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July 2014
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My reflections lead me to conclude that many Governments, individual Ministers of Governments, and Immigration Officials across the CARICOM region do not as yet appreciate the significance of the Myrie judgment to the freedom of movement of Community nationals and the CSME. I so conclude given certain public statements from some Ministers of Government and public officials at the time of the judgment in October 2013 and subsequently. At the Inter-Sessional Meeting of the Conference of Heads of CARICOM in St. Vincent and the Grenadines in March 2013, there was a specific item on the agenda of the implications of the Myrie judgment. First, since decisions of Conference are now explicitly accorded the status of being a vital part of Community law, great care has to be exercised in the formulating of Conference decisions particularly those which touch and concern the rights of Community nationals. Secondly, CARICOM governments have an obligation to ensure that domestic law be put in conformity with Community law since to the extent of any inconsistency on any relevant matter, Community law would prevail. Thirdly, immigration and other border control officials must incorporate the Myrie guidelines provided by the CCJ at the points of entry to Member States of CARICOM. Immense education of these officials and alterations of pre-existing domestic regulations and procedures to confirm with Community law, are urgently required. Fourthly, the implication of the Myrie judgment for Haitians seeking entry into other Member States is yet to be satisfactorily addressed by the Governments. After all, Haiti, is now as “bona fide” signatory to the CSME, as distinct from, for example, the Bahamas. Haitians are thus entitled to all the rights which appertain under Community law to “the freedom of movement” of Community nationals. Haiti, however, has a population of ten million persons, most of whom do not speak English. What is the likely impact of these facts on St. Kitts and Nevis with a population of 50,000 or on St. Vincent and the Grenadines with a population of 110,000, or indeed on Trinidad and Tobago with a population of 1.2 million? Fifthly, the Myrie judgment opens up the CARICOM’s Member States to all Community nationals, thus giving life and meaning to regional integration. It is this fact which has excited many who had hitherto considered CARICOM a jaundiced entity in which only especial categories of persons are privileged. Sixthly, there is a controversial and problematic legal issue of the machinery for the enforcement of the decisions of the CCJ, although I am of the view that the solution already exists in our legal systems. The Organisation of Eastern Caribbean States (OECS) through its Revised Treaty of Basseterre establishing the OECS Economic Union of June 2010, and its decisions thereunder, have gone much further than CARICOM on the matter of freedom of movement of persons. Article 3 (c) of the Protocol of Eastern Caribbean Economic Union states emphatically: “3. To achieve the objectives set out in Article 2, the activities of the Protocol Member States shall include under the conditions and timing set out in this Protocol
Article 12 of the Protocol to the Revised Treaty of Basseterre elaborates the issue of “Movement of Persons” in the following terms:
[Under the Revised Treaty of Basseterre, the OECS Authority, which comprises the Heads of Government, has a wide centrally coordinated authority in a range of vital subjects to the Economic Union. It is to be noted that it is the OECS Authority which approves the provisions for freedom of movement of persons, not the Protocol Member States individually. The OECS Commission is an administrative and supervisory mechanism in the Economic Union.] Since August 01, 2012, there has been complete freedom of movement of all OECS nationals of Protocol Member States within the OECS Economic Union. Passports are not required for travel within the Union, only an approved national identification card with a photograph. There is an indefinite stay after automatic entry and there is no requirement for work permits. Approved contingent rights for citizens of Protocol Member States include primary and secondary education for children, medical and health services on the same terms and conditions as for native citizens of the Protocol Member States. The issue of “contingent rights” within CARICOM for children and spouses of skilled Community nationals is an unresolved problem of immense importance. Similarly, the practicalities of the issuance of “Skilled Nationals’ Certificates” vary from Member State to Member State in CARICOM. And although there is a CARICOM passport issued by each Member State of the Community, it has no significant meaning beyond the symbolism of a consciousness of Community. Community nationals are not permitted to travel to other Member States with only a picture identification, except of course in the case of OECS nationals of Protocol Member States within the OECS Economic Union. Increasingly, the issue of economic citizens in CARICOM and the OECS has arisen for consideration in terms of “the freedom of movement” provisions in both CARICOM and the OECS. As is well-known the OECS Member States of Antigua and Barbuda, Dominica, Grenada, and St. Kitts and Nevis grant “economic citizenship” to “aliens” outside of the well-established categories of citizenship through birth, descent, marriage, and naturalisation. My government has raised this matter sharply within the context of the OECS Economic Union, but the query applies also to CARICOM. My government does not grant “economic citizenship.” We are opposed to it on the basis that the office of citizen is the highest office in the land. It creates the bonds of community and nationhood; it is not a commodity for sale. Similarly, our passports are not for sale; they constitute, for us, the outward sign of the inward grace of citizenship. The question is: should economic citizens be accorded the “freedom of movement” rights as community nationals? The issue is yet to be resolved! This is an excerpt from the third Distinguished Open Lecture hosted by The UWI on June 17 as part of its ongoing series focusing on CARICOM. For the full text, please click here. |
