CARICOM to await CCJ decision on waiver for free movement

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By Elesha George

The five (5) Justices of the Caribbean Court of Justice (CCJ) have promised, at a “reasonable time,” to deliver their decision on whether countries within the Caribbean Community (CARICOM) can lawfully, under the legal framework of the organisation, choose to opt-out of obligations set out in the Caribbean Single Market and Economy (CSME) agreement.

“I wish to thank all counsel for their efforts and their submissions. We are going to consider all of them of course, and I wouldn’t be able to give you a time now when we will give the decision, but I can tell you that it will be given during a reasonable time” said President of the Caribbean Court of Justice, Justice Adrian Saunders as he concluded the two-day hearing.

On Tuesday, October 22nd, 2019, the court convened an historic hearing for directions in an Advisory Opinion being sought by CARICOM. This is the first Advisory Opinion filed at the CCJ.

The question is whether a member state can, pursuant to Article 27(4) of the Revised Treaty of Chaguaramas (RTC), lawfully opt-out of a decision of the Conference of the Heads of Government taken under Article 46(4), concerning the expansion of classes of persons entitled to work and move freely in the Community, and whether the nationals of those member states that opt-out of a decision under Article 27(4), can nevertheless derive the benefits of the decision.

The court was asked by CARICOM to give its opinion in relation to the matter based on its recent decision to give special consideration to Antigua and Barbuda and the Federation of St. Kitts / Nevis, to opt out of its obligation to allow extended categories of agricultural workers and security guards from moving and working freely within their individual states.

The Justices heard arguments from representatives for CARICOM, the states of Antigua and Barbuda, Barbados, Grenada, St. Kitts / Nevis, and acting as amicus curiae, the Law Faculty of the University of the West Indies (UWI), Cave Hill campus.  

The representatives were required to submit their opinions on whether a member state could lawfully opt out of a decision of the Conference of the Heads of Government and whether the nationals of those member states should be allowed to reciprocate the benefits of having their citizens work in the other CARICOM states.

          Antigua and Barbuda submitted that the benefits for citizens of countries that have opted-out should be reciprocal and that the Conference heads should be able to define set parameters on how this will take place.

In her opening submission, the Counsel for Antigua and Barbuda, Deputy Solicitor General, Carla Brookes-Harris offered that “The principal of reciprocity, similar to reservation, is applicable to opt-outs. Consequently, it therefore follows that the member state that opts-out from a decision, cannot reasonably expect its nationals to receive the benefits from another member state in respect of the decision that it had opted out of.”

Antigua and Barbuda submitted that its decision is to opt-out out in respect to receiving other CARICOM nationals who qualify under these two categories, while the Federation stated that an expectation was not communicated by its government as it relates to reciprocity.

In her presentation, St. Kitts / Nevis Solicitor General, Simone Bullen-Thompson, submitted that having accepted that a member state present genuine socio-economic challenges, the Conference should allow for non-reciprocity.

Her submission was supported by making reference to the RTC, which recognises that “all states are not on equal footing” and that less developed countries within CARICOM had entered the CSME at a disadvantage, owing to structure, size and the vulnerability of their economies.

Bullen-Thompson also highlighted the absence of an express provision that would indicate how the relationship is modified when section 27(4) is invoked.

Leading, the submissions on day one, Counsel for CARICOM Secreteriat, Dr. Corlita Annette Babb-Schaefer, proposed that “some member states may require a transitional period to facilitate adjustment to decisions of the comforts pursuant to article 46 of the treaty, which deals with enlarging as appropriate, the classes of persons entitled to move and work freely in the community.”

She however argued that in order to prevent dissatisfaction among member states, CARICOM should exclude nationals of opting-out states from moving freely to other member countries.

What is the incentive for any member state to agree if the Conference cannot grant opt-outs, she reasoned, noting that an unfavourable decision would “frustrate the goal of free movement of Nationals.”

Meanwhile, Dean of the Faculty of Law, UWI, Cave Hill, Dr. David Berry and his team submitted that the effect of an opt-out should be non-reciprocal by default. They argue that opt-outs should generally be restricted under specific criteria, while Dr. Berry explained that “opt-outs must be seen as derogations from the rights and obligations of community law and thus must be restricted and, if allowed, interpreted narrowly.”

The decision of the CCJ will have implications on the CSME free movement agreement and may also impact previous cases of waivers that have been granted by the Conference.

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