Backdrop
During my sojourn through the labyrinth of multilateralism, I had a healthy disdain for powerful, wealthy countries and international finance institutions (IFIs) who tried to force smaller, weaker countries to do their bidding, through harsh conditions attached to development aid. Despite this stance, I have always had a “soft spot” for the European Union (EU) mainly because of the timely and extended support it gave to Windward Island banana producers, through its Single Market regime. The fact that it did so in the face of an immoral assault on the regime by the U.S. and Latin American producers only strengthened my admiration.
That “spot” softened further, when the EU became the largest provider of development assistance to the Caribbean, through the LOME Agreement and its successor, the Cotonou Agreement. Moreover, in negotiations of international sustainable development agreements (ISDAs), I found the EU to be an active supporter of the positions of small island developing states (SIDS).
Against this backdrop, I became deeply concerned when I received a video featuring the strident criticisms of Archbishop Jason Gordon of Trinidad and Tobago about the Samoa Agreement (SA), which is set to replace the Cotonou Agreement, and which is now open for signature by EU and ACP member states. His Grace’s fury was targeted at provisions (allegedly) “embedded” in the SA that he believed would impose a “whole range of values” on our region. He asserted that because of the signing of the document, members States of the African, Caribbean and Pacific States (OACPS) “will have to impose abortion legislation, transgender, LBGTQ, and comprehensive sex education.” He also alleged that when the 20-year SA is signed, it cannot be revoked.
Search Results
I was alarmed enough by His Grace’s assertions to immediately go searching online for the SA. En route, I came across statements by some EU and Caribbean officials denying that the Agreement contained any of the “embedded” conditions alleged by the Archbishop Gordon. Prime Minister Ralph Gonsalves of St. Vincent and the Grenadines asserted that his government had not committed to any provisions that would require it to change its laws in relation to matters such as same-sex marriage or transgender rights. The Prime Minister of the Commonwealth of Dominica, Roosevelt Skerrit affirmed that his Government intends to sign the SA believing it to be a good (framework) document “that is not necessarily imposing any particular ideals or views on us in the African and Caribbean Pacific region.”
After much effort, I was able to find a copy of the SA. On my first reading of it, I went looking for the Articles that had so incensed Archbishop Gordon. I found no explicit text that would have done so.
Structure and Themes
The SA consists of a General Part, three “Regional Protocols” corresponding to the Africa, Caribbean and Pacific Regions respectively, and Annexes. The General Part and the Annexes are legally binding on the Parties. General provisions including the principles, objectives, actions and cross cutting themes are set out in Part 1.
The SA addresses many longstanding, priority, sustainable development challenges and concerns of EU and OACPS countries, articulated in landmark global agreements, such as the 2030 Agenda (Sustainable Development), the Paris Agreement (Climate Change), the UN Human Rights Convention and the Beijing Declaration (women). The priority themes of the Caribbean are: inclusive and sustainable economic growth and development; environmental sustainability; climate change and sustainable management of natural resources; human rights governance, peace and security and human development, social development, social cohesion and mobility.
General Impressions
I found the SA to be written in fairly simple, non-threatening language. After two readings of it, I did not come away with a strong sense that the EU was imposing conditions on OACPS countries. Certainly, it would be hard, if not impossible, for any OACPS state to make this claim, given that all regions were involved in negotiating the document. Perhaps this fact explains the Agreement’s cooperative tone. Article 9 (3) dealing with capital punishment reflects this tone. It’s well known that the EU is opposed to capital punishment, but on this subject, the SA merely states that the Parties shall have partnership dialogue at bilateral level on the death penalty and that where it is provided for in national legislation and is still applied, the Parties shall adhere to due process and internationally agreed minimum standards. Now, the EU may well try to impose its will in these bilateral dialogues, but at least the document does not expressly commit OACPS states to abolish the death penalty.
The Human Rights Kerfuffle
The EU has always been a strong advocate of human rights, democracy, and the rule of law and therefore it’s entirely unsurprising these areas would emerge as cornerstones of the SA and that signatories would be urged to underpin key, internationally accepted principles in these areas, in their respective domestic and international policies. However, I was relieved to note that the document contains no mention of “LBGTQ” or anything that commits OACPS countries to pass pro-abortion laws and/or to deliver comprehensive sex education in schools.
That settled, I went looking for text that might have implied these things would happen. I found Article 48 (7) dealing with Gender Equality and the Empowerment of Women and Girls, which states as follows:
“The Parties shall commit to the full and effective implementation of the Beijing Declaration and Platform for Action (4th UN Conference on Women, 1995) and the Programme of Action of the International Conference on Population and Development (Cairo, 1994). They shall further stress the need for universal access to quality and affordable comprehensive sexual and reproductive health information and education, taking into consideration the UNESCO international technical guidance on sexuality education, as well as the need for the delivery of sexual and reproductive health-care services.”
The Caribbean played an active role in both the Beijing and Cairo conferences. If memory serves, Caribbean countries were among 189 countries that adopted the Beijing Declaration and Platform for Action. Articles 89-111 of the Declaration contains several references to women’s reproductive rights and abortion. These documents are not binding and so, a commitment to their full implementation in the SA did not cause me much concern.
I strongly suspect that some of the ire of critics of the SA appertains the “nuts and bolts” of the UNESCO Technical Guidance on Sexuality Education. According to UNESCO, this document proposes a curriculum-based process of teaching and learning about the cognitive, emotional, physical and social aspects of sexuality.” It aims to equip children and young people with knowledge, skills, attitudes and values that empower them to realize their health, well-being and dignity; develop respectful social and sexual relationships; consider how their choices affect their own well-being and that of others; and understand and ensure the protection of their rights throughout their lives.” I did not think it was necessary for me to read the entire document to satisfy myself that because it is a “guidance document,” signatories to the SA are free to accept or reject that guidance.
The Long Reach of International Law
I understand that the core concern of countries that have delayed signing the Agreement is with regard to Articles 8—12 and 32 and 37 respectively of the Agreement concerning recent human rights judgements in international law, that could place them in a legal bind down the road. I did not readily see a direct connection between human rights articles in the SA and developments in international law on human rights matters, as taken on their own, the SA Articles merely restate standard Constitutional provisions. For example, Article 9, states as follows:
“The Parties, recognising that human rights are universal, indivisible, interdependent and interrelated, agree to promote, protect and fulfil all human rights, be they civil, political, economic, social or cultural and to protect and ensure the full and equal enjoyment of all fundamental freedoms, such as the freedom of opinion and expression, the freedom of assembly and association, and the freedom of thought, religion and belief.”
I am not a lawyer and I haven’t stayed at the Holiday Inn for some time. However, my lay understanding of international law is that it has its own dynamic—independent of the SA —meaning that Caribbean governments will have to treat with whatever international law precedents emerge on a case-by-case basis. It is not uncommon for national courts to look at international and regional human rights norms and case law precedents in deciding how to interpret and/or to develop national law.
Irrevocability Claims
The claim that OACPS countries will be locked in for the entire 20-year life of the SA is not supported by Article 99 (3) of the SA which states that within six months of the expiry of the 2030 Agenda—that is after 7-years—the Parties “shall enter into negotiations to review and revise the strategic priorities of the SA, including the Regional Protocols, and to introduce any other necessary amendments. Moreover, any question related to the interpretation of the SA may be resolved through consultations within the OACPS-EU Council of Ministers or, if the Parties’ agree, through a special subcommittee or any other appropriate mechanism that reports to that body. Furthermore, Article 100 of the SA provides for its termination by the EU Party in respect of each OACPS Member and by each OACPS Member in respect of the EU Party.
Conclusion
My main takeaway is that going forward Caribbean Governments must ensure regular consultations are held with key national and regional stakeholders during negotiations of regional and international agreements. This will help to keep stakeholders abreast of issues and developments in near real time. Further, it will reduce the likelihood of misunderstandings, suspicion and doubt among stakeholders.