Whether or not Britain stays in the European Union (EU), it will remain a party to the Cariforum-EU Economic Partnership Agreement (EPA), says Dr Kusha Haraksingh, lead negotiator of the Cariforum College of Negotiators.
"This is because at the time we were negotiating the treaty there were some things that the member states of the EU did not concede, but kept within their own competence. One of these was services. Britain signed the EPA not only as member of the EU but also in its own right. This means Britain has accepted the treaty in its own right and according to the Vienna Convention, it is a party to this instrument. Whether it withdraws from the EU or not, it is a member of the treaty," he said at a Brexit forum at the law faculty, University of the West Indies (UWI) , St Augustine.
The Caribbean Forum (Cariforum) is a subgroup of the African, Caribbean and Pacific Group of States and serves as a base for economic dialogue with the European Union. It was established in 1992. Its membership comprises the 15 Caricom states, along with the Dominican Republic.
He added there are other possible legal ramifications if Britain tries to withdraw from the treaty.
"Britain can possibly denounce an EPA treaty because the way we put it in the EPA only one of the parties, the EU as a party or on our side, the member states of Cariforum can denounce. But Britain by itself cannot denounce the treaty. It can ask to withdraw from the treaty under the Vienna Convention on the Law of Treaties. It will have to show that there is some significant difference or some radical change in circumstances that would require it to accede to that provision in the Vienna Convention to allow it to withdraw. It is by no means certain that if there is a change that you created, which is what Britain has done, whether it can use that to activate its withdrawal," he said.
Brexit is a term used for the withdrawal of the United Kingdom (UK) from the EU at the June 2016 referendum on EU membership in which 52 per cent voted to leave the union and 48 percent voted to stay.
Two weeks ago, British High Commissioner to T&T Tim Stew told the Guardian at his residence in Maraval that despite the Brexit vote, Britain will continue working with T&T and the countries in the region to help these economies and make them more open to foreign investment.
EU-CARIFORUM agreement
The European Commission is the executive of the EU and promotes its general interest.
The European Commission's website said the EU's trade and development partnership with the Caribbean stretches back over more than 30 years. In October 2008 Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Surinam, Trinidad and Tobago, and the Dominican Republic signed the CARIFORUM-EU Agreement with the EU. Haiti signed the agreement in December 2009, but is not yet applying it pending ratification.
The agreement also comes with substantial EU aid for trade.
The European Commission said the purpose of the agreement is to make it easier for people and businesses from the two regions to invest in and trade with each other and thus to help Caribbean countries grow their economies and create jobs.
Goods and investment
Haraksingh emphasized that the EPA agreement was an agreement where all countries entered voluntarily.
"Our relations are grounded in the Economic Partnership Agreement. It is called the Cariforum-EU EPA. From the outset, we were trying to establish that this is an agreement among sovereign countries on one hand and sovereign countries on the other hand. It was an agreement among equals. We were giving our markets and opening up ourselves," he said.
He said the agreement was also part of the unfinished agenda of the Cotonou Partnership Agreement, which had provided that Caribbean countries would after a period of time, try to secure a WTO-compatible trading instrument.
"There were a lot of criticisms about why we did not do this together but there were reasons why that did not happen. We were interested in a comprehensive agreement that included investment and services and many of the African countries were not interested in that. They wanted an agreement only in goods. As a matter of fact last month, the Eastern African Union signed their EPA with the EU and it was an agreement for goods only. Our mandate from our political masters was that we should secure an agreement on services and on investment," he said.
He justified the Caribbean's focus on goods and investments as well as on services by saying that in the Caribbean, leaders want to move the region away from the colonial-era, commodity- based economies producing sugar, rice and bananas to trading in services.
"Wearing another hat as chairman of the Sugar Company of Trinidad and Sugar Association of the Caribbean, I knew that the people who were the sons and daughters of sugar workers were no longer going to work in the cane fields but they were in front of me in this very room here in the Law Faculty. That is what they were doing moving from commodities to services," he said.
Future fisputes
Haraksingh said when negotiating agreements, the parties have to foresee the day when there may be a dispute and this is what they did when negotiating the EPA.
"In the agreement we put that the resolution of any dispute must be mutually agreed upon by the parties and it must be by consensus. Consensus in international trade means everybody must agree. Far from putting ourselves in a position where 28 countries (EU) could out vote the 15 (CARICOM), we put ourselves in a position where even one country has the authority to block an agreement. We underlined it in the words of the EPA by saying when something touches an individual Cariforum state, it cannot be agreed unless that individual Cariforum state signals its assent. We almost gave each Cariforum state a veto in the case of any changes to be made to the agreement," he said.
He said Cariforum neither CARICOM are legal entities allowed to sign treaties but it is the individual states and this is important because they were against the idea of collective sanctions.
"A collective sanction would have meant that if one of the Caribbean states, let us say Haiti which speaks French and did not understand the agreement in English and let us say a Customs officer did something wrong, sanctions would have meant that all of us could be punished. So our instructions were not to accept collective sanctions in the agreement."
He said if Britain is no longer in the EU, there is a clause in the agreement that says that the EPA is to be implemented within the territory of the EU.
"So that means even if Britain is not in the EU it means that the EPA can be implemented in Britain as Britain is not within the territory of the EU."
Haraksingh said that they negotiated the EPA in a way where the under-developed Caricom states could move from simply being raw material producers to actually developing finished products to sell to Europe.
"We have signed an agreement which says that you can sell into Europe without duty or limit anything that you can produce. My students always wonder why we sell sugar or cocoa to Europe but buy chocolates. That was because the trade has allowed for that. We could sell raw materials but if we tried to sell anything that is finished like chocolates the tariff escalation would be such that we could not sell it. What we did in the EPA was that we overturned history and made it possible for us to sell duty free anything that we could produce. Now it is implementation and how to take advantage of market-access possibilities," he said.