March 18, 2020 was a historic day for the Caribbean Court of Justice (CCJ) when it delivered its first Advisory Opinion since its establishment.
Inter alia, the CCJ is empowered with exclusive jurisdiction under the Revised Treaty of Chaguaramas to deliver advisory opinions concerning the interpretation and application of the RTC.
For a background to the opinion, please see a previous article I co-authored with Dr. Jan Yves Remy here. In brief, the background surrounded a request by two Caribbean Community (CARICOM) Member States (Antigua & Barbuda and St. Kitts & Nevis) to opt-out of a decision of the Conference of Heads of Government to expand the categories of skilled nationals entitled to move and work freely across the Community to include security guards and agricultural workers. The opt-outs were subsequently granted by the Conference to these two Member States for a period of 5-years.
The Court was asked by the Community to render an Advisory Opinion on whether (1) a Member State could lawfully opt out of the decision of the Conference expanding the categories of persons entitled to move and work freely in the Community; and (2) whether the principle of non-reciprocity would enable nationals of the opting out Member States to still derive the benefits accruing under the enlargement decision.
In its Advisory Opinion, the Court has opined that freedom of movement of skilled nationals is a ‘fundamental objective’ of the Community, but that the 5-year opt-out granted by the Conference of Heads of Government to the two Member States from the enlargement decision is not prejudicial to this fundamental objective.
It also opined that non-reciprocity applied so other Member States must still allow Antiguan/Barbudan and Kittian/Nevisian security guards and agricultural workers access to their labour markets.
Read the full Advisory Opinion here and the summary here.
Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant. You can also read more of her commentaries at www.caribbeantradelaw.comand follow her on Twitter @LicyLaw.
DISCLAIMER: All views expressed herein are her personal views and do not necessarily reflect the views of any institution or entity with which she may be affiliated from time to time.
The Caribbean Court of Justice (CCJ) will mark another milestone in its decade and a half history when it shortly delivers its first advisory opinion pursuant to Article 212 of the Revised Treaty of Chaguaramas (RTC).
Late last month, the Court held a publicly broadcast two-day hearing where it heard oral submissions from counsel of the CARICOM Secretariat, member states and Caribbean law faculties from which it had received written submissions. The subject matter of the advisory opinion concerns the circumstances under which it is lawful for CARICOM Member States to “opt-out” of CARICOM Heads of Government decisions that involve fundamental objectives of the Community.
In this SRC Trading Thoughts, we discuss the significance of the pending advisory opinion and its possible impact on the emerging body of CARICOM jurisprudence.
Though “uneven and imperfect”, the five regimes of the CARICOM Single Market and Economy (CSME) (free movement of skilled nationals, capital, goods, services and the right of establishment) are working. This was the assurance given to audience members by His Excellency Ambassador Irwin Larocque, Secretary General of the Caribbean Community (CARICOM), in his welcome remarks at a public regional stakeholder consultation on the CSME. The event was held at the Errol Barrow Centre for Creative Imagination (EBCCI) of The University of the West Indies Cave Hill in Barbados on Monday, November 4th.
The stakeholder discussion, which was also streamed online and broadcast via television, attracted a packed audience which included a wide cross-section of the general public, as well as online viewers from across the region. The moderator for the evening was Mr. Salas Hamilton, Communication Specialist at the Barbados-based CSME Unit.
In his welcome remarks, Ambassador Larocque outlined some of the progress made on the regional agenda, including the recent St. Ann’s Declaration on Contingent Rights, work on government procurement and discussions around creating a single CARICOM Information and Communication Technologies (ICT) space. Noting that the public was an important constituency of the regional integration process, the Secretary General invited audience members to provide feedback on what needs to be done, whether the region was on the right track and whether what was being done impactful.
President of the Caribbean Development Bank (CDB), Dr. Warren Smith, applauded Barbados’ Prime Minister, the Hon. Mia Amor Mottley, for “injecting a new energy into the CSME”. Under the quasi-Cabinet of CARICOM, Barbados has lead responsibility for the CSME. In making the case for an acceleration of the CSME, Dr. Smith reiterated the original vision of the CSME’s architects of increasing the competitiveness and viability of Caribbean economies on a global stage. Our region’s focus, he noted, must be on becoming an internationally competitive trading bloc, particularly given the shift towards inward looking policies and retreat from multilateralism by some of our main trading partners.
Prime Minister Mottley reiterated that economic statistics show that the Caribbean is under-performing the world. She also noted that within the next 15 months there will be 8 general elections across the region which could put the pace of integration under strain. The Prime Minister noted that functional cooperation has been working for the region, and called for everyone to get on board to avoid the Caribbean becoming a source of climate refugees and having one of the poorest levels of economic performance in the world by 2050.
Prime Mottley and Ambassador Lacroque fielded questions for over two hours during a lively question and answers session. The questions ranged on a variety of topics including consumer protection, the Labour Market Information System, the diaspora, youth engagement, indigenous persons, derisking, the high costs of intra-regional travel, to name a few.
In response to a question on better integrating Haiti into the CSME, Ambassador Larocque indicated that there are ongoing discussions on providing a ‘special development dispensation’ for Haiti. He indicated CARICOM’s concern with the current political situation in Haiti and called for dialogue.
Prime Minister Mottley suggested that CARICOM Member States commit to a minimum level of social development, what she termed a ‘social floor’, for things such as health, education and the like. She further highlighted the need for the end to roaming charges across the region through the creation of a single CARICOM ICT space. She also reiterated the need for CARICOM Heads of Government to meet more frequently than the current two meetings per year, and that technology now makes more frequent meetings possible.
There were also several useful audience
interventions, including one by Dr. Olivia Smith who called for a Labour Market
Impact study, as well as the need for clarification of what “indefinite stay”
means given the trouble some persons encountered with financial institutions
when seeking to access financing.
My take-aways
There was much to take away from the discussion. However, while much ink has been spilled about the implementation deficit plaguing CARICOM, equally crippling is the information deficit. This prompted me to ask my question, which thankfully was one of the questions addressed, on the paucity of data and information.
First let me applaud the CARICOM Secretariat for its increasing use of social media, its CARICOM One on One discussions and weekly news broadcasts. These are welcomed developments. However, the CARICOM website remains challenging to navigate in terms of finding information. Secondly, the communiques released at the end of meetings (when they are released) remain vague with little substance. Thirdly, decisions of Heads of Government should be made public. These decisions, after all, are binding on Member States and also have implications for we the average CARICOM citizen. Fourthly, there are many studies and documents which have been commissioned by CARICOM which are not online. Fifthly, live streaming of certain CARICOM meetings (and not just the opening ceremonies) should be public once they are not of a national security nature.
Finding information and data remains a tedious task for persons conducting research in the Caribbean, far less, the average citizen who simply wishes to keep up to date with regional developments. Lack of information also feeds the impression that “CARICOM is doing nothing”, when indeed we know that there is some progress happening. Our regional process still remains opaque and there is need for much more transparency and information flows.
On another note, I think there is cause for optimism. We often hear of apathy of the average Caribbean citizen towards CARICOM. The packed audience and the high level of engagement at the just concluded forum show that there is at least some level of engagement on the part of the regional public in wanting to know what is happening with the regional process. The questions posed, for the most part, were substantive and related to real issues faced by CARICOM nationals each day. There were also several suggestions raised which shows that people are thinking about ways the regional process could be improved.
It shows that there is the need for more frequent engagement and contact between the average citizens and their leaders on regional issues. It is therefore heartening to hear that future public stakeholder sessions will be conducted.
Another nugget of hope was the high level of youth engagement and attendance at the form. The future of our regional integration project lies with our youth. They are the ones who will be most utilizing the five CSME regimes now and in years to come. They will be the ones charged with taking the regional project forward. The youth involvement displayed at the forum, therefore, is a good sign.
In conclusion, the CARICOM Secretariat (including the CSME Unit), the Office of the Prime Minister of Barbados and The UWI must be commended for hosting a very stimulating and rich discussion. It is hoped that similar public events will be hosted in other CARICOM countries and will be held with some frequency. You can view my live tweets from the event at #csmetownhall.
The video recording from the event may be accessed below:
Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.
DISCLAIMER: All views expressed herein are her personal views and do not necessarily reflect the views of any institution or entity with which she may be affiliated from time to time.
Caribbean Community (CARICOM) Heads of Government this week adopted a Declaration aimed at addressing the high levels of plastics and microplastics in the Caribbean Sea and their adverse impact on Caribbean sustainable development.
The St. John’s Declaration was signed and launched by the Government of Antigua and Barbuda at the Play it Out Concert hosted by Antigua and sponsored by Norway. It is part of the United Nations General Assembly (UNGA) President Maria Espinosa’s global call to action for Governments against plastic pollution and single-use plastics launched in December 2018. The Declaration was subsequently adopted by CARICOM Heads of Government during their 40th session held in St. Lucia July 3-5, 2019.
Why is the St. John’s Declaration important?
The Caribbean Sea is of tremendous economic, social and ecological value to the countries washed by its shores. A World Bank Study estimates that “in 2017, the insular Caribbean’s gross revenues from marine and coastal tourism alone totaled an estimated US$57 billion”. This same study cites pollution as one of the biggest threats to the Caribbean marine environment.
Indeed, the World Bank study notes that “marine litter is accumulating in the Caribbean Sea, originating both in the region as well as distant countries overseas through the ocean currents” and that “studies have… found as many as 200,000 pieces of plastic per square kilometer in the northeastern Caribbean”.
According to the World Bank Report, “up to 80 per cent of the litter found in our oceans is made of plastic”. It further states that “Caribbean data from beach and coastal clean-ups in 2017 indicate that plastic beverage bottles alone amount to 21 percent of the items recorded.”
These plastics are dangerous because they take many years to degrade, remaining blights on the marine and land-based environment and death traps for marine life. According to Ocean Crusaders, “100,000 marine creatures a year die from plastic entanglement” and approximately 1 million sea birds also die from plastic. This of course has implications for human health and food security.
Twelve CARICOM Member States have to varying extents passed legislation to implement full or partial bans on the use of single use plastics and styrofoam products. However, the region has fallen short of a region-wide plastics ban. CARICOM’s adoption of the St. Johns Declaration is a good step towards showing our leadership’s commitment towards addressing the serious threat marine litter poses to our sustainable development.
Key Elements of the Declaration
The St. Johns Declaration encourages CARICOM Member States that have not yet done so to introduce measures to reduce and/or eliminate the use of single use plastics. It also commits to addressing the damage to our ecosystems caused by plastics by 2030 and to work with the private sector to “find affordable, sustainable and environmentally friendly alternatives”.
The Declaration recognizes that effective implementation of these actions “requires enabling and coherent policy, legislative and regulatory frameworks, good governance and effective enforcement at the global, regional, national and local levels”. They also “encourage development partners and the private sector to contribute financial and technical assistance, capacity-building initiatives”.
Marine litter is not just a Caribbean issue, but a global one. Firstly, plastic pollution in the Caribbean Sea comes not just from Caribbean countries, but from other countries, particularly in the North. Secondly, other oceans globally also face a similar threat.
There has been some global action on the issue of marine litter. Goal 14 of the UN Agenda 2030 and its 17 Sustainable Development Goals is to “conserve and sustainably use the oceans, seas and marine resources for sustainable development’. More specifically, one of its targets is “to reduce significantly all forms of marine pollution by 2025”. There are also several United Nations resolutions, including resolution 4/7 on ‘Marine Litter and Microplastics’.
Recently, the Association of Southeast Asian Nations (ASEAN) adopted the Bangkok Declaration on Combating Marine Debris in the ASEAN Region in June 2019. The St. Johns Declaration encourages other regional and sub regional groups of countries “to take similar measures to eliminate discharge of plastic litter and microplastics to wells, rivers, seas and oceans”.
Given the magnitude of the threat of marine litter, and in particular, plastics pollution, global action still falls far short of what it should be. As such, the St. Johns Declaration calls for the urgent need for a global agreement to address plastics and microplastic pollution.
Our CARICOM leaders’ adoption of the St. John’s Declaration is a good step, but this is just the beginning. It must be translated into concrete action. For instance, getting countries which have not yet done so to implement bans on single use plastics and styrofoam products. This requires not just strong enforcement of the bans, but widespread public service campaigns educating businesses and the general public on the impact plastics have on the marine environment, and consequent implications for human health and food security. As several countries around the world, including some Caribbean countries, have implemented bans, there is scope for learning from these countries’ experiences in order to formulate best practices.
The full text of the Declaration of St. John’s is attached the Communique of the Conference of Heads of Government 40th Session which may be read here.
Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.
DISCLAIMER: All views expressed herein are her personal views and do not necessarily reflect the views of any institution or entity with which she may be affiliated from time to time.
Caribbean Trade Law and Development 