EDITORIAL: Unequally yoked?

The treaty openly acknowledges that some Member States were entering the CSME at a disadvantage by reason of the size, structure and vulnerability of their economies”-CCJ, Advisory Opinion, March 18, 2020

One concern sometimes voiced by the man in the street of the regional integration project is that the developmental disparities of the several member states are likely to preclude an equitable community of nations as opposed to one where a few only carry the burden of others. This may lead to resentment from the citizens of the more developed nations towards those of the lesser.

The recent advisory opinion of the Caribbean Court of Justice (CCJ), the exclusive authority on the interpretation of the Revised Treaty of Chaguaramas (RTC) confronted this issue directly.

In its advisory opinion, the CCJ, at the request of the Heads of Government, assessed two issues: first, whether a Member State may lawfully opt out of the Conference decision to enlarge the list of CARICOM workers entitled to seek employment in other Member States; and, second, whether the principle of non-reciprocity nevertheless permitted the nationals of that state to avail themselves of the benefits of that decision.

The CCJ noted that the opting out process was sanctioned by Article 27(4) of the Treaty, once the fundamental objectives of the Community were not negatively affected. The CCJ understood a fundamental objective to be “an issue that lies at the core of the spirit, nature and aspirations of the Community”. It considered further that there were five conditions to be met for the effective implementation of an opt-out — (i) There must be a request to opt out from the Member State; (ii) The decision must have been made by a competent organ of the Community; (iii) The Conference itself must agree to the request to opt out; (iv) the Member State may only opt out of the obligations only arising from the decision; and (v) the opt-out will be permitted only if the fundamental objectives of the Community are not thereby prejudiced or undermined.

In the CCJ’s view, this last was the most crucial to a lawful opt-out. However, while it agreed that freedom of movement was indeed a fundamental objective of the Community, it also regarded as relevant the fact that the two Member states that sought to opt out of the decision, Antigua & Barbuda and St Kitts-Nevis, were categorized as less developed countries; that the opt-out was temporary only in each case; and that it related to two categories of skilled nationals only.
The Court advised therefore that since the other conditions had been satisfied, the opt-outs were lawful.

As to the second issue, the Court reasoned that since any Member State in the Community could veto a Conference decision, a granted request for an opt-out in fact furthered the interests of the Community “because it allowed decisions to be taken and implemented in circumstances where they might have otherwise been vetoed”.

Moreover, while the RTC required as a starting point the universal application of its rights and obligations, Article 143(1) also outlined that one objective is to assist disadvantaged countries, regions and sectors towards becoming economically viable and competitive by appropriate interventions of a transitional or temporary nature; and Article 27(4)had not mandated the principle of reciprocity by permitting an opt-out from obligations [and not rights] only. Finally, and tellingly, Article 8 required each Member State to accord to another Member State treatment no less favourable than that accorded to, inter alia, a third Member State.

For these reasons, the principle of non-reciprocity applied to the decision so that nationals of the two countries could enjoy its benefits despite the opt-outs.
We may conclude then that the Community is not one of equals, but one where some are more equal than others.