Proposal for a Council Decision on the conclusion of consultations with the Republic of the Fiji Islands under Article 96 of the ACP-EC Partnership Agreement and Article 37 of the Development Cooperation Instrument
Date: 2007-08-10
Institutions: European Commission
Subjects: EU financing, Fiji, cooperation agreement (EU), coup d'état, democracy, development aid, human rights, rule of law

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 10.8.2007 
COM(2007) 467 final 

Proposal for a 

COUNCIL DECISION 

on the conclusion of consultations with the Republic of the Fiji Islands under Article 96 
of the ACP-EC Partnership Agreement and Article 37 of the Development Cooperation 
Instrument 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

On 27 February 2007 the European Union decided to open consultations with the Republic of 
the Fiji Islands under Article 96 of the ACP-EU Partnership Agreement, hereinafter referred 
to  as  the  Cotonou  Agreement.  This  decision  was  taken  because  the  military  take-over  that 
took place in Fiji on 5 December 2006 constituted a violation of all three essential elements 
listed in Article 9 of the Cotonou Agreement: human rights, democratic principles and the rule 
of law. After substantial preparatory contacts between the parties, formal consultations began 
on  18  April  2007  under  Article  96  of  the  Cotonou  Agreement  and  Article  37  of  the 
Development Cooperation Instrument. 

The  meeting  was  constructive  and  forward-looking,  and  allowed  for  a  frank  exchange  of 
views.  It  was  attended  by  three  representatives  of  Fiji's  Interim  Government,  who  had  the 
opportunity  to  present  the  Interim  Government's  views.  In  addition,  Fiji  presented  a  written 
submission,  of  which  the  EU  took  note.  A  group  of  Ambassadors  from  ACP  countries  also 
took part in the consultations together with representatives from the ACP Secretariat. 

The  Interim  Government  of  Fiji  agreed  a  number  of  commitments  at  the  meeting  regarding 
the three essential elements. These commitments are: 

A. Respect for Democratic Principles 

Commitment No.1 

That  free  and  fair  parliamentary  elections  take  place  within  24  months  from  1  March  2007 
subject  to  the  findings  of  the  assessment  to  be  carried  out  by  the  independent  auditors 
appointed by the Pacific Islands Forum Secretariat. The processes leading to, and the holding 
of the elections shall be jointly monitored, adapted and revised as necessary on the basis of 
mutually agreed benchmarks. This implies in particular: 

•  That by 30 June 2007 the Interim Government will adopt a schedule setting out dates for 
the  completion  of  the  various  steps  to  be  taken  in  preparation  for  the  new  Parliamentary 
Elections; 

•  That  the  schedule  specifies  the  timing  of  census,  redrafting  of  boundaries  and  electoral 

reform; 

•  That  determination  of  boundaries  and  electoral  reform  shall  be  carried  out  in  accordance 

with the Constitution; 

•  That measures will be taken to ensure the functioning of the Elections Office including the 
appointment  of  a  Supervisor  of  Elections  by  30  September  2007  in  accordance  with  the 
Constitution; 

•  That  the  appointment  of  the  Vice  President  shall  be  made  in  accordance  with  the 

Constitution; 

Commitment No.2 

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That  the  Interim  Government,  when  adopting  major  legislative,  fiscal  and  other  policy 
initiatives and changes,  shall  take into account consultations with civil society and all other 
relevant stakeholders. 

B. Rule of Law 

Commitment No.1 

That  the  Interim  Government  shall  use  best  endeavours  to  prevent  statements  by  security 
agencies destined to intimidate. 

Commitment No. 2 

That the Interim Government upholds the 1997 Constitution, and guarantees the normal and 
independent  functioning  of  Constitutional  institutions  such  as  the  Fiji  Human  Rights 
Commission,  Public  Service  Commission,  Constitutional  Offices  Commission.  The 
substantial independence and functioning of the Great Council of Chiefs will be preserved.  

Commitment No. 3 

That the independence of the judiciary is fully respected, that it is allowed to work freely and 
that its rulings are respected by all concerned parties, in particular: 

•  That the Interim Government undertakes that the tribunal pursuant to Section 138 (3) of the 

Constitution be appointed by 15 July 2007; 

•  That  any  appointment  and/or  dismissal  of  judges  is  henceforth  carried  out  in  strict 

conformity with Constitutional provisions and procedural rules; 

That no instances whatsoever occur, of whatever form, of interference by the military and the 
police or by the Interim Government with the judicial process, including full respect for the 
legal profession. 

Commitment No. 4 

That  all  criminal  proceedings  linked  to  corruption  are  dealt  with  through  the  appropriate 
judicial channels and that any other bodies that may be set up to investigate alleged cases of 
corruption will operate within constitutional boundaries. 

C. Human Rights and Fundamental Freedoms 

Commitment No. 1 

The Interim Government will take all necessary steps to facilitate that all allegations of human 
rights infringements are investigated or dealt with in accordance with the various procedures 
and forums under the laws of the Fiji Islands. 

Commitment No. 2 

The  Interim  Government  intends  to  lift  the  Public  Emergency  Regulations  in  May  2007 
subject to any threats to national security, public order and safety.  

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Commitment No. 3 

The  Interim  Government  is  committed  to  ensuring  that  the  Fiji  Human  Rights  Commission 
functions with full independence and in accordance with the Constitution. 

Commitment No. 4 

That  the  freedom  of  expression  and  the  freedom  of  the  media,  in  all  its  forms  are  fully 
respected as provided in the Constitution. 

D. Follow-up of Commitments 

Commitment No. 1 

That the Interim Government undertakes to maintain a regular dialogue to allow verification 
of progress made and gives EU and EC authorities/representatives full access to information 
on all matters linked to human rights, the peaceful restoration of democracy and the rule of 
law in Fiji. 

Commitment No. 2 

That the Interim Government cooperates fully with eventual missions from the EU and the EC 
for assessing and monitoring progress. 

Commitment No. 3 

That the Interim Government sends progress reports every three (3) months starting 30 June 
2007 regarding the essential elements of the Cotonou Agreement and the commitments. 

It is noted that certain issues can only be effectively addressed through a pragmatic approach 
which acknowledges the realities of the present and which focuses on the future.  

________ 

Provided the Interim Government respects these commitments, constitutional democracy will 
be  restored  not  later  than  1  March  2009.  Under  these  conditions,  the  armed  forces  would 
return  to  the  role  they  have  under  the  Constitution,  and  would  refrain  from  any  illegal 
involvement in the politics of the country. 

In  the  spirit  of  partnership  on  which  the  Cotonou  Agreement  is  built,  and  in  view  of  the 
important commitments made by Fiji, and hence the positive outcome of the consultations, the 
EU  expressed  its  readiness  to  support  the  process  of  transition.  In  particular,  the  EU  will 
continue  and  step  up  dialogue  with  the  Interim  Government  of  Fiji  to  ensure  the  swiftest 
possible return to full respect for human rights, democracy and the rule of law, without which 
full  normalisation  of  cooperation  with  Fiji  is  not  possible.  The  dialogue  will  be  conducted 
with  the  aim  of  contributing  to  the  establishment  of  a  durable  democratic  political  order, 
addressing  the  problem  of  Fiji's  "coup  culture"  in  order  to  bring  the  country  the  democracy 
and  stability  needed  to  protect  human  dignity  and  optimal  conditions  for  sustainable 
development. The EU will also further strengthen dialogue and cooperation with the Pacific 
Islands  Forum  as  well  as  its  member  countries,  regarding  Fiji.  The  Pacific  Islands  Forum 
plays a pivotal role in addressing Fiji's crisis. 

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The EU has stated its preparedness to follow developments very closely, on the basis of the 
monitoring and verification commitments undertaken by Fiji. The EU will verify the progress 
towards implementation of the commitments. In this context it is of particular importance that 
early measures are taken to ensure credible elections take place not later than 1 March 2009. 

At the conclusion of the consultations, in view of the positive outcome of the dialogue thus 
far,  the  Commission  proposes  to  adopt  appropriate  measures  under  Article  96  (2)(c)  of  the 
Cotonou Agreement and Article 37 of the Development Cooperation Instrument, as set out in 
the attached decision. 

The  measures  are  proposed  with  a  view  to  supporting  the  process  of  transition,  which  is 
acknowledged  to  have  delivered  some  positive  results,  while  motivating  the  Interim 
Government to firmly progress regarding the essential elements of the Cotonou Agreement. 

An  enhanced  political  dialogue  will  be  conducted  with  the  Fijian  authorities  over  the 
monitoring period in order to assess progress regarding the essential elements of the Cotonou 
Agreement. 

If  implementation  of  the  commitments  speeds  up,  or,  on  the  contrary  slows  down,  stops  or 
backslides,  the  EU  reserves  the  right  to  adjust  the  appropriate  measures  by  means  of  a  new 
Council decision amending the one proposed here. 

In  view  of  the  above,  and  in  accordance  with  Articles  3  and  37  of  the  Development 
Cooperation  Instrument  and  Articles  9  and  96  of  the  Cotonou  Agreement,  the  Commission 
proposes that the Council concludes the consultations with the Republic of the Fiji Islands and 
adopts the attached Decision. 

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Proposal for a 

COUNCIL DECISION 

on the conclusion of consultations with the Republic of the Fiji Islands under Article 96 
of the ACP-EC Partnership Agreement and Article 37 of the Development Cooperation 
Instrument 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community,  

Having  regard  to  the  ACP-EC  Partnership  Agreement  signed  in  Cotonou  on  23  June  20001 
and revised in Luxemburg on 25 June 20052, and in particular Article 96 thereof, 

Having  regard  to  the  Internal  Agreement  on  measures  to  be  taken  and  procedures  to  be 
followed  for  the  implementation  of  the  ACP-EC  Partnership  Agreement3,  and  in  particular 
Article 3 thereof, 

Having  regard  to  the  Development  Cooperation  Instrument4,  and  in  particular  Article  37 
thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  essential  elements  referred  to  in  Article  9  of  the  Cotonou  Agreement  have  been 
violated. 

The values referred to in Article 3 of the Development Cooperation Instrument have 
been violated. 

On 18 April 2007, pursuant to Article 96 of the Cotonou Agreement and Article 37 of 
the  Development  Cooperation  Instrument,  formal  consultations  began  with  the  ACP 
countries and the Republic of the Fiji Islands during which the Fijian authorities gave 
specific commitments to remedy the problems identified by the European Union and 
to implement them. 

Some substantive initiatives have been taken in respect of some of the commitments 
referred  to  above;  nevertheless  many  important  commitments  concerning  essential 
elements  of  the  Cotonou  Agreement  and  the  Development  Cooperation  Instrument 
have yet to be implemented, 

1 
2 
3 
4 

OJ L 317, 15.12.2000, p. 3. 
OJ L 287, 28.10.2005, p. 4. 
OJ L 317, 15.12.2000, p. 376. 
OJ L 378, 27.12.2006, p. 41 

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HAS DECIDED AS FOLLOWS:  

Article 1 

Consultations  with  the  Republic  of  the  Fiji  Islands  under  Article  96  of  the  Cotonou 
Agreement and Article 37 of the Development Cooperation Instrument are hereby concluded. 

Article 2 

The  appropriate  measures  set  out  in  the  annexed  letter  are  hereby  adopted  as  appropriate 
measures  under  Article  96(2)(c)  of  the  Cotonou  Agreement  and  Article  37  of  the 
Development Cooperation Instrument. 

Article 3 

This  Decision  shall  enter  into  force  on  the  day  of  its  adoption.  It  shall  be  published  in  the 
Official Journal of the European Union. 

It  shall  be  valid  for  24  months  from  the  date  of  its  adoption  by  the  Council.  It  shall  be 
reviewed regularly at least once every six months 

Done at Brussels,  

For the Council 
The President 

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ANNEX  

Draft letter 

H.E. Ratu Josefa ILOILO 
President of the Republic of the Fiji Islands 
Suva 
Fiji 

Excellency, 

The European Union attaches great importance to the provisions of Article 9 of the Cotonou 
Agreement  and  Article  3  of  the  Development  Cooperation  Instrument.  The  ACP-EC 
partnership is founded on respect for human rights, democratic principles and the rule of law, 
which  form  the  essential  elements  of  the  Cotonou  Agreement,  and  form  the  basis  of  our 
relations. 

On 11 December 2006 the Council of the European Union condemned the military takeover 
in Fiji. 

Under Article 96 of the Cotonou Agreement, and considering that the military takeover which 
took  place  on  5  December  2006  constituted  a  violation  of  the  essential  elements  listed  in 
Article 9 of that Agreement, the EU invited Fiji to consultations in order, as provided for in 
the  Agreement,  to  thoroughly  examine  the  situation  and,  where  necessary,  take  steps  to 
remedy it. 

The  formal  part  of  these  consultations  began  in  Brussels  on  18  April  2007.  The  Interim 
Government  of  Fiji  made  a  presentation  based  on  a  submission  dated  18  April  2007  on  the 
reasons  for  the  military  takeover  of  5th  December  2006,  on  developments  in  the  country's 
situation since the takeover, and on the Interim Government's programme for the transitional 
period. 

The EU took note of the Interim Government's submission of 18 April 2007 to the EU.  

For  its  part,  the  EU  was  pleased  that  the  Interim  Government  confirmed  a  number  of  key 
commitments  regarding  human  rights  and  fundamental  freedoms,  respect  for  democratic 
principles  and  the  rule  of  law,  as  noted  below,  and  proposed  positive  steps  regarding  their 
implementation.  Fiji  also  agreed  to  close  cooperation  regarding  the  monitoring  and 
verification of the commitments.  

Most of the commitments made in the context of the consultations will be implemented over 
an  extended  period,  and  it  is  consequently  necessary  to  monitor  and  verify  their 
implementation  closely  over  time.  The  EU  underlines  that,  following  the  credible  general 
elections  held  in  Fiji  as  recently  as  May  2006  and  in  the  light  of  the  findings  and 
recommendations of the EU Election Monitoring Mission, and notably the final report from 
the EU Chief Observer, MEP Istvan Szent-Ivanyi, the EU is of the view that new and credible 
elections can be held well within the agreed deadline of 28 February 2009. 

The  EU  stresses  the  importance  of  early  and  full  compliance  with  the  agreed  commitments 
listed in annex. 

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The EU notes that the Interim Government, in accordance with the agreed commitments, has 
lifted  the  Public  Emergency  Regulations  on  31  May  2007  and  accepted  the  findings  and 
recommendations of the Pacific Islands Forum independent election experts on 19 June 2007. 

In  the  spirit  of  partnership  that  underlies  the  Cotonou  Agreement,  and  in  the  light  of  the 
positive  outcome  of  the  consultations,  the  EU  expressed  its  readiness  to  support 
implementation of Fiji's commitments. 

The EU has adopted the following appropriate measures under Article 96(2)(c) of the revised 
Cotonou Agreement and Article 37 of the Development Cooperation Instrument: 

–  humanitarian aid as well as direct support to civil society may continue; 

–  cooperation activities under way and/or in preparation, in particular under the 8th and 9th 

EDFs may continue; 

–  the 9th EDF End-of-term Review may proceed ; 

–  cooperation activities, which would help the return to democracy and improve governance, 

may be pursued, save under very exceptional circumstances; 

–  implementation  of  the  sugar  reform  accompanying  measures  for  2006  may  proceed.  The 
financing agreement was signed at the technical level by Fiji on 19 June 2007. It is noted 
that the financing agreement includes a suspension clause; 

–  the Interim Government's acceptance on 19 June 2007 of the report of 7 June 2007 by the 
Pacific  Islands  Forum's  independent  election  experts  is  in  line  with  Commitment  n°  1 
agreed on 18 April 2007 between the Interim Government and the EU. Consequently, the 
preparation  and  eventual  signing  of  the  multi-annual  indicative  programme  for  sugar 
reform accompanying measures for 2008-2010 can proceed; 

–  the finalisation, signing at the technical level and implementation of the Country Strategy 
Paper  and  National  Indicative  Programme  for  the  10th  EDF  with  an  indicative  financial 
envelope,  as  well  as  the  possible  allocation  of  an  incentive  tranche  of  up  to  25%  of  this 
sum, will be subject to respect of the commitments made with regard to human rights and 
the  rule  of  law;  notably  that  the  Interim  Government  upholds  the  Constitution;  that  the 
independence  of  the  judiciary  is  fully  respected;  that  all  allegations  of  human  rights 
infringements are investigated or dealt with in accordance with the various procedures and 
forums under the laws of the Fiji Islands and that the Interim Government shall  use  best 
endeavours to prevent statements by security agencies destined to intimidate; 

–  the 2007 sugar allocation will be zero; 

–  the 2008 sugar allocation, will become available subject to evidence of credible and timely 
preparation  of  elections  in  accordance  with  the  agreed  commitments;  notably  regarding 
census, redrafting of boundaries and electoral reform in accordance with the Constitution; 
that measures will be taken to ensure the functioning of the Elections Office, including the 
appointment  by  a  Supervisor  of  Elections  by  30  September  2007  in  accordance  with  the 
Constitution; 

–  the 2009 sugar allocation will become available subject to a legitimate government being 

in place; 

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–  the 2010  sugar allocation will  depend on progress made  in implementing the  2009  sugar 

allocation and the continuation of the democratic process; 

–  additional  support  for  the  preparation  and  implementation  of  key  commitments,  in 
particular  in  support  of  the  preparation  and/or  holding  of  elections,  could  be  considered 
over and above what is described in this letter; 

–  regional cooperation, and Fiji's participation in it, is unaffected; 

–  cooperation  with  the  European  Investment  Bank  and  the  Centre  for  the  Development  of 

Enterprise may continue subject to the timely fulfilment of commitments made. 

Follow-up of the commitments will be in accordance with the commitments on monitoring in 
terms of regular dialogue, cooperation with missions and reporting, as referred to in annex. 

Furthermore, the EU expects Fiji to cooperate fully with the Pacific Islands Forum regarding 
the implementation of the recommendations by the Eminent Persons' Group, as endorsed by 
the Forum Foreign Ministers at their meeting in Vanuatu on 16 March 2007. 

The European Union will continue to follow the situation in Fiji closely. Under Article 8 of 
the Cotonou Agreement, an enhanced political dialogue will be conducted with Fiji to ensure 
the respect for human rights, restoration of democracy and respect for the rule of law. 

If  there  is  a  slowing  down,  breakdown  or  reversal  in  the  implementation  by  the  Interim 
Government  of  the  commitments  made,  the  EU  reserves  the  right  to  adjust  the  appropriate 
measures. 

The EU stresses that Fiji's privileges in its cooperation with the EU depend on respect for the 
essential  elements  of  the  Cotonou  Agreement  and  for  the  values  referred  to  in  the 
Development  Cooperation  Instrument.  In  order  to  convince  the  EU  that  the  interim 
government is fully prepared to follow-up on the commitments given, it is essential that early 
and substantial progress is made in the fulfilment of the agreed commitments. 

Yours sincerely,  

Done at Brussels, 

For the Commission 

For the Council 

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ANNEX TO THE ANNEX 

AGREED COMMITMENTS WITH THE REPUBLIC OF THE FIJI ISLANDS 

A. Respect for Democratic Principles 

Commitment No.1 

That  free  and  fair  parliamentary  elections  take  place  within  24  months  from  1  March  2007 
subject  to  the  findings  of  the  assessment  to  be  carried  out  by  the  independent  auditors 
appointed by the Pacific Islands Forum Secretariat. The processes leading to and the holding 
of the elections shall be jointly monitored, adapted and revised as necessary on the basis of 
mutually agreed benchmarks. This implies in particular: 

•  That by 30 June 2007 the Interim Government will adopt a schedule setting out dates for 
the  completion  of  the  various  steps  to  be  taken  in  preparation  for  the  new  Parliamentary 
Elections; 

•  That  the  schedule  specifies  the  timing  of  census,  redrafting  of  boundaries  and  electoral 

reform; 

•  That  determination  of  boundaries  and  electoral  reform  shall  be  carried  out  in  accordance 

with the Constitution; 

•  That measures will be taken to ensure the functioning of the Elections Office including the 
appointment  of  a  Supervisor  of  Elections  by  30  September  2007  in  accordance  with  the 
Constitution; 

•  That  the  appointment  of  the  Vice  President  shall  be  made  in  accordance  with  the 

Constitution; 

Commitment No.2 

That  the  Interim  Government,  when  adopting  major  legislative,  fiscal  and  other  policy 
initiatives and changes,  shall  take into account consultations with civil society and all other 
relevant stakeholders.  

B. Rule of Law 

Commitment No.1 

That  the  Interim  Government  shall  use  best  endeavours  to  prevent  statements  by  security 
agencies destined to intimidate. 

Commitment No. 2 

That the Interim Government upholds the 1997 Constitution, and guarantees the normal and 
independent  functioning  of  Constitutional  institutions  such  as  the  Fiji  Human  Rights 
Commission,  Public  Service  Commission,  Constitutional  Offices  Commission.  The 
substantial independence and functioning of the Great Council of Chiefs will be preserved.  

Commitment No. 3 

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That the independence of the judiciary is fully respected, that it is allowed to work freely and 
that its rulings are respected by all concerned parties, in particular: 

•  That the Interim Government undertakes that the tribunal pursuant to Section 138 (3) of the 

Constitution be appointed by 15 July 2007; 

•  That  any  appointment  and/or  dismissal  of  judges  is  henceforth  carried  out  in  strict 

conformity with Constitutional provisions and procedural rules; 

•  That no instances whatsoever occur, of whatever form, of interference by the military and 
the police or by the Interim Government with the judicial process, including full respect for 
the legal profession; 

Commitment No. 4 

That  all  criminal  proceedings  linked  to  corruption  are  dealt  with  through  the  appropriate 
judicial channels and that any other bodies that may be set up to investigate alleged cases of 
corruption will operate within constitutional boundaries. 

C. Human Rights and Fundamental Freedoms 

Commitment No. 1 

The Interim Government will take all necessary steps to facilitate that all allegations of human 
rights infringements are investigated or dealt with in accordance with the various procedures 
and forums under the laws of the Fiji Islands. 

Commitment No. 2 

The  Interim  Government  intends  to  lift  the  Public  Emergency  Regulations  in  May  2007 
subject to any threats to national security, public order and safety.  

Commitment No. 3 

The  Interim  Government  is  committed  to  ensuring  that  the  Fiji  Human  Rights  Commission 
functions with full independence and in accordance with the Constitution. 

Commitment No. 4 

That  the  freedom  of  expression  and  the  freedom  of  the  media,  in  all  its  forms  are  fully 
respected as provided in the Constitution. 

D. Follow-up of Commitments 

Commitment No. 1 

That the Interim Government undertakes to maintain a regular dialogue to allow verification 
of progress made and gives EU and EC authorities/representatives full access to information 
on all matters linked to human rights, the peaceful restoration of democracy and the rule of 
law in Fiji. 

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Commitment No. 2 

That the Interim Government cooperates fully with eventual missions from the EU and the EC 
for assessing and monitoring progress. 

Commitment No. 3 

That the Interim Government sends progress reports every three (3) months starting 30 June 
2007 regarding the essential elements of the Cotonou Agreement and the commitments. 

It is noted that certain issues can only be effectively addressed through a pragmatic approach 
which acknowledges the realities of the present and which focuses on the future.  

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