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The EU’s implementation of the human rights and democracy clause in the

Cotonou-agreement: questioning the status quo.

Johanne Døhlie Saltnes

PhD Fellow, Institute for Advanced Studies

Paper presented at the ECPR Graduate Conference, 4-6 July 2012, Bremen

Draft - please do not quote. Comments are welcome saltnes@ihs.ac.at

Abstract

This paper suggests that the literature on political conditionality, more specifically the use of the

human rights and democracy clause by the European Union (EU) is misleading. Most studies are

carried out with an implicit theoretical expectation of interest governing the choice of behaviour. It is

argued that there is a need for applying a better suited conceptual apparatus in order to formulate

more nuanced hypotheses that allows for the possibility of normative considerations influencing

decisions and processes. The paper also provides empirical research on the implementation of the

human rights and democracy clause towards states from the Africa, Caribbean and Pacific group of

states (ACP). In previous studies, only strategically important states have been used as examples for

cases where the clause is not implemented, leading to the conclusion that it is strategic interest that

governs the choice of behaviour. This article proves that a broader universe of cases exist, including

many non-cases of minimal strategic interest to the EU.

I. Introduction

Conventional, rationalist theories of international relations argue that foreign policy

outcomes are linked to the state’s strategic interests (Moravcsik & Schimmelfennig, 2009).

According to such an understanding, foreign policy decisions adhering to norms such as

human rights and democratic principles are simple rhetoric, hiding the “real” objectives of

national interest (Schimmelfennig, 2001; Walt, 1987; Waltz, 1979). Foreign policy is

traditionally considered to be the key domain of the nation state, however, European Union

(EU) member states have also chosen to integrate in this policy area. Contrary to

conventional theories it has been argued that the EU acts in a principled way towards other

states because it is a “normative” (Manners, 2002) or “ethical” power (Aggestram, 2008).

The theoretical robustness and empirical relevance of these conceptions have, however,

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been questioned (Börzel & Risse, 2009; Diez, 2005; Sjursen, 2006a, 2006b). In 1995 the EU

decided to include a human rights and democracy clause1 in all its external agreements. The

EU was then quickly criticised for acting inconsistently, as the clause was mostly

implemented for countries with minimal strategic interest (Smith, 1998). The body of

literature assessing the use of sanctions due to human rights and democracy breaches has

largely followed the realist approach arguing that the EU’s foreign policy decisions are driven

by economic interests or security considerations. Keeping in mind the normative goals of the

policy, it is a paradox that most of the contributions are based on theoretical tools that

refute the possibility of normative considerations influencing decisions and processes.

This article argues that there is a need to further develop the theoretical tools that dominate

the current state of literature. It does not seek to develop an alternative theoretical

approach as such, but contributes to the debate by showing that the field is in need of

complementary explanations. The viability of the dominant understanding of the

implementation of the human rights and democracy clause is questioned as follows: Is the

human rights and democracy clause implemented in an inconsistent manner for ACP states?

If so, why?

The article has five sections. Section two provides a critical review of contributions and a

systematization of hypotheses put forward by the literature. Section three runs a systematic

empirical test of the EU’s implementation of the human rights and democracy clause in ACP

countries in its first 17 years of existence. It is argued that the lack of a systematic

identification of non-cases in the literature has resulted in a selection bias which in turn

supports the hypotheses of interest-based explanations. The relative strength of existing

hypotheses for the implementation of the clause in light of the new universe of cases

proposed in this article is discussed in section four. Finally, section five provides a discussion

that adds nuances to the debate on the use of the clause.

1 Conditionality and human rights and democracy clause is used as a collective term for the combination of an

essential elements clause (art. 9 Cotonou) and a suspension clause (art. 96 and 97 Cotonou). Suspension clause and non-execution clause will be used interchangeably throughout the paper.

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II. The conditionality debate: domination of the interest-driven

perspective

EU political conditionality policy has been subjected to academic scrutiny since it was first

introduced in the beginning of the 1990s. It has been criticized for being “selective and

inconsistent” (Crawford, 2000, p. 240) or being executed with “the use of double-standards”

(Fierro, 2003, p. 378). Looking at the literature, three weaknesses can be discerned: First, the

field lacks explicit theoretical foundations. The majority of studies are conducted without

stating the theoretical assumptions that lay the ground for their hypotheses. In addition, the

majority of these studies show an implicit expectation of actors behaving according to

strategic interest. There is also a noticeable absence of alternative hypotheses being

formulated, something one would expect particularly from the positivist point of view on

which most of these studies are based. Without further specification of a theoretical

perspective that may account for the impact of norms, it is not possible to assess what drives

the EU to act according to interest, or more importantly if there is something more to the

behaviour of the EU than the lowest common denominator policy.

The second weakness concerns questions of methodology. When comparing cases where

sanctions have been implemented with non-cases that are exempt from punitive measures

putatively because of strategic interest, only the strategically important cases are empirically

tested. Would the universe of cases look different if a systematic identification of such non-

cases was established? Would existing hypotheses still be valid on a broader selection of

cases? A biased selection of case-studies raises doubt about the external validity of the

literature.

Finally, there is a need for further specification of the concept of sanctioning. The

implementation of the human rights clause can entail both a political and an economic stick

at the same time: however, both of these measures can also be adopted without referring to

the clause at all. In addition, the clause is not always executed as a direct consequence to

breaches of the essential elements. There are three main ways of reacting to breaches of

conditionality: political dialogue, the use of a suspension clause and sanctions taken outside

the conditionality framework. Thus, there is a need for clearer definitions of the different

procedures of aid-conditionality before the hypotheses can be further tested. I proceed by

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discussing the literature in sections according to the main explanatory variable forwarded in

the contributions.

Economic interest

The conditionality clause is included in broad cooperation agreements which regulate the

trading rules between the EU and third states. In the literature it is often asserted that

possible economic gains through trade can trump normative foreign policy objectives, such

as the promotion of the respect for democracy and human rights, and that this in turn can

explain the variance we find in the implementation of political conditionality. Several

contributions argue that poorer and smaller states are more likely to be targeted with

sanctions than bigger and richer states, by using data showing that political conditionality is

more often implemented in countries from Sub-Saharan Africa than countries from other

regions (Crawford, 1997, 2000; Smith, 1998; Uvin, 2004). Sub-Saharan countries are overall

poorer than countries from other regions of the world; however this is not sufficient

information to establish a causal relationship between the economic interest in a target

state and the likelihood of implementing conditionality. The fact that it is the poorer

countries that are targeted with sanctions could also be explained by the underlying variable

of democratization or human rights violations taking place to a greater extent in these states.

It must be questioned whether economic interest can be measured simply by the dichotomy

of poorer versus richer states, as these contributions propose. The implicit expectation of

interest governing the choice of sanctions leads the above studies to conclude on an

assumption rather than hypotheses deduced from theory.

Furthermore, quantitative and qualitative studies present conflicting results on the

importance of economic interest. The hypothesis is only found to be valid in research based

on case-studies (Crawford, 2000; Smith, 1998) and not in studies testing a wider set of cases

(Warkotsch, 2010)2. One example of where economic interest is found to be valid is Nigeria.

It is argued that the EU’s economic interest accounted for the absence of hard sanctions

such as an oil-embargo in the beginning of the 1990s (Crawford, 1997, 2000; Smith, 1998;

Tomaševski, 1997) or the absence of the implementation of the human rights clause after

fraudulent elections in 2003 and 2007 (del Biondo, 2011; Meyer-Resende, 2008)3. However,

2 Warkotsch uses a more complex operationalization of economic interest based export linkage, FDI and

dependence on energy produced in receiving state. 3 Complemented by E-Mail correspondence with Meyer-Resende 05.10.2011

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although the human rights and democracy clause has not been implemented in Nigeria, the

EU has not refrained from implementing unilateral sanctions against the country. After the

execution of Ken Sara-Wiwa in 1995, the Council released a common position based on

Article J.2 of the Treaty of the European Union containing the simple statement

“Development cooperation with Nigeria is suspended” (Council 1995). The sanctions were

not lifted until Nigeria’s return to a democratically elected government in 1999 (Council

1999). Thus, the empirical relevance of the hypothesis must also be questioned.

Security considerations

A second strand of hypotheses is tied to the argument of security interests governing the

choice of sanctions. First it is hypothesized that countries situated in the neighbourhood of

the sender are more likely to be targeted with sanctions than countries that are further

away (Warkotsch, 2008, 2010). Empirically, however, as none of the ACP states are situated

in the European neighbourhood, the distance hypothesis has only limited relevance for the

understanding of the use of the conditionality clause. Moreover, the clause has been

implemented in ACP countries that are relatively close to the EU, as in the case of Niger, and

in countries that are geographically further away, as in the cases of Haiti and Fiji.

The second hypothesis states that the security risk assessment of the donor state towards

the target state influences the donor’s choice of response. It builds on the results of a

comprehensive study about the use of economic sanctions as used by the EU and US

towards third states. In this study Drezner (1999) develops the “conflict expectations model”,

arguing that senders will calculate the likelihood of future conflict expectations when

deciding on imposing sanctions against a target. The conclusion drawn from the model is

that adversaries will sanction each other more often but with fewer efficacies because the

sender and target are concerned with relative gains and reputation. Allies on the other hand

will sanction each other less often and with greater success because of their concern for

economic losses. In the literature on political conditionality, Drezner’s (1999) model is

adopted by several authors operationalizing his concept of “adversaries” into illiberal

regimes (Hazelzet, 2001) or threat-posing regimes (Warkotsch, 2010). The studies applying

this model are based on specific theoretical expectations which are clearly spelled out. Also,

the hypothesis is tested on a broader set of cases than contributions testing other

hypotheses. However, these studies do not necessarily teach us anything about the use of

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the human rights and conditionality clause in particular, as they do not distinguish between

an economic and a political sanction treating all aid reductions as sticks regardless of

whether they are taken within the conditionality clause or not.

The third hypothesis concerns a donor’s reluctance to sanction a state because of its

putatively important position towards other states. A stable country in an unstable region

can, for example, become an ally to donors because of its position vis-à-vis its neighbours.

Ethiopia is often mentioned as an example of such a country, being the only stable country

in the Horn of Africa and specifically an ally of the US in the fight against terror (Brüne, 2007;

Jünemann & Knodt, 2007; Meyer-Resende, 2008). Del Biondo (2011, p. 386) argues that

security interest accounts for the lack of implementation of the human rights and democracy

clause in Nigeria, Ethiopia and Kenya, as they are countries that are considered key partners

of the West in the fight against terrorism and are key to maintaining peace in their

respective regions. Yet again, the conclusions are based on an implicit expectation of

interest-based behaviour without explicitly accounting for the theoretical mechanisms that

supposedly trigger specific behaviour. In addition, these studies are based only on specific

case-studies where the alleged relationship is found to present an empirical challenge.

Biased selection of such cases results in the explanation being given too much weight in the

literature.

In addition to the above hypotheses, various contributions argue that variation in the use of

conditionality can be explained by the colliding foreign policy objectives of security versus

democracy promotion (Crawford, 2000; Olsen, 1998, 2000, 2002a, 2002b). The claim

reminds us of the hypothesis forwarded by structural realists stating that, due to structural

constraints in the international system, normative ideas stop determining policy when in

conflict with vital national or common interests (Hyde-Price, 2008; Mearsheimer, 2005).

Nevertheless, the contributions to the political conditionality literature lack substantiation of

the causal mechanism claimed to explain variation. In addition, the articles are based only on

the identification of specific security concerns in a selection of case-studies. The biased

selection of cases questions the empirical relevance of the contributions. Furthermore,

conclusions lack specificity. In Olsen’s words:

“(…) if there is a conflict between democracy promotion and security, the EU will

always give higher priority to security. Only in those cases where other, more important

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issues are not at stake will the EU seek to promote democracy with considerable consistency

and vigor” (2002a, p. 133) .

Special relationships

Another category of arguments hypothesize the reduction of negative measures towards

countries with a special relationship with donors. Close bilateral relations combined with the

lack of negative measures has been labelled the “foreign-policy paradox” (Feliu, 2003)

suggesting that the closer the relations between a sender and receiver state the bigger the

possibility for influence, yet equally less the chance of the donor state adopting punitive

measures. In the literature there is, however, no attempt to specify when or under what

conditions this paradox occurs. Explicit theoretical foundations are missing. First, the types

of special relationships that are argued to trigger the mechanism remain broad: Smith (1998,

p. 273) holds that sanctions following the violations of democratic principles in Cameroon

have been blocked by France explaining the outcome with the target state being in France’s

“sphere of influence”. Seen in an historical context, it has been argued that colonial powers

would be more reluctant to punish their former colonies with sanctions than other

countries, especially in the case of France (Alesina & Dollar, 2000; Stokke, 1995; Warkotsch,

2008). Second, the alleged special relationships are not sufficiently specified and defined in

order to account for inconsistent behaviour. Two questions arise: Who must perceive the

relationship as special? When is it strong enough to account for the alleged behaviour? The

empirical record shows conflicting results: Jünemann & Knodt (2007, p. 354) find the

paradox to be of importance in the EU’s relations with northern Africa but not with sub-

Saharan Africa whereas Warkotsch (2010) finds no support for the hypothesis at all.

Furthermore, contrary to the hypothesis, Hazelzet (2001) finds that the EU punishes former

colonies in a harsher way than other countries but at the same time that they are rewarded

more than others.

A recent contribution to the debate proposes that the so-called “democratisation-

development dilemma” can partially explain lack of donor sanctions. Del Biondo (2011)

argues that high economic growth, significant progress towards reaching the Millennium

Development Goals and technocratic good governance of aid programmes can account for

the absence of Article 96 consultations in Rwanda and Ethiopia in the aftermath of

fraudulent elections in 2003 and 2005. In this study, it is argued that the EU refrains from

using the conditionality clause because it prioritizes the foreign policy goal of promotion of

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development over democratization. Del Biondo’s hypothesis is an interesting and novel

contribution to the debate. However, with limited empirical evidence the hypothesis must

be subjected to further testing before it can be confirmed.

Weaknesses of interest-driven perspectives

The literature on aid-conditionality is dominated by studies that rely almost exclusively on an

interest-based perspective, either implicitly or explicitly. The adoption of such a perspective

assumes that actors are rational only if they act according to their own interest (Moravcsik &

Schimmelfennig, 2009). This conception does not allow for the possibility of normative

considerations influencing actor’s decision-making. This is a paradox, since the goal of the

policy the literature studies, is normative. The literature is lacking a conceptual apparatus

where actors can be perceived as rationally competent to assess not only what is in their

interest but also what is appropriate behaviour (Eriksen, 2006; Sjursen, 2003b). Only in that

way can we assess the relative strength of the interest-based accounts.

In the following sections, I will argue that the explanatory importance of strategic interest in

target states is given too much weight in the literature, and that this explanation is

accentuated by the selection bias in existing studies. By only attempting to explain the non-

use of the suspension clause in target countries where the EU has an obvious strategic

interest and not in the universe of target states, the literature has been over-emphasizing

this explanation. As a retort to the weaknesses in the literature I propose to create a more

precise study of the EU’s use of the human rights and democracy clause. The first step

towards a more nuanced understanding of conditionality is carried out below by

reconsidering the empirical record of the human rights and democracy clause.

III. Implementation of aid conditionality: establishing variance

The method applied in carrying out this study is a systematic empirical tracing of the record

of use and non-use of the human rights and democracy clause by the EU towards ACP states.

In total, a population of 39 cases were constructed for the aim of testing variance in the

implementation of the clause: 23 cases of Article 366a/96 consultations and 16 non-cases

where the EU has refrained from using the clause. In the assessment of the cases where the

clause is implemented, I have used the official EU documents released by the Council and a

Commission proposal. The identification of non-cases is carried out with the help of existing

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datasets on events of coup d’états and election observation reports from international

organisations (see below in each section).

Two caveats apply. First, the identification of the latter sixteen non-cases is solely based on

the assessment of first-hand documents and cannot be regarded as a constant population. It

has been strived to apply parsimonious criteria in identifying cases. The record in respect to

democratic principles has for example been created according to the EU’s earlier record of

implementation. This includes a most narrow definition of democratic quality based on

holding elections and non-interruption of power. In addition, the fact that the election

reports assessed are developed by eight different organizations, normally only one per

election, increases the possibility of systematic inconsistencies in the selection process.

Second, there are several borderline cases that could have been included in the dataset that

have been excluded. In Somalia there has been an absence of elections and effective

government since 1991. Because of the lack of a governmental counterpart to consult with,

Somalia is taken out of the dataset. A second strand of countries, with a substantial

democratic deficit in the form of a lack of organizing elections, has been excluded due to the

absence of concrete instances triggering consultations. These include Angola, Eritrea,

Gambia, Swaziland, Gabon and Malawi. Other types of cases could have been countries

where de-facto fraudulent elections are not being addressed as fraudulent by international

election reports. The 1997 general elections in Kenya constitute such an example, where

several EU countries “voiced concern about the widespread irregularities, but, as in 1992,

stopped short of denouncing the result of the elections” (Ajulu (98) quoted in Olsen p. 144).

Invoked conditionality

Table 1 below indicates the 23 instances of official consultations initiated by the EU

according to article 366a of the Lomé-agreement and Article 96 and 97 of the Cotonou-

agreement, together with the reason referred to in the EU documents for the triggering of

the consultations. The suspension clauses were, in fifteen out of twenty-three cases,

initiated due to a coup d’état in the ACP state while the remaining eight cases were initiated

following a deterioration of the respect for democratic principles, human rights or the rule of

law. In one occasion, Article 97, referring to serious cases of corruption, was invoked.

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Table 1 Consultations according to the human rights and democracy clause with ACP countries

Year, Country Coup d’état Flawed Elections Human Rights

Rule of Law

2011 Guinea-Bissau X X

2010 Niger X

2009 Niger X

2009 Madagascar X

2009 Guinea X

2008 Mauritania X

2007 Fiji X

2005 Mauritania X

2004 Guinea X

2004 Togo X X

2003 Guinea-Bissau X

2003 Central African Republic X

2001 Zimbabwe X X X

2001 Liberia** X X X

2001 Cote d’Ivoire X

2000 Fiji X

2000 Haiti X

2000 Cote d’Ivoire* X

1999 Guinea-Bissau* X

1999 Comoros* X

1999 Niger* X

1998 Togo* X

1996 Niger* X Source: Council (2010), the documents which are not provided at the website were provided by the General Secretariat, DG F, Press Communication and Transparency. * Article 366a Lomé – although the Cotonou-agreement did not enter into force until 2003, all consultations beginning with Haiti in 2000 were carried out within the Article 96 framework **Article 97 Cotonou

The data clearly shows a tendency to implement the clause where there are breaches of

democratic norms, with a coup d’état being the single most important trigger. Second, there

are breaches consisting of irregularities in elections. Human rights and good governance are

only rarely an important reason for the initiation of the clause. As pointed out by earlier

studies of political conditionality, this pattern suggests a minimalist conception of

democracy, focusing on clear-cut breaches such as coups and elections (del Biondo, 2011;

Diamond, 1999; Tomaševski, 1997). Such sharply defined breaches are considered “easier”

to react to than human rights breaches, the latter being more problematic to judge in terms

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of “cut-off points” for reaction (Smith, 2001). Moreover, human rights and rule of law

breaches are less quantifiable in terms of gravity.

The Non-Cases

When moving on to exploring the variance in the implementation of the clause, that is

identifying non-cases, breaches of democratic norms have been the focus. As seen in table 1,

the two main reasons for Article 96 consultations are either a coup d’état or flawed elections.

Consequently, an assessment of a narrowly defined democratic quality, here operationalized

in terms of electoral record and interruption of power, was conducted of all ACP states for

the years 1995-2010, in order to identify non-cases. First, five cases of coup d’états, not

subject to Article 96 consultations were identified by a search in the CSP dataset “Coup

d’état events 1946-2010”4 and cross-checked with the Conflict Barometer, developed by the

Heidelberg Institute for International Conflict Research5. Second, all elections, which had

taken place in ACP countries in the time-span 1995-2011, were identified (169 elections)

followed by an assessment of election reports (118 reports).6 The 51 elections that were not

observed by an international team were checked for irregularities by Keesing’s World News

Archive7. The latter search did not result in the identification of any major irregularities. The

former assessment resulted in the identification of ten non-cases being reported as majorly

flawed elections according to the election observation reports8. In addition, Cote d’Ivoire in

2004 has been included due to a Commission proposal for the opening of consultations

under Article 96 of the Cotonou-agreement which was not followed up by the Council. The

proposal was put forward due to the deteriorating human rights situation, delays in

preparations for elections and “obstacles put in the way for an EU financed audit in the

cocoa-sector” (Commission 2004). Table 2 below lists the total of sixteen non-cases

identified and a qualification of the breach of the essential elements outlined in Article 9 of

the Cotonou-agreement.

4 Marshall, M.G., & Marshall, D. R. (2011) Coup d’état events, 1946-2010: Centre for Systemic Peace

5 Heidelberg Institute for International Conflict Research. Conflict Barometer. Retrieved January 2012 from

http://hiik.de/en/konfliktbarometer/index.html 6 The reports were accessed through the website of ACE - Electoral Knowledge Network. Electoral Materials :

Reports and Assessments. Retrieved October - November, 2011 from http://aceproject.org/ero-en/index_html?filter&topic=&country=&type=Reports%20and%20Assessments. 7 Keesing’s World News Archive. http://www.keesings.com/

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Table 2 Identified breaches, not subject to Article366a/96 consultations

Year, Country Coup d’état Flawed Elections Human Rights

Rule of Law

2010 Cote d’Ivoire X

2007 Nigeria X

2007 Kenya X X

2005 Ethiopia X X

2004 Cote d’Ivoire X X X

2003 Nigeria X

2002 Papua New Guinea X

2002 Equatorial Guinea X

2000 Solomon Islands X

2001 Chad X

2000 Mauritania X

2000 Tanzania X X

1997 Sierra Leone X

1997 Congo-Brazzaville X

1996 Burundi X

1996 Sierra Leone X

Two interesting observations can immediately be drawn from the data. First, it challenges

the current consensus in the literature claiming that the EU has acted coherently by

implementing Article 96 consultations in all cases of a coup d’état in an ACP country (del

Biondo, 2011; Laakso, Kivimaki, & Seppanen, 2007, p. 50). Four coups in 1996-97 and one in

2000 were not followed by Article 366a/96 consultations. Second, as many as ten cases of

flawed elections without being followed by Article 96 consultations were identified. In

earlier studies, only a few such non-cases have been identified which were normally

countries with a relatively strong link to the EU through development cooperation or trade,

for instance Ethiopia, Kenya and Nigeria. The systematic assessment in this study, however,

also pins down cases where there are no such strong links between the EU and the non-

cases, Papua New Guinea, Equatorial Guinea and Solomon Islands being examples of the

latter.

The historical development of the clause is also relevant. In the beginning of its existence the

human rights and democracy clause was contested at the European level. In 1994, Portugal

had challenged the legal basis of the human rights clause included in the EU’s external

cooperation agreement with India. Portugal argued that such a clause should contain a

8 When assessing the reports, elections were considered flawed if the report stated serious doubts about the

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reference to Article 235 TEC which would require unanimous decisions in cases of

suspension of development cooperation. The Council, on the other hand, argued that the

EU could include such a provision on specific matters without recurring to other legal bases.

The ECJ gave its judgement in December 1996 (European Court of Justice, 1996), finding that

the there was sufficient legal basis for the inclusion of a human rights clause without

referring to Article 235. It has been argued that the process of questioning the legal basis of

human rights clauses put the implementation of the clause “on hold”. This may well

contribute to the lack of implementation following the coups in Sierra Leone in January 1996

and Burundi in July 1996. Niger was, however, subjected to Article 366a after a coup in

January 1996. Furthermore, the mid-term review of the Cotonou-agreement in 2005 led to

some minor changes in the procedure of the human rights and democracy clause. The ACP

states had proposed that the decision to start Article 96 consultations could only be done if

both parties to the treaty agreed. The EU refused to accept this proposal, but agreed on

intensified dialogue under Article 8, meaning that all possible options for dialogue must be

exhausted before Article 96 can be invoked.

IV. Testing explanations

Operationalization of interest-based hypotheses has proved to be challenging. “Interest” as

such is not easy to conceptualize. Can one describe the economic interest as perceived by

the EU, and can it be measured objectively? Even more so, how is security interest

conceptualized? These questions do not have a clear-cut answer. Most contributions in the

field of political conditionality use existing datasets as proxies for economic and security

importance, for example energy production (oil or equivalent) and trade statistics for

economic interest and geographic location measured in distance to donor or to conflict

areas for security interest. Although I believe there are several weaknesses with existing

operationalizations, I have replicated data from these sources, with the aim of testing the

relevance of status quo explanations in light of the new proposed universe of cases.

The most frequent proxies used for assessing economic importance in the literature is

energy production and trade link with the EU (Crawford, 1997; del Biondo, 2011; Smith,

1998). Replicated data for this study is provided in Annex 1. Comparing energy production,

only Nigeria can be said to have an extensive production of oil (or equivalent), producing

result of the elections and/or that it had fallen short of key international standards.

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over 200.000 kilotons per year. Other non-cases that produce energy are Kenya, Ethiopia,

Tanzania and Congo, however, all in low quantity. These are, therefore, not considered

countries of specific economic interest because of energy production. Within the sanction

cases Togo, Zimbabwe, Cote d’Ivoire and Haiti are producing energy, yet not in important

quantities. Import and export rates of the target state with the EU vary significantly across

groups. The countries represented in the non-sanction cases have an overall higher average

and median both for import and export with the EU than the sanction cases. Thus, in

assessing cases of the EU’s putative economic interest in target states, I only find evidence of

Nigeria being such a case, both because of its energy production and its pivotal role as the

biggest economy of sub-Saharan Africa. A trend of slight differences between the groups is

however detected, with the non-sanction cases ranking higher on economic performance

and trade links with the EU. However, if we control for Nigeria, an outlier case with high

values, the trend is strongly reduced.

When it comes to security interest, two hypotheses were relevant for the understanding of

political conditionality. First, that sanctions are more likely to be implemented towards

adversaries or threatening states (Drezner, 1999; Hazelzet, 2001; Warkotsch, 2010), is

relevant in the sense that the EU is reacting more systematically to cases of coups d’état

than to other breaches of political conditionality. However, this explanation does not

account for the variance found in reactions to fraudulent elections. Second, donors

reluctance to sanction a state, because of its important position towards another state or

region (Brüne, 2007; Jünemann & Knodt, 2007; Meyer-Resende, 2008), is relevant for several

cases in our universe. In accordance with del Biondo (2011), I argue that Nigeria, Ethiopia

and Kenya are cases of relatively stable countries in an unstable region. Nigeria, situated in

West Africa, is the main economic driver in the region and hosts the headquarters for the

regional integration organisation ECOWAS. Ethiopia and Kenya are situated in East Africa,

both bordering the notorious unstable Somalia and Ethiopia bordering Sudan, Djibouti and

Eritrea in the north. Furthermore, Ethiopia has been considered to be a key ally of the US in

the war against terror. One could argue that Chad and the Central African Republic have also

played an important role over the last years as cooperation partners for the EU in hosting

the protection forces for refugees fleeing from Darfur. However, apart from these

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considerations I argue that none of the other non-cases can be regarded as being of key

strategic security interests of the EU.9

When it comes to hypothesis relating to special relationships between specific countries,

existing studies argue that sanctions are less likely to be used towards target states that are

in a political or historical way closely tied to the sender, be this either due to colonial

background or close political relations. The literature claims that this is most notably seen in

the case of France (Alesina & Dollar, 2000; Stokke, 1995; Warkotsch, 2008). The dataset used

in this study strongly contradict the latter claim. 70 per cent of the cases where Article 96 is

implemented are towards French ex-colonies, while this is only true for 27 per cent of non-

cases. This means that there is a stronger correlation of negative measures being used

towards French ex-colonies than towards British ex-colonies. Furthermore, it must be

reiterated that such alleged special relationships are difficult to measure precisely. The

operationalizations of the hypothesis into mere dichotomies such as British or French ex-

colony or close political ties or not, have obvious weaknesses tied to validity for the former

and measurement error for the latter.

The last hypothesis evaluated concerned the reduction in the use of sanctions when

countries showed signs of democratization. Del Biondo (2011) argues that countries showing

stable signs of development are less likely to be punished for democratic wrong-doing by

looking at data on GDP growth (over 10 %), Millennium Development Goal (MDG) Monitor

(amount of goals achieved/expected to be achieved) and the World Bank’s governance

indicators. A replication of the same indicators for the dataset used in this study is provided

in Annex 2. Of the non-cases, only Ethiopia and Equatorial Guinea have growth rates over 10

per cent in the years leading up to the democratic breach. In addition, Chad, Kenya, Nigeria

and Cote d’Ivoire show almost only positive growth during the period, although below 10

per cent. Similarly, Ethiopia and Equatorial Guinea show a positive trend in the MDG

indicator, with 6 and 4 goals respectively, on track to be achieved by 2015. The remaining

countries in the non-sanction group are reporting poorly with respect to the MDGs on track

to be fulfilled before 2015. As for the indicators for worldwide governance, all non-sanction

cases score below the 50th percentile of world average. Most cases are situated in the lowest

9 Sierra Leone, Burundi, Congo, Tanzania, Mauritania, Solomon Islands, Equatorial Guinea, Papua New Guinea

and Cote d’Ivoire.

16

0-10th percentile. Thus, del Biondo’s hypothesis can only be confirmed in two out of sixteen

cases presented here.

V. Revisiting core concepts

Based on the data and literature assessment above, I argue that existing studies are carried

out with selection bias and that there is a substantial gap in the literature assessing the

human rights and democracy clause due to the implicit assumption in the literature that

foreign policy decisions are driven by interest-based cost-benefit calculations. The literature

first makes an implicit assumption that interest drives foreign policy and then fails to justify

this theoretically. I argue that this is a consequence of the exclusive adoption of models

based on a realist understanding of policy-outcomes. Such models reduce policy-decisions to

a maximizing of (national) interest. Empirical studies are often subject to the fallacy of over-

emphasizing material structures due to a focus on explaining outcome based solely on

national interest of the member states. Actors are conceived as monologic to whom “other

people are just external, objective facts of reality, on the line with material things, only with

the distinctive quality that they carry out strategic actions too” (Eriksen & Weigård, 1997, p.

221cited in; Sjursen, 2003a). In the following I will comment on two issues that I argue add

nuances to the debate on the implementation of the Human Rights and Democracy clause.

The first issue that is underspecified in the conditionality debate is the notion of sanctioning.

Article 96 consultations are considered to be a sanction in itself for ACP states (Hazelzet,

2005). On the other hand the EU has tried to promote Article 96 consultations as a form of

extended political dialogue where sanctions are first introduced when “restrictive measures”

are adopted at the end of the 120 day consultation period. The theoretical debate on

conditionality policies has failed to specify this discrepancy sufficiently. There is an evident

difference between an economic stick applied to a state, in the form of a reduction of aid or

direct budget-support, and a political stick in the form of a public critique and opening of

official consultation due to flawed elections or a specific human rights situation. Article 96

consultations should be considered as the latter type because aid cuts are being carried out

independently of the Article being invoked. Looking at the EU’s record of aid cuts to the set

of countries identified earlier, we find similar patterns in the sanction and non-sanction

groups. The EU has cut aid as response to human rights and democracy breaches regardless

of the activation of Article 96 consultations. For example aid from EU institutions to Nigeria

17

was cut from 150 million dollars in 2006 to 78 million dollars in 2007. Similarly, we can

detect a reduction of aid disbursement in the aftermath of the breach identified above in

Kenya, Papua New Guinea, Equatorial Guinea, Solomon Islands, Chad, Cote d’Ivoire, Congo,

Burundi and Sierra Leone as shown in Annex 3. Only in Mauritania, Tanzania and Ethiopia are

aid disbursements increased after the year of the breach. In turn, this also suggests that EU

policy in the form of economic sticks towards ACP states is more coherent than presented in

the literature. Hazelzet (2001) shows that western liberal democracies adhere to their

human rights ideals even where the targets are considered to be of economic and/or

security interest. One of her main conclusions is that: “Interests, as defined by Neorealism,

were not useful in determining which countries are or are not sanctioned for violating

human rights” (p. 231). This does indeed contradict the argument that the relative strategic

interest of the EU in target states, governs the choice of policy towards the respective

countries.

The second dimension that is necessary to clarify, is the decision to implement the political

stick. If we keep the economic sanctions constant, and consider the opening of Article 96

consultations as simply a political stick, we are presented with the same pattern of

incoherent policy as described earlier. In turn I also argue that this pattern of

implementation cannot be explained only by the relative strategic interest in the target

states. I suggest here that the process of political dialogue is overlooked in the debate on the

implementation of political conditionality. The results of the already on-going Article 8

dialogue between the EU and the target country must be counted as an important factor in

deciding whether or not to open Article 96 consultations.

Political dialogue is intrinsically tied to the promotion of human rights and democracy. The

objective of Article 8 dialogue as stated in the Cotonou agreement is:

“to exchange information, to foster mutual understanding, and to facilitate the establishment of agreed priorities and shared agendas. (…) The objective of the dialogue shall also include preventing situations arising in which one Party might deem it necessary to have recourse to the non-execution clause” (Cotonou-agreement, 2010)

Two stages of dialogue are passed before negative measures in form of aid-cuts under

Article 96 can be made. When a breach of a democratic principle occurs, Article 8 of the

Cotonou-agreement is first intensified. There is already a considerable effort made to find a

solution to the infringing situation at this stage. If Article 8 dialogue fails to produce positive

18

change, the consultation procedure as laid out in Article 96 can be launched. The

government of the infringing state is invited to official consultations with representatives

from the EU to discuss the situation. Only after a negative outcome of these consultations

are negative measures potentially adopted. The following statement from the US diplomatic

mission to the EU in Brussels illustrates the situation:

“O’Brien stated that the EU was considering engaging Guinea in an “Article 96” dialogue (of

the Cotonou agreement) in which the GoG (Government of Guinea) would come to Brussels

and lay out their reform agenda. The dialogue would continue for three months and at the

end, the EU would decide whether to expand it to a regular, on-going “Article 8” dialogue or

end it for lack of substantive progress in Guinea” (US Embassy 2004)

Political dialogue in general, and Article 96 consultations specifically is a forum where

solutions can be discussed and tangible commitments, on behalf of both parties, can be

made to improve a certain situation. Moreover, it was not always the EU who initiated

Article 96 consultations. Consultations with Guinea Bissau in 2003, Togo in 2004 and

Mauritania in 2005 were conducted under the countries own initiatives (Laakso, et al., 2007,

p. 130). The lessons learned from consultations with Zimbabwe must also be highlighted.

The EU opened consultations with Zimbabwe in 2001 after a long lasting deterioration of the

human rights situation. Ever since the first meeting the consultations have been

characterised by difficulties and poor understanding. This has resulted in continuous

renewals of appropriate measures in the aftermath of the concluded 120 day consultation

period. As several authors have pointed out, the difficult record of Article 96 consultations

with Zimbabwe have influenced the EU to be more cautious before implementing the clause

at a later stage (Fierro, 2003; Laakso, et al., 2007; Mackie & Zinke, 2005). The Commission’s

proposal for the opening of consultations with Cote d’Ivoire in 2004, and the fact that the

Council turned down this proposal, strengthens the hypothesis of the importance of political

dialogue as a trigger for Article 96.

Relative strategic interest might still explain the lack of consultations in certain countries, as

for example Ethiopia and Nigeria, however, if we look at a broader selection of cases we find

that there are several instances where the EU has refrained from implementing Article 96 in

countries that cannot be considered of key strategic interest. Moreover, there seems to be

something more to the decision of implementing Article 96 consultations than mere

economic and security interests or a strategic special relationship.

19

VI. Conclusion

EU political conditionality has been subject to public and academic scrutiny since it was first

adopted as a policy in the 1990s. It has been used to qualify the EU as a “force of good” and

as a normative or ethical power. Conversely, it has been used to argue that the EU acts

arbitrarily and that policy outcome is a result of the relative strategic interests in a particular

country. This article suggests that the current understanding of the EU’s use of the human

rights and democracy clause is misleading. This is so because it claims unanimously that non-

cases of implementation can be accounted for by the strategic interest of the sender in the

target state. The studies are carried out with an implicit theoretical expectation of interests

governing the choice of behaviour. However, I have argued that there is a need for applying

a better suited conceptual apparatus allowing for the perception of actors as rationally

competent in order to assess what is right or appropriate behaviour – not only what is of

interest to them. At least, in order to formulate and test alternative hypotheses to the

interest-driven ones. It is necessary for the conditionality-literature to renew its relevance

for the wider debate on what characterizes the EU as a foreign policy actor. More concretely

if, why and how norms can influence foreign policy as such. The human rights and

democracy clause being incorporated in all EU’s external relations since 1995 provide us with

an excellent opportunity for hypothesis testing.

The empirical research presented in this article has contributed to the literature by

identifying a different universe of cases to be used in studies of aid conditionality. By

providing systematic data on the implementation of Article 96 Cotonou and 366a Lomé, this

study has shown that the pattern of implementation of the human rights and democracy

clause varies to a larger extent than previously stated. I then suggested that the current

understanding of the implementation of the clause is biased due to a lack of including all

potential target states in previous analyses. A systematic assessment shows that both

strategically important and not-important states have been exempted from Article 96

consultations in the aftermath of a breach of the essential elements in the Cotonou-

agreement. In previous studies, only strategically important states such as Ethiopia and

Nigeria have been used as examples, leading to the conclusion that it is the strategic interest

that governs the choice of implementation of the Article.

20

In addition, I have shown that the discussion of the EUs conditionality policy must be further

nuanced by separating the economic and political sticks in use. As the human rights and

democracy clause is a mixture of both a political stick (public criticism and an invitation for

official consultations), and an economic stick (the possibility to adopt restrictive measures),

the actions included in the Article 96 procedure must be analysed independently. I have

further shown that an economic stick is applied to most of the cases in the dataset while the

political stick of inviting a country to Article 96 consultations is not. Finally, I suggest that the

process of political dialogue between the EU and the respective target can provide an

additional explanation to the incoherent use of Article 96. Preliminary data, as shown in the

last section, proposes that successful political dialogue between the EU and the infringing

state more often lead to Article 96 consultations, because it is perceived as a forum where

tangible commitments, on behalf of both parties, can be made to solve the breach of human

right or democratic principles. This hypothesis must, however, be subject to further research

before it can be confirmed.

21

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http://dazzlepod.com/cable/04BRUSSELS1274/?q=guinea%20EU%20political%20dialogue%2 0article%208%2096

Annex 1: Economic indicators Year, Country Energy

production (Kt)* Export to the EU (mill €)**

Import from EU (mill €)**

Non-sanction cases

2010 Cote d’Ivoire 11891 3217 1744

2007 Nigeria 231339 10199 8459

2007 Kenya 14677 1060 1324

2005 Ethiopia 19853 284 593

2004 Cote d’Ivoire 9547 2201 1175

2003 Nigeria 216175 6164 5010

2002 Papua New Guinea 261 46

2002 Equatorial Guinea 744 217

2000 Solomon Islands 13 3

2001 Chad 58 162

2000 Mauritania 346 377

2000 Tanzania 12691 412 339

1997 Sierra Leone 143 98

1997 Congo-Brazzaville 12463 715 420

1996 Burundi 59 52

1996 Sierra Leone 106 107

Sanction-cases

2011 Guinea-Bissau 6 72

2010 Niger 196 384

2009 Niger 219 356

2009 Madagascar 452 418

2009 Guinea 384 571

2008 Mauritania 372 609

2007 Fiji 100 36

2005 Mauritania 458 482

2004 Guinea 367 335

2004 Togo 1942 69 379

2003 Guinea-Bissau 8 44

2003 Central African Rep 92 43

2001 Zimbabwe 8605 784 226

2001 Liberia 737 1555

2001 Cote d’Ivoire 5973 2057 1330

2000 Fiji 131 28

2000 Haiti 1542 21 106

2000 Cote d’Ivoire 6012 1959 1425

1999 Guinea-Bissau 9 30

1999 Comoros 7 25

1999 Niger 121 129

1998 Togo 1553 45 254

1996 Niger 11 122

*World Bank (2012) Energy production (kt of oil equivalent) Retrieved November 2011 from http://data.worldbank.org/indicator

**Eurostat, “Comext EU27 trade since 1988 by CN8” Retrieved January 2012 from http://epp.eurostat.ec.europa.eu/portal/page/portal/external_trade/data/database

24

Annex 2: Democracy-development Indicators, non-sanction cases

GDP Growth* MDG on Track**

MDG not on track**

Government effectiveness***

Rule of law***

Regulatory quality***

Control of Corruption***

2010 Cote d’Ivoire 0,68 1,71 2,33 3,75 3,01 0 2 7.2 9.5 19.6 9.6

2007 Nigeria 10,60 5,40 6,20 6,45 1 3 16 12 18 16

2007 Kenya 0,80 3,50 7,80 6,14 -1,59 1 1 32 16.7 41.3 17.5

2005 Ethiopia 8,30 1,51 -2,16 13,57 11,82 6 0 20 23 13.7 24.4

2004 Cote d’Ivoire 7.3 9.3 16.2 9.3

2003 Nigeria 1,10 5,40 3,10 1,55 10,30 1 3 18 4.3 10.3 4.9

2002 Papua New Guinea -3,77 1,86 -2,49 -0,12 -0,16 0 7 37.6 13.9 27.9 23.4

2002 Equatorial Guinea 21,91 41,45 13,48 61,90 19,46 4 0 6.3 7.2 6.4 1

2000 Solomon Islands 1,61 -1,44 1,78 -0,48 -14,27 13.7 1.9 7.4 25.4

2001 Chad 5,65 6,95 -0,68 -0,88 11,66 1 5 23.9 20.6 20.1 22.9

2000 Mauritania 5,82 -4,04 2,78 6,67 1,85 2 4 48.8 43.1 32.8 49.3

2000 Tanzania 4,54 3,53 3,71 4,84 4,93 1 1 40 40.7 40.2 14.6

1997 Sierra Leone 1,38 -1,95 -8,00 5,00 -16,74 3 1

1997 Congo -1,00 -5,50 4,00 4,30 -0,60 1 1 8.3 6.7 10.3 10.2

1996 Burundi 1,01 -6,24 -3,83 -7,92 -8,00 2.9 4.3 4.4 4.9

1996 Sierra Leone 1,38 -1,95 -8,00 5,00 3 1 4.4 5.3 4.9 26.3

*The World Bank Indicators: GDP Growth (%) in the 5 years up to breach. Retrieved November 2011 from http://data.worldbank.org/indicator **Millennium Development Goals Monitor (2012). Retrieved January 2012 from http://www.mdgmonitor.org/country_progress.cfm?c=BHR&cd= ***Worldwide Governance Indicators (2012). Measured in percentile rank (0-100) of country out of all countries in the world. Retrieved April 2012 from http://info.worldbank.org/governance/wgi/sc_country.asp

25

Annex 3: Official Development Assistance from EU institutions to selected countries (in USD, million) Non-sanction cases 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Nigeria 11,38 7,95 18,46 76,06 137,9 150 78,51 91,55 81,86

Kenya 113,5 57,4 138,5 93,54 84,34 101,6 Ethiopia 149,1 112,7 163,5 194,4 364,8

Papua New G 0,57 4,3 4,86 3,27 7,8

Equatorial G 2,08 2,63 4,08 1,56 3,75

Chad 17,81 38,35 44,14 41,42 52,82

Solomon Islands 2,17 5,96 44,1 31,51 4,01 Tanzania 43,2 70,95 32,44 96,66 70,15

Sierra Leone 41,12 20,58 21,16 16,01 7,24

Congo 16,18 10,22 4,15 0,73 2,2

Burundi 36,48 23,86 8,89 2,85 -,63

Sanction cases

Mauritania* 75,64 87 63,8 115,1 121,4 47,68 48,08 14,8 26,19 80,59 45,27 35,68 25,27 Cote d'Ivoire* 42,37 8,07 2,96 71,77 4,99 6,45 22,69 20,75 76,54 145,5 71,85 66,93

Madagascar 169,7 141,4 55,6 40,09

Guinea 42,16 46,02 37,57 15,22 21,34 30,9 36,56 41,19 72,36

Central African R 15,39 5,88 4,78 34,47 11,27

Zimbabwe 4,2 -1,48 5,46 6,47 14,19 Liberia 9,76 12,71 8,82 9,24 14,92

Fiji -0,85 -7,2 -2,8 -1,26 -0,77 19,77 8,96 10,74 6,03 12,8

Haiti 47,52 35,4 11,17 15,79 15,39

Guinea-Bissau 25,85 9,11 16,25 17,36 17,95 22,27 19,79 14,12 16,26

Comoros 3,14 10,33 6,81 3,85 3,54 Togo 8,72 4,76 5,07 3,3 3,09 3,65 4,57 5,25 8,16 10,37

Niger 43,81 40,73 38,66 40,46 46,01 19,22 13,31 38,92 114,7 152,9 64,44 150,8

OECD. DAC2a ODA Disbursements. Retrieved January 2012 from http://stats.oecd.org/Index.aspx?DatasetCode=TABLE2A Year of infringement in bold. *Countries belonging to both the “non-sanction” and the “sanction” group