Legal Character, Functions and Interpretation of the CARIFORUM-EC Economic Partnership Agreement (EPA) By Dayantha L.

Mendis
Inadequate attention has been given by students of international law to the widely differing functions and the legal character of the instruments which it is customary to comprise under the term treaty. Lord McNair, Law of Treaties, 1961, p.739.

Introduction
Lord Arnold McNair encouraged students and practitioners to explore the legal character and the differing functions of a treaty in order to understand its object and purpose. Likewise, Professor Ian Sinclair emphasized the importance of interpretative rules in the unfolding of a treaty.

1. Legal character of the EPA

The legal character of the EPA can be explored
(a) by reference to the nature and classification of the treaty. (b) by reference to the final clauses dealing with the signature, ratification, accession, entry

into force, reservations, interpretative declarations, withdrawal, amendment, provisional application, settlement of disputes, etc.
(c) by reference to the 1969 Vienna Convention on the Law of Treaties (jus cogens/rebus

sic stantibus); 1986 Vienna Conventions on the Law of Treaties between States and International Organizations or between International Orgnizations..
(d) by comparing the treaty concept with legislation and contracts.

2. Differing Functions of the EPA

The functions of the EPA are as follows (a) The primary functions of the EPA are to establish a legal regime for free trade in goods

and services between the EU countries and the CARIFORUM States on the basis of reciprocity. However, there is no full reciprocity, as the implementation of the EPA is phased out for a period of twenty five years and such implementation is assisted through development cooperation and takes into account regional integration, eradicating poverty, WTO principles and it provides a basis for integration of CARIFORUM countries to global trading system/economy.

(b) The other functions of the EPA include the regulation with respect to market access, trade

facilitation, agriculture and fisheries and investment. It also deals with the regulation of e-commerce, capital movement and dispute avoidance and settlement, competition, procurement, environment, protection of personal data, technical barriers to trade and phyto-sanitary measures.
(c) Institutional framework has been established in Part V of the CARIFORUM-EC EPA to

ensure the implementation process. in the following manner (1) A joint CARIFORUMEC Council will meet at regular intervals and be responsible for the operation, implementation and monitoring of the Agreement. (2) CARIFORUM-EC Trade Committee consists of the senior officials from both contracting parties to assist the CARIFORUM-EC Council. (3) Special Committee on Customs Cooperation and Trade Facilitation has the responsibility for the monitoring of the implementation of the provisions relating to Customs and Trade Facilitation Chapter of the EPA. (4) CARIFORUM-EC Parliamentary Committee provides a forum for exchange of views between the member of the European Parliament and the Legislatures of CARIFORUM States. The above Councils and Committees adopt a consensual approach to resolve difficulties relating to the implementation process.
(d) The functioning of the EPA differ from other multilateral treaties such as human rights

treaties, non-proliferation (NPT) treaties, WTO Agreements or Geneva Conventions and Protocols.

3. Interpretation of the EPA

(a) Interpretation is fundamental to implementation of the EPA with a view to achieving its

objects and purposes.

(b) At international level, Articles 31 and 32 of the VCLT 1969 apply in regard to the

interpretation of the EPA Article 31(1) states A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in that context and in the light of its object and purpose. Article 32 states Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion to determine the meaning when the interpretation according to Article 31 (1)
(2)

Leaves the meaning ambiguous or obscure; Leads to a result which is manifestly absurd or unreasonable.

(1) At national level, interpretation of the implementing legislation may lead to some

difficulties, unless reference to extrinsic aids is permitted by national legislation. Hence, it is recommended to insert a clause in the implementing legislation to allow extrinsic aids to be used in the interpretation of such legislation in the following manner. (Subject to Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, consideration must be given by a Court of Law to any Report of a Committee or Council established under the EPA and any treaty referred to in the EPA may be taken into account in the interpretation of the provisions of the implementing legislation (EPA).

Concluding Remarks
Knowledge of the legal character, differing functions and interpretative rules relating to the application and interpretation of the EPA is a necessary prelude to the implementation process of the EPA at international and national levels.