Implementing the Right to Development? An Analysis of European Community Development and Human Rights Policies

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. The author thanks Pro£ P.J.1.M. de Waart and Dr. N.J. Schrijver for their valuable comments on an earlier version of this article. 1 Article 3(3) of the United Nations Declaration on the Right to Development, adopted by the United Nations General Assembly Resolution 41/128 on 4 December 1986, text as included in: Centre for Human Rights, Human Rights: A Compilation of International Instruments, Vol. I (Second Part), United Nations, New York/Geneva, 1994, pp. 548-553, at p. 551. 1. 2 Although it has apparently become common practice to use the term European Union (EU) to refer to what formerly was the European Economic Community, European Communities or European Political Cooperation, this contribution will mainly use the term (European) Community in order to avoid institutional unclarities. Title 11 Article G.A(I) of the Maastricht Treaty on European Union (Official Journal of the European Communities (OJ), Vol. 35, No. C 224, 31 August 1992) which entered into force on 1 November 1993, replaced the term 'European Economic Community' (EEC) by 'European Community' (EC). According to Article 130u of the same, development cooperation falls within the competence of the EC and of its Member States. The term European Union will only be used when its authority in the field of common foreign and security policy (Titles I and V Maastricht Treaty) is specifically at stake, for example when dealing with (external) human rights aspects. 3 See, e.g., Stelios Christopoulos, '1995 - A Watershed Between Two Eras', 154 The Courier, November-December 1995, pp. 73-77; Commission Communication on Development Policy in the Run-up to 2000, SEC(92) 915 de£, Brussels, 15 May 1992.

4 Commission of the European Communities, Europe in a Changing World: The External Relations of the European Community, Luxembourg, 1993, p. 38. 5 See, e.g., Marc Jorna, 'Complementarity between EU and Member State Development Policies: Empty Rhetoric or Substantive New Approach?', 154 The Courier, November-December 1995, pp. 78-80; Louk Box, 'From Development to Security: the Lomd Experience from a Maastricht Perspective', presentation made to ODC luncheon seminar, Washington, 9 June 1994. 6 Germany, the United Kingdom and the Nordic countries abstained in the vote on the adoption of the United Nations Declaration on the Right to Development. Their criticism was related, among others, to the collective dimension given to the right to development, i.e. a right of peoples, and to the idea that specific rights and obligations would arise between one State and another as a consequence of the right to development. See Roland Rich, 'The Right to Development: a Right of Peoples?', in: James Crawford (ed.), The Rights of Peoples, Clarendon Press, Oxford, 1988, pp. 39-54, at p. 52; P. Peters, N. Schrijver and P. de Waart, 'Responsibility of States in Respect of the Exercise of Permanent Sovereignty over Natural Resources', 36 Netherlands International Law Review, No. 3, 1989, pp. 285-313, at p. 290; the compilations of comments and views on the implementation of the United Nations Declaration on the Right to Development, e.g., UN Docs. E/CN.4/AC.39/1988/L.2 and E/CN.4/AC.39/1989/1.

7 Commission of the European Communities, loc.cit. (note 4), p. 36. 8 For a list of current members of the ACP Group, see attached Annex 1. 9 Annex 2 presents an overview of the various Lomd Conventions adopted, the periods they covered and the dates of entry into force of the respective instruments. Lomd IV, concluded in 1989, is the first Lomd Convention which in principle covers a period of 10 years. As from November 1994, however, Lomd IV was subjected to a 'Mid-Term Review', which led to significant revisions of some provisions, through an agreement signed for this purpose in Mauritius on 4 November 1995. The revised Lomd IV Convention is sometimes referred to as 'Lom6 IV-bis'. 10 As provided for in Part I, Chapter 5 of the Lomd IV Convention. For its (revised) text see 155 The Courier, January-February 1996.

" The 1957 EEC Treaty, Part IV, Articles 131-136a. '2 Ibidem, Article 131. 13 For further reading on the history of Community development cooperation, see e.g. Enzo R. Grilli, The European Community and the Developing Countries, Cambridge University Press, Cambridge, 1993; Marjorie Lister, The European Community and the Developing World: the Role of the Lome Convention, Avebury, Aldershot, 1988; and Gerrit Faber, The Third World and the EEC, Novib, The Hague, 1982.

14 P.J.G. Kapteyn et al., Inleiding tot het Recht van de Europese Gemeenschappen: Na Maastricht [Introduction to the Law of the European Communities: After Maastricht], Kluwer, Deventer, 1995, pp. 777-778. 'S Hereinafter these institutions will be referred to respectively as the Commission and the Council. 16 E.g. Commission Memorandum Concerning a Community Policy with Regard to Development Cooperation, Bulletin of the European Communities (Bull. EC), Vol. 4, Supplement 5, 1971; Communication on Development Aid: Fresco of Community Action Tomorrow, Bull. EC, Vol. 7, Supplement 8, 1974. " The oil crisis forced Europe to realise its vulnerability in the field of energy and raw materials. Step by step, a policy was developed, on the one hand, to secure a steady supply and, on the other hand, reduce dependency and increase energy efficiency. Developing countries had to face ever decreasing or at least strongly fluctuating export earnings from commodities because of the occurrence of dramatic price drops. 18 Bull. EC, Vol. 14, No. 9, 1981, points 1.2.1-1.2.8; Bull. EC, Vol. 16, No. 3, 1983, points 1.1.8- 1.1.23; Bull. EC, Vol. 18, No. 10, 1985, points 1.4.1-1.4.11. 19 Commission Memorandum on the Community's Development Policy, Bull. EC, Vol. 15, Supplement 5, 1982.

20 Bull. EC, Vol. 18, No. 11, 1985, pp. 22-27. 21 Commission (Directorate-Generalfor Development), The Role of the Commission in Supporting Structural Adjustment in ACP States, Luxembourg, 1992. 22 Treaty on European Union, loc.cit. (note 2), Article 130u(i) and (2).

23 Commission Memorandum on the Community's Development Policy, loc.cit. (note 19), p. 16. 24 lbidem, p. 14. 25 Ibidem, p. 15. 26 Fifth preambular paragraph Lomé 11 Convention, 58 The Courier, November 1979, yellow p. 5.

27 Third paragraph of Article I of both Lome 111 (89 The Courier, January-February 1985, yellow p. 1 I), Lom6 IV (120 The Courier, March-April 1990, yellow p. 12) and Lome IV-bis (155 The Courier, January-February 1996, yellow p. 11 ). 28 United Nations Declaration on the Right to Development, op.cit. (note I), Article 3(3). See also preambular paragraphs 3 and 15.

29 United Nations Declaration on the Right to Development, op.cit. (note 1), second preambular paragraph. 30 Ibidem, thirteenth preambular paragraph. " See The Courier, Vol. 31, March 1975 and The Courier, loc.cit. (note 26). 32 The Courier, loc.cit. (note 27).

" Idem.

" United Nations Declaration on the Right to Development, op.cit. (note 1), Articles 5 and 6(3), 9th and lOth preambular paragraphs. 35 Ibidem, Articles 5 and 6. 36 See e.g. P.R. Baehr, The Role of Human Rights in Foreign Policy, Macmillan, London, 1994; Evan Luard, Human Rights and Foreign Policy, Pergamon Press, Oxford, 1981; James C.N. Paul, 'International Development Agencies, Human Rights and Human Development Projects', XIV Alternatives, 1989, pp. 77-106; Katarina Tomasevski, Development Aid and Human Rights Revisited, Pinter Publishers, London, 1993.

" See e.g. Laura Garnick and Carol Cosgrove Twitchett, 'Human Rights and a Successor to the Lome Convention', International Relations, Vol. VI, No. 3, May 1979, p. 543. 38 An example of such a representation is found in the case of Liberia. In response to the military coup of April 1980 and the mass executions taking place thereafter, the Commission immediately withdrew its delegation from Monrovia. In meetings with representatives of the Liberian Government, Development Commissioner Cheysson explained the reasons for this reaction by the Commission, and made explicit its concern about the human rights situation in Liberia. See Gabriele Oestreieh, Menschenrechte als Elemente der dritten AKP-EWG-Konvention von Lom6 [Human Rights as Elements of the Third ACP-EEC Lome Convention], Duncker & Humblot, Berlin, 1990, p. 321. 39 Council Declaration on the situation in Uganda, adopted on 21 June 1977, Bull. EC, Vol. l7, No. 6, 1977, pp. 92-93. See Karin C.J.M. Arts, 'European Community Development Cooperation, Human Rights, Democracy and Good Governance: At Odds or at Ease with Each Other?', in: K. Ginther, E. Denters and P.J.I.M. de Waart (eds.), Sustainable Development and Good Governance, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1995, pp. 259-273, at pp. 267-268.

40 European Parliament, Het Europees Parlement en de Rechten van de Mens [The European Parliament and Human Rights], Luxembourg, 1994. 41 Statement on Human Rights, Foreign Ministers meeting in the framework of European Political Cooperation and Council, 21 July 1986, in: Ministry of Foreign Affairs, Collection of Human Rights Documents of the European Community and its Member States, The Hague, March 1992, pp. 8-9. For a general overview, see: Arts, loc.cit. (note 39). 42 Statement on Human Rights, op.cit. (note 41), pp. 17-19, at p. 17. 43 Ibidem, p. 18.

44 Resolution of the Council and of the Member States meeting in the Council on Human Rights, Democracy and Development of 28 November 1991, Bull. EC, Vol. 24, No. 11, pp. 122-123, at p. 122. 45 Idem. 46 Idem. " Idem.

48 Idem. 49 Ibidem, p. 123. 50 Idem. 51 Including the May 1992 Commission Communication on Development Cooperation Policy in the Run-up to the Year 2000, loc.cit. (note 3); Article 130u of the Maastricht Treaty; the annual Council resolutions on the implementation of the November 1991 Resolution and Commission reports on the implementation of measures intended to promote observance of human rights and democratic principles.

52 155 The Courier, January-February 1996, p. 12. The total amount available for the second phase of Lome IV consists of EDF 8 plus resources made available through the European Investment Bank, and amounts to 14,625 million ECUs. This equals to approximately USD 18,360 million (exchange rate as of 14 March 1996). 53 Decision made during the European Council in Cannes of 26 and 27 June 1995, Bulletin of the European Union, Vol. 28, No. 6, p. 37. 54 l.Iildegard Lingnau, 'The future of Lome cooperation', Development and Cooperation, No. 5, 1995, pp. 9-12, at p. 11.

55 See e.g. the following European Research Office (ERO) Mid-Term Review briefings, all issued in Brussels: The question of blocked resources: a brief elaboration of the Lomé financial arrangements, 1994; EDF operations in 7994: implications for the size and composition of the 8th EDF, 1995; EDF operations in 1994: issues in the utilisation of programmable assistance under Lome, 1995.

56 Grill, op.cit. (note 13), Chapters 4 and 7. See also Michael Davenport, 'Africa and the Unimportance of Being Preferred', Journal of Common Market Studies, Vol. 30, No. 2, 1992, pp. 233-251; and Carol Cosgrove, 'Has the Lomd Convention Failed ACP Trade?', Journal of International Affairs, Vol. 48, No. 1, Summer 1994, pp. 223-249. 57 Joachim Betz, 'The new international environment and EC-ACP cooperation', in: Stefan Bruhne, Joachim Betz, Winrich Kuhne (eds.), Africa and Europe: Relations of Two Continents in Transition, LIT Verlag, Miinster/Hamburg, 1995, pp. 123-139, at p. 124. 58 Council Regulation (EC) No 3281/94 of 19 December 1994, applying a four-year scheme ot generalised preferences (1995 to 1998) in respect of certain industrial products originating in developing countries, OJ, No. L 348, 31 December 1994, pp. 1-8, at p. 5. s9 Idem.

60 Ibidem, Article 10(2). According to paragraph 3 of the same, such consultations shall take place within the Committee for the Management of Generalised Preferences. The Committee consists of representatives of the Member States. It is chaired by a representative of the Commission who shall convene the consultation meeting. 61 Ibidem, Article 11 which lays down the investigation procedure. 62 Ibidem, Article 12(1) and (2), at pp. 5-6. 63 Ibidem, Article 12(3), at p. 6.

64 Ibidem, Article 7(l), at p. 4. 65 Ibidem, Articles 7(2), (3), 8(2) and (3). 66 Its predecessor, the Lome III Convention, only contained rather general references to human rights in its Preamble and Annexes.

67 The Lomd IV Convention, loc.cit. (note 27), yellow p. 12. For an overview of the process which led to Article V of the Lomd IV Convention, see Arts, loc.cit. (note 39).

68 Lome IV-bis, loc.cit. (note 27).

69 See I51 The Courier, May-June 1995, yellow p. III; Agence EUROPE, No. 6435, 8 March 1995, p. 8. 70 Its implementation would be extremely complicated, e.g. all customs officers that could be confronted with goods from the country concerned would have to be informed and given instructions on how to respond. 71 Commission Communication on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries, COM(95) 216 final, Brussels, 23 May 1995, p. 7. 72 See idem, for further details on the various clauses and the attempts by the Commission to standardise.

" Resolution of the Council of Ministers, November 1991, loc.cit. (note 44), paragraph 6. " Ibidem, pp. 122-123. 75 Report from the Commission to the Council and the European Parliament on the implementation in 1993 of the Resolution of the Council and of the Member States meeting in the Council on human rights, democracy and development, adopted on 28 November 1991, COM(94) 42 final, Brussels, 23 February 1994, p. 11.

76 COM(95) 216 final, loc.cit. (note 71), Annex 2, p. 17. 77 Resolution of the Council of Ministers, November 1991, loc.cit. (note 44), at p. 123.

'g Ibidem, p. 122.

'9 COM(94) 42 final, loc.cit. (note 75), p. 4. 80 Source: COM(94) 42 final, loc.cit. (note 75); and Commission of the European Communities, Report on the implementation of measures intended to promote observance of human rights and democratic principles for 1994, COM(95) 191 final, Brussels, 12 July 1995. 81 COM(95) final, loc.cit. (note 80), p. 3.

82 Ibidem, p. 14. 83 Ibidem, p. 17. 84 This finding is in line with the relevant conclusions drawn earlier on this issue in: Pieter VerLoren van Themaat and Nico Schrijver, 'Principles and Instruments for Implementing the Right to Development within the European Community and in the Lomd IV States', in: S.R. Chowdhury, E.M.G. Denters and P.J.I.M. de Waart (eds.), The Right to Development in International Law, Martinus Nijhoff Publishers, Dordrecht, 1992, pp. 89-111, at p. 110.

85 Olufemi A. Babarinde, The Lome Conventions and Development: An Empirical Assessment, Avebury, Aldershot, 1994, p. 219. Babarinde drew this conclusion on the basis of an elaborate economic analysis of the impact of Lome's trade and investment regimes. See also, e.g. John Ravenhill, Collective Clientelism: the Lome Conventions and North-South Relations, Columbia University Press, New York, 1985; Grilli, op.cit. (note 13); Davenport, loc.cit. (note 56); Cosgrove, loc.cit. (note 56).

1 These figures represent the total amounts (in million ECUs) made available under the various European Development Funds (i.e. grants and special loans) and European Investment Bank loans. 2 This refers to the second version of Lome IV, as revised after the Mid-Term Review by the agreement signed in Mauritius on 4 November 1995. . Table compiled with data from: 120 The Courier, March-April 1989, p. 26 and 153 The Courier, September-August 1995, p. 7.

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