UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

USI: 1037584

Course Code: LLB3103

Course Name: Caribbean Integration Law

Lecturer: Magistrate Dylon Bess

Submission Date: 2022-12-03

Caribbean Integration

Compare and contrast the provisions of the Treaty of Basseterre with the Treaty of
Chaguaramas identifying both strengths and weaknesses in the regional integration
process in each treaty.

I start with the now proven premise that no CARICOM nation is able to prosper on its own. -
Ronald Sanders. (Caribdirect, 2016).

Regional integration is ‘the process by which two or more nation states agree to co-operate and
work closely together to achieve peace, stability and wealth. (EU Learning). Since the 1930’s,
the countries of the Caribbean have shown their unwavering desire to cut colonial ties and foster
deeper social, political and economic relations amongst themselves. There have been many
setbacks to achieving this and one cannot speak of Caribbean regional integration without
reference to the failure of the Federation. Ultimately, the goal of regional integration would have
been realised with the emergence of CARICOM and the OECS. However, many have argued
that the Caribbean is still politically and economically fragmented when compared to other
integration movements like the EU. This paper will examine the constituent treaties of the two
regional integration bodies with the aim of identifying the strengths and weaknesses in the
integration process and to assess whether their provisions indeed foster the group cohesion and
unity that was envisaged.

The Caribbean Community came into existence with the original 1973 Treaty Establishing the
Caribbean Community and the Annex to the Treaty - The Caribbean Common Market. Nine
protocols would have been drafted to amend this treaty which would have been consolidated in
the Revised1 Treaty of Chaguaramas2. The Revised Treaty of Basseterre Establishing the
Organisation of Eastern Caribbean States Economic Union3 would have replaced the 1981 Treaty
of Basseterre.

1 Hereafter referred to as RTC

2 Date of entry into force: July 5, 2001
3 Date of entry into force: January 20, 2011
The first notable difference between the treaties is article 2 which sets out the status of the
revised treaties and the present organizations. Article 2 of the RTC states that the Community is
the successor to the Caribbean Community and Common Market. In accordance with the
Protocol on the Revision on the Treaty of Chaguaramas, the original treaty would have been
terminated and the organization as established under that treaty would have been replaced.
Contrastingly, Article 2.1 of the RTB makes it clear that the OECS as established by the 1981
Treaty of Basseterre was ‘preserved and continued’ under the treaty. Even some provisions of
the 1981 treaty can be be applied 4 to the extent allowed by the RTB. This is an implication of the
stability and the significant success that the OECS had enjoyed from the onset of its existence. In
fact, in the preamble of the RTB, the progress that had been made towards integration under the
1981 Treaty of Basseterre was acknowledged. Interestingly, there is no similar statement in the
RTC.

Consideration of Less Developed States

One possible strength of CARICOM is the distinction made in the RTC between less and more
developed states. These less developed states5 are accorded privileges whereby they will be
exempted from certain CSME obligations where it is proved that compliance poses economic
hardships for them6. COTED may authorise the imposition of import duties on goods of
community origin7 for such a time and under such conditions as it sees fit, which is generally
prohibited, where an LDC is likely to suffer a loss of revenue or to support the development of
an industry in a LDC8. Article 166 stipulates that the more developed countries shall make their
technological and research facilities available for use by the LDC’s. These provisions showcase
the charitable nature of the organization, as CARICOM recognised the disparities in the size,
resources and economies of their member states, and sought to ensure that the domestic affairs of
the LDC’s are not negatively affected by the fulfillment of the obligations under the RTC. It is
only where the national affairs of the countries are in order, that the regional affairs can thrive.

4 Article 2.3 of the RTB

5 Article 4 identifies the less developed states as Antigua and Barbuda, Belize, Dominica, Grenada, Montserrat, St.
Kitts & Nevis, St. Lucia and St. Vincent & The Grenadines.
6 Article 142
7 Art. 160
8 Art. 164
However, there is a massive con to this regime. This area is a cause for concern owing to the fact
that one of the reasons for the dissolution of the West Indian Federation was the dissatisfaction
felt by larger states, mostly by Jamaica and Trinidad and & Tobago, over the disproportionate
benefits received by the smaller Eastern Caribbean states9. Allowing members to opt out of
obligations may cause the lack of uniform implementation of obligations and decisions and may
slow the overall achievements of CARICOM. This has indeed happened as no two CARICOM
states have the same economic policies which is a glaring abnormality of a so-called integration
body. There is no distinction made in the RTB between the development level of states and this
may be due to the fact that the less developed countries in the RTC are actually the members of
the OECS.

CSME
The Caricom Single Market and Economy was established to ensure that there was a shift by
member states from reliance on ‘only national markets and resources to a greater reliance on
regional markets and regional resources10.’ It was envisaged that trade amongst member states
would resemble trade within a single member state; trade as if there were no national borders. It
would allow for competition between member states which would up the quality of goods and
services they produce so as to ensure that they effectively compete on the world stage, which is
afterall one of the objectives of regional integration. The CSME’s key components are the free
movement of goods, services, capital, persons and a right of establishment.
Due to the sound, well thought out provisions and the management of COTED, the free
movement of goods has largely been a success. In strengthening their integration, a common
external tariff was created. Members states are accorded preferential treatment 11 as the
importation of goods of community origin are tariff free but there is the requirement that a
common tariff be imposed on goods from non-CARICOM states. Community treatment extends
to goods which were assembled in the community but the raw materials were imported elsewhere

9 Berry, D. Caribbean Integration Law. (Oxford University Press, 2014). p. 19

10Keynote address on the CARICOM Single Market and Economy (CSME) and the free movement of labour
across the regions and its implications for social security, delivered by Stephen Mac Andrew…2004 Bridgetown,
Barbados.
11 Article 83 (2)
raw12. Import duties and quantity restrictions 13 on goods of community origin are also
prohibited. This is the most strictly enforced policy of CARICOM as waiver of the CET is only
allowed in exceptional circumstances and there are sanctions for the breach of the CET. Each
member state is mandated to institute a competent authority to oversee the efficient
administration of the CET in that state. COTED is required to keep the regime under continuous
review and to ensure uniform implementation throughout the community and to assess the
impact of the CET on production and trade. Article 4 of the Economic Union Protocol also
provides for the removal of import duties on goods of the OECS and the adoption of a common
external tariff. The OECS freedom of movement is still a work in progress and there is no
express provision on whether assembly of goods of whose materials were imported outside the
region falls under community treatment.

One historical challenge to successful regional integration was the frigidity with which
Caribbean states dealt with the movement of nationals due to fears of mass migration. The RTC
and RTB have created detailed regimes to foster the free movement of services, and persons. In
facilitating closer ties with the commercial sectors of member states, Chapter 3 of the RTC
allows for the establishment of economic enterprises by community nationals in other member
states; and in recognition of the communities’ entrepreneurs allows for carrying out of activities
of a self-employed person14. The businesses/company should have been incorporated and have a
registered office in a member state, be controlled or owned by nationals and carry on substantial
activity within the community15.
The right of establishment is greatly restricted as only certain kinds of companies/businesses can
exercise the right. The requirement for the carrying on of substantial activity within the
community means that small and developing businesses are excluded. Additionally, this right
does not extend to the establishment of non-profit organizations. Article 27. 1 of the RTB allows
for the establishment of agencies, branches, subsidiaries’ and gives nationals the right to pursue
‘activities as self-employed persons’. There is no specificity as to the size and activity of the
agencies and subsidiaries and so NGO’s and small businesses can access this right.

12 Art. 84(1)
13 Art. 87, 91
14 RTC 32(1), (3), RTB Art, 27.1
15 RTC Art. 32(5)(a)
We now come to an area of much contention: the movement of persons. In order to enhance the
sense of belonging felt by CARICOM nationals to the community, they are entitled to an
automatic stay of 6 months upon arrival in another member state 16. Article 46 (1) sets out the
category of skilled community nationals who may seek employment in other member states
without a permit: university graduates, media workers, sports persons, artistes and musicians.
Graduates are defined as persons who have received at least a Bachelor's degree from a
recognised university.
One can argue that this list of skilled nationals is classist and does not take into the account the
regular worker. Regional integration should accrue benefits to everyone, even the common man
in the street. It also strictly limits the sectors from which skilled nationals may come from.
Luckily art. 46 provides for the enlargement of this list. There has been an agreement to extend
this list to include nurses, teachers, artisans, persons who hold an associate degree or its
equivalent and household domestics.17 All of the original categories of skilled workers have been
implemented in full in the domestic legislation of member states, unfortunately the latter list has
not. 8 countries have moved to implement measures that allow for the spouses and dependents
of the skilled workers to move with them.
Nationals of the OECS who have signed onto the Economic Union are granted an indefinite stay
upon entry. These nationals can also move with their family; spouses and dependents and enjoy
the same rights and privileges accorded to nationals of that country. Unlike under CARICOM,
there is no confined list of the skilled persons who can exercise this right. The freedom of
movement under the OECS is a step above that of CARICOM as nationals can travel with just an
NID- no passport.

Even though both have set out these great regimes, the lack of restrictions by the OECS does
move it closer to the fullest possible integration of the member states. Both provisions in the
RTC and RTB allow for the sharing of resources, the creation of trade without borders and fierce
competition amongst member states to allow them to create goods and services to compete on

16 Article 45; Conference of the Heads of Governments at their Twenty Eight Meeting, 1-4 July 2007.
17 CARICOM Secretariat, ‘News Feature: Five Years On’ (n 74).
the global market. The only thing left is for member states to carry out these obligations
diligently.

The Principle of Direct Effect in the RTB

The central organs of CARICOM and the OECS have been awarded extensive competences and
apart from the legal rules set out in the RTC and the RTB, decisions made by these organs under
their respective treaties create law. Under the RTC, member states must take all appropriate
measures to carry out the obligations arising from the treaty and decisions made by the organs
and bodies18. The Acts, Regulations and Orders made by the organs of OECS under the RTB,
are directly effective19. This principle of direct effect, to which its origin is credited to the law of
the European Union, operates to allow laws made by the organisation to automatically become a
part of the national law of member states. Nationals can lay claim to individual rights which their
national courts must protect as per Van Gend en Loos v Nederlandse Administratie der
Belastingen20.
This principle of direct21 effect has served to strengthen the OECS by creating uniformity in the
implementation of OECS law. Without this principle, the law of the OECS, being treaty based,
would be effective to the extent allowed by the constitutional rules of the national legal systems
of the countries. The lack of uniformity would be a hindrance to a successful common market ,
as the very essence of such a union mandates ‘that the rules governing its operation should have
the same meaning and effect wherever they fall to be applied 22.’ This doctrine produces greater
observance of the laws as member states cannot undermine OECS law by pleading that they have
not transformed laws into their domestic law as a way to get out of their obligations.
The principle of direct effect is necessary to strengthen CARICOM. At the 40th Heads of
Government Conference Meeting in Saint Lucia, the leaders of the community lamented the slow
rate of implementation of the CSME and the ‘lack of urgency’ exhibited by some member states
in the enactment of legislation. It is necessary to remove the need for transformation of the
decisions of the organs and the provisions of the treaty into the domestic law of member states,
who have shown a lack of discipline in adhering to decisions and a stricter approach is needed. A

18 RTC art. 9, RTB art. 5

19 Art. 5.3
20 [1963] ECR 1
21 Berry, D. Caribbean Integration Law. (Oxford University Press, 2014). p. 203
22 Arnul, The European Union and its Court of Justice (n 58) 75-76.
reasonable person may see that the slow implementation process might be a possible reason for
dissolution. Sanjeev Datadin, a MP of Guyana, in March 2022, in putting forward his argument
of why the country should exit CARICOM, stated that Caricom is largely a failure and COTED,
which is responsible for trade and economic development is ‘useless because their decisions
have little to no effect and take too long.’ There is also the danger of incorrect or partial
transformation.

The Creation of the Regional Courts: Integration Through Law

The Caribbean Court of Justice23 and the Eastern Caribbean Court of Appeal, in their original
jurisdiction serve as treaty-interpreting tribunals solving disputes between member states and
between member states and the Community that arise under the treaties. The decisions of these
courts are binding24, exclusive and compulsory25.
It is reasonably foreseeable that these courts will, as the ECJ did for the European Union,
strengthen the integration process. The consistent application of CARICOM and OECS laws by
the courts will allow for the creation of a sound body of community law with identifiable
precepts and principles. The courts allow nationals to enforce their rights given by the RTC
against the member states and so the CCJ and the ECC operate to put checks and balances on
member states to ensure that they fulfill their obligations. For example in Shanique Myrie v
Barbados, the CCJ had given stern warnings to Barbados about observing the sanctity of their
CSME obligations.

The wider legal competence of the OECS

Article 14 of the RTB raises the bar in terms of political integration as the legal competence
awarded to the OECS is wide and far-reaching. Independent states are to delegate legislative
competence in the areas previously under the sovereign competence of the member states to the
OECS; the common market, monetary and trade policy, maritime jurisdiction and civil aviation.
Art. 14. 3 authorizes the OECS to legislate in entirely new areas where it is found that the
member states do not hold the sufficient legal competence. It would not be farfetched to say that
the OECS states can be described as having a partial shared regional governance.
23 Agreement Establishing the Caribbean Court of Justice (adopted 14 Feb 2001, entered into force 23 Jul 2002)
24 Art. 6.3 of the Annex on the Settlement of Disputes of the RTB
25 Art. 211
Lack of Involvement at the ‘bottom’
A weakness in both the RTB and RTC is that the decision making process only allows for the
participation of the heads of governments and important state actors. If input was allowed by the
private sector and civil societies much of the projects instituted by CARICOM and the OECS
would be underway more rapidly. For example, 26 It has been argued that the successful
implementation of the EPA in Dominica has been because of the interests and push that it
received from the private sector. At the institutional level, there needs to be a formal space that
allows for representatives of NGOs and grassroots organizations to have a say in regional
processes. Former Prime Minister of Jamaica Bruce Goulding stated that one of the flaws of
regional integration is the ‘attempt to integrate at the top whilst the bottom remains so separate
and apart.’ He had conducted a little experiment at the 2010 CARICOM Conference in Montego
Bay where he asked 6 waiters if they knew anyone from a CARICOM country and they all
answered in the negative. The involvement of the private sector , NGO’s and the wider civil
society, would not only mean more funding for the CARICOM and OECS but they have the
ability to reach and have deeper dialogue with the common man in the street and get them on
board with the visions of both regional integration bodies.
To conclude, the provisions in the RTC and RTB are sufficient for the realisation of the goal of
successful regional integration. The blame for the lack of progress in one body is mainly placed
on the indiscipline shown by member states in the observance of their obligations. The freedom
of movement contained in both the RTC and RTB and the creation of regional courts really
amplified the economic connections and brought stability to CARICOM and OECS law.
However, the principle of direct effect and the wide legal competence of the OECS puts that
regional integration movement above CARICOM, as it means that they are not only
economically, socially but also politically integrated.

26 Caribbean regional integration: A report by the UWI institute of international relations (IIR). (2011)
References

Treaties
Revised Treaty of Basseterre Establishing the Organisation of Eastern Caribbean States
Economic Union (adopted 18 Jun 2010, in force 21 Jan 2011)

Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the

CARICOM Single Market and Economy (adopted 5 Jul 2001, in force 1 Jan 2006)

Cases
Shanique Myrie v Barbados [2013] CCJ 3 (OJ)
Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1

Books
Berry, D. (2014). Caribbean Integration Law. Oxford University Press.

Article and Reports

Bishop, M., Girvan, N., Shaw, T., Mike, S., Kirton, R., Scobie, M., Mohammed, D., Anatol, M.
(2011). Caribbean regional integration: A report by the UWI institute of international relations
(IIR). Caribbean Regional Integration A Report by the UWI Institute of International Relations
(IIR) – The Integrationist (theintegrationistcaribbean.org)

CARICOM. (2004, June 8). Keynote address on the CARICOM single market and economy and
the freedom of movement of labour across the region and its implications for social security,
delivered by Steven Mac Andrew.
Golding, B. (2015, May 21). The problem with CARICOM (part 1). The Gleaner. The problem
with CARICOM (Part 1) | In Focus | Jamaica Gleaner (jamaica-gleaner.com)

Golding, B. (2015, June 19). The problem with CARICOM (part 3). The Gleaner. The problem
with CARICOM (Part 3) | In Focus | Jamaica Gleaner (jamaica-gleaner.com)

Hylton, N. (2019, Dec.) Factors promoting regional integration. IDOCPUB. Factors Promoting
Regional Integration [x4e6589rz9n3] (idoc.pub)

Lawrence, C, (2019, March 4). CARICOM grants deferral to two member countries on freedom
of movement. CSME.CARICOM.Org. CARICOM grants deferral to two member countries on
freedom of movement - CARICOM Single Market & Economy

Linton, L. (2018, Dec. 14). CCJ critical aspect of regional integration movement. Jamaica
Information Service. CCJ Critical Aspect of Regional Integration Movement – Jamaica
Information Service (jis.gov.jm)

Oilnow. (2022, March 23). CARICOM has largely been a failure: opting out treaty to protect oil
sector a matter of national interest- Datadin maintains. OilNowGY. CARICOM has largely
been a failure; opting out Treaty to protect oil sector a matter of national interest - Datadin
maintains | OilNOW

OECSBF. (2015, July 24). Advances made and potential benefits of the OECS free movement-
regime. OECS Business Focus. Advances Made and Potential Benefits of the OECS Free
Movement Regime - OECS Business Focus