III - 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 treaty, as revised, is to be interpreted and applied by the CCJ in the exercise of its original jurisdiction.

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 community nationals.

Q. Why must community 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 and comprehensive 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 states which are called subjects of international law. Only in exceptional cases are those rules directly applicable to individuals. Consequently, individuals only enjoy rights in international law through their states of nationality on which those rights are conferred by international law. For private entities or individuals to enjoy rights under an international instrument, the instrument would have to be implemented into local law by the state 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 institutions like the Council of Ministers and the European Commission which can make laws directly for European nationals - that is, without the intervention of their national assemblies.

Q. Why cannot 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?

A. This is because any such arrangement appears to be politically unacceptable! Consequently, the Caribbean Community has always been 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. And this is an extremely important feature of the Caribbean Community!

Q. Why cannot 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. Yes! Indeed, 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 and corresponding obligations. The Caribbean Court of Justice is intended to be such an authoritative institution.

Q. Would the absence of such a court adversely affect the development and functioning of the CSME?

A. Definitely! The Caribbean Community is not known for significant capital accumulation. Consequently, it 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. Such an environment can and must be created by the CCJ!

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 will have 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!

Q. So what happens where another court in the Caribbean Community is seized of 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 would be submitting 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 seized of 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 would agree to enforce its decisions in their respective jurisdictions like decisions of their own superior courts.

Q. What recourse is open to an aggrieved party where the defaulting state refuses to enforce a decision of the CCJ?

A. The simple answer is none! But in this respect, the regime establishing the CCJ is not different from similar regimes establishing the European Court of Justice or the Andean Court of Justice. Participants in the regime will have undertaken to respect and enforce the decisions of the Court. One will have to depend on a culture of respect for the rule of law and obedience to the determinations of competent tribunals to ensure enforcement of judgments.

Q. Can the CCJ reverse itself as it considers fit, thereby creating uncertainty in the applicable norms?

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! Revision of judgments is not to be secured lightly or capriciously. Indeed, in the ordinary course of events, decisions of the CCJ constitute stare decisis.

Q. What do you mean by stare decisis?

A. Stare decisis is peculiar to common law jurisdictions, but it has been imported into the Agreement Establishing the CCJ to ensure certainty in the applicable norms. 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. You have mentioned the term "norms". What are norms and are they peculiar to the original jurisdiction of the CCJ?

A. "Norms" are rules of law prescribing the conduct to be observed. Norms are not peculiar to the original jurisdiction of the CCJ. However, the norms applied by the CCJ in the exercise of its original jurisdiction would normally be rules of international law. In the exercise of its appellate jurisdiction, the CCJ would apply the norms peculiar to common law jurisdictions as distinct from civil law jurisdictions.

Q. Since Suriname and Haiti have civil law jurisdictions, can they participate in the regime establishing the CCJ?

A. The response to this question 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. The situation would be more complicated, however, 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?

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. In the ordinary course of events, however, only states would be allowed to espouse a claim in proceedings before the CCJ. 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. For example, the parties to the "banana issue" involving private producers were states - the European Union and the USA. One may hazard a guess, however, that in the context of the CSME, states will allow their nationals to espouse their claims in proceedings before the CCJ wherever the opportunity presents itself.