Fundamental Human Rights and the Community Law of CARICOM

Derek OBrien - 21st November 2013

In 1973, pursuant to the Treaty of Chaguaramas (ToC), the independent countries of the Commonwealth Caribbean and Montserrat (at the time a British Crown colony) established the Caribbean Community and Common Market (commonly known as CARICOM), with broadly the same aims and objectives as the European Economic Community, upon which it was generally modeled, save that it made no provision for the free movement of the nationals of its Member States.

After 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 the free movement of certain categories of skilled CARICOM nationals. This right was accordingly embodied in Chapter III of the Revised Treaty of Chaguaramas (RTC), which was ratified in 2006. One year later, at their Annual Conference in July 2007, the Heads of Government went one stage further by deciding to grant all CARICOM nationals not only a right of entry, but also a right to an automatic six month stay upon entry (the 2007 Decision).

The implementation of this right has, however, proved to be very problematic. As Ralph Gonsalves, the Prime Minister of St Vincent has noted, 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 the recent case of Myrie v Barbados before the Caribbean Court of Justice (the CCJ). In this case, 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 central plank of the claimant’s case rested on the violation of her right of entry pursuant to the 2007 Decision, the claimant also alleged a violation of her fundamental rights and freedoms contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. The lawyers acting for the Barbados Government, however, argued that this part of the claimant’s case in so far as it rested on international human rights law was outwith the CCJ’s jurisdiction and the CCJ agreed. In the CCJ’s view its jurisdiction was established and circumscribed by the parameters of the RTC and the Agreement Establishing the Court, which confine its jurisdiction to the interpretation and application of the RTC and secondary ‘legislation’ emanating from the competent organs of CARICOM.

It is, to say the least, unsurprising that the CCJ should decline to accept jurisdiction to adjudicate alleged violations of international human rights treaties, which generally provide their own dispute resolution procedures for such violations, though it did concede that the Court could and should take into account principles of international human rights when seeking to shape and develop relevant Community law. Nevertheless, it is disappointing that the CCJ did not take the opportunity to make more explicit the link between the rights granted by the RTC and the principles which underpin those rights, including not just the principles of human rights law, but also the constitutional traditions of its

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Member States. This was done by the European Court of Justice in the Handelgesellschaft case when it declared that “respect for fundamental rights forms an integral part of the general principles of Community law…inspired by the constitutional traditions common to the Member States (emphasis added).” It is to be regretted that a similar step was not taken here.

Derek O’Brien is Principal Lecturer at Oxford Brookes and is a member of the Small Jurisdictions Service at Oxford Brookes.

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