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A COMMENTARY ON THE EARLY DECISIONS OF THE CARIBBEAN COURT OF JUSTICE IN ITS ORIGINAL JURISDICTION
Published online by Cambridge University Press: 03 August 2010
Extract
The Revised Treaty of Chaguaramas (‘the RTC’) is an attempt on the part of a group of Caribbean States to respond in a collective manner to the pressing challenges posed by the forces of globalization and liberalization. The RTC seeks, inter alia, to deepen regional economic integration through the establishment of a Caribbean Community (‘CARICOM’) including a CARICOM Single Market and Economy (‘CSME’). The States in question—Antigua & Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St Kitts and Nevis, Saint Lucia, St Vincent and the Grenadines, Suriname and Trinidad & Tobago—are for the most part former British colonies that gained their independence in the 1960s and 1970s. The RTC signals yet another important step in the tortuous path taken by these Anglophone Caribbean States ‘to avoid the looming threat of marginalization’1 following the failure in 1962 of the West Indies Federation.2 Significantly, this latest step is being taken side by side with the non English speaking civil law States of Haiti and Suriname thereby adding a new and interesting dimension to the integration process.
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References
1 K Hall, Re-Inventing CARICOM—The Road to a New Integration (2nd edn, Ian Randle Publishers, Kingston, 2003).
2 The West Indian federation was formed in 1958 and embraced the then colonies of Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, the then St Kitts-Nevis-Anguilla, St Lucia, St Vincent and Trinidad and Tobago. The Federation was established by the British Caribbean Federation Act of 1956 with the aim of establishing a political union among its members. See CARICOM website http://www.caricom.org/jsp/community/west_indies_federation.jsp?menu=community accessed 15 April 2010.
3 At the time of writing three States, namely, Barbados, Guyana, and Belize, recognize the CCJ as their final municipal court of appeal. The State of Belize actually acceded to the appellate jurisdiction of the Court from 1 June, 2010.
4 See art 211 of the RTC.
5 See art 31 of the Vienna Convention on the Law of Treaties.
6 Individuals and private entities require special leave from the court in order to commence proceedings directly before the court. This matter is addressed at length later.
7 See Interim Order of the court dated 22 July, 2008 in the matter of TCL v Guyana CCJ Application No AR 1 of 2008.
8 At para 7.
9 At the substantive stage of proceedings the Community and the Member States always have the option of being heard. See The court's Original Jurisdiction Rules Part 10.3.
10 See Johnson v CARICAD [2009] CCJ 3 (OJ) discussed later in this essay.
11 See art 211(1) of the Revised Treaty. See also art XII(1) of the Agreement. The term ‘exclusive’ has to be viewed in context. The RTC also provides for a range of dispute settlement modes between States. See Professor A. R. Carnegie “How Exclusive is ‘Exclusive’ in Relation to the Original Jurisdiction of the Caribbean Court of Justice? A Consideration of Recent Developments” A Paper presented on November 25, 2009. Sourced at http://www.cavehill.uwi.edu/news/articles/nov2009/Conflicts_of_Jurisdiction.pdf
12 Art 214 states: ‘Where a national court or tribunal of a Member State is seised of an issue whose resolution involves a question concerning the interpretation or application of this Treaty, the court or tribunal concerned shall, if it considers that a decision on the question is necessary to enable it to deliver judgment, refer the question to the court for determination before delivering judgment.’ Art XIV is worded in identical manner.
13 The Organs of the Community are set out in art 10 of the Revised Treaty. The absence of the court on the list is to be compared for example with art 7(1) of the COMESA treaty where the court of Justice there is declared to be an organ of the Common Market and art 6(1) of the ECOWAS treaty where the Community Court of Justice is declared to be an Institution of the Community.
14 Notwithstanding these measures, in Independent Jamaica Council for Human Rights (1998) Ltd and Others v. Marshall-Burnett and Another [2005] UKPC 3 the Judicial Committee of the Privy Council, indicating that it had ‘no interest of its own in the outcome’ of the proceedings before it, struck down three Bills passed by the Jamaica legislature for the purpose of having civil and criminals appeals from Jamaica determined by the court in its appellate jurisdiction in lieu of those appeals being determined by the Judicial Committee on the ground that there was a risk that the governments of the Contracting States might amend the CCJ Agreement so as to weaken that court's independence.
15 See art V of the CCJ Agreement.
16 The positions are widely advertised and applications are received from individuals from many different Commonwealth States. The Commission ultimately interviews those shortlisted before making the final selection.
17 Art XXXII of the Agreement.
18 Art XXXVII of the Agreement.
19 See art XXI of the Agreement and art 220 of the Revised Treaty. The Rules which have been made by the President in consultation with the Judges of the court are styled. The Caribbean Court of Justice (Original Jurisdiction) Rules 2006.
20 See The Caribbean Court of Justice Act No 10 of 2004 Antigua and Barbuda; The Caribbean Court of Justice Act, Cap 117, Barbados; Act No 16 of 2004, Belize; Act No 23 of 2005, Commonwealth of Dominica; Act No 3 of 2005, Grenada; Act No 16 of 2004 Guyana; Act no 17 of 2005 Jamaica; Act No 7 of 2004, St Christopher & Nevis; Act No. 34 of 2003 Saint Lucia; Act No 32 of 2004 St Vincent and the Grenadines; Act No 22 of 2003 Suriname; Act No 8 of 2005 Republic of Trinidad and Tobago.
21 See s 3 of the respective CCJ Acts.
22 Art 216(1).
23 See art 216(2).
24 See art 217(2).
25 See Part 3.4(4) of the Original Jurisdiction Rules.
26 See art 221.
27 July, 2010.
28 See arts 191–210.
29 Art 191.
30 Art 192.
31 Art 193.
32 Art 195–203.
33 Art 204–207.
34 Art 208.
35 Art 188(4) specifically states that the use of any of these voluntary modes of dispute settlement is ‘without prejudice to the exclusive and compulsory jurisdiction of the court in the interpretation and application of the treaty…’.
36 See art 214.
37 See art 212.
38 CARICOM sometimes refers to itself as ‘an Association of sovereign States’. The Rose Hall Declaration on ‘Regional Governance And Integrated Development’ adopted on the occasion of the 30th Anniversary of CARICOM at the 24th Meeting of the Conference of Heads of Government of CARICOM at Montego Bay, Jamaica 2–5 July, 2003 reaffirms, at A-1, that ‘CARICOM is a Community of Sovereign States’. See also K Hall and M Chuck-A-Sang, ‘Caricom Single Market and Economy: Challenges, Benefits, Prospects (Ian Randle, Kingston 2007) 27.
39 [2009] CCJ 5 (OJ).
40 The Conference on Trade and Economic Development (COTED) is established as an organ of the Community by art 15 of the RTC. Art 83 vests in COTED the responsibility for authorizing a suspension of the CET. Between meetings of COTED that authority may be exercised by the Secretary General.
41 Trinidad Cement Limited v The Caribbean Community [2009] CCJ 2 (OJ).
42 Doreen Johnson v Caribbean Centre for Development Administration (CARICAD) [2009] CCJ 3 (OJ).
43 See art 222.
44 Claim No ANUHCV2007/0354.
45 See art 214. In Linton v The Attorney General Civil, the claimant sought relief on the domestic plane alleging, inter alia, that the State of Antigua & Barbuda had breached his rights under the treaty. In considering whether there were issues of interpretation or application of the RTC that should be referred to the court the judge held that since the treaty had not been incorporated into Antigua's domestic law by way of local legislation, a) the obligation to refer was not binding upon the local court and b) no question of interpretation or application of the RTC could properly arise. The court proceeded to find in favour of the applicant and to give him the relief he sought.
46 Art XXIV.
47 Art 32 in very general terms stipulates that a person shall be regarded as a national of a Member State if such person (i) is a citizen of that State (ii) has a connection with that State which entitles him to the benefits of citizenship; or (iii) is a company or other legal entity constituted in the Member State and which that State considers as belonging to it provided that the company is substantially owned (ie in excess of 50 per cent of the equity interest therein) and controlled by persons described in (i) and (ii).
48 [2009] CCJ 1 (OJ).
49 See for example: Mavrommatis Palestine Concessions (Greece v UK) PCIJ Rep 1924, Series A, No 2, 12.
50 See Draft Articles on Diplomatic Protection with commentaries, 2006, art 1(3) International Law Commission's Commentaries on the Draft Articles on Diplomatic Protection.
51 La Grand case (Germany v United States of America) [2001] ICJ Rep 466 paras 76–77.
52 Case concerning Avena and Other Mexican Nationals (Mexico v United States of America) [2004] ICJ Rep 12 para 40.
53 See para 18.
54 See para 26.
55 [2009] CCJ 1 (OJ).
56 See paras 39–42.
57 See para 40.
58 See art XVIII(1) of the CCJ Agreement.
59 See unpublished manuscript, ‘The Most Recent CCJ Decision: Cause for Relief And Concern’ [2009] (on file with the author).
60 See para 32.
61 See para 34.
62 See for example Johnson v CARICAD CCJ Application No AR 2 of 2008.
63 See TCL & TGI v Guyana—judgment of the court given in CCJ Application No AR 1 of 2008 [2009] CCJ 1 (OJ).
64 See [2009] CCJ 1 (OJ) at [33].
65 [2009] CCJ 3 (OJ).
66 Arts 10 and 18 respectively of the RTC lists the organs and bodies of the Community.
67 Arts 21 and 22 respectively lists the Institutions and Associate Institutions of the Community.
68 Arts 47, 49, 57, 70, 74, 77, 187 and 240 for example.
69 See para 14.
70 See art 228 of the RTC.
71 See Time For Action: Report of the West Indian Commission (2nd edn, The Press, University of the West Indies, Jamaica, 1993).
72 See (n 34).
73 [2008] CCJ 1 (OJ).
74 See para 17.
75 (2009) Case No AR 3 of 2008 judgment delivered 5 February, 2009.
76 PCIJ Rep, Series A, No 1, 25 (1923); and see also the Separate Opinion of Judge Anzilotti in the Austro-German Customs Union Case, PCIJ Rep, Series A/B No 41 (1931) 57–58.
77 See para 32.
78 See for example Johann Luhrs v Hauptzollamt Hamburg-Jonas, Case 78/77 of 1978.
79 See also E Osieke, ‘Legal Validity of Ultra Vires Acts’ (1983) 77 AJIL 239, 247. See also Adler v Secretary-General of the UN, Judgment No 267, UN Doc AT/DEC/267.
80 See TCL & TGI v Guyana [2009] CCJ 5 (OJ) at [27].
81 See TCL v The Caribbean Community [2009] CCJ 4 at [42]–[43].
82 This of course assumes that the particular Institution in question is an agent of the Community.
83 See TCL & TGI v Guyana [2009] CCJ 5 (OJ) at [45].
84 See TCL & TGI v Guyana [2009] CCJ 5 (OJ) at [33].
85 [2009] CCJ 5 (OJ) at [27].
86 [2009] CCJ 5 (OJ) at [35].
87 [2009] CCJ 5 (OJ) at [36].
88 See art 217(1).
89 [1991] ECR 1-5357.
90 Joined Cases C-46/93 and C-48/93, [1996] ECR I-1029.
91 Guyana eventually complied fully with the judgment some four months after the order of the Court was made.
92 See for example Case No IT-94-1-A-R77 Prosecutor v Tadić, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, in the Appeals Chamber of the ICTY and also Case No, IT-03-66-T-R77 Beqa Beqaj before the ICTY's Trial Chamber.
93 See TCL & TGI v Guyana [2010] CCJ 1 (OJ) at [40].
94 See Report of the Brandeis Institute for International Judges 2009—www.brandeis.edu/ethics/internationaljustice/biij/index.html.