A borderless region

“You are not to wrong or oppress an alien, because you were aliens in the land of Egypt. –Exodus 22:21 (ISV)

There appears to be an irrefutable presumption in the collective mind of governing administrations in Barbados that a substantial majority of our citizens are firmly in favour of the ongoing regional project in all its iterations. Hence, there is no need to consult the populace on any measure proposed by that project to which the State might be inclined to accede.

However, if I am to judge from certain views expressed in various quarters over the years, I am not so sure that this presumption might not be seriously flawed. Of course, our Constitution does not mandate the holding of a referendum in order to ascertain the public sentiment with regard to these or, indeed, any treaty matters. These are solely within the executive prerogative so officialdom is nonetheless entitled to base its international relations on this presumption without fear of legal recrimination.

We saw the application of this presumption with regard to our accession to the appellate jurisdiction of the Caribbean Court of Justice, and we are now witnessing it anew with the recent enactment of legislation, the Caribbean Community (Amendment) Act 2019, intended to give municipal effect to our regional obligations under the Protocol on Contingent Rights to which the Honourable Prime Minister affixed her signature on Barbados’s behalf on July 6, 2018 in Montego Bay, Jamaica.

To my mind, the presumption is founded on the popular anecdotal expression that for the people of the region, true integration is a daily-lived experience ever frustrated by the actions of the political leaders who care not one whit for any cession of their sovereignty in their several bailiwicks. The first part of this opinion was echoed by the Right Excellent Errol Barrow, sometime Prime Minister of Barbados in his speech at the 1986 CARICOM Heads of Government Conference where he
declaimed, “If we have sometimes failed to comprehend the essence of the regional integration movement, the truth is that thousands of ordinary Caribbean people do, in fact, live that reality every day. In Barbados, our families are no longer exclusively Barbadian by island origin. We have Barbadian children of Jamaican mothers, Barbadian children of Antiguan and St. Lucian fathers. We are a family of islands.”

As Mr Barrow appeared to be, I, too, am a committed regionalist. Yet, it may be argued and is submitted that the reality of which he spoke is experienced by only a few in the region, and that there are numerous CARICOM nationals that have had or will have no contact with the other states in the region or their inhabitants. For these people locally, Barbados is their oyster, the self proclaimed “gem of the Caribbean” whose imagined pristine environment of low crime, harmonious race relations, and general law and order would only be sullied by an invasion of foreigners from other regional jurisdictions.

His Right Excellency would have been referring to those of us who, whether by marriage, romantic relationship, occupation, trade or otherwise are compelled to
be Caribbean men and women. But there are also significant numbers who, as a caller to David Ellis last week, have never even visited a neighbouring island and whose experience of other CARICOM nationals is either based on generalised hearsay (“the violent Jamaican”, “the smart-man Guyanese”, “the poor small- islander”, or “the party-minded Trinidadian”) or on some random adverse encounter with one such person. And then there are the unrepentant xenophobes or latter-day “nationalists” who will brook no strangers at all within their gates.

As for the legislation itself, I have perused a copy of this from the Barbados Parliament website – Bills before the Senate - (last accessed March 9 2019). My first comment is the rather esoteric one of dissatisfaction with its form. The language of treaties is ordinarily less rigorously crafted than that of public statutes, thereby permitting the ratifying jurisdiction to fashion its complying law in accordance with its perceived national interest while still respecting the intendment of the international obligation.

However, on this occasion, the state has taken the “easy “ way out by simply appending the Revised Treaty of Chaguaramas [RTC] and the relevant Protocols thereto as Schedules to the body of the Act that does not itself make any substantive provision. It has been done elsewhere before, it must be conceded, and I am unaware at the time of writing of any revision to the electronic document.

The Protocol on Contingent Rights, the Third Schedule to the Act, is the only one reproduced on the electronic copy referred to above and it repays reading. What is immediately striking is that certain jurisdictions are not signatories to the original document so that if the rights and obligations under the Protocol are intended to be reciprocal, these jurisdictions are not privy to them. Indeed, I have learnt subsequently that some of these jurisdictions have asked for a deferral of their accession to the Protocol for varying reasons.

According to the Recitals to the Protocol, the States Parties to the RTC that establishes the Caribbean Community, including the CSME, declare themselves “convinced that the primary rights accorded by Member States to nationals of the Caribbean Community in respect of the CSME must be supported by other enforceable rights operating to render them exercisable and effective. Interestingly, while they acknowledge “the differential institutional and resource capabilities of Member States of the Caribbean Community in ensuring the enjoyment by their nationals of internationally recognised (sic) rights” and, at the same time, “the importance of equality in the grant of Contingent Rights among the Member States”; they nevertheless are “committed to conferring the contingent rights as set out in this Protocol…”

I suspect that it is these italicized passages more than anything else that is the source of phthisic for most Barbadians opposed to the measure. After all, they reason, parties enter into agreements in order to secure mutual benefits and if the parties are not equally resourced, then the benefits (and the burdens) are likely to be disproportionate. So that while Barbados is able to provide social benefits such as taxpayer-funded bus transportation for schoolchildren, I am not aware of any regional jurisdiction that does this. It is similar with regard to undergraduate tertiary education.

By the same token though, Barbados, with its comparatively high cost of living and levels of taxation might not be that alluring to many individual wage earners, as assumed.

Essentially, the contingent rights to be afforded to the principal beneficiary - a national of a Member State exercising one or more primary rights under the RTC-; his or her spouse and their dependants as both these terms are defined in the Protocol, are detailed under Article II (a) to (f). These rights are minima only and Article IV permits a Member State to confer even more extensive rights than those in the Protocol, subject to Articles VII and VIII. In addition, there is, in Article III (a) to (g), a built-in agenda of potential rights that “shall only be recognised and applied as contingent rights at such time and upon such terms and conditions as the Conference may determine”.

To be continued…

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