The Caribbean Single Market and Economy: Towards a Single Economic Space

By Kenneth Hall and Myrtle Chuck-A-Sang

The Caribbean Single Market and Economy: Towards a Single Economic Space

This publication offers essays that represent an attempt to satisfy the needs of laypersons busy with daily survival and progress issues, students, seeking to understand the nature of the evolution towards a CARICOM Single Market and Economy, academics, interested in the comments of their peers and politicians needing to improve the acuity with which they perceive the efforts of and prescribe actions for their individual countries.

The Most Honourable Professor Sir Kenneth, former Governor-General of Jamaica, is a well known and respected Caribbean academic who utilised the skills of his profession to analyse the main factors leading to the success of the Caribbean Integration process. Professor Sir Kenneth joined his academic work to a passion for education and has held positions of Chairman of the Caribbean Examination Council(CXC), Pro Vice Chancellor and Principal, UWI, Chancellor, University College of the Caribbean and Deputy Secretary-General, Caribbean Community. He is currently a Distinguished Research Fellow of the University of the West Indies. Myrtle Veronica Chuck-A-Sang, M.A. has co-edited several publications with Professor Sir Kenneth Hall on a range of issues relating to Caribbean Regional integration and International Relations. She was the former Director of the UWI-CARICOM Institutional Relations Project, Caribbean Community Secretariat and is currently the Editor and Managing Director of the Integrationist, Editor of the Integration Quarterly and Company Secretary, Caribbean Fellowship Inc.

• Language: English
• Publisher: Trafford Publishing
• Release date: Jul 1, 2013
• ISBN: 9781466950061

Kenneth Hall

Professor Sir Kenneth Hall is a statesman, academic, prolific writer and advocate of the Caribbean Integration Movement. He served as Pro-Chancellor and Principal of the University of the West Indies, Mona, and earlier as Deputy Secretary-General of the Caribbean Community Secretariat. During the 10 years, he spent at UWI (1996-2006) He has been credited for the implementation of several policies which lead to a significant transformation in academic programmes, physical infrastructure and student relations on the Campus. As a prolific writer, Professor Sir Kenneth Hall has authored and edited a plethora of works including. The Caribbean Community in Transition, Maritime and Border Issues in CARICOM, Production Integration in CARICOM: From Theory to Action. He was appointed Governor-General of Jamaica in 2016 where he used his office to build a national consensus on issues such as youth and education. Myrtle Veronica Chuck-A-Sang is the Managing Director of the INTEGRATIONIST. she served as Director of the National Accreditation Council, Guyana. Formerly the Project Director of the UWI-CARICOM she has produced a Skills Assessment study of key human resources available within the partner institutions. Myrtle Chuck-A-sang has co-edited with Professor Sir Kenneth Hall, more than forty books on a range of issues of regional significance and is one of the executive producers of a defining documentary on Caribbean Integration as well as the editor of the Integration Quarterly. She served for several decades with the CARICOM Secretariat in various capacities and was responsible for establishing and managing the Conference Support Services and later the Administrative Services Programme. Mrs. Myrtle Chuck-A-Sang is the Managing Director of the Integrationist established in Georgetown, Guyana in 2011. In 2000 she was appointed to manage the UWI-CARICOM Institutional Relations Project. Over the ten years of its existence, quite apart from discharging the responsibilities of managing this Project including the preparation of a Skills Assessment Report, Mrs. Chuck-A-Sang collaborated with Professor Sir Kenneth Hall to edit more than forty books on a wide range of issues of significance to the Governments, private sector organisations, trade unions, tertiary institutions, secondary schools, commentators, and the ordinary people of the Caribbean region. These publications include Caribbean Challenges and Opportunities: The Diplomacy of Market Access, The CSME: Genesis and Prognosis, Coping with the Collapse of the Old Order: CARICOM’s New External Agenda, The Caribbean Community in Transition: Functional Cooperation a Catalyst for Change and more recently, Caribbean Integration: From Crisis to Transformation and Repositioning and Economic Transformation and Job Creation: The Caribbean Experience, together with papers published by the UWI-CARICOM Project, have been utilized by scholars and other prominent officials in their writings and analyses of the politics of regional integration to make a significant contribution to reviving and reshaping the debate on the direction and purpose of the Caribbean Integration process. Mrs. Chuck-A-Sang served for almost four decades at various levels of the Caribbean Community Secretariat, testimony to her personal as well as professional commitment to the principle of integration generally and Caribbean integration in particular. During this time, she was responsible for establishing and managing the Conference Support services, and, later, the Administrative Services programme, the largest programme area in the Secretariat. Before she served at CARICOM, Mrs. Chuck-A-Sang held administrative and strategic positions at the government and private sector levels, which afforded her invaluable insights into, and understanding of arbitration procedures, labour negotiations, governance arrangements, parliamentary affairs and diplomacy, an experience which stood her in good stead as she became more immersed in the world of work. Mrs. Chuck-A-Sang is one of the Executive producers of a defining documentary on Caribbean Integration entitled “Integrate or Perish” and the only known dictionary of Caribbean Acronyms and Abbreviations. She created the Caribbean Fellowship Inc. as the patron company of the first and only visit by the highly acclaimed University Singers to Guyana and the CARICOM Secretariat, in 2002, a visit which is still a source of fond reminiscence to this day. So, to her credit is the “The Integrationist Quarterly”, a journal especially designed to showcase the creative writings of the youth of the Caribbean, and more recently a Caribbean Research Hub with the capacity to meet the expectations of committed researchers, policymakers and academics. Before service with the CARICOM Secretariat, Mrs. Chuck-A-Sang held administrative and strategic positions with the Government and private sectors of Guyana positions which afforded her invaluable insights into and understanding of arbitration procedures, labour negotiations, governance arrangements, parliamentary affairs and diplomatic experience which stood her in good stead as she became more immersed in the world of work. Mrs. Myrtle Chuck-A-Sang, a Guyanese, holds a BA degree (Hons) in Political Science and Communications from New York State University (SUNY) Oswego and an MA degree in Organisational Communications from the State University of New York SUNY at ALBANY.

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Contents

PREFACE

INTRODUCTION

ACRONYMS AND ABBREVIATIONS

Section 1

Creation of the CARICOM SINGLE MARKET AND ECONOMY

1. THE REVISED TREATY OF CHAGUARAMAS1

2. PROGRESS REPORT ON THE CSME

Section 2

CARICOM Single Market Inauguration

3. Address at the Inauguration Ceremony of the CARICOM Single Market

4. Address at the Inauguration Ceremony of the CARICOM Single Market

Section 3

Governance and Integrated Development

5. THE ROSE HALL DECLARATION ON ‘REGIONAL GOVERNANCE AND INTDEVELOPMENT’

6. Review of the Rose Hall Declaration: Provisions on Regional Governance

Section 4

The Role of Key Factors

in the CSME

7. THE ROLE OF LABOUR IN PROMOTING THE CARIBBEAN SINGLE MARKET AND ECONOMY

8. THE PUBLIC AND PRIVATE SECTORS: AN EFFECTIVE PARTNERSHIP FOR IMPLEMENTING THE CARICOM SINGLE MARKET AND ECONOMY (CSME)

9. THE CSME, CCJ AND PRIVATE SECTOR

10. PRIORITIES OF THE PRIVATE SECTOR IN THE CSME

11. NANO-FIRMS, REGIONAL INTEGRATION AND INTERNATIONAL COMPETITIVENESS: THE EXPERIENCE AND DILEMMA OF THE CSME

Section 5

Key Mechanisms of CSME

12. THE CARICOM DEVELOPMENT FUND: ECONOMIC SENSE OR POLITICAL EXPEDIENCY?

13. THE CARIBBEAN COURT OF JUSTICE AND THE CARICOM SINGLE MARKET AND ECONOMY

14. THE CARIBBEAN COURT OF JUSTICE: CHALLENGE AND RESPONSE*

15. THE CARIBBEAN COURT OF JUSTICE IN REGIONAL ECONOMIC DEVELOPMENT

Section 6

CSME SUPPORT NEEDS

16. Presentation by the CARICOM Secretariat to the 1st General Meeting of Representatives of the Caribbean Community and its Associated Institutions and of the United Nations System

17. THE ROLE OF DONORS

18. CARICOM SINGLE MARKET AND ECONOMY: ASSESSMENT OF THE REGION’S SUPPORT NEEDS

Section 7

Select Issues in Integration

19. SOME THOUGHTS ON THE CARIBBEAN COMMUNITY

20. PERMANENT ALLIES OR PERMANENT INTERESTS?

Section 8

Putting Gender

on the Agenda

21. CARIBBEAN LABOUR MARKETS: IMPLICATIONS OF THE CSME FOR REDUCING GENDER DISPARITIES

22. SOME IMPLICATIONS OF THE CARIBBEAN SINGLE MARKET AND ECONOMY WITH SPECIAL REFERENCE TO EDUCATION AND GENDER

23. SHIFTING LOCATION AND NEGOTIATING PLACE: WOMEN IN CARIBBEAN INTRA-REGIONAL MIGRATION

24. HEALTH ISSUES AND THE CARIBBEAN SINGLE MARKET AND ECONOMY

25. MILESTONE OR MINEFIELD? GENDER, TECHNOLOGY AND DEVELOPMENT IN THE CARIBBEAN SINGLE MARKET

Section 9

Way Forward Proposals

26. REFLECTIONS ON THE OECS AT 25

27. Address at the 24th Conference of the Institute of Charted Accountants of the Caribbean

28. THE CSME—AN IMPERATIVE OR A FANTASY?

29. TOWARDS A SINGLE ECONOMY AND A SINGLE DEVELOPMENT VISION1

30. CARICOM BEYOND THIRTY: CHARTING NEW DIRECTIONS, CHAIRMAN’S PERSPECTIVES

CONTRIBUTORS

PREFACE

The CSME is the most recently set goal of what is to be attempted by the fifteen countries: Antigua and Barbuda; The Bahamas; Barbados; Belize; Dominica; Grenada; Haiti; Jamaica; Montserrat; St. Kitts and Nevis; Saint Lucia; St. Vincent and the Grenadines; Suriname; and Trinidad and Tobago. The consensual decision among those countries to make that attempt may well appear to be an act of faith, based on the belief that where there exists the need to make a choice between linking arms and going forth together (cooperation) and de-linking arms and going one’s own sweet way (defection) the better choice for all is to cooperate. Allegedly, nice guys will all finish first.

Whether this consensual decision turns out to be simply an act of blind faith, or a well reasoned strategy for the conjoint pursuit of survival and progress by the fifteen countries in a world of non-benign competition, may one day become clear. For now, however, this book brings us a step closer to making an informed guess, based on the dimensions dealt with in the essays offered. True faith, by definition, does not need evidence; but for those who despite belief in the proposition that ‘faith can move mountains’, nevertheless would like to have a fallback position of action and effort based on reason, this book provides somewhat of a basis for such ratiocination. Doubting Thomases, like the poor, will always be with us, but it is offerings such as those in this book that will save the rest of us from the destructive virulence of their doubts.

INTRODUCTION

The offering of essays that this book contains, represents an attempt to satisfy the needs of at least four, possibly overlapping, groups. These groups may be categorized as: Laypersons, busy with the daily survival-and-progress issues of their lives, who need to have a feel for what is developing in the milieu in which they are trying to survive; Students, seeking to garner a more than cursory appreciation of the nature of the evolution towards a CARICOM Single market and Economy; Academicians, interested in the comments of their peers, of leaders of Caribbean Governments, and of leading opinion formers associated with the nascent institutions of the CSME, about where we seem to be heading; and Politicians, needing to improve the acuity with which they perceive the efforts of, and prescribe actions for, their individual countries as participants in the trek towards to the CSME.

The selections begin with a presentation on the Revised Treaty of Chaguaramas—the framework that underpins the concept of the CSME. That selection is followed immediately by a Progress Report that indicates where the evolutionary process stood as of 30 May 2006. The Report indicates for the fifteen countries where they each stood in relation to implementation of key elements of the project for establishing the CSME. Thus the genesis of the CSME and the progress achieved towards its full implementation are dealt with in the first section of the book.

The last section of the book has a crystal ball aura. It contains selections looking both backward and forward, like Janus, seeing where we have come from, and giving visions of where we appear to be heading.

The intervening seven sections deal with important dimensions of the actual evolutionary process—a kind of informed visit to the engine room of implementation led by informed commentators. The issues covered highlight current problems of execution, suggestions of solutions, and prognoses of problems, deriving partly from solutions proffered and from systemic trends. With respect to this aspect of problems associated with systemic trends, the section entitled ‘Putting Gender on the Agenda’ contains essays that merit special attention. The servings in that section provide a platform for ongoing consideration of the gender dimensions of the evolutionary process aimed at establishing a functioning CSME. Those essays highlight: some gender realities of the milieu in which integration initiatives are being taken; some current and possible consequences, not necessarily intended, of those initiatives; and, by implication, the importance of eschewing an androcentric stance in decision-making within the Region.

The Chapters that deal with the Caribbean Court of Justice provide insights into what is perhaps the most important recent phase of the Caribbean’s evolutionary journey towards the CSME. In this respect, those Chapters probably provide a necessary complement to the crystal ball servings of the Chapter entitled ‘Way Forward.’ Taken as a whole, the essays should contribute to satisfying the curiosities of interested lay persons, the memory refreshment needs of busy participants in the process towards a CSME, and the cautionary requirements of all who wish, or need, to pronounce on where CARICOM is going.

ACRONYMS AND ABBREVIATIONS

Section 1

Creation of the CARICOM SINGLE MARKET AND ECONOMY

1 The Hon. Mr. Justice Duke Pollard

THE REVISED TREATY OF CHAGUARAMAS1

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 macroeconomic 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; 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.² 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.³ 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 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.⁴

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 WI C 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 CARlCOM Affairs, and that those Ministers would constitute a Caribbean Community Council of Ministers as the second highest Organ in the Community.⁵

In the perception of the CARlCOM 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 CARlCOM 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.⁶ 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.

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.⁸

In proposing the establishment of three Ministerial Councils in place of the numerous Standing Committees existing in the old dispensation, the CARICOM Secretariat was probably influenced by the experience of the European Union whose Council of Ministers changed portfolio representation according to the issues to be deliberated and determined. The approach recommended was expressed to rationalise, upgrade and improve the organisational efficiency of the current situation of sectoral Ministerial Institutions, e.g. Standing Committee of Ministers responsible for Agriculture… ⁹

The proposed structure was seen to have several advantages in terms of not having to establish a new institution to address every new important programme area, addressing the current situation in the Community where ministers tended to have responsibility for more than one programme area and allowing for a greater interface between cross-cutting issues and ministerial representatives. The three organs originally proposed were 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). However, at the prodding of Prime Minister Owen Arthur of Barbados, who had responsibility for finance, a fourth organ, the Council for Finance and Planning (COFAP), was added. Generally, the issues for which the Councils have responsibility are sometimes quite diverse. It was assumed, however, that the proposed structure would result in enhanced decision-making, less meetings and a consequent saving to Member States in terms of overseas representation at CARICOM meetings. In the final analysis, however, the effectiveness of the proposed structure is likely to be determined by the skill and imagination brought to bear on the structuring of agendas for ministerial meetings and the preparation of national representatives for such meetings.

Three Committees are to complement the work of the ministerial organs. These Committees are the Legal Affairs Committee, the Budget Committee and the Committee of Central Bank Governors, designated Bodies in the Revised Treaty of Chaguaramas, and although the proposed structure constituted in fact, the downgrading of regional Attorneys-General and Ministers of Legal Affairs, the Legal Affairs Committee appears to be one of the most active and productive institutions which has undoubtedly proved its worth in the new dispensation and is likely to continue to play a defining role in the functioning of the CSME.

The essential thrust of the decision-making procedures in the organs of the Community was in the direction of a dynamic equilibrium and this is demonstrated in the voting procedures agreed for decision-making in the various organs of the Community¹⁰. However, the unanimity rule was relaxed to the extent that abstentions in an amount of no more than one-quarter of the membership did not operate to impair the validity of decisions. The requirement of unanimity in the Conference, far from operating as a constraint on policy formulation, was perceived as ensuring that decisions of this body addressed genuine concerns of Member States. Voting in other organs of the Community is not ordinarily constrained by the unanimity principle. This was intended to ensure that the pace of economic integration in the Community was not dictated by the most recalcitrant Member State. Furthermore, allowing Member States to opt out of decisions, provided the objectives of the Community were not compromised, was intended to encourage circles of integration.¹¹ Postulated in other terms, this arrangement could result in the existence of various integration regimes in the Community at any given point in time. Such an arrangement appears to be no different from that existing in the European Union and which allowed the United Kingdom to opt out of the social policy and both Denmark and the United Kingdom not to be parties to the European single currency regime. Finally, the voting procedures applicable in Community organs allows a Member State to enjoy veto powers where such a Member State could mobilise the support of two-thirds of the Membership in support of its critical well-being.¹² All these arrangements are intended to ensure that the integration movement continues to deepen at a pace that would not pose a threat to the economic or political equilibrium of other Member States. Compared to the procedures for decision-making in the old regime, the procedures set out in Chapter Two of the Revised Treaty make for much greater flexibility with probable beneficial consequences for the structured and expeditious deepening of the regional integration movement.

An important, relatively inconspicuous dimension of the institutional arrangements proposed for the new dispensation is to be found in Article 26 of the Revised Treaty which speaks to the consultative process. This Article obliges the Community Council, assisted by the Secretary-General of the Community, ‘in collaboration with competent authorities of Member States, to establish and maintain an efficient system of consultations at the national and regional levels’. The provisions of this Article were undoubtedly inspired by the WIC’s finding that implementation was the Achilles heel of the integration movement. For more often than not, implementation paralysis is a function of inadequate consultations prior to the taking of determinations, resulting in uninformed and oftentimes unimplementable decisions. Indeed, given the perceived importance of consultations, the Community Council of Ministers was tasked with establishing ‘a system of regional and national consultations in order to enhance the decision-making and implementation processes of the Community.’¹³ In the meantime, the Secretariat has established a Technical Advisory Services Unit (TASU) to assist Member States in setting up the administrative infrastructure to discharge Treaty obligations, including implementation of decisions.

Another important development in the new dispensation is the provision of a sanction for non-payment of contributions to the regular budget of the Community.¹⁴ Sanctions for non-compliance with treaty obligations are not readily accommodated in the relations of CARlCOM countries inter se. Consequently, even though Article 17 (2) constituted a new departure in intra-CARICOM relations, the loss of voting power as a sanctioning process of prescription does not extend to ‘matters relating to the CARICOM Single Market and Economy’. In effect, the sanction is more illusory than real, since the CSME bulks large in almost every dimension of the Caribbean Community. However, the issue of sanctions is likely to assume greater importance in the institutional arrangements of the Community, especially with the establishment of the proposed Caribbean Court of Justice.

Before terminating discussion on the voting procedures of the Community, attention should be drawn to Article 27 (4) which succinctly encapsulates the idea of circles of Integration within the same regional regime. The result to be achieved by the device of opting out of decisions on the satisfaction of agreed conditions would not be unlike that in the European Union which allows for opting out of the social contract and the single currency.

The CARICOM Single Market and Economy (CSME) which is integral to the Caribbean Community is an attempt on the part of the independent Member States of the Caribbean Community to superimpose a single market and a single economic space on politically autonomous jurisdictions, given that CARICOM is an association of sovereign States. The Single Market is to be created for all practical purposes by unifying the exiguous markets of all Member States. Chapter Three of the Revised Treaty addresses integration of the markets for investments, services and capital. In the single market, buyers and sellers from any part of the Community will be entitled to transact business in any part of the integrated market by a unified or harmonised system of disciplines or practices. Consequently, an important dimension of the new integration arrangements will be unified or harmonised legislation addressing every aspect of economic activity in the market area. Consider the provisions of Article 74(2) of the Revised Treaty in this context. In the Single Market and Economy, it is proposed that productive factors will be free to move unimpeded to any part of the market area where they can be most efficiently employed—hence the right of establishment, the right to provide skilled services and the right to move capital. An important exception in this context, however, relates to the free movement of labour, which has been identified in Article 45 as a long-term goal or objective. It is also useful to note that the main ingredients of a single economy namely, unification of monetary, fiscal and exchange rate policies and, ultimately, a single currency appear to be eluding the agenda of competent decision-makers. Consequently, the achievement of a single economy, like the free movement of labour, appears to be a long-term goal rather than a viable short-term objective.

Since, however, the Caribbean Community is in fact and in law an association of autonomous political and economic entities, the creation of a single market and a single economy is perceived to require complex and diverse institutional arrangements and programmes in order to remove a variety of restrictions designed to benefit the nationals of one or another political entity but which, collectively, effectively frustrate or impede the free movement of factors which characterise a single national economy. Foremost among these would be the unrestricted movement of capital.¹⁵ In the context of the Caribbean Community, it is proposed to achieve this objective in stages, commencing with the free convertibility of national currencies. And although the Revised Treaty appears to be silent on this point, there is a decision of the Conference requiring each Member of the Caribbean Community to convert the currencies of one another at prevailing market rates. In fact, however, free convertibility of currencies in the Caribbean Community is more a legal than an economic reality due to the general ignorance of the populace about this requirement, the omission of nearly all national jurisdictions to comply, and the existence of fixed and floating exchange rates which complicates the issue. Currently, Barbados, Belize and the Member States of the OECS maintain fixed exchange rates, while Guyana, Jamaica, Suriname and Trinidad and Tobago have floating exchange rates. One far-reaching consequence of this dual exchange rate system is uncertainty about the values of floating currencies on a daily basis and the practice of financial institutions to hedge against downward volatility in currency values resulting in high transaction costs and disinclination to convert at a loss. Of the two available options—the introduction of fixed exchange rates throughout the Community or the introduction of a single currency, neither appear suitable to the CARlCOM situation. Both require a degree of fiscal discipline well beyond the capacity of political directorates. In the final analysis, the most formidable constraint against the adoption of either course of action, especially among the Member States with floating currency regimes, is political. In the meantime, decision-makers have agreed to facilitate capital movements by a variety of measures. In the short-term these measures would include the removal of restrictions on specified capital transactions¹⁶ coupled with free currency convertibility and voluntary adherence to agreed convergence criteria. In the medium and long term, what will be required are integration or unification of capital markets, harmonisation or unification of investment policies and internal tax systems, the elimination of exchange controls among Member States and, generally, peremptory convergence of macro-economic policies and, ultimately, monetary union.

In terms of market integration, Chapter Five of the Revised Treaty incorporates the previous arrangements for a common external tariff and rules of origin¹⁷ coupled with an aggressive move to eliminate lingering impediments to the free movement of goods. Other supportive measures include harmonisation of customs laws and administration and the laws relating to dumping and subsidies.¹⁸

In this latter respect, Member States of CARlCOM were required to move expeditiously in order to comply with their obligations under the Agreement on Subsidies and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, both of which comprise integral elements of the World Trade Organisation regime. In this connection, the CARlCOM Secretariat has already prepared model legislation on subsidies and dumping for enactment by Member States.¹⁹ The relevant legislation establishes a regime for members of the Caribbean Community on the one hand and another for CARlCOM Member States and third States.²⁰ Integration of the market for goods will be further enhanced by the establishment of institutional arrangements for regional standards and technical regulations in the form of a new regional institution—the CARlCOM Regional Organisation for Standards and Quality (CROSQ).²¹ Complementing these regimes is the regime for the protection of competition, consumer welfare and the elimination and sanctioning of restrictive business practices which prevent, restrict or distort the trade in goods or exploit dominant market positions by establishing barriers to the entry of new competitors. Currently, the revised Treaty does not address the issue of free circulation, except to record the commitment of Member States to treat with this matter in a separate Protocol to be elaborated in future.²²

The CSME also envisages the integration of the regional market for services. In this context, however, competent decision-makers have decided to move with some degree of caution and circumspection, given national paranoia about the vulnerability of various island economies to an unrestricted influx of unskilled labour in search of job opportunities. Consequently, Article 46 (I) of the revised Treaty merely replicates earlier decisions of the Conference to accord Community graduates and certain skilled nationals (media workers, sports persons, artistes and musicians) the right to move and work freely in the jurisdictions of Member States. The measures adopted in this context are expressly recognised as constituting ‘a first step towards achieving the goal set out in Article 45’.²³ And in order to facilitate the free movement of persons within the contemplation of this Article, Member States are required to ‘establish appropriate legislative, administrative and procedural arrangements…’²⁴ The trade in services was further liberated by the right of establishment accorded to nationals engaging in ‘non- wage-earning activities of a commercial, industrial, agricultural, professional or artisanal nature.’²⁵ Supportive measures would include identification and removal of restrictions on the provision of approved services,²⁶ including the requirement for work permits and the enactment of legislation at the national level in order to establish equivalency, accreditation or mutual recognition of certificates.²⁷ Facilitation of the movement of skills, however, must be seen to require the right of persons desiring to relocate in other jurisdictions of the Community to preserve and transfer such social security benefits as might have been earned and acquired in any given jurisdiction. This issue has already been addressed and administrative arrangements are being established in various Member States to provide for the smooth transfer of social security benefits across national jurisdictions.²⁸ Additionally, there would be a need to coordinate national social policies in the Community.

Another important dimension of the CARlCOM single economy is the right of establishment accorded to nationals of the Community. This right includes, on the one hand, entitlement of independent contractors to offer their services for valuable consideration and, on the other, the right to establish and manage economic enterprises in any national jurisdiction.²⁹ The exercise of the right of establishment must be considered in the context of the removal of restrictive business practices. For in the final analysis, the enjoyment of the right of establishment could be emasculated by business practices of competitors which prevent, restrict or distort competition or constitute the abuse of dominant market positions. Consequently, institutional arrangements to control and eliminate anti-competitive business practices and to promote consumer welfare in the Community assume added significance.³⁰ Other measures of importance in this context must speak to harmonisation of corporate taxation,³¹ the elimination of double taxation³² and the harmonisation of laws related to intellectual property rights.³³ These aspects of the CSME may be addressed in greater detail by perusing the relevant provisions of the Revised Treaty set out in this Section. It should be noted however, that Article 239 (c) of the Revised Treaty identifies, for future elaboration, treaty provisions on ‘rights contingent on establishment, provision of services and movement of capital in the Community.’ What is contemplated here is the right to access social services which must be recognised and granted by host States in order to prevent substantive rights from being rendered illusory. This issue was not ventilated during negotiation and elaboration of the Protocols amending the original Treaty of Chaguaramas but was raised by the Prime Minister of Barbados at the Special Consultations on the CSME held in St. Phillip, Barbados, on November 20 to 21, 2000. It is generally recognised in the Community, however, that a satisfactory resolution of this issue is important for the smooth and successful functioning of the Single Market and Economy.

Facilitation of the movement of factors in the Caribbean Community is only one important dimension of a grand design to effect a significant paradigm shift in regional economic development. This paradigm shift is unequivocally emphasised in Chapter Four of the Revised Treaty whose expressed goal in terms of Community industrial policy is market-led, internationally competitive and sustainable production of goods and services for the Region’s economic and social development.³⁴ This is to be achieved through, inter alia, the co-ordination of national industrial policies, the development of product and factor markets, the development of supportive institutional infrastructure and cross-border integration of production processes.³⁵ Supportive of these measures are policies to promote small enterprise development,³⁶ the development of the services sector,³⁷ research and development,³⁸ the establishment of a regime to protect intellectual property,³⁹ human resource development,⁴⁰ the integrity of the environment,⁴¹ and a congenial investment climate including the establishment of enabling legislative, financial and social infrastructure.

Having addressed the essential requirements for production of internationally competitive goods and services, consideration is given to the conditions for both intraregional trade and trade with third States. The trade regime addressed in Chapter Five of the Revised Treaty is primarily designed to liberalise trade among the Member States of the Community and by expanding intraregional trade through flexible rules of origin criteria and the establishment of a flexible common external tariff. Upon entry into force of the Revised Treaty, Member States are precluded from introducing in their territories new restrictions on imports or exports of Community origin except as provided in the instrument.⁴² Member States are also required to facilitate trade liberalisation among themselves by refraining from trade policies and practices designed to, or having the effect of, distorting competition, frustrating the free movement of goods or otherwise nullifying or impairing benefits to which other Member States are entitled under the Revised Treaty. Of course, it goes without saying that the imposition of duties on goods qualifying for Community origin treatment, or the imposition of discriminatory internal charges on imports,⁴³ or the application of quantitative restrictions thereon, are all prohibited.⁴⁴

In applying the common external tariff, Member States have agreed on a measure of flexibility which, in the present submission, encourages reduction or suspension of the tariff. The relative ease with which applications for suspension of the common external tariff are granted should constitute an issue of concern meriting serious examination by competent authorities.⁴⁵ More importantly, it has not apparently occurred to anyone that applications for suspension provide a window of opportunity in terms of establishing what extra-regional imports for manufacturing purposes could be produced in the Region. In fact, there is good reason to believe that some regional manufacturers establish technical requirements for a variety of inputs in order to facilitate their importation from extra-regional sources thereby frustrating initiatives for regional production.

Granting that the Member States of the Community were galvanised into action to establish a CSME by the real prospect of losing protected markets in Europe for their agricultural exports, it is not surprising that far-reaching reforms in agriculture bulked large in the initiative to deepen and enlarge the integration movement. Consequently, the major goal of Part II of Chapter Four of the Revised Treaty has been expressed to be the transformation of agriculture through diversification of agricultural production, intensification of agro-industrial development, expansion of agri-business and the production of agricultural commodities on an internationally competitive and environ-mentally sustainable basis.⁴⁶ For the achievement of this goal, enabling policies are contemplated in the areas of human resource development, research and development and adaptation of relevant technologies, marketing of agricultural commodities and in both fisheries and forestry, management and development.

Chastened by the egregious omission to address transportation in any constructive way in the original Treaty of Chaguaramas, Chapter Six of the Revised Treaty is de-voted entirely to this issue, including port and terminal infrastructure and the provision of facilities supportive of intra-regional and international trade. For some time, com-mentators on the regional economy have continued to remark on the large import food bill of the Community and the absence of any viable and sustainable initiatives to exploit potential synergies of the tourism and agricultural industries. One contributing factor in this context is the absence of supportive transportation infrastructure to facili-tate the movement of perishable agricultural produce intraregionally. In addition, the absence of appropriate post-harvest technologies has impeded export promotion of ag-ricultural produce. Chapter Six addresses these constraints with a view to finding appropriate solutions.

Since at the level of the ACP/EU negotiations and those relating to the World Trade Organisation and the Free Trade Area of the Americas, CARlCOM Member States have been advancing claims for special and differential treatment for smaller economies, the requirement of consistency would appear to advise similar consideration for less viable and more vulnerable economies of the Caribbean Communities. In the premises, Chapter Seven addresses disadvantaged countries, regions and sectors. In this connection, it should be mentioned that some Member States, particularly those of the OECS were entering the CSME with an inherent disadvantage occasioned by small size, openness, undifferentiated economies and vulnerability to external shocks. Similarly, it was envisaged that special and differential treatment would be required for Member States requiring special support measures of a transitional or temporary nature occasioned by an adverse impact of entry into the CSME, or temporary low levels of economic development, or classified as highly indebted poor countries. It was also envisaged that special and differential treatment might be required for regions or sectors within more viable economies where the operation of the CSME might have impacted adversely on their economic well-being.

Competent decision-makers also recognised the need to protect competition and consumer welfare if the benefits expected from the establishment of the CSME were to be realised. The original Treaty of Chaguaramas did provide for the regulation and control of restrictive business practices.⁴⁷ However, the provisions of this Article appear to have been a dead letter since no Member State had taken the trouble to enact them into law and administrative and institutional arrangements to protect competition and the consumer were conspicuous by their absence. Such diffidence on the part of competent decision-makers was perhaps permissible in a situation where national jurisdictions were still in a position to protect national enterprises from foreign competition. However, it would be unacceptable in a situation where initiatives were being taken to create a single economic space and rights of establishment to provide services were being accorded to non-nationals. Consequently, Chapter Eight of the Revised Treaty is largely devoted to the establishment of rules of competition and consumer protection and to sanctions for the breach of those rules. Generally, these rules are designed to prohibit business practices which prevent, restrict or distort competition or allow one or another competitor to abuse a position of dominance in the market. Recognising, however, that rules of competition applicable to relatively small unviable economies may require adjustment when stronger competitors from third States vie for space in the regional markets, provision is made for competent authorities to take appropriate safeguard measures. The regime provides for the creation of a Regional Competition Commission⁴⁸ to deal with cross-border infractions of the rules of competition and envisages the establishment of national competition authorities to address anti-competitive business conduct within national jurisdictions.⁴⁹

Finally, the provisions of the Revised Treaty address the important issue of disputes settlement. The absence of a viable disputes settlement regime undoubtedly hampered the integration movement established by the original Treaty of Chaguaramas. This omission did not prove to be fatal due to the restrictive range of rights accorded in the old dispensation and the employment of consultations in competent organs to address and resolve disputes. The Revised Treaty provides for a broad range of dispute settlement modes, including good offices, mediation, conciliation, consultations, arbitration and judicial settlement. Of these modes, the most far-reaching in terms of establishing a predictable corpus of applicable norms is judicial settlement, given provision for the establishment of a regional court with original and exclusive jurisdiction to pronounce definitively and authoritatively on various types of disputes concerning the interpretation and application of the Treaty.

The initial importance of the proposed Caribbean Court of Justice has been addressed in several publications.⁵⁰ It is sufficient to observe that in the absence of central supranational institutions in the Caribbean Community to impose, as required, uniformity in applicable norms and of an institution like the European Court of Justice to ensure harmony of applicable norms in varying jurisdictions, legal certainty is likely to be a certain casualty in the CARlCOM Single Market and Economy with far-reaching negative consequences for the regional integration movement.

Provisions of the Revised Treaty designed to ensure uniformity in the norms applicable to the CSME are Article 211 conferring compulsory and exclusive jurisdiction on the Court; Article 214 which speaks to referrals to the Court; Article 215 requiring compliance with decisions of the Court; Article 216 whereby Member States submit to the jurisdiction of the Court; Article 217 identifying the law to be applied by the Court, and Article 221 requiring judgments of the Court to constitute stare decisis. Other disputes settlement modes are available to Member States, it being recognised that judicial settlement could be expensive and that Member States may only wish to employ this mode as a last resort or where the issues involved are of significant national importance.

The Member States of the Community as detailed in Article 3 are Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Kitts and Nevis, Saint Lucia, St. Vincent and the Grenadines, Suriname and Trinidad and Tobago. The Conference has agreed to the admission of Haiti to the Community and this country has recently satisfied all the prescribed conditions for membership. Associate Members are the British Virgin Islands, Turks and Caicos Islands, Anguilla and the Cayman Islands. Article 228 of the Revised Treaty confers full juridical capacity on the Community. Member States are also required to accord to the Community in their national jurisdictions the most extensive legal capacity accorded to legal persons under their laws including the capacity to acquire and dispose of movable and immovable property and to sue and be sued in its own name. The Community is also accorded extensive privileges and immunities in its Headquarters Agreement with Guyana and in a Protocol on Privileges and Immunities concluded by the other Member States of the Community.

Notes

1. Consider in this context Article 20 of the Treaty Establishing the Caribbean Community and Article 63 of the Common Market Annex to the Treaty.

2. Duke E. Pollard, CARICOM in the Millennium, in The Caribbean Community: Beyond Survival, op. cit., p.258.

3. Vide Duke E. Pollard, The Caribbean Court of Justice: Challenge and Response in the Caribbean Community: Beyond Survival, edited by K.O. Hall, Ian Randle Publishers, Kingston 200 I, pp. 277 et. seq; also Duke Pollard, The Caribbean Court of Justice in Regional Economic Development, in Caribbean Court of Justice: Issues and Perspectives (2001), Vol. I Caribbean Community Secretariat, pp. 12ff.

4. In the submission of the West Indian Commission: ‘we must not proceed at the pace of the slowest; that those who are ready to move must do so—reserving a place for the others when they are ready.’ Article 27(4) of the Revised Treaty attempted to address this concern of the West Indian Commission. See Duke Pollard, op. cit., p.259.

5. See Paper entitled Restructuring of the Organs and Institutions of the Caribbean Community approved by the Fourteenth Meeting of the Conference of Heads of Government, Nassau, The Bahamas, July 1993 at p.1.

6. See Time for Action, Report of the West Indian Commission, Black Rock, Barbados, 1992, p. 507.

7. Restructuring the Organs and institutions of the Caribbean Community, op. cit. at p.8.

8. Note in this context the provisions of Article 13(2) which read: The Community Council shall, in accordance with the policy directions established by the Conference, have primary responsibility for the development of Community strategic planning and co-ordination in the areas of economic integration, functional co-operation and external relations.

9. Restructuring of the Organs and Institutions of the Caribbean Community. Op. cit., at p.11.

10. Vide, e.g. Articles 27-29 of the Revised Treaty of Chaguaramas

11. Vide Article 27 (4) of the Revised Treaty.

12. Vide Article 24 (4) of the Revised Treaty.

13. Vide Article 13 (4) (a) of the Revised Treaty.

14. Vide Article 27(2) of the Revised Treaty.

15. Vide Articles 39-42 of the Revised Treaty.

16. Vide Article 40 of the Revised Treaty.

17. Vide Articles 82-84 of the Revised Treaty.

18. Vide Parts III, IV and V of Chapter V of the Revised Treaty.

19. The draft bills on Competition, Consumer Protection and Countervailing and Anti-Dumping Duties were tabled for consideration at the Inaugural Meeting of the Sub-committee on Harmonisation which was held in Basseterre, St Kitts and Nevis on 20-21 March 2003. The Sub-committee is a body of the Legal Affairs Committee which comprises Attorneys-General and Ministers of Legal Affairs of the Caribbean Community.

20. See the Draft Countervailing and Anti-Dumping Act and, in particular, Chapter Eight thereof.

21. See also Article 67 of the Revised Treaty of Chaguaramas. The CARICOM Regional Organisation for Standards and Quality (CROSQ) was established in 2002 with headquarters in Bridgetown, Barbados when its constituent instrument was provisionally applied.

22. See 239 (d) of the Revised Treaty of Chaguaramas.

23. Article 45 records the commitment of Member States to ‘the goal of free movement of their nationals within the Community’

24. Article 46(2) of the Revised Treaty

25. See Article 32(3) of the Revised Treaty.

26. Vide Article 37 of the Revised Treaty.

27. Vide Article 35 of the Revised Treaty

28. See, for example, the CARlCOM Agreement on Reciprocal Social Security Benefits which entered into force on 1 April 1997

29. Vide Articles 32, 33 and 34 of the Revised Treaty.

30. Vide, for example, Chapter 8 of the Revised Treaty.

31. Vide Article 74(2) of the Revised Treaty of Chaguaramas.

32. Vide Article 72 of the Revised Treaty of Chaguaramas.

33. Vide Article 66 of the Revised Treaty of Chaguaramas.

34. Vide Article 51 of the Revised Treaty of Chaguaramas.

35. Vide Article 52(3) and (8) of the Revised Treaty.

36. Vide Article 53 of the Revised Treaty.

37. Vide Article 54 of the Revised Treaty.

38. Vide Article 64 of the Revised Treaty.

39. Vide Article 66 of the Revised Treaty.

40. Vide Article 63 of the Revised Treaty.

41. Vide Article 65 of the Revised Treaty.

42. Vide Article 79 o the Revised Treaty of Chaguaramas.