Compliance, Dispute Settlement and the Caribbean Court of Justice

• Author: UWI-CARICOM Project
• Pages: 115-139

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Compliance, Dispute Settlement and the CCJ

No project has been associated with more lamentations than the CSME,

whose original date of decision was 1989.1 In more recent times, the fishing

dispute between Barbados and Trinidad and Tobago, and the maritime

boundary dispute between Guyana and Suriname have questioned the existence

of processes of dispute settlement in the Community as well as of enforcement

generally.

Enforcement Authority of Key CARICOM Organs, Institutions

The Revised Treaty2 provides for the establishment of a range of organs

and institutions. These organs and institutions include: the Community

Council, the Council for Finance and Planning (COFAP), the Council for

Trade and Economic Development (COTED), the Council for Foreign and

Community Relations (COFCOR) and the Council for Human and Social

Development (COHSOD). The scope of their mandates differs in terms of

their capacities for enforcement. A brief review will reveal some of the key

features of their mandates.

The Community Council is empowered to consider allegations of breaches

of Treaty obligations. In its collective consideration of such allegations, the

Council may issue directives3 to organs of the Community and to the

Secretariat. It is not empowered to issue directives to Member States. In

discharging its responsibility for the orderly development of the Community,

it approves the Annual Work Programme and budget of the Secretariat,

coordinates proposals from other Councils and may request those Councils

to develop programmes to further the objectives of the Community. The

COMPLIANCE, DISPUTE

SETTLEMENT AND THE

CARIBBEAN COURT OF JUSTICE

(CCJ)

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116 CSME: Challenges, Benefits, Prospects

Community Council has a primary role in the strategic orientation of

Community programmes as described in Article 13 of the Revised Treaty.

COFAP, under Article 43, has a principal role in disciplining the

application of balance-of-payments safeguards by Member States. This role

is important because it controls the extent to which the safeguard mechanism

can be used as a diplomatic tool and a means of pressure to settle differences,

other than those genuinely arising out of economic hardships, with other

Member States. COFAP must be notified within three (3) working days of the

application of the adopted or intended restrictive State measures. The State

must immediately consult with the competent Community organ (COFAP

and COTED) if and when requested.

COFAP must, under Article 43, seek to ensure that the following

constraints are applied to balance-of-payment actions:

(a) do not discriminate among Member States or against Member States

in favour of third States;

(b) at all times seek to minimize damage to the commercial, economic

or financial interests of any other Member State;

(c) do not exceed those necessary to deal with the serious balance-of-

payments and external financial difficulties or with the threat thereof;

(d) are temporary, persist not longer than a period of eighteen (18)

months, and are phased out progressively as the situation improves.

COFAP has a critical role to play in the fiscal management of regional

economies. It seeks to promote economic policy convergence without

attempting to enforce decisions. COFAP recommends fiscal disciplinary

measures and may recommend measures and set criteria to facilitate free

convertibility of currency. Although it operates within the Treaty’s long-term

objective of monetary union, it has set itself a graduated approach to this

objective. Indeed, it has taken a position that monetary union is a long-term

objective. COFAP does not appear to possess any power to enforce decisions.

COTED plays a central role in the management of the trade regime of

CARICOM. One of the primary areas of concern is the removal of restrictions

to trade in goods and services. Under Article 34, COTED appears to have

unique powers of enforcement related to the over-arching Trade Liberalization

Programme. That Programme builds obligations of self-restraint into

governmental policy and provides for a lock-in of State policy and practice

in relation to specific restrictions. But its powers extend further. COTED can

require the removal of administrative practices, and the removal of restrictions