Action Agenda), A/RES/69/313, 17.8.2015.
5. Likewise, the ACP countries adopted their own negotiating position at the ACP Council of Ministers on 30 May 2018.
6. Council of the European Union, Negotiating directives for a Partnership Agreement between the European Union and its Member States of the one part, and with countries of the African, Caribbean and Pacific Group of States of the other part, 8094/18, 21.6. 2018.
7. The second round of negotiations was concluded on 4 April 2019, while the first round of talks was completed on 14 December 2018.
8. Council of the European Union, Negotiating directives for a Partnership Agreement between the European Union and its Member States of the one part, and with countries of the African, Caribbean and Pacific Group of States of the other part, (2018), op. cit., p. 3.
9. Ibid.
10. It is also pointed out that the Agreement will be open to and welcome the involvement or accession of third countries which subscribe to the same values, contribute to meeting the objectives, and share the same interests. The Agreement will also take into account the specific concerns of the EU’s Outermost Regions and Overseas Countries and Territories.
11. Council of the European Union, Negotiating directives for a Partnership Agreement between the European Union and its Member States of the one part, and with countries of the African, Caribbean and Pacific Group of States of the other part, (2018), op. cit., p. 4.
12. At the same time, the foundation part of the Agreement includes a wide range of provisions relating to the enhanced cooperation of the two Parties at global level, built on a rules-based global order with multilateralism as its key principle, and the UN at its core. Ibid., Part 3 (International Cooperation).
13. Ibid., Part 1 (Common Provisions), Title I (Objectives), p. 5.
14. Ibid.
15. Ibid., Part 1 (Common Provisions), Title I (Objectives), p. 6.
16. Special reference to the importance and added-value of political dialogue is made in Title III (Political dialogue), p. 7.
17. Ibid., p. 6, para. 4.
18. Ibid., Title IV (Policy coherence for development), p. 7.
19. Ibid., Part 2 (Strategic priorities), pp. 8-24.
20. Part 2, Title IV, pp. 17-19.
21. Ibid., p. 17.
22. Ibid.
23. Ibid., p. 18.
24. Ibid., p. 18.
25. As pointed out in the negotiating directives, in the context of intensifying their cooperation in the field of environmental protection and sustainable management of natural resources, the two Parties will take into account: the vulnerability of small island developing states and costal populations, the exposure of countries to worsening droughts, floods, water scarcity, land and forest degradation, deforestation and desertification problems, and the links between disaster risk reduction and adaptation to climate change strategies and activities, as well as their close relation with resilience, climate change mitigation, ecosystem services and food security. Ibid., p. 19.
26. Ibid., p. 18.
27. Ibid., p. 25-77.
28. The conclusion of the new EU-ACP Agreement will pave the way for the appropriate adjustment and revision of the main declaratory instruments governing the relationships between the EU and the three regions, including the Joint EU-Africa Strategy (2007), the Joint Caribbean-EU Partnership Strategy (2012), and the Strategy for the renewed EU-Pacific development Partnership (2012).
29. Ibid. EU-Africa Partnership, Part 2 (Strategic Priorities), Title IV (Environmental sustainability, climate change and sustainable management of natural resources), pp. 43-47.
30. Special reference is also made to other issues relating to environmental SDGs, particularly in relation to the Africa region. These include: the disaster risk management, the issues of drought, desertification and land degradation, sustainable forest management, and sustainable urbanization. Ibid., pp. 45-47, 52, 67.
31. Ibid., pp. 43-44.
32. Ibid., pp. 44, 51, 66.
33. Ibid., pp. 44-45, 51, 66.