Derek O’Brien: CARICOM: ‘a new legal order’?

derek-obrien-33The recent case of Myrie v Barbados, in which the Caribbean Court of Justice (CCJ) held that the actions of the Barbados immigration authorities in refusing entry to a Jamaican national violated the automatic right of entry granted to all CARICOM nationals pursuant to a Decision of the Conference of Heads of Government of CARICOM Member States in 2007 (the 2007 Decision) is likely to be of huge practical relevance in terms of promoting the right of free movement between Member States for all CARICOM nationals. The case is also, however, of considerable constitutional significance for the Member States of CARICOM and it is its constitutional impact which I wish to focus on in this blog.

Background

The Caribbean Community and Common Market (commonly known as CARICOM) was established in 1973 by the Treaty of Chaguramas (ToC) with broadly the same aims and objectives as the European Economic Community, upon which it was broadly modelled. Curiously, however, for a common market there was no provision for the free movement of workers. In fact, the principle of free movement was expressly disavowed by Article 38 of the ToC, which provided that:

Nothing in this Treaty shall be construed as requiring or imposing any obligation on a Member State to grant freedom of movement to persons into its territory whether or not such persons are nationals of other member states of the common market.

Following two decades of economic stagnation, however, it was agreed by the Heads of Government in the early 1990s that CARICOM should move to the next level of integration by establishing a Caribbean Single Market and Economy (CSME), which would, among other things, make provision for ‘hassle free travel’ (allowing CARICOM nationals to travel between Member States without the need for a passport); free movement between Member States for certain categories of skilled CARICOM nationals; and the right of CARICOM nationals to establish a business and to provide services in another Member State. All of these rights (with the exception of ‘hassle free travel’) were embodied in Chapter III of the Revised Treaty of Chaguaramas (RTC), which also committed Member States to the ultimate goal of permitting free movement between Member States for all CARICOM nationals (Article 45 RTC).  One year after the ratification of the RTC, the 2007 Decision to permit all CARICOM nationals a right of entry and an automatic six month stay marked another significant milestone in the journey along the path towards free movement for all; with only Antigua and Barbuda entering a reservation in respect of the Decision. The 2007 Decision was also of considerable symbolic importance because for the first time the link between the right to free movement and economic activity was expressly severed.

Implementation of this last mentioned right has however proved to be particularly problematic. An Appraisal Report  prepared by the CARICOM Secretariat in 2009, for example, noted that, Guyana apart, none of the Member States had amended their immigration laws to give effect to a right of entry and an automatic six month stay for all CARICOM nationals. Instead, the Appraisal Report notes that the right of entry was being dealt with administratively at the port of entry and this had led to a great deal of dissatisfaction throughout the region. This has been confirmed by Tillman Thomas, the Prime Minister of Grenada, who has observed that the failure consistently to apply the automatic right to a six months stay across the region has led to ‘confusion and perceptions of discriminatory treatment amongst Community nationals.’ In his view there had been a fundamental lack of clarity about the degree of administrative discretion exercised by immigration officials; the grounds upon which automatic entry could be legally and reasonably denied; the right of Community nationals to be treated in a dignified and human manner; and the legal rights of Community nationals in cases of alleged unfair and inappropriate treatment. Ralph Gonsalves, the Prime Minister of St Vincent has also noted that his office regularly receives ‘heart rending stories of Vincentian nationals who have been subjected to unfair, unlawful, unconscionable, and discriminatory treatment by some immigration authorities within member states of CARICOM. These claims are more than borne out by the facts of Myrie v Barbados in which the claimant, a Jamaican national, had not only been refused entry by immigration officials upon her arrival in Barbados, but had also been subjected to insults based upon her nationality and to an unlawful body cavity search in demeaning and unsanitary conditions. Though the claimant also alleged that her fundamental rights and freedoms had been violated and that her treatment had been in violation of the right to non-discrimination on the grounds of nationality, which is guaranteed by Article 7 RTC, the central plank of her case rested upon her right to enter Barbados and to be granted an automatic six month stay pursuant to the 2007 Decision.

The case raised two questions of considerable constitutional importance for the legal orders of the Member States of CARICOM. Firstly, whether Decisions of the Conference of Heads of Government were enforceable by the nationals of Member States? Secondly, what should happen where national laws were incompatible with either the RTC or with the secondary ‘legislation’ emanating from the competent organs of CARICOM (Community law)?

Enforceability of the 2007 Decision?

By Article 240 (1) RTC:

Decisions of competent organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States.

The Government of Barbados, accordingly, sought to argue that a Decision of the Conference could not give rise to rights and obligations enforceable against Member States by the nationals of Member States unless and until the Decision had been incorporated into the municipal law of the Member State.

In the CCJ’s view, however, this argument was mistaken because it was based on the orthodox dualist approach to international law, which requires the provisions of an international treaty to be incorporated into the domestic law of a State before the treaty can be enforced under the national law of that State. Here, however, the question was not whether the Decision was enforceable at the domestic level, but rather whether it was enforceable at the Community level. In the Court’s view, Article 240 RTC was concerned exclusively with the creation of rights and obligations at the domestic level and their enforceability in domestic law. To accept the submissions of the Government of Barbados on this issue would, in the CCJ’s view, be a retrograde step; it would mean, effectively, that the Member States had not  progressed beyond the voluntary system that had been in force prior to the CSME.  It would also prejudice the attainment of the aims and objectives of the CSME if binding regional Decisions could be invalidated at the Community level by the failure on the part of a particular State to incorporate those Decisions locally. If domestic incorporation were a condition precedent to the creation of Community rights, an anomalous situation could be created in which some Member States had incorporated the Decision and others had not. In the Courts view: ‘This would be untenable as it would destroy the uniformity, certainty and predictability of Community law.’

The relationship between ‘Community law’ and national law?

As the CCJ acknowledged, the grant of an automatic right of entry and a six month stay granted by Community law was wholly inconsistent with the immigration laws of Barbados. In the Court’s view, however, this inconsistency was of no consequence because:

The original jurisdiction of the Court has been established to ensure observance by the Member States of obligations voluntarily undertaken by them at the Community level. The Court is therefore entitled, if not required, to adjudicate complaints of alleged breaches of Community law even where Community law is inconsistent with domestic law (emphasis added). It is the obligation of each State, having consented to the creation of a Community obligation, to ensure that its domestic law, at least in its application, reflects and supports Community law.

The logic of regional integration between a Community of states necessarily entailed, in the Court’s view, the creation of ‘a new legal order’ which required the Member States to accept certain limits, albeit relatively modest , in particular areas of national sovereignty. Henceforth:

Community law and the limits it imposes on the Member States must take precedence over national legislation, in any event at Community level (emphasis added).

Conclusion

CARICOM has since its inception been afflicted with what the West Indian Commission, in its report Time for Action (Black Rock, Christchurch, Barbados: 1992), called an  ‘implementation gap’. This was a reference to the persistent failure of Member States to implement at the national level Decisions taken at the regional level. It might, therefore, be argued that in recognising Decisions of the Conference as a source of Community law that nationals can enforce against the Member States the CCJ has made significant progress in addressing this ‘implementation gap’. A comparison might even be made with the groundbreaking work carried out by the ECJ to combat the ‘Euro-sclerosis’ (Paul Craig and Grainne de Burca, (5th ed) EU Law: Text, Cases and Materials (Oxford University Press: 2011) 144) that afflicted the European Community during the 1970s, by introducing a normative supranationalism through the development of the doctrines of ‘direct effect’ (Van Gend en Loos) and the ‘supremacy’ of Community law (Costa v ENEL).

The comparison, would, however, be misleading, for while the judges of the CCJ may have insisted in the Myrie case upon the ‘supremacy’ of Community law they have on other occasions steadfastly refused to acknowledge its ‘direct effect’. Thus, according to Justice Hayton, speaking extra-curially:

Unlike the position in Europe the direct effect of the [RTC] in conferring rights on Community nationals does not result in Community rights being invoked or enforced in national courts…National courts have no jurisdiction (emphasis added).

As a result the relationship between national courts and the CCJ is entirely different to that which exists between the national courts of Member States and the ECJ.  In the case of the latter, following the development of the doctrines of ‘direct effect’ and ‘supremacy’ national courts came to be regarded as the ‘guardians of the Community’; able to hold the governments of their respective Members State to account for violations of Community law and to give effect to the rights granted to the citizens of Member States by and under European Community (now European Union) law.

The legal order envisaged by the CCJ in the Myrie case is, however, of a quite different kind. While Community law may trump national law at the Community level and while the nationals of Member States may be able to hold to account the governments of their own and other Member States for violations of Community law in proceedings before the CCJ, Community law and national law remain two entirely separate systems and national courts have no jurisdiction to interpret or apply the former.  What the CCJ appears to have achieved in Myrie v Barbados is thus to establish the supremacy of Community law. What it has not done, however, is to establish a  ‘Community of law’ (to paraphrase Martin Loughlin The British Constitution: A Very Short Introduction (Oxford University Press: 2013) 79). As a consequence, though the judgment in Myrie v Barbados is undoubtedly constitutionally significant, it is unlikely to have the same transformative effect upon the political and legal landscapes of CARICOM and its Member States as the groundbreaking judgments of the ECJ in the Van Gend en Loos and Costa v ENEL cases had upon the Member States of the then European Community.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘CARICOM: ‘a new legal order’?’  U.K. Const. L. Blog (8th November 2013) (available at http://ukconstitutionallaw.org).

Leave a comment

Filed under Comparative law

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s