The Revised Treaty of Chaguaramas

• Author: Duke Pollard
• Profession: Sitting senior judge of the Caribbean Court of Justice (CCJ), the highest appellate municipal court of the Caribbean Community (CARICOM)
• Pages: 459-700

The Revised Treaty of Chaguaramas 459

23

THE REVISED TREATY OF CHAGUARAMAS

The Preamble to the Revised Treaty of Chaguaramas 2001, indicates that the development

paradigm of the Community had undergone far-reaching modification both in terms of

the objectives of the Community and the procedures identified for their achievement.

The first preambular paragraphs address the deepening of the economic integration

process through the establishment of the CARICOM Single Market and Economy

(CSME) for the achievement of sustained economic development based, inter alia, on

international competitiveness. The implications of globalisation and liberalisation for

international competitiveness and the mechanism for reaching decisions and their

implementation in the new dispensation are also addressed. The following preambular

paragraphs adroitly enlarge on these themes pointing to the need for the establishment

of a sound macro-economic environment, based, inter alia, on the unimpeded movement

of factors throughout the economic area to facilitate production integration, enterprise

development, economic efficiency, international competitiveness and export-oriented

production of goods and services. All of the above will be facilitated by the establishment

of supportive infrastructure, both hard and soft, the achievement of international

standards, the protection of competition and a credible system of disputes settlement

on a transparent, definitive and authoritative basis. Collectively, these measures would

secure a fundamental transformation and restructuring of the Caribbean Community

from a conservative, inward-looking, protectionist, functionally constrained organisation

to an open, liberalised, efficient, internationally competitive, outward-looking and

deliberatively flexible institution.

In addition to establishing the Community and identifying its membership and

objectives, Chapter One of the Revised Treaty addresses some important principles

guiding the operations of the organisation. Foremost among these is the principle of

non-discrimination set out in Article 7. This principle, perceived to be indispensable

for the efficient functioning of the CSME, requires Member States to accord national

treatment to citizens of other Member States in their jurisdiction pursuant to the rights

accorded them under the Agreement. Another important principle is special and

differential treatment for the weaker economies of the collectivity. In order to facilitate

the application of this principle, Member States are classified in Article 4 into more

developed and less developed countries. In this connection, it is interesting to note that

the voting procedure identified in Article 5 for modifying the status of Member States

is a significant departure from the unanimity principle which governs decision-making

in the Conference.

The objectives of the Community identified in Article 6 are to improve standards

of living and work; the full employment of labour and other factors of production;

460 THE CARICOM SYSTEM

accelerated, coordinated and sustained economic development and convergence;

expansion of trade and economic relations with third States; enhanced levels of

international competitiveness; organisation for increased production and productivity;

achievement of a greater measure of economic leverage and effectiveness of Member

States in dealing with third States, groups of States and entities of any description and

the enhanced co-ordination of Member States’ foreign and foreign economic policies

and enhanced functional co-operation.

Chapter Two of the Revised Treaty of Chaguaramas addresses the institutional

arrangements of the Caribbean Community, including the CSME. Suggesting itself

for careful examination is the juridical structure of the Caribbean Community which

differs significantly from its predecessor, the Caribbean Community and Common

Market. The latter was a juridical hybrid consisting of the Caribbean Community as a

separate legal person from the Common Market which had its own discrete legal

personality.1 Indeed, the juridical separation of these two institutions was emphasised

by the elaboration of two discrete legal instruments: the Treaty Establishing the

Caribbean Community and the Agreement Establishing the Common Market (which

was later annexed to the Treaty and designated the Common Market Annex).

The significance of this institutional arrangement is to be found in the fact that it

facilitated States joining the Community without being parties to the Common Market

regime. As noted above, The Bahamas availed itself of this opportunity to join the

Caribbean Community but to opt out of the economic integration arrangements which

were not perceived, at the material time, to accord with their national interest. The

Bahamas did not have an income tax regime and much of its revenues were derived

from indirect taxation. Consequently, an integration regime moving towards the

progressive abolition of tariffs was not expected to have any significant appeal for The

Bahamas. The Bahamas, however, signed Protocol I amending the original Treaty

prior to the integration and consolidation of the Protocols into the Revised Treaty and

entered a reservation in respect of the CSME with the concurrence of the other parties

to the regime. Consequently, the situation obtaining at present appears to be in the

nature of a juridical paradox since, in the first place, a reservation in respect of the

CSME might be construed to be in conflict with the purpose and object of the Treaty

and, in the second place, the Caribbean Community and the CSME are juridically,

institutionally and economically indistinct.

The status of the Caribbean Community is another important consideration. The

Caribbean Community, despite its misleading nomenclature, is an association of

sovereign States.2 Indeed, given the nature of political developments predating the

establishment of CARICOM in 1973, it is difficult to understand how the founding

fathers could have agreed to confer any other status on the organisation. Furthermore,

the retention of the unanimity rule in voting procedures of the Conference, the highest

decision-making body, is intended to emphasise the principle of sovereign equality of

States and to scotch in the bud any lingering disposition at political integration. This

status of the Community has imposed practical constraints on the pace of economic

integration. In the European Union for example, the Council of Ministers and the

Commission may take decisions and make regulations having direct effect for European

Community nationals without the intervention of one or another national assembly of a

Member State. However, all determinations of competent organs of the Caribbean

Community are required to be enacted into local law by national assemblies before

The Revised Treaty of Chaguaramas 461

they create rights or obligations for CARICOM nationals. Consequently, the speed of

the integration of the Caribbean Community is dictated by the pace of the slowest

Member State in enacting and securing compliance with relevant determinations.3

The overriding rationale for the institutional arrangements characterising the

Caribbean Community, including the CSME, appears to emanate from the determination

of the West Indian Commission (WIC) that implementation paralysis and operational

deficiencies were among the debilitating features of the Caribbean Community. Reacting

to this determination, the Conference, at its Special Meeting to consider the WIC Report,

inter alia:

recognised, in the light of the foregoing, the need to strengthen the

institutional capacity of, and improve the implementation process in, the

Community ....

agreed that each Member State would designate a Minister with specific

responsibility for CARICOM Affairs, and that those Ministers would

constitute a Caribbean Community Council of Ministers as the second

highest Organ in the Community.4

In the perception of the CARICOM Secretariat, these determinations of the

Conference had ‘implications for the structure and functioning of the existing organs

and institutions of the Community’. On the basis of this perception, the CARICOM

Secretariat proceeded to propose an institutional structure for the Community that would

differ fundamentally from the structure existing in 1993 and which would reject the

important proposal of the WIC for the establishment of a Caribbean Commission to

expedite the implementation of Community decisions.5 Apart from establishing a

Community Council of Ministers as the second highest decision-making body of the

Community with operational oversight of the CSME, it was proposed that the thirteen

ministerial standing committees, designated institutions of the Community, would be

replaced by four ministerial organs and three bodies in the new dispensation. The

Conference would retain its position of pre-eminence as the highest decision-making

organ in which the unanimity rule, the juridical expression of the sovereign equality of

States, would prevail. Another proposed innovation in the organisational structure was

the establishment of a Bureau of the Conference to, inter alia, provide

interim guidance ... between plenary meetings, dealing ad referendum to

(sic) plenary on matters of importance requiring speedy resolution at the

highest level, clearing implementation blockages referred for consideration

by the Ministerial Councils or the Secretary-General, and for conflict

resolution.6

The Bureau was also mandated to oversee the work of the Intergovernmental Task

Force (IGTF) established by the Conference at its Special Meeting in 1992 to supervise

the revision of the original Treaty of Chaguaramas. In examining the proposals for the

remit of the Community Council of Ministers, the IGTF determined that the tasks

assigned to the Community Council of Ministers did not appear to justify its elevation

to the status of the second highest organ of the Community. In the premises, it was

decided that the Community Council should have responsibility for the functioning of

the CSME.7