Regional body moving to sanction member states who bar free movement of skilled workers
CARICOM governments are moving to block nationals of countries who opt out of receiving skilled workers from benefiting from that right in other member states.
The stance is being backed by Jamaican business interests, and former Prime Minister Bruce Golding, who has lamented that the lack of full freedom of movement remains an “indictment” on the 48-year-old bloc.
The annual CARICOM heads of government meeting is scheduled to start tomorrow, and among the big items is dealing with an opinion from the Caribbean Court of Justice (CCJ) which said governments cannot stop nationals from a non-reciprocating state from claiming the rights in other participating countries.
Leaders intend to amend the Revised Treaty of Chaguaramas (RTC) which established CARICOM and the CARICOM Single Market and Economy (CSME) under which the free movement of certain categories of skilled workers falls.
In 2018, CARICOM expanded the list of workers who could move freely throughout the region to include security guards and agricultural workers.
However, at a meeting the following year, St Kitts and Nevis and Antigua and Barbuda were permitted to opt out of accommodating the change for five years, which Article 27 of the RTC allows.
The two less developed CARICOM members expressed concerns about the socio-economic impact of allowing workers into their island whom they feared would compete against locals.
But other states worried that on such a fundamental issue as free movement, CARICOM could find itself in a situation where some countries are forced to grant favours their nationals won’t receive.
It was on that basis CARICOM sought an advisory opinion from the CCJ, the only tribunal that can pronounce on the RTC, on two issues – whether a member state can lawfully opt out of the free movement of skilled workers regime and whether nationals of such countries are entitled claim benefits when they turn up at other states.
St Kitts and Nevis and Antigua agreed that the decision of the Conference of Heads of Government, CARICOM’s highest decision-making body, was lawful.
However, they differed on reciprocity, with Antigua arguing that an opt-out country cannot “reasonably” want its citizens given favoured status, while St Kitts said the current RTC does not express any contrary intention that nationals could not benefit if their own country was not implementing a decision.
CARICOM shared Antigua’s view.
The CCJ held that key to the legality of opt-outs was the extent to which it could impact the free movement of labour which it declared was a fundamental objective of CARICOM.
The court said the decision to permit St Kitts and Antigua to delay implementing the decision to facilitate security guards and agricultural workers was reasonable and did not represent a “grave and irremediable” threat to the key objective.
It emphasised that the duration was temporary and only related to two of the categories of skilled workers.
‘REPLETE’ WITH EXEMPTIONS
On reciprocity where the favours and privileges of one state to the citizens of another are expected to be returned, the CCJ held that the conference does not have the power to agree that nationals of a non-reciprocating state cannot benefit from the rights in another state.
The court said Article 27 only gave the conference the power to allow states to opt out of implementing the obligations that flow from a decision of any arm of CARICOM.
It said RTC is “replete” with exemptions from the reciprocity principle and acknowledged member states may be at different development stages, which would get different treatment to ensure economic viability.
“There is, therefore, an onus on the member states to extend to the agricultural workers and security guards of Antigua and Barbuda and St Kitts and Nevis the right to seek employment in their respective states,” said the five-member panel of judges which included president, Justice Adrian Saunders.
The CCJ concluded that opt-outs are to be treated as non-reciprocal in character.
“There is nothing to prevent nationals of a state that opts out of a decision from enjoying the benefit of that decision, even as their own state, for a period of time, is permitted not to be bound by the obligations of the decision,” noted the opinion obtained by The Sunday Gleaner.
Technocrats at the Guyana-based CARICOM Secretariat said an implication of the CCJ’s opinion is that if leaders agreed to restrict rights of nationals from non-reciprocating states, CARICOM could be sued and declarations made against it.
Amending the treaty, they said, could, among other things, see a state reluctant to agree to an opt-out more willing to support the decision knowing they will not have to reciprocate because of “the feeling of fairness”, according to documents seen.
The proposed amendments would also give leaders the discretion to grant reciprocity.
Bruce Golding, who chaired Jamaica’s CARICOM Review Commission, said he believes the decision to amend the RTC is “reasonable”.
“You can’t expect to benefit from something that you’re not prepared to extend,” he said, noting that opt-outs, generally, from areas fundamental to CSME should not be allowed except in cases where countries needed time to comply.
“The mere fact that nationals are not free to move within the community other than going as a visitor is an indictment on CARICOM … it is, perhaps, the most glaring illustration of CARICOM’s failure,” he said.
Golding said the fear among some richer CARICOM states that people from poorer ones will move in droves is not “real”, pointing to the lack of any “devastating impact” from countries of the Organisation of Eastern Caribbean States (OECS), a subregional group of seven CARICOM states that allows broad free movement, has a single currency and share a supreme court.
But he accepts that those are countries of smaller populations compared to the more populous Jamaica, Trinidad and Tobago and Haiti, which account for over 15 million of the approximately 19 million people in CARICOM.
‘We put a blockage to our own people’ - Pandohie
Richard Pandohie, president of the Jamaica Manufacturers and Exporters’ Association, said the free movement of labour in CARICOM has been a “massive disappointment”.
“We can’t even get the basics of our citizens moving freely within the region,” he said, arguing that some countries have skills needed by others but lack the process to facilitate an efficient alignment of resources.
He added, “In some of these same countries, other nationalities outside of the region seem to be able to freely go in and find work. We put a blockage to our own people.”
Commander George Overton, head of the Jamaica Society for Industrial Security, a group representing private security companies, claimed the action by states such as St Kitts is “history repeating itself” with the election of protective policies that frustrate integration.
The security industry in Jamaica and Trinidad is more technologically advanced and “our people would be ahead of the game” and have advantages, he contended.
“The smaller islands which really are already short of labour in their own markets are seeking to protect the few jobs for their nationals,” he said, insisting that “if there’s no reciprocity for the Jamaicans, the Guyanese and the Trinidadians in the other islands, then the nationals of those islands should not benefit. It’s only fair.”
CARICOM leaders will also have to contend with the proposal from the Avinash Persaud-chaired economy commission that for implementation of decisions to go faster, 15-member bloc runs should consider running on multiple tracks in which a group of member countries could pursue advanced integration while others essentially catch up.
Former prime minister, Bruce Golding, argued that the suggestion may be redundant.
“Hopefully not being unkind, what it seems to be suggesting is for CARICOM to do what CARICOM has been doing – which is ‘look, we’re not prepared to swallow the whole pill so we’ll take a little tot at a time’.”
That particular issue has been the subject of a contentious debate leading up to this week’s meeting which is to consider a draft protocol to amend the RTC to allow what’s called ‘enhanced cooperation’.
Barbados, however, argued successfully that such a mechanism should be used as a last resort.
That wasn’t supported by the OECS, which insisted that enhanced cooperation should “always be available”, according to a confidential CARICOM paper obtained by The Sunday Gleaner.
Jamaica did not get its way in having the specific factors to be considered for enhanced cooperation included in the draft protocol.
COVID-19 heads a packed schedule for the leaders who will meet virtually under the chairmanship of Gaston Browne, prime minister of Antigua and Barbuda, who will be in charge for the next six months.
Other issues, including regional disasters from the volcanic eruption in St Vincent and the Grenadines, removal of regional roaming charges and crime and security, are down for discussion.