Caribbean Trade Law and Development

Category: CSME

  • CSME working though ‘uneven and imperfect’

    CSME working though ‘uneven and imperfect’

    Alicia Nicholls

    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.

  • CCJ First Advisory Opinion Hearing

    CCJ First Advisory Opinion Hearing

    Alicia Nicholls

    History is being made at the Caribbean Court of Justice (CCJ) which is currently hearing oral submissions in the first ever Advisory Opinion filed in the Court pursuant to Article 212 of the Revised Treaty of Chaguaramas (RTC).

    Article 212 of the RTC empowers the CCJ with exclusive jurisdiction to deliver advisory opinions concerning the interpretation and application of the RTC. Advisory opinions can be delivered only at the request of the Member States parties to a dispute or the Community.

    The present request, which was filed by the CARICOM Secretariat, concerns two substantive issues:

    (1) whether a Member State can, pursuant to Article 27(4) of the Revised Treaty of Chaguaramas, lawfully opt-out of a decision of the Conference of the Heads of Government taken under Article 46(4) concerning the expansion of classes of persons entitled to work and move freely in the Community.

    (2) whether the nationals of those Member States which opt-out of a decision under Article 27(4), can nevertheless derive the benefits of the decision.

    Day 1

    On Day 1, the Court heard, inter alia, from CARICOM’s General Counsel, Dr. Corlita Babb-Schaefer, as well as counsel from Barbados, Antigua & Barbuda, St. Kitts & Nevis, Grenada. Also appearing amicus was a team from the Faculty of Law, The University of the West Indies, Cave Hill campus represented by Dean Dr. David Berry and law lecturers, Mrs. Nicole Foster and Mr. Westmin James. The live recording from Day 1 may be watched here.

    Day 2

    On Day 2 of the hearing the Court heard closing submissions. In closing, the Court promised to deliver its Advisory Opinion in a “reasonable time”. Day 2 of the hearing may be watched 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.

  • CARICOM Protocol on Contingent Rights: An important Step to CSME Consolidation

    CARICOM Protocol on Contingent Rights: An important Step to CSME Consolidation

    Alicia Nicholls

    The Government of Barbados has recently announced a Bill entitled the Caribbean Community (Amendment) Bill 2019, which, when passed, would amend the principal Act to give effect to the CARICOM Protocol on Contingent Rights, making it part of Barbadian law.

    Barbados, along with six other CARICOM Member States, had signed the Protocol during the 39th Regular Meeting of the Conference of CARICOM Heads of Government in Montego Bay Jamaica in July 2018.

    Following the recently held 30th Inter-sessional Meeting of the Conference of CARICOM Heads of Government in St. Kitts & Nevis, it has been reported that all CSME participating Member States have now signed the Protocol. But what is the Protocol about and why is it necessary for the consolidation of the CSME?

    What is the Protocol on Contingent Rights and Why is it Necessary?

    The Revised Treaty of Chaguaramas confers a number of rights to Community Nationals, including the right of establishment, the right to provide services, the free movement of capital and of skilled Community Nationals to seek employment in other CSME participating Member States. However, it was recognised by Member States that despite these rights (called ‘primary rights’) being conferred, additional enforceable rights (or ‘contingent rights’) were needed to ensure that Community Nationals could enjoy them effectively and without frustration.

    For example, there was concern by CARICOM nationals who were working in other jurisdictions about their inability to access social services on the same basis as nationals of the host country, the inability of their spouses to also legally seek employment, and for their children to access primary education on the same basis as the children of nationals of the host country. These barriers frustrate the exercise of the rights conferred in the Revised Treaty.

    The Protocol, which was a long time in the making, confers certain enforceable social and economic rights to Community Nationals and their immediate families who make use of the right of establishment, the right to provide services, the right to move capital and the free movement of skilled labour under the Revised Treaty of Chaguaramas. As such, the Protocol is not only a starting point for addressing some of the issues currently faced by Community Nationals seeking to exercise these rights effectively, but is, therefore, an important step towards the consolidation of the CSME.

    Rights guaranteed under the Protocol

    The framers of the Protocol define ‘contingent rights’ as “rights to which a national and his or her spouse and immediate dependents are entitled, contingent on the exercise by the principal beneficiary of the right of establishment, provision of services, movement of capital or free movement of skills”.

    Subject to certain exceptions, the contingent rights currently guaranteed under the Protocol are:

    • the right of a principal beneficiary resident in a host country, his or her spouse or their dependants to transfer capital into and from a host country subject to Article 43 of the Treaty, which speaks to restrictions to safeguard balance of payments;
    • the right of a spouse or dependants of a principal beneficiary resident in a host country to leave and re-enter a host country;
    • the right of the spouse of a principal beneficiary resident in a host country to work in a host country without a work permit;
    • the right of a principal beneficiary resident in a host country and his or her spouse to access on a non-discriminatory basis lands, buildings and other property for residential or business purposes reasonably connected with the exercise of the rights of the principal beneficiary;
    • the right of dependent children of a principal beneficiary resident in a host country to access primary education on a nondiscriminatory basis, where and to the extent provided by the Government of the host country;
    • the right of a principal beneficiary resident in a host country to import into the host country free of duties within six months of being granted a stay, subject to the principal beneficiary having already satisfied the duty regime in another Member State, tools of trade that are (i) reasonably connected with the exercise of any of the
      primary rights of the principal beneficiary; (ii) in the possession of the principal beneficiary in the exercise of any of those primary rights; and (iii) located in a Member State.

    These are a minimum standard and as such, Article IV of the Protocol specifically notes that Member States are not precluded from granting greater rights once not done in a discriminatory manner in contravention of the non-discrimination principle (Article 7) and more specifically, the Most Favoured Nation principle (Article 8) of the Revised Treaty respectively. It should be noted that consistent with a phased approach, the Barbados Bill adopts the Protocol as is and does not grant any greater rights.

    Who may qualify for these rights?

    Principal Beneficiary

    The Protocol defines a ‘principal beneficiary’ as a national of a Member State exercising one or more primary rights, that is, rights pursuant to the Treaty in relation to the operation of the CSME and described in Articles 32, 34, 36, 40 and 46 of the Treaty, which deal with right of establishment, right to provide services, the movement of capital and free movement of skilled community nationals respectively.

    For example, under the free movement of skilled nationals regime, ten categories of wage earners may move and work freely within CSME participating Member States without having to seek a work permit in the jurisdiction in which they seek to work and once they hold a CARICOM Skills Certificate (formally known as the CARICOM Certificate of Recognition of Skills Qualification).

    The five original categories under the Revised Treaty of Chaguaramas were: University graduates, artistes, musicians, sportspersons, media workers. These were later expanded to include five additional categories: nurses, teachers, artisans with a Caribbean Vocational Qualification (CVQ), holders of Associates Degrees or comparable qualification and Household Domestics with a Caribbean Vocational Qualification (CVQ) or equivalent qualification. These eligible categories will soon include others, namely, agricultural workers, barbers, security guards and beauticians.

    All other Community nationals need to apply for work permits in order to seek employment in another CSME jurisdiction.

    Spouses and Dependents

    With a nod to inclusiveness, the framers of the Protocol adopted a broad definition of ‘dependent’ to include any unmarried child of a principal beneficiary or of his or her spouse provided that such child is under the age of 18 years, under the age of 25 years attending school or university full time or over the age of 18 years who is disabled and dependent on the principal beneficiary. However, the definition of ‘spouse’ is still restricted to heterosexual relationships either via marriage, or via common-law unions to the extent that such unions are recognized by the laws of the host country.

    Built-in agenda and monitoring

    The issue of contingent rights has been a sensitive one as not all CARICOM Member States offer their own nationals the same level of social benefits. There are legitimate fears that there may be undue burdens placed on those States with more generous social welfare programmes, such as free education and free health care, as well as concerns about the potential for abuse of these programs.

    One way the framers of the Protocol appear to seek to address this concern is by allowing for a phased approach through a built-in agenda (Article III). It enumerates a list of potential more extensive rights to be adopted by Member States on a phased approach subject to agreement. It also provides for monitoring and review. Additionally, temporary service providers are not entitled to contingent rights and safeguard measures in Article 47 apply to the Protocol mutatis mutandis.

    Moving from paper to practice

    CARICOM Member States are dualist States, that is, even after a treaty is signed by a Member State, it needs to be translated into domestic law in order for the treaty obligations to be binding on the State domestically. Therefore, the rights under the Protocol can only be enjoyed, and the State bound to provide these rights, once they have been translated into domestic law through an Act of Parliament.

    1. Domestic Ratification Needed by all signatories – For the Protocol to enter into force, it must be signed and then ratified by all parties to the Revised Treaty, which will not be an easy task. The Protocol, however, may be provisionally applied once seven or more of the Parties to the Protocol declare their intention to apply the Protocol provisionally before the Protocol enters into force.The next step is to ensure the Protocol is brought into force as soon as possible, thereby ensuring it is parlayed from mere ink on paper. On this front, it is commendable that Barbados, which has lead responsibility for the CSME in CARICOM’s quasi cabinet, is leading by example through its commencement of the ratification process.
    2. Procedures for implementation and monitoring – Procedures and systems must be put in place domestically and regionally to allow for implementation and monitoring of the Protocol’s operation to ensure Member States are honouring their commitments and to ascertain any problems. Data collection will be key.
    3. Training – Guidance, as well as further training of staff members of agencies which are tasked with implementation and monitoring, may be necessary.
    4. Public Awareness Campaign – As evidenced by the misinformation which was circulated on social media after the Bill was announced in Barbados, it is evident that a public awareness campaign is needed not only to educate CARICOM citizens about the rights contained in the Protocol and how they as nationals may benefit, but to help assuage concerns and fears about the Protocol’s intentions and implications.

    The very timely Golding Commission Report, which had examined Jamaica’s relations within CARICOM and CARIFORUM, had spoken of the CSME implementation deficit and challenged regional leaders to chart a way forward. Having this Protocol enter into force would not only facilitate greater movement, but also be a much-needed injection of confidence to show the region’s populace that the CSME is not moribund. On this note, Barbados’ initiative to begin the ratification process is certainly a commendable one, and it is hoped that other CARICOM countries will swiftly follow suit.

    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.