Wed | Sep 22, 2021

CCJ provides opinion on freedom of movement in CARICOM

Published:Saturday | March 21, 2020 | 12:00 AMCMC

(CMC): The Caribbean Court of Justice (CCJ) has provided its first advisory opinion concerning the interpretation and application of the Revised Treaty of Chaguaramas (RTC), which governs CARICOM.

CARICOM leaders had requested the court’s advice on two specific questions relating to freedom of movement within the 15-member organisation, following their decision to enlarge the list of CARICOM workers entitled to seek employment in other CARICOM states under the CARICOM Single and Market Economy (CSME). The expanded list of workers include agricultural workers and security guards. 

The leaders also requested an opinion from the court on the requests made by Antigua and Barbuda and St Kitts and Nevis to opt out of that decision for a period of five years.

In its ruling, the CCJ said the principle of reciprocity means that privileges, favours, or benefits that are granted by one state to the citizens or legal entities of another state, should be returned in kind.  A principle of non-reciprocity means that such returns are not to be expected.

It said Article 27(4) of the RTC enables member states to opt out of commitments arising from the decisions of a competent CARICOM body or organ, provided that the fundamental objectives of CARICOM, as laid down in the Treaty, are not negatively affected. The CCJ regarded a “fundamental objective” as an issue that is of central importance.

Five conditions to effectively opt out

The CCJ noted that five conditions are needed for the effective implementation of an opt out.

It said first, one or more of the member states must make a request to opt out of a decision.

Second, the CCJ said the decision maker must be a competent organ of CARICOM, and pointed out that the Conference of Heads of CARICOM was a competent organ. Third, it noted that the Conference must agree to the request of the member state to opt out of the relevant decision.

The CCJ said that it was also clear that such an agreement was made in the case of Antigua and Barbuda and St Kitts and Nevis and that the two member states were permitted to opt out of the enlargement decision.

In keeping with Article 27(4) of the RTC, the CCJ advised that the member state, which chooses to opt out is entitled to do so based on the obligations arising from the decision.

Fifth, the CCJ said an opt out is permitted only if the “fundamental objectives” of CARICOM, as laid down in the RTC, are not prejudiced or undermined by the decision.

Factors which influenced CCJ decision

The regional court said that the question of whether the enlargement decision prejudiced the fundamental objectives of the RTC was crucial to its opinion.

“Ultimately, the Court determined that freedom of movement was a fundamental objective of the Caribbean Community laid down in the RTC. The CCJ closely regarded the facts that (i) the opt out was made available to two member states, each of which is categorised as a less developed country; ( ii) the duration of the opt out in each case was temporary, lasting for a five-year period; and (iii) the opt out related only to two categories of skilled nationals.”

In response to the first question, the CCJ advised that it was lawful for Antigua and Barbuda and St Kitts-Nevis and Nevis to request an opt out of the obligations arising from the enlargement decision of the Conference.

“It was also lawful for the Conference to grant the opt outs in all the circumstances. The said opt outs did not prejudice the fundamental objective of freedom of movement of skilled nationals.”

On the second question of whether the principle of non-reciprocity should be applied to security guards and agricultural workers of Antigua and Barbuda and St Kitts and Nevis, the court said it considered the uniqueness of the Caribbean Community, where each member state could veto a Conference decision.

The CCJ stated that the request for and grant of an opt out furthers the interests of the Community, because it allows decisions of the Conference to be taken and implemented in circumstances where those decisions may have otherwise have been vetoed.

The court also explained and examined the principle of reciprocity and how it applied in the context of the RTC. It concluded that “an opt out is to be treated as being non-reciprocal in character and advised that the principle of non-reciprocity applies to enlargement decisions so that nationals of Antigua and Barbuda and St Kitts and Nevis who are security guards and agricultural workers are entitled to enjoy the benefits of the enlargement decision."

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