No to the modification of article 13 of the Cotonou Agreement !

The partnership agreement between EU and ACP countries, called Cotonou agreement, Revision of the migration item in article 13

What is the modified version of the Cotonou Agreement ?

The partnership agreement between the 27 member states of the European Union (EU) and the 79 countries of the ACP [1] (48 countries of sub-Saharan Africa, 16 from Caribbean and 15 from Pacific region), so-called « Cotonou Agreement », was signed on 23rd June 2000 to replace the Lome conventions. It includes several mechanisms of cooperation, political dialogue and trade exchanges. Its length is 20 years and it is revised every 5 years.

The European Parliament regrets that neither the European Parliament, nor the Joint Parliamentary Assembly ACP-EU, nor the civil society organisations were involved in the decision process which led to the determination of the parts and articles of the Cotonou agreement that should be modified but also to the implementation of the negociation mandate adopted by the Council of the European Union and the Council of ACP Ministers [2]

Many NGOs are concerned by the increasing presence of issues in the European political dialogue that are more and more remote from the fight against poverty such as issues of security, border controls and the use of the European Fund for Development to finance cooperation projects on these questions. [3]

Article 13 on migrations

The current version of article 13 [4], which was not modified in 2005, is about the dialogue between UE and ACP regarding migrations. It reiterates the existence of international human rights conventions, conventions against discrimination of migrant workers and conventions aimed at preventing ‘irregular migration, and the necessity to address the structural causes of migrations and more particularly issues of education and training.’ It also includes numerous provisions on the return of ‘irregular migrants’ to their country of origin, though, according to that same article, the implementation of readmission should be done through discussions and negotiations of bilateral agreements.

The implications of the revision of Article 13

On 23 February 2009, the Council of the Union adopted the negotiation directives presented to the President of the Council of ACP Ministers. The annex to these directives [5] reads: « It is important to address the issue of migration in order to strengthen the link between migration and development, the management of legal migrations and the fights against irregular migrations.”

A note by the European Centre of Development Policy Management released last December [6] gives worrying details on the negotiations between the EU and the ACP countries regarding readmission.

A binding and automatic readmission provision without the need for readmission agreements

This document highlights the fact that the changes suggested by the European Union on this article would make readmission compulsory. There will no longer be any need for complementary readmission agreements.

The burden of proof of someone’s nationality will lie on the country of origin within a certain time limit beyond which the person will be sent back automatically to this country

The European Center of Development Policy Management addressed also in this note the issue of the conditions imposed on ACP countries. According to the note, they are very strict, especially in handing the burden of proof of the nationality of a returned person to ACP countries though it remains unclear what the procedure and criteria of collaboration for ACP countries are.

In cases where a ACP country fail to reply on the nationality of the returned person within the time limit, this person would then be automatically considered as a national of this country and would be send back there.

Consequently, there is a possibility that some individuals will be sent back to a country that they do not know and have no ties with. These individuals will then be stuck and the receiving country will have to find a solution for them or more likely will just not care for them.

Thus, for the Council of the UE, third countries must take part in the identification of people of presumed or uncertain nationality. Reversing the burden of proof will lead to many difficulties as it is easier to determine someone’s nationality than to prove that someone does not have such a nationality.

Moreover, this reversal could be accompanied by the reluctance from some countries of origin to recognize their nationals. In this case, some countries would be blocked between the European Union that wants to apply the revised version of article 13 and the country of origin that denies an individual as its national. These countries, pressured both by the EU and by countries of origin and obliged to apply the new time limits of article 13, would be then be forced to accept third country-nationals.

Heightened risks of human rights violations, despite the fact that existing readmission agreements are criticised for this.

In the report of the Development Commission (DEVE) adopted by the European Parliament during its plenary session on 20th January this year (see above), the parliamentary assembly states the following points regarding the revision of article 13:

« 31. reminds the European Commission and the ACP states to include in the article 13 on migrations of the ACP-UE agreement, the principle of circular migration and its facilitation by providing circular visas; highlights the fact that the previously mentioned article stresses the importance of respect of human rights and equal treatment between nationals of ACP member states, but the impact of these principles is seriously undermined by bilateral readmission agreements with transit countries in a context of externalization by Europe of the management of migration flows that do not guarantee the respect of migrants’ rights and can lead to ‘chain’ readmission that put their lives and safety at risk » [7]

The EU readmission agreements (11 up to this date) contain provisions and annexes regarding the identification of expelled individuals that enable to overcome easily the difficulty of determining someone’s nationality and of issuing travel documents. The consequence of further negotiations on this issue would be that the country where the request is made (ie. the country required to accept a person upon a readmission request, which is in general a third country) would be forced to recognise more quickly a non-national individual as ‘national of this country’, violating this international law obligation. This is the case in the Cotonou agreement, as the article 13 states the readmission principle only for its nationals. This could happen at any time but more particularly in the case of important flows of migrants arriving on the territory of one of the EU member states, as has been the case in Spain or Italy.

Thus, during a mission in the Canary Islands conducted by MEP Hélène Flautre from 16-19 October 2006, it was reported that a group of Senegalese officials was sent to the islands just after the signature of an agreement between Spain and Senegal at the beginning of September 2006. In few days, out of 6000 migrants arriving by sea during the previous months, 5000 were identified as Senegalese nationals and were sent back without any delay. The mission report included detailed testimonies like Carlos Arroyo’s from Doctors of the World (Médecins du Monde) who ‘witnessed a shocking practice in a police station: a Spanish official asked a migrant his country of origin and, as he was told Mauritania by the migrant, the official wrote down Senegal on the form [8]

Besides this issue of identification, there are some other concerns regarding readmission agreements: the violation of the non-refoulement principle of the Geneva Convention, or the risk of inhuman or degrading treatments prohibited by article 3 of the European Convention on Human Rights (ECHR).

Regarding the principle of non-refoulement, everybody knows that ACP states are not politically and socially stable enough to guarantee the respect of human rights. Besides, European policies on asylum are toughening and the European Union and its member states are busy trying to prevent asylum seekers from entering European territory. The recent declarations by French Immigration minister when 124 Kurdish exiles from Syria arrived in Corsica are a good example of this general trend.

Readmission and risk of inhuman or degrading treatments, principle enshrined in article 3 of ECHR.

Regarding the article 3 of the ECHR, who will make sure that expelled people are not sent back to countries where they face a risk for their life or security, and how will they do it? The involved countries are in a very weak economical situation and are politically fragile. Who will guarantee that migrants ‘sent back by mistake’ will eventually be sent to their country of nationality? In line with a growing tendency to detain irregular migrants in several ACP countries, will they be detained?

Subsequent steps in the revision process

Up to this date, negotiations on article 13 haven’t reached an agreement. On 19th March 2010, there was a meeting between ACP and EU ministers chaired by the Spanish Secretary of State for Cooperation and the vice-Minister of Economy of Gabon that was aimed at finalising the revised agreement. The amended articles can be accessed on line and article 13 is not among them [9]

The revised agreement will be adopted on 4 June during 35th session of the Council of ACP-EU Ministers in Ouagadougou, Burkina Faso [10] According to the EU, separate negotiations on article 13 will take place after the signature and they hope to sign an annex in autumn 2010 that would clarify the interpretation of article 13 [11] . Up to now, ACP countries seem successfully to have resisted the conditions regarding readmission imposed on them by the EU, and it is unlikely that they will alter their position after an agreement is signed. It is, however, important to stay vigilant regarding this annex.