II - THE ORIGINAL JURISDICTION OF THE CARIBBEAN COURT OF JUSTICE
Q. What is the relationship between the Caribbean Court of Justice (CCJ) and the CARICOM Single Market and Economy?
A.The CARICOM Single Market and Economy (CSME) is established by the Treaty of Chaguaramas as revised by nine Protocols. The main purpose of the CCJ’s original jurisdiction is to interpret and apply the Treaty, (as revised). This is done by
- hearing and deciding on disputes between countries or between persons and countries which involve issues which the treaty deals with, or
- by giving advisory opinions when member states ask for them, or
- by having national courts and tribunals refer issues to the CCJ for interpretation.
Q. But how does this function of the CCJ impact on the CARICOM Single Market and Economy?
A. By interpreting and applying the Treaty which establishes the CSME, the CCJ will determine in a critical way how the CSME functions. The CSME creates an extensive range of rights and obligations for States parties to the Treaty and, through these States parties, for CARICOM nationals.
Q. Why must CARICOM nationals enjoy rights and discharge obligations through their States? Why cannot such nationals enjoy rights and discharge obligations without the intervention of their States of nationality?
A. This is an important question which requires a clear response. Firstly, it must be borne in mind that treaties, like the Treaty of Chaguaramas, are governed by international law. International law is based on rules which are quite different from the legal rules normally applied by judges in our national courts. One important difference is that rules of international law ordinarily apply only to countries which are called subjects of international law. Only in exceptional cases are those rules directly applicable to individuals. Consequently, individuals only enjoy rights set out in international instruments through their country on which those rights are conferred initially. For private entities or individuals to enjoy rights under an international instrument, the instrument would have to be implemented into local law by the country concerned.
Q. What are the exceptional circumstances in which rights and obligations under international law are conferred on individuals directly?
A. One such exceptional circumstance is the example of the European Union created by the Treaty of Rome as amended by the Treaty of Maastricht and which grants rights and creates obligations directly for citizens.
Q. How is the Treaty of Chaguaramas different from the Treaty of Rome?
A. The Treaty of Rome created supranational institutions like the Council of Ministers and the European Commission which are intended to make laws directly for European nationals – that is, without the intervention of their national assemblies. The Caribbean Community established by the treaty of Chaguaramas is an association of sovereign states and not a supranational body.
Q. Why can’t the Organs of the Caribbean Community, like the Conference of Heads of Government make laws directly for Caribbean Community nationals without the intervention of their national assemblies or parliaments?
A. This is because the Caribbean Community is an association of sovereign States and any decisions of the Organs of the Community must be enacted into local law by national assemblies before such decisions can create rights and obligations for nationals of the Caribbean Community. This is an extremely important feature of the Caribbean Community!
Q. Why can’t the Member States of CARICOM agree to have the Treaty of Chaguaramas interpreted and applied in some way other than the CCJ? The Treaty of Chaguaramas has existed for more than twenty-five years without a Court. What is all this fuss now about the need for a Caribbean Court to interpret and apply the Treaty?
A. The old Treaty of Chaguaramas provided for arbitration in the event of disputes concerning the interpretation and application of the Treaty. Unfortunately, however, the arbitral procedure was never used and serious disputes were never settled, thereby causing the integration movement to be hampered. Moreover, the rights and obligations created by the CSME are so important and extensive, relating to the establishment of economic enterprises, the provision of professional services, the movement of capital, the acquisition of land for the operation of businesses, that there is a clear need to have a permanent, central, regional, institution to authoritatively and definitively pronounce on those rights obligations. The Caribbean Court of Justice is that authoritative institution.
Arbitration tribunals reach decisions which are binding only on the parties to a dispute. However, the decisions of the CCJ will create legally binding norms for all Member States which are parties to the Agreement establishing the CCJ.
Q. Would the absence of such a Court adversely affect the development and functioning of the CSME?
A. Definitely! The Caribbean Community is largely a capital importing region. Foreign investors seeking to invest normally prefer a stable macro-economic environment based on predictable laws in order to determine outcomes. The CCJ is necessary for such an environment!
Q. How can the CCJ create a stable macro-economic environment suitable for the attraction of foreign capital?
A. The CCJ has been configured to ensure that the laws of the CSME are uniform and predictable. Firstly, the CCJ has exclusive jurisdiction in respect of the interpretation and application of the Treaty. If it had concurrent jurisdiction with other Courts of the Community, there is a likelihood of conflicting opinions on important economic, commercial and financial issues thereby creating uncertainty and unpredictability in the business climate and macro-economic environment! Stability of expectation is a fundamental requirement for investment decisions.
Q. So what happens where another Court in the Caribbean Community has a case before it with an issue which involves a question concerning the interpretation and application of the Treaty? Must the Court decline to accept jurisdiction and pronounce on the case?
A. No! The Court must accept jurisdiction and refer the particular issue to the CCJ for determination before delivering judgment, which must respect the CCJ’s determination of the relevant issue! A similar requirement of referral obtains in the European Union and it has been credited with promoting social and economic cohesion among the Member States.
Q. What happens if a delinquent party to a dispute refuses to submit to the jurisdiction of the CCJ?
A. By signing on to the Agreement Establishing the CCJ, all Member States of the Community have submitted to the jurisdiction of the CCJ in the exercise of its original jurisdiction which is compulsory and exclusive. The European Court of Justice does not enjoy exclusive jurisdiction but when a court of last resort is hearing a case in which there is an issue concerning the interpretation or application of the Treaty of Rome, the court must refer the issue to the European Court of Justice for determination.
Q. How are decisions of the CCJ enforced?
A. Member States signing on to the agreement Establishing the CCJ agree to enforce its decisions in their respective jurisdictions like decisions of their own superior courts. The CCJ has held that the Revised Treaty of Chaguaramas authorises the Court to make coercive orders against Member States.
Q. Can the CCJ reverse itself as it considers fit thereby creating uncertainty?
A. The Agreement Establishing the CCJ does provide for the revision of decisions in specified circumstances. But such revisions are intended to satisfy the ordinary requirements of justice! Judgments are not to be revised lightly. Indeed, in the ordinary course of events, decisions of the CCJ constitute stare decisis.
Q. What does stare decisis mean?
A. Stare decisis is peculiar to common law jurisdictions but it has been imported into the Agreement Establishing the CCJ to ensure certainty. The doctrine of stare decisis, or judicial precedent, requires the Court to pronounce in the same manner provided the circumstances of the case are similar.
Q. What legal principles does the CCJ apply?
A. Rules of law prescribe the conduct to be observed. The Rules of Law applied by the CCJ in the exercise of its original jurisdiction would normally be rules of international law. In its appellate jurisdiction, the CCJ would apply national laws and rules of common law.
Q. Since Suriname and Haiti have civil law jurisdictions, can they participate in the regime establishing the CCJ?
A. This would depend on the jurisdiction of the CCJ to which access is desired. Both civil law and common law jurisdictions can participate in the CCJ in the exercise of its original jurisdiction. This is so because the CCJ in exercising its original jurisdiction is discharging the functions of an international tribunal applying rules of international law. International law rules are common to both common law and civil law jurisdictions. However, some changes would be required if Suriname or Haiti wished to participate in the appellate jurisdiction of the CCJ where municipal law rules and not international law rules apply.
Q. Can private entities, like enterprises or individuals, appear in proceedings before the CCJ in the original jurisdiction?
A. The simple answer is yes, but only by special leave of the Court in special circumstances where the Court determines that the interest of justice requires it. However, in the ordinary course of events, only States are allowed to espouse a claim in proceedings before the CCJ in its original jurisdiction. Consequently, where a private entity is aggrieved, the State of nationality concerned would espouse its cause in proceedings before the CCJ. This is one of the peculiarities of international law.
The CCJ in one of its original jurisdiction decisions, established that there is a qualified right of access by individuals and private entities to the Court’s original jurisdiction. The CCJ in that judgment clarified the conditions on which such access may be gained.
