Law of Treaties and the EPA

By Kasala Kamara
San Fernando, Trinidad
August 13, 2008

TreatyThe government of the Republic of Trinidad and Tobago and of most other Caricom countries has indicated that it is ready to sign the Economic Partnership Agreement (EPA) with the European Union (EU). Initialling of the agreement took place on December 16th 2007. Citizens of Trinidad and Tobago and the wider Caribbean need to know the disturbing circumstances surrounding the negotiation and initialling of the agreement in the context of international law i.e. the Law of Treaties.

Firstly, resident Bharrat Jagdeo of Guyana stated that the agreement was concluded against the backdrop of a THREAT (my emphasis) that tariffs would be imposed on Caribbean exports of sugar, banana and manufactured goods to the European Community as of January 1st 2008, if the region did not meet the deadline of December 31st 2007 – the date when the World Trade Organisation waiver for free trade arrangements under the Cotonou Agreement was set to expire.

Secondly, in a commentary dated December 20th 2007, Sir Ronald Sanders, a former Caribbean diplomat stated: “Whatever gloss the EU commissioners put on it, their THREAT (my emphasis) of the imposition of Generalised System of Preferences (GSP) standards on Caribbean exports into Europe, if the EPA was not signed, sufficiently frightened some government representatives and special interest groups such as rum producers who desperately wanted to protect their exports.”

Thirdly, the Taubira report (produced by Christiane Taubira of the French National Assembly, official representative of the Overseas Department of French Guyana) criticises “the tactic – pressure, paternalism and threats – employed by the Commission – to impose its point of view and its interests.” Oxfam, the anti-poverty non-governmental organisation has welcomed her report. Jean-Denis Crola, an activist in Oxfam’s Paris office said that the European Commission had used “immoderate pressure” in the negotiations by threatening to cut aid to ACP countries and increase taxes on their exports to Europe if they did not sign the agreements.

“Nobody in these countries – peasants, craftspeople, entrepreneurs – ignores the consequences these accords will have on their means of survival, their economies, their poverty and their hunger”, he said, “Nobody ignores the tactics – pressure, paternalism and threats – employed by the Commission to impose its point of view and its interests.”

Fourthly, Professor of Economics, Dr. Clive Thomas of Guyana, in an article entitled The Economic Partnership Agreement as Massive Manipulation stated “through a mixture of blatant bullyism, bribery, cajolery, deception, intellectual dishonesty and plain bluff the EU has worked a monumental deception on the realm.”

The EC-Cariforum EPA can be described as a treaty in the making and is therefore relevant to interpretation and analysis under the Vienna Convention on the Law of Treaties, concluded on 23 May 1969.

There are six grounds of invalidity of treaties according to the Vienna Convention: treaty-making incapacity; error; fraud; corruption; coercion; conflict with a norm of jus cogens. The empirical evidence available seems to show that the ground of coercion is satisfied, thus making a strong case for the invalidation of the EC-Cariforum EPA. According to I.A. Shearer in the book Starke’s International Law Eleventh Edition: “(5) Coercion. This ground is satisfied if: (a) a state’s consent to a treaty has been procured by the coercion of its representatives through acts of threats directed against them; (b) the conclusion of the treaty has been procured by the threat or use of force in violation of the principles of international law embodied in the United Nations Charter (see Vienna Convention articles 51-52) Quaere, whether, as claimed by some states, the word “force” used in the United Nations Charter is capable of denoting economic or political pressure, which was alleged to be characteristic of ‘neo-colonialism’. By way of answer to this claim, it has been objected that it would open a wide door for the invalidation of treaties concluded at arm’s length.

It should be enlightening to the general population to hear what advice has been given bu the legal affairs department of the Ministry of Foreign Affairs. Let’s hear the international legal experts at5 the university and elsewhere.

1 Responses to “Law of Treaties and the EPA”


  • Mr Kamara, thanks for this very timely analysis. Your case is strenghtened by some other facts that I want to bring to your attention.

    1. The European Commission contention that the only alternative for ACP countries that did not sign EPAs is application of GSP tariffs has been questioned in several quarters as being in violation of its commitment under Article 37.6 of the Cotonou Partnership Agreement, in which they undertook to provide such countries with trade arrangements ‘equivalent to their present situation’. See paper by Dr Chris Milner on the Costs to the ACP of exporting to the EU under the GSP, posted in http://normangirvan.info.

    In other words the EC took a political decision cloaked in legal garb to pressure non-LDC ACP countries into EPAs.

    2. The EC contention that the expiry of the WTO Waiver on December 31, 2007 meant that EPAs had to be concluded by that date has also been contested by many, including Dr Lorand Bartels, a Trade Lawyer at Cambridge University. In a paper circulated in November 2007 Dr Bartels identified three options for continuing market access by ACP to the EU in 2008 while negotiations continued. In a Seminar in Brussels on 13/02/08, Dr Bartels remarked that the deadline “looks a little manufactured”, as the EC had not notified the WTO officially of the EPAs concluded (as far as I know they still haven’t notified the WTO). Dr Bartels’s papers are also posted on the above website.

    The EC argument that the deadline of 31/12/07 was cast in stone, together with the absence of alternatives to GSP treatment, was of course the basis of the threats and coercion to which your article refers, and both were seen, even at the time, to have questionable legal grounds.

    3. In November 2007 the President of the EU Commission, President Baroso of Portugal, wrote PMs Golding and Arthur warning them in no uncertain terms of the dire consequences that would follow failure to conclude negotiations on the Cariforum EPA. That served, to put it euphemistically, to ‘concentrate the minds’ of Caricom leaders. This letter was widely circulated among Caribbean stakeholders.

    4. As an interesting anecdote, in November-December last year the talk in Caricom circles was the computers at EU ports had been programmed to levy duties on imports from ACP countries that did not sign EPAs–talk that triggered concern among EU importers and Caribbean exporters and provoked additional pressure on Caribbean governments.

    Some of us have been saying all along that the EPA lacks legitimacy. From your analysis it appears that it lacks legality as well.
    Thanks!
    Norman Girvan, UWI

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