FACTS:

The facts presented are accepted as given.

MAJOR ISSUE:
The major issue which fall to be considered are as follows:
1. Whether Ben can be refused entry into Barbados.
MINOR ISSUES:
In order to address the major issue it is necessary to consider the following minor issues:
1.
2.
3.
4.

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. Sir Sridath Ramphal explains the intent is
one of fostering a greater sense of community cohesion. It is also designed to encourage
greater intra-CARICOM tourism. Article 45 of the revised treaty of Chaguaramus
expressly states that Member States commit themselves to the goal of free movement of
their nationals within the Community.
2. 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.4 Article 7 of the revised
treaty of Chaguaramas states that within the scope of application of this Treaty and
1 Grand Anse Declaration 1990
2 Inter-American Court (see, e.g,. Advisory Opinion No. 4, para. 57)
3 Human Rights Committee (see, e.g., General Comment 18, para. 13)
4 6833/74, Council of Europe: European Court of Human Rights, 27 April 1979

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 inter alia
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 nationality
only 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
6 Haig 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 reasons for refusal of entry.
CONCLUSION/ADVICE TO THE MINOR ISSUES:
1.
2.
3.
4.

It is advised that Ben has an automatic right to enter Barbados.

It is advised that Ben was not discriminated against.
It is advised that Ben has the right not to have the imposition of impediments to entry.
It is advised that Ben is not owed reasons for non-entry into Barbados.

CONCLUSION/ADVICE ON THE MAJOR ISSUE:

1. Incorporating is the process by which international agreements become part of the

domestic law of a sovereign state. The process is much like passing domestic legislation
(bills) however incorporating gives effect to the treaty in the national legal system.7
Whether incorporation is necessary depends on a country's governmental structure. A
dualist state requires all treaties to be incorporated before they can have any domestic
legal effects and is exemplified by the United Kingdom, where treaty-making are
considered to be the exclusive purview of the parliament.8 Hence all treaties must be
incorporated if they are to have any effect on domestic legislation. If it is accepted that
Barbados is a former colony of the UK having a similar governmental structure namely
the Westminster model it can be concluded that incorporating is a likely process in
accommodating international legal commitments.

7 Elliott and Quinn

8 Aust, Anthony Modern Treaty Law and Practice Cambridge University Press