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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. 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
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.
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.