A. The Utility of Integrating Counter-Terrorism Clauses in the CPA II

Integrating counter-terrorism clauses in the CPA II may be useful. Nevertheless, the utility of the approach can be compromised as a result of the broad scope of the provisions. The indeterminate terms in which some of the clauses are couched potentially reduces the clarity and effectiveness of the obligations. That being said, arguments backing the utility of the new counter-terrorism clauses can be convincing.

Evidence of the utility of the clauses is established by the fact that more money is promised to ACP States to bolster their capacity in combating terrorism. In addition, the clauses on counter-terrorism are also useful given that they help to highlight the importance of defeating terrorists. This is more so because terrorist attacks often have devastating effects on the economies of the States that are targeted. Other countries that deal with such States also bear the brunt. What is more, by integrating the clauses in the CPA II, reluctant ACP countries are compelled to comply with international rules on counter-terrorism. Simply put, a comprehensive approach to the broader challenges that face developing countries makes more sense.

Article 11(a) of the CPA II expresses a general commitment by the parties to combat terrorism. However, the Article does not reveal the method by which this commitment will be financially sustained. Most ACP countries are Least Developed Countries (LDCs). This entails that they exhibit the lowest social and development indicators of the Human Development Index.Footnote ²⁰ The concerns that capture the consciousness of those living in such countries have more to do with the basic necessities of life. Discussions on counter-terrorism and other lofty strategic goals often sound remote. Although Article 11(a) does not make provision for additional money that is to be used in supporting the capacity of ACP countries in combating terrorism, the EU has been clear on the point that development money provided through the EDF is not to be used to fight terrorism. In one of its declarations appended to the CPA II, the Union reveals that financial and technical assistance in the area of cooperation in the fight against terrorism will be funded by resources other than those for the financing of ACP–EU development cooperation.Footnote ²¹ The declaration is important because it promises more money for ACP countries to combat terrorism. While it is generally believed that the extra money is to be used genuinely to address the surge of terrorist activities in certain ACP countries, it is also contended that the option for more counter-terrorism funds may have the opposite and unintended effect of promoting rent-seeking by some ACP States.Footnote ²²

The new counter-terrorism clauses reveal the fact that terrorism is an important international security threat that has to be dealt with by both the developed and developing countries. Amongst the key threats is the danger that States which possess or have the potential to possess nuclear weapons may become failed States vulnerable to terrorists. In the EU, the Madrid and London bombings of March 2004 and July 2005 highlighted the fact that terrorism is a serious threat to Europe.Footnote ²³ This fact is established by the expediency with which European countries have implemented the EU Framework Decision on combating terrorism of 2002.Footnote ²⁴ The fact is equally exposed by the Union in its European Security Strategy (the EUSS or the Strategy).Footnote ²⁵ The Strategy states that ‘[t]errorism puts lives at risk: it imposes large costs; it seeks to undermine the openness and tolerance of our societies and it poses a growing strategic threat to the whole of Europe.’Footnote ²⁶ Following the bombing in Madrid, the Council of the EU decided to adopt a number of measures to address the issue in Europe. The measures included the appointment of a counter-terrorism coordinator as well as the strengthening of the Situation Centre in the Council Secretariat.Footnote ²⁷ Concrete realizations have been made within the EU, such as the control of funding to suspected terrorist groups.Footnote ²⁸ These steps notwithstanding, the threat remains real and former MI5 chief, Eliza Manningham-Buller, has noted that the British secret service has been tracking more than 1600 members of suspected terrorist cells. In Germany, chief federal prosecutor, Monika Harms, has also warned of terrorist threats.Footnote ²⁹ In Africa terrorists attacked US embassies in East Africa in 1998. In 2002 there was an attack in Mombassa. There have been concerns that terrorists are infiltrating the HornFootnote ³⁰ as well as the Sahel region.Footnote ³¹ What is of greater concern though is the fact that instability in some African States may serve as the bait around which terrorists can regroup and plan their activities.Footnote ³² Former UN Secretary General Kofi Annan intimated: ‘Terrorists exploit weak states as havens where they can hide from arrest, and train or recruit personnel. Making all states more capable and responsible must therefore be the cornerstone of our global counter-terrorism effort.’Footnote ³³

The greatest threat regarding terrorism is the possibility that States with established nuclear capability such as North Korea and Pakistan may become failed States, opening them to terrorist networks.Footnote ³⁴ This threat is also linked to concerns over the potential that some uranium-rich African States can be structurally vulnerable to terrorist networks. Such States include the Democratic Republic of Congo (the DRC), Niger and Somalia. So, the introduction of the counter-terrorism clauses in the CPA II makes sense to the extent that it strengthens the governance capacity of ACP countries.

Terrorist attacks often affect the economies of the countries that are attacked. Neighbouring countries and those that have business relations with the country attacked are also affected. In this regard, therefore, it is believed that terrorism has a direct impact on the well-being of citizens in countries afflicted by an attack.Footnote ³⁵ In other words, terrorism has the potential to aggravate poverty. As such it makes sense to introduce counter-terrorism clauses in an agreement that mainly deals with poverty reduction and eradication.Footnote ³⁶

Another positive aspect of integrating counter-terrorism clauses in the CPA II is the enhancement of compliance with international law. Article 11(a) of the CPA II spells out the importance of international norms in this regard. It is revealing that the majority of the parties to the CPA II have neither ratified nor signed certain important international conventions on counter-terrorism. For instance, only 11 EU–ACP countries have signed the International Convention for the Suppression of Terrorist Bombings of 15 December 1997.Footnote ³⁷ In addition, nine of the signatories of the CPA II have endorsed the International Convention for the Suppression of the Financing of Terrorism adopted by the United Nations General Assembly on 9 December 1999.Footnote ³⁸ At the regional level the picture is slightly encouraging for African countries. For example, of the 53 Member States of the African Union, 48 have signed the OAU Convention on the Prevention and Combating of Terrorism adopted in Algiers on 14 July 1999.Footnote ³⁹ At the EU level, Member States adopted Council Regulation 2580 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism in 2001.Footnote ⁴⁰ The framework decision on terrorism that was adopted in 2002 has the legal force of a Regulation.Footnote ⁴¹ Although these supranational EU measures are not constitutive of international law per se, they make reference to the importance of adhering to international norms. It is believed that by introducing the clauses on counter-terrorism in the CPA II, the parties will be encouraged to sign and ratify the international conventions on counter-terrorism. The provision by the EU of more funds in this regard is a positive signal. However, the Union's Member States also need to sign up to the international conventions. The CPA II is a partnership agreement and obligations are to be applied equally on both sides. Indeed, equality is regarded by the parties as the fundamental principle of the partnership.Footnote ⁴²

Finally, it can be argued that the integration of counter-terrorism clauses in the CPA II is sound because it reflects the comprehensive nature of the partnership. This in turn is suggestive of the fact that many challenges today are inter-linked and need to be addressed duly. The parties realize that the problems posed by terrorism cannot be resolved solely by security means. In their Summit meeting of June 2002, held in Seville, EU leaders declared that amongst the main features of their contribution to the international coalition against terrorism will be the provision of technical assistance to third countries. It is expected that assistance would be used as a fillip to bolster the capacity of developing countries to effectively address the threat of international terrorism. They also asserted their willingness to incorporate counter-terrorism provisions in EU treaties with third countries.Footnote ⁴³ This explains why the Union has made the mainstreaming of counter-terrorism in its external relations one of the critical areas for cooperation in its counter-terrorism strategy.Footnote ⁴⁴ That being said, it should be noted that the integration of the clauses in the development cooperation agreement is debatable.

B. Uncertainties Regarding the Introduction of Counter-Terrorism clauses in the CPA II

One may conclude from the preceding analysis that there are good reasons for the incorporation of counter-terrorism clauses in the CPA II. However, the advantages of integrating such provisions in a development cooperation agreement between developed countries and a motley of developing nations raises many questions. To begin, a number of important terms are imprecise. In addition, the strict, literal interpretation and application of the clauses may have undetermined effects that negate the goals desired by the parties. Moreover, the obligations as presented in the CPA II, as well as the appended declarations, appear to be one-sided. Furthermore, nothing is provided in terms of the consideration for victims. What is more, issues of jurisdiction are left to speculation and the presentation of the EU and the ACP States as two actors with coherent approaches on counter-terrorism appears over-stretched. Of greater importance is the fact that the CPA II needlessly over-emphasizes the terror threat in the ACP, a fortiori, Sub-Saharan African countries.

It is understandable that the CPA II is a treaty that espouses broad obligations. It would be unfair to criticize the drafters of the text for not being sufficiently specific as to the meaning of certain terms. Clarification of imprecise terms may be expected from Joint EU–ACP Council statements and decisions. Recourse may also be made to the canons of interpretation in international law as provided for in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969. However, it is believed that a clear definition of an important concept such as terrorism which is quintessential to the revised CPA could have been worthwhile. One option would have been to extrapolate from the contextual and purposive definition of terrorist offences provided for under the EU Framework Decision on terrorism.Footnote ⁴⁵ Article 1(1) of the Framework Decision stipulates, inter alia, that terrorist offences shall be deemed as ‘attacks upon a person's life which may cause death’; ‘attacks upon the physical integrity of a person’; ‘kidnapping or hostage taking’ and ‘causing extensive destruction to a government or public facility’.Footnote ⁴⁶ To be regarded as terrorist offences the acts must have been carried out with the goal of either intimidating a population; compelling a government or an international organization to perform an act in a specific way; or seriously destabilizing or destroying the fundamental, political, constitutional, economic, or social structures of a given country or international organization.Footnote ⁴⁷ The description of terrorist offences in the Framework Decision is not perfect and may not pacify all and sundry.Footnote ⁴⁸ However, its scope and degree of precision are commendable.Footnote ⁴⁹ This is in stark contrast to the conspicuous absence of a definition of terrorism or the scope of terrorist activities under the CPA II. The absence of a definition of terrorism in the CPA II can be explained by the protean nature of the concept.

Uncertainties regarding the definition of terrorism are not novel. Many United Nations Conventions that are either directly or indirectly related to the fight against terrorism provide statements as to the types of actions required for the purposes of the specific convention or protocol.Footnote ⁵⁰ However, none of the treaties or protocols provides an overarching or comprehensive definition of terrorism. For instance, under the Convention for the Suppression for the Unlawful Seizure of Aircraft signed on 16 December 1970, qualification as to the composition of acts of terrorism for the purposes of the Convention is limited to the wording of Article 1 which provides that: ‘Any person who on board an aircraft in flight (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts to perform any such act, commits an offence (hereinafter referred to as “the offence”).’

The document further specifies that the Convention is not applicable to aircraft in military, customs or police services.Footnote ⁵¹ The 1999 International Convention for the Suppression of the Financing of TerrorismFootnote ⁵² provides a more detailed description of the acts that are constitutive of an offence under the Convention. Article 2(1) is to the effect that:

From these two examples it may be deduced that the provisions are relatively limited in their scope of the actions or offence covered. While the 1970 Convention mainly deals with hostage takings on board an aircraft, the 1999 Treaty addresses mainly situations of armed conflict. In addition it also defers key definitions to other treaties in the annex of the document. However, as aforementioned, the treaties in the annex reveal little in terms of definitions of terrorism.

A number of non-treaty-related initiatives have been taken in a bid to specify the definition of terrorism. These include major United Nations Security Council ResolutionsFootnote ⁵⁵ and the report of December 2004 submitted by the High-Level Panel on Threats, Challenges and Change (HLP report).Footnote ⁵⁶ Although the main Security Council Resolutions have not precisely spelt out what constitutes the act of terrorism, it is important to note that Resolution 1566 (2004) provides a clear indication of a broad and internationally agreed consensus on the meaning of terrorism. Sponsored by Russia, following the bombings in Beslan, Ossetia, the resolution enjoyed wide support. It recalled that:

The emphasis on the point that terrorism cannot be justified regardless of the pretext and motive has been recurrent in other Security Council Resolutions.Footnote ⁵⁹ The HLP report equally highlighted the preceding point when it noted that ‘… there is nothing in the fact of occupation that justifies the targeting and killing of civilians’.Footnote ⁶⁰ The HLP considered the main difficulties associated with the definition of terrorism. It intimated that ‘[t]he first is the argument that any definition should include States' use of armed forces against civilians.’Footnote ⁶¹ It further contended that ‘[t]he second objection is that peoples under foreign occupation have a right to resistance and a definition of terrorism should not override this right.’Footnote ⁶² In calling for a comprehensive convention on terrorism, the HLP went on to provide a signal as to the nature of the actions that would qualify as terrorist acts. These include:

This definition approximately coincides with that of paragraph 3 of UNSC resolution 1566 (2004). Mindful that the CPA II was signed after these international initiatives, one would have expected that such endeavours geared at circumscribing the remit of terrorist actions would be reflected in the counter-terrorism clauses of the CPA II.

The second debatable issue regarding the introduction of counter-terrorism clauses under the CPA II relates to the undetermined effects that the approach may have in terms of civil liberties. One of the positive aspects of the EU Framework Decision is that it contains a safety valve. Article 1(2) is a clear caveat or symbol of caution to the entire body of norms contained in Article 1(1). It is to the effect that the implementation of the Framework Decision should not be effected in violation of fundamental rights and legal principles set in Article 6 of Treaty of the European Union. This is an important safeguard against law enforcement officials who may be poised to strictly implement the word of the Framework Decision in utter disregard of fundamental human rights such as the right to life and the right to be protected against torture. The recent debates surrounding the practice of rendition by the US Central Intelligence Agency (CIA) and the role of certain EU Member States as conduits or channels through which the CIA flights were conducted, highlights the importance of keeping the so-called ‘global war on terror’ within the law.Footnote ⁶⁴

The CPA II does not make provision for the important safeguards against potential abuse of the counter-terrorism clauses by some of the authoritarian leaders in certain ACP States. In countries like Cameroon, Ethiopia, Nigeria, and Uganda amongst others, genuine political dissidents have recently been branded as terrorists.Footnote ⁶⁵ Calls have been made for greater attention to be paid to ‘state terrorism’ used in Zimbabwe.Footnote ⁶⁶ Neither the CPA II nor the EU Framework Decision correctly refers to state terrorism. This is because violations by States of the human rights of nationals and aliens are sufficiently addressed under international human rights rules and the rules on state responsibility.Footnote ⁶⁷

As regards the EU, the campaign against terrorism has had inadvertent negative effects on the manner in which some security services address security concerns that are increasingly impacting on aliens.Footnote ⁶⁸ There is an over-riding need to maintain the fine line between the necessities of safeguarding public security, on the one hand, and respecting civil liberties on the other.Footnote ⁶⁹ Unfortunately, the parties to the CPA II fail to take bolder steps in this regard.

The CPA II provisions on counter-terrorism are predicated on the factually refutable presumption that the parties are equal. They are, de jure. De facto, however, they are not. As a major provider of development assistance to ACP States, the EU has the powers to determine the direction of its relations with ACP countries under the CPA framework. In its economic relations with other third and more influential international actors such as China, India and Pakistan, amongst others, the EU has lesser leverage than it does with ACP countries. EU Cooperation Agreements with countries such as Pakistan,Footnote ⁷⁰ JordanFootnote ⁷¹ and LebanonFootnote ⁷² were all signed in the post-9/11 era but do not contain counter-terrorism clauses.Footnote ⁷³ The reasons for omitting counter-terrorism clauses in agreements with countries that are more relevant in the ‘global war on terrorism’ (Pakistan, Jordan, Lebanon) and for introducing the clauses in the CPA II in its relations with countries whose relevance in the broader struggle against terrorism is debatable, is open to question.

Assuming that terrorism were regarded by the parties to the CPA II as a key threat, it is worrying that they do not make mention of the situation of victims who are either directly or remotely affected by terrorist attacks. Although the fate of victims is mainly confined to the eighth recital of the preamble to the EU Framework Decision on combating terrorism, this inclusion is preferable to the silence reflected in the CPA II on the matter. In contrast, the Protocol to the OAU Convention on the Prevention and Combating of Terrorism of 2004Footnote ⁷⁴ has a special provision for victims. It is to the effect that they will be compensated from the confiscated assets and funds of terrorists. Although this poses a number of problems, such as uncertainty of compensation, it is preferable when compared to the muted approach adopted by the parties to the CPA II. The lot of victims needs to be considered more. This need is recognized by former UN Secretary General Kofi Annan when he asserts that ‘we must pay more attention to the victims of terrorism, and make sure their voices can be heard’.Footnote ⁷⁵ It should be noted that UNSC Resolution 1566 (2004) also made provision for the creation of an international fund to cater for the needs of victims and their families. Money for the fund would be partly sourced from voluntary contributions as well as from the confiscated assets of terrorists.Footnote ⁷⁶

The CPA II makes no mention of jurisdictional issues. It is assumed that the provisions on counter-terrorism will be applied hitch-free. The approach adopted by Member States of the EU is different. Article 9 of the EU Framework Decision on combating terrorism is an explicit provision on jurisdiction and prosecution. Exercise of jurisdiction under the article is a function of the nationality of the offender, the location of the place where the offence is committed or a combination of both. In Article 9(2) EU Member States reveal their intention to cooperate on issues pertaining to jurisdiction. This is in sharp contrast to the broad and lofty affirmations of Article 11(a) of the CPA II that can hardly be acted upon and enforced.

The article on the need to combat terrorism in the CPA II refers to ‘Parties’. This is legally sound. It is also politically correct. Reality could not be farther. ACP States are very diverse. The pervasive common feature that they tend to share is their predilection for the EU's money. The security and strategic challenges that they face vary in no small measure as a result of their cultural, demographic and natural endowments. For instance, Nigeria is the most populated African country and has about 67 million Muslims. There have been concerns that radical Islam may be gaining ground in certain parts of the country.Footnote ⁷⁷ The adoption of Sharia'a law in some of the Northern States has strengthened this view. The challenges faced by countries of the Sahel as well as those in the Horn in terms of terrorism, cannot be easily compared to the relatively tranquil experiences of countries like Botswana, Namibia and Mauritius, amongst others.

Of greater importance is the fact that EU Member States also differ in terms of their approaches regarding the perception of terror threats and their reaction thereto. The debate surrounding collaboration between the US and some Member States of the EU in the CIA-led rendition flights has corroborated the fact that EU States perceive and react to threats in ways that are subtly different.Footnote ⁷⁸ Reducing their positions in the CPA II by the use of the word ‘Parties’ is necessary but simplistic. The European Parliament's Committee on CIA Activities in Europe singled out countries like Austria, Italy, Poland, Portugal and the UK for criticism on their role in the CIA renditions flights.Footnote ⁷⁹ What is more, in certain key areas, such as the sharing of information between EU Member States, cooperation is hardly an absolute proposition.Footnote ⁸⁰

Finally, from a broad perspective, terrorism is not an over-riding or real issue for most countries of the ACP group, especially for many African countries.Footnote ⁸¹ It is true that the EU Strategy for Africa refers to terrorism on eight separate occasions.Footnote ⁸² That in itself is not a sufficient reason to include it in a development cooperation treaty text.Footnote ⁸³ It can be argued that the problems posed by terrorist groups are more pervasive in certain North African countries including Algeria and Egypt than in Sub-Saharan Africa. For instance, in Algeria the Al-Qaeda Organization in the Islamic Maghreb formerly known as the Salafist Group for Preaching and Combat (GSPC) has been very active.Footnote ⁸⁴ In Egypt, the activities of radical groups go back to the 1970s. Such groups included the Takfir Wa Al-Hijra, Al Jihad, Soldiers of God and Islamic Liberation Army, amongst others.Footnote ⁸⁵ The Barcelona Declaration which underpins Euro-Mediterranean relations is clear on the need for counter-terrorism measures to be adopted by both sides.Footnote ⁸⁶ In addition, anti-terrorism provisions are included in EU's cooperation agreements with Algeria and Egypt. It can be argued that Islamic proselytizing may generate concerns respecting the expansion of radicalism into Sub-Saharan Africa. Yet such fears are still to be borne out in strategic and overriding terms.

Based on the standard of a balance of probabilities, it can be concluded that the utility of the integration of counter-terrorism clauses in an agreement, the primary objective of which is poverty reduction, is debatable, at best. This need not necessarily be the case regarding the non-proliferation of WMD clauses incorporated into the CPA II.

A. Utility of Including Non-Proliferation of WMD Clauses in the CPA II

Article 11(b) of the CPA II on cooperation in countering the proliferation of weapons of mass destruction is more elaborate than the provisions relating to counter-terrorism. By virtue of Article 11(b) the parties express their desire to collaborate in addressing the problem which is deemed as ‘one of the most serious threats to international stability and security’.Footnote ⁸⁷ The signatories also enumerate the modalities towards the attainment of the goal of non-proliferation.Footnote ⁸⁸ An outline is equally given of the procedure to be followed in the event of a breach of the obligations of Article 11(b).Footnote ⁸⁹ The details included in the clauses on non-proliferation dwarf the laconic and superficial provisions on counter-terrorism. Arguments can be made in support of the inclusion of non-proliferation clauses in the CPA II.

At first glance it may appear outlandish that non-proliferation clauses are included in the CPA II, which is first and foremost a treaty aimed at poverty reduction. Nevertheless, there are positive aspects to the integration of the provisions. First, the ACP countries are promised more money in their non-proliferation efforts. Secondly, it is fair and reasonable to include non-proliferation clauses in a cooperation agreement like the CPA because WMDs constitute a real threat to the world. Thirdly, non-proliferation clauses have the potential to constrain maverick developing countries which have expensive and needless nuclear ambitions. They would be encouraged if not coerced to better use scarce funds for more productive, cheaper and sustainable programmes that respond to the needs of the poor. Fourthly, the clauses facilitate expedient compliance with an international legal security regime that matters for the stability of the world. Finally, the inclusion of sanctions for breach of the obligation on non-proliferation of WMDs can be interpreted as a means of encouraging the parties to focus on the main goal of the partnership, to wit, the development of ACP countries. These reasons will not be addressed in turn.

The last limb of Article 11(b)(2) of the CPA II is to the effect that ‘[f]inancial and technical assistance in the area of cooperation to counter the proliferation of weapons of mass destruction will be financed by specific instruments other than those intended for the financing of ACP-EC cooperation.’ This clause is important because it indirectly guarantees extra money for countries that take positive actions to comply with the provision. It entails that resources to be used for the non-proliferation initiative will not be dependent on the amount of programmable and non-programmable funds within the framework of the EDF.Footnote ⁹⁰ Tersely put, through Article 11(b)(2) the EU opens up the option of additional money for ACP States that are actively and verifiably committed to non-proliferation. The approach reflects a broader strategy adopted by the Union to address the threats posed by WMDs.Footnote ⁹¹

Whether one refers to radiological, chemical, biological, or nuclear weapons, the threats posed by WMDs have been recognized.Footnote ⁹² In 2003 the High Representative for the EU's Common Foreign and Security Policy appointed a Personal Representative for Non-Proliferation. The job description of the holder of the post included the coordination of the positions of EU Member States and also the articulation and development of the EU's strategy in the area of non-proliferation.Footnote ⁹³ In concrete terms the Union has adopted forward-looking measures in certain important nuclear States in a bid to address the problem of proliferation of WMDs.Footnote ⁹⁴ For instance it ear-marked €8.9 million for the period 1999–2000 for the destruction of the chemical weapons plant in Gorny in the Saratov region of Russia.Footnote ⁹⁵

Of greater concern is the possibility that WMDs can be obtained and used by terrorists.Footnote ⁹⁶ The fear that terrorists may be able to use WMDs in the future is expressed in the European Security Strategy of 2003.Footnote ⁹⁷ Top officials in the world of intelligence have voiced concerns over terrorists obtaining and using WMDs.Footnote ⁹⁸ So, fears regarding the threats posed by WMDs as well as the challenge that terrorists could use them are some of the factors that account for the integration of the WMD clauses in the CPA II. Issues respecting the use of failed and collapsed States (with proven WMD potential) as safe havens for terrorists justify a relatively innocuous preventative measure of integrating the non-proliferation of WMD clauses into the CPA II. In this regard the inclusion of the clauses into the CPA II makes sense.

As noted earlier the majority of ACP States are LDCs, meaning that the countries have a low Human Development Index. Under the Yaoundé and Lomé Conventions that preceded the CPA I, ACP countries benefited from preferences and price stabilization schemes for export products. The key element at the time was non-reciprocity.Footnote ⁹⁹ Under the CPA these trade benefits have been partly forfeited. The EU is now engaged in negotiations for more liberalized trade agreements or economic partnership agreements (EPAs) with six ACP regional blocks.Footnote ¹⁰⁰ The main lesson from the negotiation process of the new agreements is that ACP States would need to work harder in diversifying their economies away from high-volume/low-value products towards better marketable high-value/low-volume manufactured goods. They also need to focus on development niche areas in services. Entertaining white elephant projects such as the development of nuclear reactors cannot be considered an over-riding priority for ACP States. The inclusion of the non-proliferation clauses will encourage if not compel ACP States to focus more on core issues and sideline lofty nuclear ambitions such as those that were once entertained by President Mobutu of former Zaire.Footnote ¹⁰¹

One other positive element in the introduction of the non-proliferation clauses in the CPA II is that it has the potential effect of enhancing the compliance by ACP States with international rules in the area. To illustrate, only 36 ACP States are signatories to the International Treaty for the Non-Proliferation of Nuclear Weapons (the NPT) of 1 July 1968.Footnote ¹⁰² The picture is more encouraging at the level of the African Union. Amongst the 53 AU States, 51 have signed the African Nuclear-Weapons-Free Zone Treaty (Treaty of Pelindaba) adopted in July 1995. Of this number 21 countries have ratified the text. It is believed that by incorporating the non-proliferation clauses into the CPA II ACP (and especially African) countries will attach greater importance to the international regime that regulates WMD proliferation.

A more salient and positive aspect of the integration of the clauses relates specifically to the incorporation of sanctions for breach of the provisions. By introducing the option of sanctions in the event of a breach of the non-proliferation of WMD clauses, the CPA II correctly allows the parties to focus more on the broader and quintessential goal of the partnership which is that of fostering development in the ACP countries.Footnote ¹⁰³ It is arguable that the terms of the new provisions that sanction illicit actions allow the partners ample latitude to adhere to the spirit of Article 3 of the CPA I which is to the effect that: ‘The Parties shall, each as far as it is concerned in the framework of this Agreement, take all appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising from this Agreement and to facilitate the attainment of the objectives thereof. They shall refrain from any measures liable to jeopardize these objectives.’Footnote ¹⁰⁴

The pursuit of WMDs is not consistent with the attainment of the goals of the CPA. So the reiteration of the need for the partners to refrain from such acts serves as a fillip in assisting the signatories focus on the key aspects of the partnership. Notwithstanding the cogency of these arguments, the incorporation of the non-proliferation of WMD clauses also raises a number of questions.

B. Uncertainties Respecting the Integration of Non-Proliferation of WMD Clauses in the CPA II

Regardless of the fact that the arguments for the integration of the clauses on WMDs in the CPA II may be convincing, there are also contentious issues raised respecting the incorporation of the clauses. They relate to imprecise definitions, undetermined economic costs and the questionable significance of non-proliferation as an overriding issue for ACP states.

To begin, a casual reader of Article 11(b) can be left with the impression that the drafters of the text assume that what ‘weapons of mass destruction’ constitute is a given. Such weapons may be biological, chemical, nuclear or radiological. Attention is often paid to nuclear weapons but they only constitute a fraction of the problem posed by WMDs. What is more, in leaving the term as general as it appears in the article readers are not directed as to the degree or nature of the intensity of the negative effects that a particular component has to meet for purposes of the article. However, in fairness to the drafters, leaving the term as open as it is makes room for a broader interpretation. In other words, as it reads, the term ‘weapons of mass destruction’ under the CPA II is broad enough to incorporate innocuous materials that might be judged lethal in future.

Another imprecise term used is ‘appropriate measures’.Footnote ¹⁰⁵ These have to be considered in the event of a breach of the non-proliferation obligation. In line with the canons of interpretation in international law as contained in the Vienna Convention on the Law of Treaties (VCLT), within the context of the CPA I ‘appropriate measures’ may refer to the use of the consultation procedure under Article 96 of the CPA I. A broader rendition of the term will signify measures ‘acceptable’ or ‘taken in accordance’ with international law. The latter option is the approach used in the EU's agreements with Pakistan and Russia.Footnote ¹⁰⁶ However, it would have been preferable for the drafters to be clearer on the meaning of the term for purposes of legal clarity and certainty.

Secondly, Article 11(b)(2) is to the effect that the parties will cooperate in reaching the set goal of non-proliferation by, amongst others, establishing ‘… an effective system of national export controls, controlling the export as well as transit of weapons of mass destruction related goods, including a weapons of mass destruction end-use control on dual use technologies …’.

The provision may appear to be anodyne. It is not. It clearly stipulates that the control of WMD-related goods will be an important aspect in the effort to combat WMD proliferation. African states like the Democratic Republic of Congo, Namibia, Niger and Somalia have the potential to produce certain WMD (nuclear) related components including uranium.Footnote ¹⁰⁷ The economic effects that increased controls on exported products from these countries will have remain an open issue.

Finally, it was noted above that some ACP (a fortiori, African) countries are naturally endowed with certain elements that are used in the production of nuclear weapons. This does not mean that ACP countries have the wherewithal to venture into any WMD-related arms race (especially the nuclear arms race). Most of the States are hamstrung technically and financially. So, the introduction of non-proliferation clauses into the CPA II is, to say the least, redundant. It would rather be preferable to integrate such clauses into EU agreements with countries such as IndiaFootnote ¹⁰⁸ and PakistanFootnote ¹⁰⁹ that have verifiable WMD-related (nuclear) arms. It is equally advisable that resources be used to actively pursue and prosecute individuals whose activities have threatened the viability of the international non-proliferation regime.Footnote ¹¹⁰ Having said that, these reasons do not necessarily undermine the salience of adopting prophylactic measures that aim at prohibiting or restricting the manner in which countries deal with WMDs.