The Caribbean Court of Justice (CCJ) yesterday held the first of two hearings, its first ever advisory opinion proceedings, which concern whether a member state of the Caribbean Community (CARICOM), may opt out of a decision of the Conference of Heads of Government to extend the class of workers allowed to move work freely across CARICOM, and the legal effect of such opting out.
These proceedings, initiated by CARICOM itself, are historic, being the first time this jurisdiction of the CCJ has been invoked. Further the opinion to emerge from these proceedings will assume landmark status as it will set the precedent on the legal validity of opt-outs, and the guidelines which regulate them.
Based on yesterday’s proceedings, the CCJ seems, thus far, of the view that a member state may legally opt-out of a decision of the Conference on conditions, and that such opting out would suspend obligations under the decision, leaving rights intact.
Importantly, while an advisory opinion is available by virtue of Article 212 of the Revised Treaty of Chaguaramas (RTC), its legal effect is not explicitly stated. At the least, it will serve as potently persuasive guidance to the Conference going forward.
The proceedings have their genesis in the 18th Conference of Heads Meeting in December 2018, but more specifically, a decision by Conference to extend the class of persons entitled to move and work under Article 46 of the Revised Treaty of Chaguaramas (RTC) to include Agriculture workers and security guards.
Antigua and Barbuda, and St. Kitts and Nevis, citing economic and infrastructural challenges, applied for and were granted permission to opt-out of the decision and the obligations thereunder for the period of 5 years.
In making submissions to the court, General Counsel for CARICOM, Dr. Corlitta Chaefer said the issues to be resolved are: whether a member state can, pursuant to Article 27 (4) of the RTC, lawfully opt-out of the decision under Article 46 concerning the enlargement of the class of persons entitled to move and work freely in the Community; and whether the principle of non-reciprocity can allow the nationals of the states which opt-out of a decision under Article 27 (4) to nevertheless derive the benefits of the decision.
Noting that the decision which prompted the application had already been taken, Justice Winston Anderson, sitting along with Justices Adrian Saunders, President of the CCJ, Jacob Witt, Denys Barrow, and Maureen Rajnauth-Lee, asked whether the order did not amount to putting the cart before the horse.
All other counsel in appearance seemed to share the view that Article 27 (4) permits a nation state to lawfully opt out of a decision concerning the enlargement of the class of persons entitled to move and work freely in CARICOM so long as the provisions therein were not breached. They also agreed that each case would have to be determined on its own set of facts, and that any opt-out could have to be circumscribed by conditions such as limitations as to time.
Dr. Chaefer added that the option to opt-out is important as its absence may result in vetoes, and ultimately, the frustration of decision-making.
The differences in views came with respect to the second issue.
Dr. Chaefer argued that the legal effect of an opt-out is to exclude the operation of the decision, and the effect of the exclusion of the operation is that neither the member state not the community nationals would have rights regarding the decision. In so doing, she said, Articles 7-9, and any claims thereunder, would be suspended with relation that decision.
Anderson, however, noted that Article 27 (4) only speaks to opting out of obligations and resisted several attempts to argue that there was an implied or other implication for rights. When Dr. Chaefer argued that one may argue that opting out of obligations impliedly triggers an opt-out of rights, Justice Saunders said “It does not say so”.
Dr. Chaefer argued however, that when the first opt-out was granted in 2006, the conference interpreted Article 27 (4) to find power to suspend the rights and obligations in respect of those member states until they became compliant.
Justice Anderson, General Counsel at the time that provision was used, clarified that at that time the circumstances were different, so that the considerations do not necessarily apply to the current case, and similar cases.
“The idea was that they wanted the states to come on board with the regime itself. The states were not going to be part of the regime because they were not compliant with the requirements under the treaty. That was therefore a method of giving them 6 months to get their house in order to come on board the treaty. It is a little different from having the treaty on foot and everybody is on board and there is a decision taken …” Anderson said.
Counsel for Antigua and Barbuda, Carla Brookes-Harris agreed with Chaefer on both points, adding that Antigua did not expect to continue receiving the benefit of the decision once it had opted out. “A member state which wishes to opt-out from a reservation cannot reasonably expect its nationals to receive the benefits from another member state in respect of a decision that it had opted out”, she said.
Dean of the University of the West Indies Faculty of Law, Cave Hill, Dr. David Berry, appearing by amicus, agreed that it seems that the Conference should have powers to suspend rights along with obligations. He cautioned against this being done, however, as he said it would disrupt the uniformity of the application of decisions under the treaty.
Meanwhile, counsel for St. Kitts and Nevis, Simone Bullen-Thompson also held to the view that the literal reading of Article 27 (4) of the RTC does not allow for a suspension of rights, although she also argued that if the CCJ does not agree with this position, then the Conference should be allowed to decide whether rights should be suspended based on the circumstances for which the opt-out was requested.
A State which had genuine socio-economic reasons for requesting an opt-out, she said, should not be penalised through the suspension of obligations which it is only asked for time to be able to properly implement the capacity to perform.
Submissions were also made by counsel on behalf of Barbados.
Many submissions were made on the issues, during which the CCJ seemed convinced that indeed an opt-out may be granted to a state under Article 27 (4) so long as the circumstances support such a grant and the grant would not undermine the fundamental objective of the RTC.
However, the general tone of the court suggested a view that nothing in Article 27 (4) speaks to the relinquishing of rights. The provision, the court noted, expressly spoke to opting out of obligations, and the CCJ maintained a resistance to suggestions that the relinquishing of rights was implied.
The hearing continues today at 10am.
