Takeaways from the Advisory Opinion on the Right to Movement by the Caribbean Court of Justice

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On March 18, 2020, the Caribbean Court of Justice (CCJ) rendered its very first advisory opinion for the interpretation of the Revised Treaty of Chaguaramas (RTC), a treaty that establishes the Caribbean Community and Common Market (CARICOM). The heads of CARICOM had sought the court’s advice on two specific questions on the right to movement within the community. (See, here). This request came after a decision by CARICOM Heads of government to 1) enlarge the categories of skilled workers allowing them to find employment in other Member States and 2) allowing Antigua and Barbados and St. Kitts and Nevis to opt out of the earlier decision. CARICOM requested the court’s advisory opinion on two questions under Article 27(4) of the treaty. Firstly, the court was asked whether Member States could lawfully opt out of a decision of the Conference concerning the enlargement of skilled classes of workers that are permitted to move freely in the community. Secondly, on whether the principle of non-reciprocity would permit the two Member States to opt out of the decision while simultaneously retaining the benefits of the decision. (See, here) The Court held that the opt out was lawful. It also advised that the principle of non-reciprocity applies to the enlargement decision. This would effectively permit the security guards and agricultural workers to enjoy the benefits of the decision.

In this article, we examine the advisory opinion in detail and the implications of the court’s decision.

CCJ’s response to the First Question

Simply put, the Court determined that the decision did not substantially deviate from the fundamental objectives of the Community in permitting the opt-out to two Member States from the obligations arising from the enlargement decision. Here, the court took cognizance of several factors in arriving at its decision. First, the availability of the opt-out was made to two Member States (both categorized as a less developed countries under Article 4 of RTC). Second, the opt-out was temporary in nature (granted for a time period of 5 years). Third, the opt-out was related to just two groups of skilled nationals (agricultural workers and security guards).

The Court advised that Member states can lawfully opt out provided the following five conditions are satisfied: (1) the Member states formally request for an opt-out, (2) the decision-maker be a competent organ of the community, (3) that the Member States agree to the opt-out, (4) the Member State is permitted to opt out only out of the obligations that are laid down in Article 27(4) of the RTC and (5) the opt out does not prejudice the fundamental objectives of the community. Here, St. Kitts and Nevis, Antigua and Barbuda formally requested for an opt-out fulfilling condition (1). Article 12 of RTC stipulates that the Conference is a competent organ of the community satisfying condition (2). The Member States St. Kitts and Nevis, Antigua and Barbuda were allowed by the Conference to opt-out of the enlargement decision for a 5-year duration, fulfilling condition (3 and 4). Central to fulfilment of the fifth condition, the court essentially had to determine what constituted a fundamental objective of the treaty. In recognizing the attainment of a seamless regional trading bloc as a goal, the court held that freedom of movement is a fundamental objective of the RTC, by reference to the Myrie case. (See, here.)

CCJ’s Response to the Second Question

The court, in responding to this question first examined the principle of reciprocity and how international relations and treaties are governed by this principle. Key to understanding the underlying meaning of this treaty lies in understanding the 1) privileges and benefits that are granted to one state’s nationals by others with the expectation of similar benefits being extended to the citizens of the granting state; and 2) the conduct of one state vis-a-vis another which may be returned by courses of action taken by the other state. Both (1) and (2) were scrutinized by the court. Here, the court noted substantial deviations in the principle of reciprocity in various provisions of the RTC like Articles 27(4) and Article 8. All things considered, the court advised that the principle of non-reciprocity supported its enlargement decision and allowed security guards and agricultural workers to enjoy the benefits of the decision.

Implications of CCJ’s Opinion

The CCJ’s opinion leaves certain ambiguities and doubts. The Court’s reference to Myrie is notable here, specifically in redefining the recognition of the importance of the right to free movement within the scheme of the CSME. Myrie merely pegged the right to movement as a “fundamental community goal” and a “fundamental goal.” Of course, by ascribing the ‘right to movement’ as a fundamental objective, the Court has provided much needed clarification in interpreting Article 27.4 of the RTC which enables Member States to opt-out on the condition that fundamental obligations of the community are not compromised. But this still does little in defining the scope of what constitutes a “fundamental objective”. Moreover, the court’s definition of a fundamental objective, “an issue that lies to the core of the spirit, nature and aspirations of the community” is vague. The CCJ has fallen short of providing a litmus test that would adequately and accurately determine what constitutes a fundamental objective. This provides little guidance to addressing future questions on this matter. The court stated thus(See, here) :

“The Court took the view that when the Conference considers whether an application for an opt out will prejudice one or more of the fundamental objectives of the community, as laid down in the treaty, the Conference must weigh all the surrounding circumstances. While finding that minimal prejudice will not suffice, the Court considered it unwise, in the abstract, to lay down a precise marker to denote the extent of the detriment that is sufficient. It will be for the Conference, and if necessary, the Court, on a case by case basis, ultimately to determine whether the purpose balance is struck.”

Nevertheless, the court, by deciding “right to movement” as a fundamental objective, has successfully clung to the raison d’être for the RTC: the deepening of regional integration via a single market economy among these nations.

This opinion underscores the significant role of the CCJ in interpreting the RTC. With this opinion, we anticipate that further suits will follow to elucidate and define the purview “fundamental obligation” under Article 27.4. One can also hope that the international human rights principle espoused in Myrie that stressed on “hassle-free travel” will be expanded in future suits pertaining to the right to movement with its recognition as a fundamental obligation. Additionally, the opinion signals the CCJ’s generous interpretation in extending the notion of free movement beyond that of economic activity contributing to “Caribbean integration.” It is expected that this will foster a sense of common Caribbean identity.

Advisory Opinions and their influence on treaty interpretation

We all know that advisory opinions by courts operate to provide guidance to settling future activities concerning international disputes, despite their non-binding nature. They also contribute immensely to treaty interpretation. On the one hand, the court has a predominant role in ascertaining the object and purpose of the treaty by gauging the parties’ intent at the time of the treaty and with the changed circumstances. This exercise assumes paramount significance in the milieu of dynamic treaty interpretation. This is particularly significant when novel meanings are ascribed to the treaty terms. In this manner, the court has great power in exploring, developing and shaping the content and ambit of a treaty. On the other hand, the court’s interpretation of treaties has a domino effect on future applications of the treaty provision in question, concomitantly inducing practice in conformity with the interpretation. So, an advisory opinion would, by this token, determine the outcome of the rules in the future application by the States. Take, for instance, the Reparations opinion, where the court defined the object and purpose of the UN Charter and found the organization could carry out its functions without having a legal personality. Again, in the Wall opinion, the court interpreted the meaning of ‘armed attack’ under Article 51 of the UN Charter.

In the case at bar, the court has taken a giant, historical leap in interpreting Article 27.4 of the RTC. However, this opinion falls short in clarifying how a “fundamental objective” would be compromised. Besides stating that the prejudice should not be “grave and irremediable” the CCJ has not provided comprehensive guidance on this issue.

Article 211 of the RTC confers compulsory and exclusive jurisdiction to hear and determine cases related to the interpretation and application of RTC. This opinion is an exercise of this provision by the court read with Article 212, that allows for delivery of advisory opinions. Since the opinion is the first of its kind, the interpretative authority of this court over a long period of time still remains to be seen.

Image Source: Mark Morgan

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