The Cotonou Trade Régime and WTO Law

• Date: 01 July 2004
• Published date: 01 July 2004
• Author: Abou Abass
• DOI: http://doi.org/10.1111/j.1468-0386.2004.00224.x

The Cotonou Trade Régime

and WTO Law

Abou Abass*

Abstract: The purpose of this paper is to see how the trade régime created by the new

Cotonou Partnership Agreement (CPA) signed in 2000 tried to deal with the problem of

the incompatibility between Lomé Convention trade preferences and the WTO Law. The

first part tries to highlight the incompatibility between the trade preferences and the WTO

Law before showing that the CPA has maintained the trade preferences, although on a

temporary basis. This has been made possible in part thanks to a waiver exceptionally

given by the WTO competent organs, which allows otherwise unlawful preferences for the

time being. The second part argues that despite the maintenance of the preferences to a

certain extent, the CPA in fact introduces a new era in the EC-ACP Trade relations char-

acterised by a clear will of harmonising their own legal instruments with the WTO legal

régime. This desire to standardise is illustrated by: the integration of WTO principles

governing South-North relations like the Special and Differentiated Treatment principle

(SDT), adopting this Organisation’s trade concepts, but also by the establishment of a

concrete negotiation timetable, in theory to allow the achievement of a full harmonisation

by 2020. Thus it has been argued that the Lomé era is being followed by a transition period

that should lead to a completely new trade régime, or to many partial régimes, which could

render the existence of the ACP countries as a single group less relevant than in previous

times.

I Introduction

Current relations between the European Union (EU) and the group of African,

Caribbean and Pacific (ACP) countries are the continuation of pre-existing relations

between certain Member States of the EEC and the territories, not known as the ACP

at that time, that were under the jurisdiction of these States at the beginning of the

European Economic integration process. In fact, the 1957 Treaty of Rome established

an association framework between these territories and the EEC. At the beginning of

the 1960s, the access to independence of the majority of the territories concerned had

transformed the association from a so-called a ‘licensed’association into a ‘negotiated’

one. This transformation had been endorsed by the signature of the Yaoundé I

European Law Journal, Vol.10, No. 4, July 2004, pp. 439–462.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Abou Abass, ATER, CERIC, Université d’Aix-Marseille III. This article is based on an earlier French

version that had been published in L’Observateur des Nations Unies,no. 12 (2002).

Convention in 1963 between the EEC and its Member States on the one hand, and the

Associated African and Madagascan States (EAMA) on the other and then Yaoundé

II, signed in 1969, which continued to be in effect till it was superseded by the first

Lomé Convention (Lomé I) signed between the ACP States and the EEC in 1975. The

Lomé Convention was renewed every five years until 1989, whereafter its duration was

increased to ten years with the signature of the Lomé IV Convention, although this

was subsequently revised mid-term, in 1995. Whereas under the Yaoundé Convention,

the association was restricted to several African States that were for the most part fran-

cophone, under the Lomé framework the number of ACP States continued to grow,

and States that had formerly been under British, Spanish, and Portuguese dominion

during the colonial era also became members. The colonial factor had thus been a deci-

sive element for membership to the association of States.1

Over time, the EEC-ACP Association has been characterised by the following main

features: maintaining close economic and commercial relations between the two

regions, the grant of certain financial incentives by the EEC to the ACP in the form of

development aid, and the establishment of a joint institutional structure reflecting both

the permanent and negotiated nature of the link between the two groups. Whilst the

trade framework under Yaoundé I and II was based on free trade with the EEC and

its associate states, the Lomé Convention introduced a trade régime that was charac-

terised by granting preferential access to the majority of ACP states’ exports on a non-

reciprocal basis, thus paving the way for a new stage of privileged relations with the

EEC. As such, throughout the whole duration of the Lomé Conventions, the ACP

States were seated at the top of the pyramid of preferences granted by the EC.2

The Cotonou Partnership Agreement (hereafter referred to as the Cotonou Agree-

ment) was signed on 23 June 2000 for a period of 20 years,3and took effect from 1

March 2001, thus replacing the fourth Lomé Convention (Lomé IV), which ended in

November 2001. In fact, negotiations for the Cotonou Agreement began as far back

as September 1998. At the same time, the Agreement signifies the beginning of a new

era in relations between the European Community (EC)4and the ACP group, embrac-

ing a number of original developments compared with its predecessor agreements (i.e.

European Law Journal Volume 10

440 © Blackwell Publishing Ltd. 2004

1A. Abass, Otnoshèniya mezhdu Evropeyskim Soyuzom i stranami AKT v ramkakh Lomeyskikh konvntsiy

[Relations between EU and ACP countries within the framework of Lomé Conventions] (St-Petersburg,

1999) Masters Paper,Faculty of International Relations,Saint Petersburg State University (Russia) 6–35;

for more detailed information on the evolution of these relationships,see: R.-M. Lemesle, La convention

de Lomé: principaux objectifs et exemples d’action: 1975–1995 (CHEAM, 1996) 191.

2M. Dispersyn, ‘La dimension sociale dans le système des préférences généralisées’, (2001)1 Revue de la

Faculté de Droit de l’ULB 23, at 88.

3Article 95(1) Cotonou Agreement.

4For the purpose of this article, the EEC shall be considered as meaning the EC (European Communities)

and also the EU (European Union).

5Amongst its founding principles,mention should be made of: strengthening its political dimension increas-

ing recognition of the role of civil society, the private sector, and good governance but also the suppres-

sion of STABEX and SYSMIN mechanisms, to be used as partial compensation for export receipts on

certain agricultural products and minerals from certain ACP countries judged to be very dependent on

these products, especially when difficulties are encountered due to market and climatic risks. In relation

to the new agreement, see: J. Bourrinet, ‘L’Afrique subsaharienne et l’Union européenne’, (2000) 8 L’Ob-

servateur des Nations Unies,51–75; A-S.Claes, ‘De la Convention de Lomé à l’Accord de Partenariat EU-

ACP’, (2000) Marchés tropicaux 1531–1535; G.Forwood, ‘The Road to Cotonou:Negotiating a Successor

to Lomé’, (2001) 39:3 JCMS, 423–442; J.Hubert, ‘The Past, Present and Future of ACP-EC Trade Regime