Robust arguments as CCJ begins hearings on CARICOM ‘opt-out’ mechanism


The Caribbean Court of Justice (CCJ) on Tuesday began hearing arguments in a historic case brought before it to advise on whether it is lawful for individual countries of the regional trade and integration bloc CARCICOM to refuse to accept certain categories of workers.

The Heads of Government of CARICOM have twice agreed to grant countries an opt-out – to say that they will not accept certain categories of workers – the latest being Antigua and St Kitts which have opted out of a decision to allow the free movement of agriculture workers and security guards.

The two countries were granted a five-year waiver.

Now CARICOM wants to know if its decisions to grant opt-outs is legal under the Revised Treaty of Chaguaramas – the legal instrument which governs how CARICOM functions. It has asked the CCJ to give its advice.

A contentious question that the CCJ has also been asked to decide on is whether the countries which are granted an opt-out automatically deny the citizens of their countries the right to move and work and benefit from the very decisions.

In arguments before the CCJ on Tuesday morning, Dr Vanessa Moe, the Crown Solicitor at the island’s Ministry of Legal Affairs, said that Antigua, a less developed state within CARICOM, requested an opt-out because of socio-economic reasons and she went further in stating that Antigua did not expect to have its nationals who are agriculture workers and security guards to have the right, therefore, to travel and work freely in other member states.

Dr Vanessa Moe, the Crown Solicitor of Antigua and Barbuda

However, other arguments for the day strongly disagreed.

Grenada argued that while Antigua and St Kitts have opted out, it did not mean other states should not accept their agriculture workers and security guards. She suggested the “opt-out” provision does operate in a tit-for-tat fashion.

Dia Forrestor, the Solicitor General for Grenada, argued that Member States can only deny agriculture workers and security guards citizens of Antigua and St Kitts the right to free unless the other states also seek an opt-out.

Dia Forrestor, the Solicitor General for Grenada

St Kitts agreed. Its Solicitor General, Simone Bullen-Thompson, adding that St Kitts opted out because it does not have expansive agricultural land and that the provision of free movement of agriculture workers, in any case, requires a Technical Vocational certificate which St Kitts does not currently provide, so its agricultural workers will not be able to travel and work in other states.

But she said the island’s government is working to provide such a certificate, so its citizens should not be barred from moving and working although it will not accept agriculture workers and security guards.

The University of the West Indies, Cave Hill campus, was given the role of amicus curiae, or friend of the court, and also agreed that the opt-out provision is not reciprocal.

Solicitor General, Simone Bullen-Thompson of St Kitts

Dr David Berry, Dean of the Faculty of Law, said that reciprocal arrangements in opt-outs would serve to fragment CARICOM.

The hearings will continue before the CCJ on Wednesday.

It was last December that CARICOM agreed that agricultural workers and security guards should be facilitated administratively by December 2019 and implemented legislatively by July 2020.

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