Dr. Jan Yves Remy and Alicia Nicholls
The Caribbean Court of Justice (CCJ) will mark another milestone in its decade and a half history when it shortly delivers its first advisory opinion pursuant to Article 212 of the Revised Treaty of Chaguaramas (RTC). Late last month, the Court held a publically broadcast two-day hearing where it heard oral submissions from counsel of the CARICOM Secretariat, Member States and Caribbean law faculties from which it had received written submissions. The subject-matter of the advisory opinion concerns the circumstances under which it is lawful for CARICOM Member States to “opt-out” of CARICOM Heads of Government decisions that involve fundamental objectives of the Community.
In this SRC Trading Thoughts, we discuss the significance of the pending advisory opinion and its possible impact on the emerging body of CARICOM jurisprudence.
The CCJ’s Advisory Jurisdiction
Article 212 of the RTC grants the CCJ exclusive jurisdiction to deliver advisory opinions concerning the interpretation and application of the RTC. An advisory opinion is a legal opinion rendered by an international judge or a court on a question of law, which, although not legally binding, is considered highly persuasive. Under the CARICOM regime, advisory opinions can be delivered only at the request of the Member States party to a dispute or the Caribbean Community. The CCJ’s advisory jurisdiction is, therefore, an avenue for the Court to clarify areas concerning the interpretation and application of the RTC, outside a contentious context where the Court’s decision would have a binding legal effect on disputing parties.
Background to the Issues
The present request for an advisory opinion by the CCJ was filed by the CARICOM General Counsel on behalf of the Community. It arose out of the decision taken by the Conference – CARICOM’s highest body comprising Heads of Government – at its 30th Intersessional Meeting in February 2019 to allow two Member States – Antigua and Barbuda and St Kitts and Nevis – an opt-out, for five-years, of a decision to add agricultural workers and security guards to the categories of skilled nationals entitled to move freely within CARICOM. That Conference decision was taken pursuant to Article 27(4) of the RTC.
This is not the first time the Conference has exercised its powers to grant opt-outs under Article 27(4) on matters relating to the free movement of skilled nationals. However, it is the first time the legality of such opt-outs has been raised, and that the basis for the Conference’s decision has been questioned.
The Opinion is also highly anticipated because the regime for free movement is one of the more contentious of the five regimes under the CARICOM Single Market and Economy (the CSME). Despite the strides made to “enlarge … the classes of persons entitled to move and work freely in the Community” under Article 46(4)(a) of the RTC, and the agreement by the Conference to ensure full free movement of Community nationals across the Community for those Member States so willing by 2021, the likelihood of all Member States being able to do so remains in question. Not all Member States have given legal effect to the categories of approved workers listed under the RTC, or subsequently so designated by decisions of the Conference.
A Closer Look at the Legal Issues
On the legal merits of the issue, the Court is being asked to interpret Article 27(4) of the RTC. Under Article 27(4), the Conference has exclusive competence to grant Member States opt-outs from decisions taken by Community organs. There are however conditions attached: first, such opt-outs must be agreed by the Conference; and second, opt-outs should not ‘prejudice’ ‘fundamental objectives’ of the Community, as laid down in the RTC.
As we see it, two main legal questions arise: First, when can a Member State, pursuant to Article 27(4) of the RTC, lawfully “opt-out” of a decision of the Conference of the Heads of Government that concerns the expansion of classes of persons entitled to work and move freely in the Community under Article 46(4) of the RTC? Second, if an opt-out is granted by the Conference, what are the consequences for nationals of those Member States for which an opt-out was granted? Specifically, are such nationals entitled to derive the benefits of the Conference’s decision, based on the principle of “reciprocity”?
As regards the first issue, there is no guidance in the RTC on how the Conference’s agreement to grant the opt-out should be reflected. Conference deliberations and decisions are notoriously opaque, both in terms of how they are arrived at and the reasons underpinning them. Some of the discussions in the oral hearing suggested that it would be good practice for the Conference – as well as other Community organs – to state their decisions clearly and publicly, and provide reasons for them (provided this does not compromise national security or other such sensitive matters). Such a recommendation has been previously made by CCJ, including its past ruling in the consolidated Rock Hard Cement Ltd cases. A reiteration of this principle would be most welcome as it would promote transparency in the operation of the CSME.
A second issue concerns the meaning of “opt-out”. Article 27(4) offers no definition of the term “opt-out” other than that it is provided with respect to an obligation imposed by a decision of a competent Organ of the Community. Nothing in Article 27(4) appears to limit the scope (substantive, temporal or otherwise) of the opt out of an obligation that is permissible. That provision seems to leave it entirely to the Conference to define any such limits. That said, the scope of the opt-out requested is relevant to the question of whether any fundamental objectives of the Community stand to be “prejudiced”, in which case its grant by the Conference would not be lawful.
As a third issue, the Court will have to consider whether a fundamental objective of the Community has been ‘prejudiced’ by the grant of the opt-out. While it is the Conference, in its discretion, that decides this when a request is made, the Court is being asked, through this Opinion to lay out the proper considerations to guide the exercise of that discretion.
The Court will have to decide what the fundamental objectives of the Community, as laid down in the RTC, are, and specifically, whether the decision to expand the class of persons that can move under the RTC relates to a fundamental objective. The Court’s task is complicated by the fact that the term ‘fundamental objective’ does not appear anywhere in the RTC. While Article 6 of the RTC outlines “objectives of the Community”, that list does not explicitly include free movement of persons. That said, the Court in previous cases, such as Myrie vs. Barbados (2013), referred to freedom of movement as a “fundamental principle” and “fundamental Community goal”. It will be interesting to see how it reconciles this case law with the express wording of the RTC, where no reference to fundamental objectives appears. More importantly, assuming that the CCJ does find freedom of movement to be a fundamental objective, does the grant of the opt out in this case to Antigua and Barbuda, and St. Kitts and Nevis – which is limited in time, scope and applicability – “prejudice” the attainment of that fundamental objective of the Community?
As also noted above, the Court will have to decide on the effect of a lawfully granted opt-out. It was revealed during the oral hearing that there is no consensus on this point, either evidenced from the decision of the Conference or from the oral and written submissions of counsel appearing before it. In other words, it remains an open question whether security guards and agricultural workers from Antigua and Barbuda and St. Kitts and Nevis are entitled to access the labour markets of other CARICOM Member States when their governments are not required to allow these workers into their markets due to the decision of the Conference.
There are arguments both ways. The Court heard that it should be guided by principles of international law that allows countries to list ‘reservations’ when they join treaties, like the RTC. According to that argument, reservations should have the effect of modifying the relationships of those countries that have been granted the opt out so that their nationals will not be entitled to the benefit of the Conference decision. To this end, CARICOM’s General Counsel, who supported this view, referred to experience in the EU context where the UK, the Republic of Ireland, Poland and Denmark negotiated opt-outs from certain aspects of EU law. On the other hand, others argued that, being an integration movement that is committed to creating a single market, CARICOM should not encourage the practice of opting out of obligations, even for those countries that have been granted the right to close their markets to nationals of other Member States.
In reconciling these arguments, the Court will have to consider the policy rationale behind ‘opt-outs’ which is to allow CARICOM Member States, with differing ambition and development levels, to integrate to the extent they feel comfortable doing so, without stymying those States with a higher level of ambition. The Court will also be called on to weigh whether the regional integration interest is served by denying the nationals of Member States certain rights accruing to them under the RTC because their home State has sought an opt-out, or whether it should allow the continued access by those nationals and risk the potential for “free-riding”.
Outside of these main issues, there are peripheral concerns. The two countries that requested the “opt-out” from the free movement regime are Less Developed Countries (LDCs) within CARICOM. LDCs are entitled to special rights under the RTC and generally receive preferential treatment. However, recent discussions at the CARICOM level question the continued validity of the distinction between LDCs and the (MDCs) in light of the economic difficulties the latter also face. Another issue is the relationship between the RTC and the Revised Treaty of Basseterre (RTB) which creates the Eastern Caribbean economic union (OECS), of which most of the LDCs are also party, and on which the RTC is silent. Under the RTB, nationals have unlimited free movement within the OECS, a requirement that is unlikely affected by the opt-out granted under the RTC. Article 8, the most favored nation (MFN) provision in the RTC, does not provide an exclusion for OECS Member States. A non-OECS CARICOM Member State could therefore argue that the preferential access of OECS skilled nationals to other OECS Member States violates Article 8 of the RTC.
The Significance of this pending Advisory Opinion
Although the pending advisory opinion will not be binding, it will no doubt affirm the Court’s critical role as a guardian of the regional integration process. It offers the Court the chance to clarify whether freedom of movement is a “fundamental objective” of the Community and to elucidate powers of the Conference, including when it may legally permit ‘opt outs’.
Besides the legal merits of the Opinion it renders, the CCJ must be applauded for broadcasting the oral hearing via social media so that all can witness the back and forth of the legal debate between itself and the region’s counsel. These exchanges allow for a level of engagement in a regional process which often feels remote from the lives of average citizens.
Dr. Jan Yves Remy was a contributor to the brief submitted by the Law Faculty of the Cave Hill Campus (UWI) (along with Dr. David Berry, Mr. Westmin James, and Mrs. Nicole Foster) upon request of the CCJ in the context of this Advisory Opinion.
Dr. Remy is the Deputy Director of the Shridath Ramphal Centre for International Trade Law, Policy & Services (SRC) of The University of the West Indies, Cave Hill. Alicia Nicholls, B.Sc., M.Sc., LL.B. is a Trade Researcher with the SRC.
Learn more about the SRC at www.shridathramphalcentre.com.