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Whether Ben has an automatic right to enter Barbados for up to six months.
Whether Ben was discriminated against.
Whether Ben has the right not to have the imposition of impediments to entry.
Whether Ben should be accorded reasons for non-entry into Barbados.
RULE:
1. The Grand Anse Declaration of December 1990 established that all CARICOM nationals
should travel freely within the Community without the need for passports. For the
purposes of the declaration hassle free travel refers to the freedom of CARICOM
nationals to travel "into and within the jurisdiction of any Member State without
harassment or the imposition of impediment"1. The intent, simply, is one of fostering a
greater sense of community cohesion. It is also designed to encourage greater intraCARICOM tourism.Article 45of the revised treaty of Chaguaramas expressly states that
Member States commit themselves to the goal of free movement of their nationals
within the Community.
2. Notwithstanding the aforementioned it is accepted international law that a violation of the
principle of non-discrimination arises if: a) equal cases are treated in a different manner;2
b) a difference in treatment does not have an objective and reasonable justification; or c)
if there is no proportionality between the aim sought and the means employed.3 These
requirements have been further expressly set out by the European Court in Marckx v.
Belgium.4Article 7 of the revised treaty of Chaguaramas states that within the scope of
1 Grand Anse Declaration 1990
2Inter-American Court (see, e.g,. Advisory Opinion No. 4, para. 57)
3Human Rights Committee (see, e.g., General Comment 18, para. 13)
46833/74, Council of Europe: European Court of Human Rights, 27 April 1979
application of this Treaty and without prejudice to any special provisions contained
therein, any discrimination on grounds of nationality only shall be prohibited. The
Community Council shall, after consultation with the competent organs, establish rules to
prohibit any such discrimination.
3. The Grand Anse Declaration made commitment to deepening regional economic
integration through the establishment of the CARICOM Single Market and Economy
(CSME) in order to achieve sustained economic development based on international
competitiveness, co-ordinate economic and foreign policies, functional co-operation and
enhanced trade and economic relations with third States.5 A declaration that can only be
achieved by the free movement of CARICOM nationals. Article 46 (2) says interalia
Member States shall establish appropriate legislative, administrative and procedural
arrangements to: (a) facilitate the movement of skills within the contemplation of this
Article; (b) provide for movement of Community nationals into and within their
jurisdictions without harassment or the imposition of impediments.
4. Entry into a state is not an absolute right and is described by some states as a privilege.6
To argue an absolute right would undermine the sovereignty of states, their ability to
protect their borders by determining a travelers suitability for entry. Article 46 (3) makes
clear that Nothing in this Treaty shall be construed as inhibiting Member States from
according Community nationals unrestricted access to, and movement within, their
jurisdictions subject to such conditions as the public interest may require.
APPLICATION:
1. Ben is a Jamaica national who travelled to Barbados a recognised member of the
Caribbean Community and as such conforms to the requirement of Article 45 of the
revised treaty of Chaguaramas committing member states to the goal of providing free
movement of their nationals within the community.
2. Ben has numerous previous convictions for drug smuggling. On arrival he informs the
immigration official that he wishes to stay for two weeks at Grassman, a well-known
drug pusher in Barbados. Ben also has no cash on hand.Applying the principle of nondiscrimination Ben cannot objectively be considered the ordinary visitor given his drug
smuggling record. As a consequence he was subjected to questioning for more than two
hours and deported from Barbados with the treatment having an objective and reasonable
justification given his antecedents. It is clear the aim was to protect the borders of the
state and deportation was an option proportionate with the threat. Article 7 of the revised
treaty of Chaguaramas states that inter alia any discrimination on grounds of
nationalityonly shall be prohibited. The discrimination exercised was within accepted
international law practice on the topic as well as in accordance with Article 7 because
nationality was never an issue highlighted.
5 Revised Treaty of Chaguaramas
6Haig v. Agee 453 U.S. 280 (1981)
3. The facts show that Ben was subjected to questioning for more than two hours and
deported from Barbados. Article 46 (2) provides for movement of Community nationals
into and within their jurisdictions without harassment or the imposition of impediments.
4. Based on certain information received from the CARICOM Regional Security System, an
organisation concerned with security, a decision is made not to give Ben reasons for
refusing him entry into Barbados. This action is in keeping with Article 46 (2) which is
silent with regard to furnishing a reason for refusal of entry.
CONCLUSION/ADVICE TO THE MINOR ISSUES:
1.
2.
3.
4.
Constitution shall prevail and the other law shall, to the extent of the inconsistency, be
void. An indication that the constitution is supreme law and supported in the revised
treaty has identified in Article 46 (3) that each state has the final say with regard to
decisions of security. It is advised therefore that Ben can be refused entry into Barbados
as per the evidence cited.
NAME: 19906815
DATE: Wednesday 13th April 2016
LECTURE: Legal Methods Research and Writing
LECTURER: Dr. Corlita Babb- Schaefer
FACULTY: Law, U.W.I Cave Hill