The CCJ advisory opinion endorses differentiated approach to free movement in CARICOM

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The CCJ advisory opinion endorses differentiated approach to free movement in CARICOM
Dr. Jan Yves Remy and Alicia Nicholls

On 18 March 2020, the Caribbean Court of Justice (CCJ) delivered its first Advisory Opinion following a request filed a year ago by the Caribbean Community (the Community). It was asked to consider the legality of CARICOM Heads of Government’s decision allowing two Member States – Antigua and Barbuda and St. Kitts and Nevis – to opt out of an earlier decision to enlarge the list of skilled workers eligible to move and seek employment under the CARICOM Single Market and Economy (CSME).

The CCJ solicited and received written and oral submissions from interested parties, including counsel from the Community, CARICOM Member States, and Law Faculties of The University of the West Indies.

We provided a background to the issues in an earlier SRC Trading Thoughts. In this edition, we outline the reasoning in the Court’s Opinion, and consider some of its legal and practical implications.

The Court’s Opinion
Article 27(4) of the Revised Treaty of Chaguaramas (RTC) is central to the Opinion. Subject to Heads’ agreement, it permits a CARICOM Member State to “opt out” of obligations arising from a CARICOM organ’s decision, once the fundamental objectives of the Community, as laid down in the RTC, are not thereby prejudiced.

Two main legal issues were considered:

1. Whether the Member States concerned could lawfully opt out of the Heads’ decision under Article 46 of the RTC concerning the enlargement of persons entitled to move and work freely in the Community to now include agricultural workers and security guards; and

2. Whether the principle of “non-reciprocity” would enable nationals of the opting out Member States to derive the benefits of the enlargement decision and – move freely – even though they need not allow entry of other Member States’ security guards and agricultural workers to seek work.

The Court answered both questions in the affirmative, thereby “approving” a political decision of the Heads to permit a differentiated – or “variable geometry” – approach toward the goal of free movement in the Community.

Key Reasoning of the Court
The CCJ made some important clarifications and extensions to Community law.
First, in introductory remarks, the Court welcomed the opportunity to engage in a non-adversarial “principled interaction” between itself, Member States and the Community. The Court hoped that the “dialogue” would secure the “integrity of the RTC, clarify its provisions and promote public trust and confidence in CARICOM and the Court”. Being its first Opinion, the Court could be forgiven for extreme care in the posture taken, being careful to demarcate in the course of its judgment those remarks that were of a “general nature” and those more narrowly directed at answering the two questions posed.
Second, the Court clarified that an opt out under Article 27.4 of the RTC was not the same as a ‘reservation’ under general public international law.

On the first question, the Court elucidated for the first time what constitutes a ‘fundamental objective’ of the Community. While the RTC does not “explicitly lay down” what these fundamental objectives are, the Court clarified that the nine “Objectives of the Community” set out in Article 6 indicate the aims of CARICOM. For the Court, it would be “a mistake” to assume that (1) each of those objectives is fundamental or (2) that a fundamental objective of the Community is necessarily to be extracted only from among them. While fundamental objectives need not be expressly stated, they must be “so inextricably central to and indispensable for the full attainment of one or more of the objectives or goals specified in the Treaty that [they could] properly be described as being both fundamental and an objective in [their] own right.”

On this basis, the Court concluded that the free movement of skilled Community nationals is one such fundamental objective of the Community. Noting the importance of movement of persons in other regional processes, the Court highlighted its centrality also to economic integration under the RTC.

The Court opined that prejudice to a fundamental objective could be determined using principles of “proportionality” and by balancing a number of competing considerations, including promotion and incremental realization of objectives, the desire not to be thwarted or retarded, and the pursuit of Article 6 objectives. The Court also highlighted that an important consideration was the extent of the prejudice, which should be “grave and irremediable”. Particularly important was that the requesting Members were Less Developed Countries (LDCs) under the RTC; the temporary nature of the waiver; and its limited scope to two categories of skilled nationals entitled to free movement.
For these reasons, the Court concluded that the opt out was lawful.

On the second question of whether the principle of non-reciprocity applies to the enlargement decision, the Court explored the meaning of “reciprocity” and found it to be a governing principle of international law that implies that benefits given to one Member must be returned and reciprocated to other.

In this part of its reasoning, the Court noted that the RTC requires that the CARICOM legal order is meant to apply in a reciprocal manner, that is, in its entirety between all parties. It did, however, permit derogations – and non-reciprocity – as provided for under Article 27.4. Another instance of non-reciprocity was the recognition in the RTC of disparities in size, structure and vulnerability of LDCs within CARICOM. In agreeing that non-reciprocity applied to the Heads’ decision, the Court highlighted that opt outs allow the Conference to make decisions which would otherwise be vetoed by countries not in a position to bear the full weight of obligations resulting from them.

Some answers, some lingering questions …
Now that the Court has successfully rendered its first Advisory Opinion – a full year after it was requested – it remains to be seen whether Member States will use it as a viable alternative to more adversarial dispute settlement procedures which to date, they have never themselves invoked. Indeed, it may be a more diplomatic route toward achieving legal certainty without ruffling political feathers. Interesting questions, however, arise if a Member or national were to bring a dispute, on the same matter, for the Court’s settlement. Although non-binding, would a prior Advisory Opinion act as a sort of res judicata – that is, be treated as a matter on which a determination has already been made? Given the narrowness of the decision, could new facts, or legal arguments be raised in an adversarial context that might induce the court to make a different judgement, utilizing a different standard of review?

The standard of review again raises the question of mixed competence in the interpretation and application of the RTC. The Court implied that the appropriate standard in assessing the lawfulness of a Heads’ political decision to grant the opt out was one of “reasonableness”. But in providing detailed guidance – which fell short of stipulating a test of “prejudice” – the Court did engage in a sort of first instance or de novo review which seems entirely appropriate as the “guardian” of the RTC.

The crux of the decision lies in the Court’s finding that this opt out did not cause prejudice to attaining the RTC’s objectives. In our view, the second question on non-reciprocity was no more than a red herring since it added nothing to the primary conclusion of the Court that, on the very terms of Article 27.4 which specifically allows for non-reciprocity, the opt out was lawfully granted

While it acknowledged that free movement of persons is a pillar of successful integration movements, it is unfortunate that the Court did not do more to protect its incursion by possible political erosion. While it is true, as the Court suggested, that a differentiated approach to integration allows Members to proceed at their own paces, is CARICOM at a stage of integration where a core tenet of its success – free movement of skilled workers – can afford to be compromised or delayed?

Regardless of one’s view, it was the Court’s role to provide more principled and clear guidance on how to determine “prejudice” to a fundamental objective, beyond just a “grave and irremediable” harm test and a loose consideration of factors.

Here, the Court could have borrowed from other contexts of how to actually apply a proportionality test. While not an exact science, there are certain tried and tested formulations on what factors are to be weighed that would bring greater certainty. One such test has been used in the “necessity” case law of the WTO under the general exceptions provisions. Adapted to this context, the Court could have laid out factors that the Heads should take into account – and explain – in weighing a decision on opt out, including the degree of the harm to the free movement goal by the opt out; the contribution of the opt out to other goals pursued by the requesting Member States; and whether there were alternatives to opt out that would not do as violent harm to the integration process. Without these strict contours to guide the political directorate in the future, the ultimate goal of free movement will always be sacrificed to political expediency.
Finally, the Opinion raises the recurring question of how to treat the OECS under the RTC regime since the two Member States concerned were also OECS Member States. The Treaty of Basseterre (and its revision) establishing the OECS has been around for almost as long as CARICOM has existed, and yet the legal interrelationship between these two treaties has not been fully settled. The WTO regime, for instance, recognizes subgroupings of economic arrangements that would allow for preferential treatment among them, but without an analogous regime in CARICOM, what would ensue if the two opting out OECS Members were required under OECS obligations to permit entry of security guards and agricultural workers from other OECS Members only? CARICOM needs to take a more principled and legally secure approach to the treatment of the OECS within its regime. As the Court repeatedly referred to the two Members’ socio-economic situation, and more generally of the special place occupied by LDCs in the RTC, a second related issue is one raised by the Golding Report that the RTC’s Less- and More Developed Countries classification needs revisiting.
We must wait another day for the Court’s guidance.
(Dr. Jan Yves 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.)