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Law of Treaties and the EPA
Posted: Wednesday, August 13, 2008
By Kasala Kamara
San Fernando, Trinidad
August 13, 2008
The 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.
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