UNIVERSITY OF TECHNOLOGY College of Business and Management School of Business Administration Presented in Partial Fulfillment for the Course

Requirements for: International Law LAW3008

Group Members: Shamal Nicholson Terresa Mckenzie Yannick Harvey

Lecturer/Tutor: Mrs. Patricia Roberts-Brown

Friday, July 27, 2012

Introduction Jamaicas formal engagement in the Caribbean regional integration movement began with its membership in the West Indies Federation. Following to Jamaicas withdrawal from the West Indies Federation by way of a national referendum, Jamaica and other former Federation Members continued to chase policies intended at arriving at an alternative regional integration arrangement that would be mutually approved upon by all Parties. Innate in this pursuit was the potential for the deepening of economic relations, chiefly with respect to the expansion of intraregional trade. Jamaica, at the time, was concurrently pursuing partisanship in the international trade arena, having acceded to the General Agreement on Tariffs and Trade (GATT) and its active input in events leading up to the convening of the United Nations Conference on Trade and Development (UNCTAD). The search for a jointly customary method for a Caribbean regional integration schema was imperative for Jamaica, as this occurred at a time that was considered to be the era of Jamaicas industrial development, as the Government actively pursued the strategies of export promotion, industrialisation by provocation an swap of imports. The formation of a regional bloc would, consequently, fit well within Jamaicas framework of development. By independence, Jamaica had acceded to the Caribbean Free Trade Association (CARIFTA) which was recognized among some former Federation Members in the 60s. Chief among the reasons for Jamaicas accession was the need to take away barriers confronting its exports to CARIFTA countries. Among the barriers identified were: high rates of duties, quantitative restrictions and intricate customs procedures at ports of entry. In the 70s, CARIFTA members completed the negotiations of the Original treaty of Chaguaramas instituting the Caribbean Community and Common Market (CARICOM). CARIFTA, in contrast to CARICOM was not limited to the elimination of barriers for intraregional trade. Enclosed in Article 4 of the Treaty provisions, were objectives aimed at fostering economic and trade cooperation, and functional cooperation in areas such as education and health care as well as foreign policy synchronization among member states. Among the objectives of the Treaty, as set out in Article 4, were: ... (a) the economic integration of the Member States by the establishment of a common market regime (hereinafter referred to as "the Common Market") in accordance with the provisions of the Annex to this Treaty with the following aims:(i) the strengthening, coordination and regulation of the economic and trade relations among Member States in order to promote their accelerated harmonious and balanced development; (ii) the sustained expansion and continuing integration of economic activities, the benefits of which shall be equitably shared taking into account the need to provide special opportunities for the Less Developed Countries; (iii) the achievement of a greater measure of economic independence and effectiveness of its Member States in dealing with States; groups of states and entities of whatever description; functional cooperation, including(i) the efficient operation of certain common services and activities for the benefit of its peoples; (ii) the promotion of greater understanding among its peoples and the advancement of their social, cultural and technological development;

(b)

Treaty Establishing the Caribbean Community. Chaguaramas. 4 July 1973. http://www.caricom.org/jsp/community/original_treaty-text.pdf

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The Government of Jamaica readily endorsed these objectives and, like CARIFTA, were deemed well-suited with Jamaicas national development objectives. Adjacent to this background, Jamaica was one of the first countries to attach its signature to the Treaty, signalling its commitment to the encroachment of national development through regionalism. Intra-regional trade expanded during the operation of the Treaty of Chaguaramas, even though, the lack of a dogmatic framework for trade in services and capital mobility restricted the benefits to be derived from the CARICOM regional integration agenda. Hence, the Treaty of Chaguaramas was revised in 2001 and currently referred to as the Revised Treaty of Chaguaramas establishing the Caribbean Community, including the CARICOM Single Market and Economy (CSME). Subsequent to the objective of the original Treaty, the Revised Treaty seeks to go forward with the formation of a single economic space among CARICOM Members. Unlike the original Treaty, nonetheless, the scale of the Revised Treaty goes further than the facilitation of merchandise trade and practical cooperation and mandates members to loosen up policies, the existence of which would, inter alia, put a hamper on trade in services, business organization, capital mobility and the right to obtain property within the CSME by CARICOM nationals.2 This memo, chiefly with reverence to the construction of a regulatory framework for trade in services, was amongst the reasons for the amendment of the Treaty, the content of which is of key interest to Jamaica given that Jamaicas export interests are positioned in the area of services. Additionally, Jamaicas balance in merchandise trade with the province had worsened over the decades. Significantly, Treaty amendment and the establishment of the CSME were motivated by the 1989 Grande Anse, Grenada Declaration which saw CARICOM member states making a pledge to intensify the scope of the regional integration process. By 2001 all debate had been ended regarding the Treaty and it was ratified in July 2001. Jamaica signed the Revised Treaty in July 2001. The Revised Treaty established the CSME administration which is founded on five (5) important propositions which Jamaica supports movement of goods, services and capital, right of establishment and free movement of nationals. Similar to its accession to CARIFTA and its signature to the original Treaty, Jamaicas signature to the Revised Treaty was premised on its potential for national development, in particular, its latency towards for Jamaicas economic development. Like its predecessor, the Revised Treaty makes provisions for cooperation among member states on key issues of national significance such as educational sector development; economic growth through trade liberalisation, industrial support and infrastructural development; health care liberation; and foreign policy support, as well as external trade policy coordination. From an international economic relations viewpoint, the Revised Treaty was observed as the vehicle through which Jamaica could expand its goods and services trade in the region, while enhancing the means for capital mobility for Jamaicans investing in other CSME States. To this conclusion, Article 6 of the Revised Treaty adds the following objectives to those contained in Article 4 of the original Treaty:

There are 15 countries that are parties to the Revised Treaty of Chaguaramas establishing the Caribbean Community, including the CARICOM Single Market and Economy: Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname and Trinidad and Tobago. However, while the Bahamas, Haiti and Montserrat are participating in the Caribbean Community, they are not yet participating in the CARICOM Single market and Economy (CSME)

.. (b) full employment of labour and other factors of production; (c) accelerated, coordinated development and convergence; and sustained economic

(d) expansion of trade and economic relations with third States; (e) enhanced levels of international competitiveness; (f) organisation for increased production and productivity; (g) the achievement of greater measure of economic leverage and effectiveness of Member States, groups of States and entities of any description; ...3 The Revised Treaty has consented to Member States for the commencement on a number of policy changes for their operation to be consistent the content of the Revised Treaty. Jamaica has undertaken the requisite policy and legislative mandates, except in a few cases where a few legislations remain to be amended. To date, Jamaica has introduced the following legislation in conventionality with the Revised Treaty: (i) (ii) (iii) The Treaty is in Force in Domestic Law via The Caribbean Community Act; Jamaica recognises the Original Jurisdiction of the Caribbean Court of Justice (CCJ) via The Caribbean Court of Justice Act, and The three key intergovernmental Agreements are functioning, that is, the Agreement on Social Security, the Agreement on Avoidance of Double Taxation and the Agreement Establishing the Caribbean Regional Organisation for Standards and Quality.

More importantly, the remaining amendments to the legislation are in course to be concluded in the near future. Jamaica has also, in the context of the CSME done the following: Established a CARICOM line at the airport Common Entry and Departure Forms A CARICOM Passport

Treaty Establishing the Caribbean Community. Chaguaramas. 4 July 1973. http://www.caricom.org/jsp/community/original_treaty-text.pdf

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CARICOM Single Market and Economy was implemented by (a) By modifying the Treaty which established the Caribbean Community (the Treaty of Chaguaramas) (b) By modification of the national laws, policies and programmes of member states to accommodate these and other decisions completed at the regional level (c) By active interest in and participation of the Regions people in the CARICOM Single Market and Economy. The advancement of the legal framework for a functioning Single Market has made considerable progress. This verdict does not mean that the CSME is functioning to the satisfaction of CARICOM Nationals at the level of effectiveness that is intended through the Revised Treaty, and in respect of, the treatment to which CARICOM Nationals are entitled. There are outstanding general and specific restrictions, but these appear to be in the minority. Several challenges were indentified in the implementation and operation of the CSME, ranging from conduct that is not consistent with obligations under the Revised Treaty, capability to implement and maintain the process, to political will, financial and human resources, power to compete, security issues, social and cultural issues, and to the general alleged failure of Member States to honour obligations. Bearing in mind these issues, an important dissimilarity needs to be made between the specific issues and complaints about specific Treaty provisions and decisions made by the Organs of the Community experienced within the Member States and the entire regime of the CSME. In no case was there blame of the CSME as a whole or any of its core apparatus. Where there were cases of cynicism and trepidation, the legislative bodies expressed frustration about delay in the overall implementation process, about the limited aspirations of some arrangements such as free movement and about perceived and actual failure by Member States to comply with specific provisions of the Revised Treaty, but no condemnation of the entire Single Market project. The frustrations appear to be more of consequences of the embryonic sub-structure arrangements and perceived lack of political will rather than with the laws per se. The issue of capability to participate effectively in the economic integration for many Member States includes; absorptive capacity, governmental capacity to sustain implementation and to carry out the functions of the CSME and supply side capacity to deliver goods and services in the CSME.

Recent Times In article in the Sunday Observer, dated Sunday, April 15, 2012, the writer speaks about a diplomatic row between Haiti and Jamaica, after Haiti closed its embassy two weeks prior and withdrew its diplomatic agents. Haitis Ministry of Foreign Affairs, in a December 2011 letter advised their Jamaican counterpart of the March 30 departure, citing issues of non-reciprocity as one of two reasons for their decision. They were citing to the fact that while they managed an embassy in Jamaica for more than 30 years, Jamaica had never established a related mission in Haiti and only operated a voluntary consulate, the functions of which were not as extensive as an embassys. However, the fact that Jamaica does not have an embassy in Haiti should not be seen as a lack of commitment on the part of Jamaica to the ties of friendship and co-operation which we share with our sister nation, said the Ministry of Foreign Affairs. In an article in the Jamaica Observer, dated Sunday, July 24, 2011, the writer speaks about the manifestation of low-cost carrier REDjet in the relations among the countries of the Caribbean Community and Common Market (Caricom) had brought to the fore a number of issues, in particular the belief by the public that the price of air travel in the region was ridiculously overpriced. At one point, it caused LIAT, the airline owned by the governments of Antigua and Barbuda, Barbados, and St Vincent and the Grenadines, to publish its fare structure, which revealed that government taxes on flights originating in most countries are extremely high, exclaims the writer. The government of Trinidad and Tobago (an oil-producing country) subsidies fuel used by CAL, not just the fuel it buys in Trinidad, but also the fuel purchased elsewhere for all its operations. In the case of Jamaica, the unwillingness of the government to allow REDjet entrance, while the deal for CAL to buy out Air Jamaica was not yet fully sealed, was logical, in the eyes of the public, though not by any means fair to REDjet. If the deal between CAL and Air Jamaica had fallen through, the Jamaica government would have found itself with a huge hole to fill in the engagements under which the International Monetary Fund is providing the Government with a stand-by facility. The writer quotes Ian Bertrand, a regional airline expert, as he puts it: "Imagine Caricom countries knew for years that the Multilateral Air Services Agreement was incompatible with the Revised Treaty of Chaguaramas (the Caricom treaty) and did nothing. Imagine that despite recent political statements embracing open skies, the very recent bilateral discussions between Trinidad and Tobago and Barbados did nothing to change the closed sky structure of their Air Services Agreement". The writer says that even worse is the fact that, at no time was the Prime Minister Ralph Gonsalves of St Vincent brought into the sharp discussions over permitting REDjet to fly as he is the individual within the Caricom quasi-cabinet with duty to supervise air transportation. REDjet may have been given authorization to fly to Trinidad and Jamaica in this manner adding to their Guyana route, but that is only a small battle. The writer goes further by saying that a real conflict is yet to come save the fact that good sense prevails among Caricom's leadership and a sensible aviation policy is established, which would take into relation both commercial realities and public good. One of those realities may be a test of the value of the REDjet model. Another would be the establishment of a Caricom Aviation Authority to set widespread aviation rules throughout Caricom funded by Caricom-wide aviation charges. An article in the Jamaica Gleaner, dated March 27, 2012 discussed Trinidad contravening the CARICOM Treaty, where it is said that Prime Minister Dr Ralph Gonsalves of the St. Vincent and the Grenadines alleged that insurance laws in Trinidad and Tobago breached the treaty and allowed the oil rich twin island republic to pleasure its nationals auspiciously following the collapse of Colonial life Insurance Company and subsidiary, British American Insurance Co. Ltd. The writer goes further to say that Gonsalves told Parliament that his administration believed all policyholders affected by the disintegration of the two companies should have been treated "in precisely the same manner in respect of CLICO-Trinidad". The article goes further to quote Gonsalves, who said, "We have taken the position that under the Revised Treaty of Chaguaramas that law is contrary to the equal treatment provision of the Revised Treaty of Chaguaramas and therefore has no validity." Gonsalves said that if Trinidad & Tobago "is treating its own citizens in a particular manner, they must treat everybody in the Community in like manner".

Another article in the Jamaica Gleaner, dated February 25, 2012 talks about The Caribbean Court of Justices decision to rule against Suriname for failing to enforce a tax on non-CARICOM flour in order to protect a Trinidadian firm, in Paramaribos first case before the court over Caribbean Community trade disputes, even though the justices deprived the firm of damages, to which they claimed they had lost US$3 billion over four and a half years due to Surinames failure to meet the terms with the CARICOM treaty. The CCJ ruled that Suriname breached its obligations under Article 82 of the Revised Treaty of Chaguaramas, the regional blocs treaty, by failing to enforce a 25-per cent tariff on imported flour from the Netherlands as a measure to shield a Trinidadian miller, Hummingbird Rice Mills. In an article on June 1st 2012, in the Jamaica Observer, Opposition spokesman on transport, works and infrastructure development, Karl Samuda, rallied for a bipartisan re-evaluation of the trade terms of the Treaty of Chaguaramas, particularly as it relates to trade and commerce between Jamaica and Trinidad and Tobago. Mr Samuda was quoted saying, "We should not support the notion of Caricom forever; it must be Caricom for as long as it satisfies Jamaica. There can be no relationship, at least not a healthy one, without reciprocity. Mr Samuda further went on to illustrate the issue between the two countries as a trade imbalance between Jamaica and Trinidad and Tobago, also referring to it as a "disgrace" and an "embarrassment", cautioning that the time was running out for Jamaica to make a decision on its future trade links with the provincial assemblage. He also argued saying that, "We cannot continue to trade with a so-called partner who has no real interest in promoting trade between us and them. He goes further to exclaim that while products from Trinidad and Tobago were coming into Jamaica liberally, Jamaican products were still being perturbed at their ports of admission, and singled out the heated discussion over the export of Jamaican patties as one instance. In an article in the Sunday Observer, dated Sunday, July 01, 2012 opposition spokesman on foreign affairs and foreign trade Senator Dr Christopher Tufton is advocating a change to the Treaty of Chaguaramas as a solution to Jamaica's regional trade concerns instead of the country exiting the Caribbean Community (Caricom). Dr. Tufton declared that the debate on Caricom had been characterised by too much emotion and needed "a dose of hard data-driven analysis and economic pragmatism". The former Jamaican commerce minister suggested what was once unthinkable, that his country consider leaving the Caribbean Communitys regional trade bloc. The leaders acknowledge that powerful forces at home often hinder decision making. In an article in the Jamaica Observer, dated Friday, March 02, 2012, based on remarks made in a report from Landell Mills Limited a UK Consulting Firm and which speaks about turning around Caricom, the report has disclosed what seems to be a moment of truth as private representatives and other stakeholders were informed that the region will not be able to deliver on its promise which was made some years ago. The CSME was launched in 2006; one year later we announced to the world that we would have by 2015 a fully functional single economy, including a single currency, namely common to our union. The report speaks to the fact that if the existing conditions which we now face on an international level worsen then it would have an adverse effect on the community and within a shorter time frame. Emphasis is also placed on projection for the next few years which could see a reduction in member states based of the fact that members might become distressed and could begin to vote with their feet. Therefore, measures will have to be implemented in order to mitigate the risk of losing any of its 15 member states. According to consultants there are too many commands and a lack of implementation at the level of member states which are contributing factors to some of the internal problems that have impede the community. The article states that In order for Caricom to survive and eventually prosper, strategies will have to be develop/improved going forward, for example; every member state must give their full support; a focus must be placed on achieving/delivering a specific objectives which must be Specific, Measurable, Achievable, Realistic and Time base, equal treatment and benefit for all member states and a realistic reorganisation and strengthening of the movement, including the Secretariat and regional institutions. Having identified some of the shortcomings within the community it is of vital importance that the head of government in consultation with all other relevant parties to take steps and make decisions that will prioritise the objectives and goals of the community that will demonstrate fair treatment among all member states.

Conclusion The Single Market is open for business but there is not enough cross border activity. The regime has been executing to the direct benefit of individual CARICOM Nationals who are eligible. The Community needs to introduce a formal system for complaints. The regime for free movement of goods has been operational even if there are specific complaints and negotiations in progress about movement of specific goods.

References Charles, J. (n.d.). Caribbean leaders vow change as pessimism grows over Caricom trade bloc Haiti - MiamiHerald.com. MiamiHerald.com - Miami & Ft. Lauderdale News, Weather, Miami Dolphins & More. Retrieved July 27, 2012, from http://www.miamiherald.com/2012/07/03/2880718/caribbean-leaders-vow-changeas.html#storylink=cpy Dunkley, A. (n.d.). Revise Chaguaramas, says Tufton - Jamaica Observer Mobile. Jamaica Observer: Jamaican News Online the Best of Jamaican Newspapers JamaicaObserver.com. Retrieved July 27, 2012, from http://m.jamaicaobserver.com/mobile/news/Revise-Chaguaramas--saysTufton_11820380 Henry, B. (n.d.). Samuda calls for Caricom trade review. Jamaica Gleaner News Online. Retrieved July 27, 2012, from www.jamaicaobserver.com/news/Samuda-calls-forCaricom-trade-review_11567224 Sanders, R. (n.d.). Fares flying low over REDjet fears? - News - JamaicaObserver.com. Jamaica Observer: Jamaican News Online the Best of Jamaican Newspapers JamaicaObserver.com. Retrieved July 27, 2012, from http://www.jamaicaobserver.com/news/Fares-flying-low-over-REDjet-fears_9282168 TREATY ESTABLISHING THE CARIBBEAN COMMUNITY. (1973, July 4). Caribbean Community (CARICOM) Secretariat. Retrieved July 27, 2012, from www.caricom.org/jsp/community/original_treaty-text.pdf Gleaner. (n.d.). CCJ rules against Suriname in flour dispute - Business - Jamaica Gleaner Saturday | February 25, 2012. Jamaica Gleaner News Online. Retrieved July 27, 2012, from http://jamaica-gleaner.com/gleaner/20120225/business/business5.html Gleaner. (n.d.). Trinidad contravenes CARICOM treaty - PM - Business - Jamaica Gleaner Tuesday | March 27, 2012. Jamaica Gleaner News Online. Retrieved July 27, 2012, from http://jamaica-gleaner.com/gleaner/20120327/business/business3.html Observer. (n.d.). 'Too ambitious' - Caricom secretary general questions CSME targets - Jamaica Observer Mobile. Jamaica Observer: Jamaican News Online the Best of Jamaican Newspapers - JamaicaObserver.com. Retrieved July 27, 2012, from

http://m.jamaicaobserver.com/mobile/news/-Too-ambitious----Caricom-secretarygeneral-questions-CSME-targets_10940925 Thompson, K. (n.d.). Strained diplomacy marks closure of Haitian embassy in Kingston - News JamaicaObserver.com. Jamaica Observer: Jamaican News Online the Best of Jamaican Newspapers - JamaicaObserver.com. Retrieved July 27, 2012, from http://www.jamaicaobserver.com/news/Strained-diplomacy-marks-closure-of-Haitianembassy-in-Kingston

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