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August 2016
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In so far as the EPA is concerned, the EU came to the table with the ambition of securing a region-to-region agreement but the final product was much more nuanced. Cariforum (that is, CARICOM and the Dominican Republic) insisted that member states should be parties to the Agreement in their own right, since the grouping did not have the requisite legal personality under international law to undertake obligations which had to be implemented at the national level. Moreover, Cariforum insisted that in the event of a breach of the Agreement there would be no collective sanctions applicable to the whole grouping. And even though the EU sought one of the hallmarks of a single market, the free movement of goods, Cariforum insisted that it was not ready to make that commitment. Further, Cariforum secured in the Agreement, the recognition that ‘the pace and content of regional integration are matters to be determined exclusively by the Cariforum states in the exercise of their sovereignty and in the light of their current and future political ambitions’. This led to debate over the architecture of the Agreement. The EU insisted for a long time that the main purpose of the Agreement was to promote regional integration and that accordingly Part 1, following the Preamble, should be entitled ‘Regional Integration’. They were met with the riposte that while regional integration might be a tool to promote sustainable development, one should not mistake the implement for the product. They eventually gave way and agreed to the title ‘Trade Partnership for Sustainable Development’. From the outset, which was one of the points of separation between Cariforum and its partners in the ACP grouping, Cariforum had the ambition of concluding a comprehensive agreement, to include not only the trade in goods but commitments in the areas of development cooperation and the trade in services. The insistence on the inclusion of services and investment in the Agreement made it necessary for the European parties to the Agreement to be both the European Community and its member states because the latter had not transferred competence in those areas to the Community. Thus, Britain is a signatory to the EPA in its own right, a matter separate and apart from its decision to leave the EU. However, there is room for debate over the territorial application of the EPA, that is, whether on the European side it applies only to territories that come under the reach of the Treaty establishing the European Community. In any event, it is clear that the matter of the bilateral trade between Britain and CARICOM would require a new instrument. The withdrawal of Britain from the EU does not affect the validity of the EPA as the legal basis for trade relations between Cariforum states and the EU. The EU might well wish to propose revisions to the EPA but would have to follow the procedures outlined in the Agreement. Basically, no alterations are possible unless the parties agree, so in effect the Cariforum states have a veto on this matter. Of course the Agreement provides for the possibility of denunciation after notice, but that is an unlikely event. Dr Kusha Haraksingh is a founding Dean of the Faculty of Law and currently a Consultant in the Office of the Vice Chancellery
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Having led Cariforum as negotiator on legal and institutional issues, Brexit stimulated four different but interconnected sets of considerations: Britain’s relationship with the EU, the parameters of which are now in flux; CARICOM’s relationship with the EU which is defined in the Cotonou Agreement but more so in the Economic Partnership Agreement (EPA) signed in 2008; CARICOM’s relationship with Britain; and finally, CARICOM’s internal configuration. The last issue is put into the pot because the vote on Brexit was apparently influenced by two considerations which are troublesome in relation to regional integration movements, CARICOM included, namely the balancing of sovereign national interests with those of the wider grouping, and the big elephant in the room, the free movement of labour.