Monday 26 October, 2020

CCJ sides with Antigua and Barbuda and St Kitts and Nevis

The Caribbean Court of Justice.

The Caribbean Court of Justice.

Citizens of Antigua and Barbuda and St Kitts and Nevis, who are employed in the agriculture and private security sectors, will be allowed to benefit from an enlargement of the Caribbean Community’s skilled workers list even though both countries opted out of that decision.

This decision was given by the Caribbean Court of Justice (CCJ) on March 18 as it gave its first advisory opinion on the interpretation and application of the Revised Treaty of Chaguaramas (RTC).

CARICOM leaders had requested the court’s advice on two specific questions which were: “whether a Member State could lawfully opt-out of a decision of the Conference of Heads of Government of CARICOM” and “whether the principle of non-reciprocity would allow nationals of any such Member State opting out to gain the benefits of the decision.”

Antigua and Barbuda and St Kitts and Nevis requested a five year opt-out from the enlargement because they were less developed than other members.

The CCJ found that Article 27(4) of the RTC enables Member States to opt-out of commitments arising from the decisions of a competent CARICOM body or Organ provided that the fundamental objectives of the Community, as laid down in the Treaty and are not negatively affected. 

There are five conditions to implement an opt-out which includes member states agreeing to the request.

The Court determined that freedom of movement was a fundamental objective of the CARICOM in the RTC.

It advised that it was lawful for the countries to request opt-out of the obligations arising from the enlargement decision of the Conference.

It was also lawful for the Conference to grant the opt-outs in all the circumstances.

According to the CCJ, opt-outs did not prejudice the fundamental objective of freedom of movement of skilled nationals.

On the second question, the Court considered the uniqueness of the Caribbean Community, where each member State could veto a Conference decision.

The Court stated that the request for and granting of an opt-out further the interests of the community because they allow decisions of the Conference to be taken and implemented in circumstances where those decisions might otherwise have been vetoed.

The Court concluded that opt-outs are to be treated as being nonreciprocal and advised that the principle of non-reciprocity applies to enlargement decisions.

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