CONTENTS

The Original Jurisdiction of the Caribbean Court

of Justice (Q&A) .

Securing Caribbean Nationhood 8

Preserving Caribbean Citizens' Rights 8

Caribbean Integration Benefits 9

All-embracing Inclusive People 10

Financing the CCj 10

Appointment of Judges 11

The Regional Judicial and Legal Services Commission ... 12

Securing the Integrity of the Bench 13

Restoring National Institutional Prestige 14

No Rush for a Caribbean Court 14

Caribbean Courtof Justice

HOW THE COURT WORKSTHE ORGINAL JURISDICTION

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quite different from the legal rules normally applied by judges inour national courts. One important difference is that rules ofinternational law ordinarily apply only to States which are calledsubjects of international law. Only in exceptional cases are thoserules directly applicable to individuals. Consequently, individualsonly enjoy rights set out in international instruments through

their States of nationality on which those rights are conff;?rredinitially. Forprivate entities or individuals to enjoy rights under aninternational instrument, the instrument would have to be

implemented into local law by the State concerned.

What are the exceptional circumstances in which rights andobligations under international law are conferred onindividuals directly? \

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One such exceptional circumstance is the example ·of theEuropean Union created by the Treaty of Rome as amended bythe Treaty of Maastricht and which grants rights and createsobligations directly for citizens.

How is the Treaty of Chaguaramas different fro.m the Treatyof Rome?

The Treaty of Rome created supranational institutions like theCouncil of Ministers and the Commission which are intended to

make laws directly for European nationals - that is, without theintervention of their national assemblies. The Caribbean

Community established by the Treaty of Chaguaramas is anassociation of sovereign states and not a supranational body.Consequently, Organs of the Community cannot make laws withdirect effect for private entities or individuals.

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Why cannot the Organs of the Caribbean Community, like

The Conferenc~ of Heads of Government, make lawsdirectly for Caribbean Community nationals without theintervention of their national assemblies?

This is because any such arrangement appears to be politicallyunacceptable! Consequently, the Caribbean Community hasalways been and remains an association of sovereign States andany decisions of the Organs 'of the Community must be enactedinto local law by national assemblies before such decisions cancreate rights and obligations for nationals of the CaribbeanCommunity. And this is an extremely important feature of theCaribbean Community.

Why cannot the Member States of CARICOM agree to havethe Treaty of Chaguararnas interpreted and applied in someway other than by the CCJ? The Treaty of Chaguaramas hasexisted for more than twenty-five years without a Court.What is aU this fuss now about the need for a Caribbean

Court to interpret and apply the Treaty?

Yes! Indeed, the old Treaty of Chaguaramas provided forarbitration in the event of disputes concerning the interpretationand application of the Treaty. Unfortunately, however, thearbitral procedure was never used and serious disputes werenever settled, thereby causing the Integration Movement to behampered. Moreover, the rights and obligations created by theCSME are so important and extensive, relating to theestablishment of economic enterprises, the provision of

professional services. the movement of capital, the acquisitionof land for the operation of businesses. that there is a clear need

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to have a permanent, central, regional institution toauthoritatively and definitively pronounce on those rights andcorresponding obligations. The Caribbean Court of Justice isintended to be such an authoritative institution. Arbitral

tribunals reach decisions which are binding only on the partiesto the dispute. However, the determinations of the CCJ willcreate legally binding norms for all Member States parties tothe Agreement establishing the CCJ.

Would the· absence of such a Court adversely affect thedevelopment and functioning of the CSME?

Definitely! The Caribbean Community is not known forsignificant capital accumulation. Consequently, it is largely acapital importing Region. Foreign investors seeking to investnormally prefer a stable macro-economic environment based onpredictable laws in order to determine outcomes. Such anenvironment can and must be created by the CCJ!

How can the CCj create a stable macro-economicenvironment suitable for the attraction of foreign capital?

The CCJ has been configured to ensure that the laws of theCSME are uniform and predictable. The CCJwill have exclusive

. jurisdiction in respect of the interpretation and application of theTreaty. If it had concurrent jurisdiction with other Courts of theCommunity, there is a likelihood of conflicting opinions onimportant economic. commercial and financial issues therebycreating uncertainty and unpredictability in the business climateand macro-economic environment! Stability of expectations is afundamental requirement for investment decisions.

rSo what happens where another Court in the CaribbeanCommunity is seised of an issue which involves a questionconcerning the interpretation and application of the Treaty?Must the Court decline to accept jurisdiction and pronounce onthe case?

No! The Court must accept jurisdiction and refer the particular

issue to the CCJ for determjnation before delivering judgment.which must respect the CCJ's determination of the relevantissue! A similar requirement of referral obtains in the EuropeanUnion and it has been credited with promoting social andeconomic cohesion among the Member States.

What happens if a delinquent party to a dispute refuses tosubmit to the jurisdiction of the CCj?

By signing on to the Agreement Establishing the CCJ, allMember States of the Community would be submitting to thejurisdiction of the CCJ in the exercise of its original jurisdictionwhich is compulsory and exclusive. The European Court ofJustice does not enjoy exclusive jurisdiction but when a court oflast resort is seized of an issue concerning the interpretation orapplication of the Treaty of Rome, the court must refer the issueto the European Court of Justice for determination .

How are decis.ons of the CCJ enforced?

Member States signing on to the Agreement Establishing theCCJ would agree to enforce its decisions in their respectivejurisdictions like decisions of their own superior courts.

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C!anthe CCJ reverse itself as it considers fit thereby creatinguncertainty in the applicable norms?

The Agreement Establishing the CCJ does provide for therevision of decisions in specified circumstances. But suchrevisions are intended to satisfy the ordinary requirements of

justice! Revision of judgments, is not to be secured Lightly orcapriciously. Indeed. in the ordinary course of events, decisionsof the CCJconstitute stare decisis.

What do you mean by stare decisis?

Stare decisis is peculiar to common law jurisdictions but it hasbeen imported into the Agreement Establishing the CCJ toensure certainty in the applicable norms. The doctrine of staredecisis or judicial precedent, requires the Court to pronounce inthe same manner provided the circumstances of the case aresimilar.

You have mentioned the term "norms". What are norms and

,are they peculiar to the original jurisdiction of the CCJ?

"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 CCJwould applythe norms peculiar to common law jurisdictions as distinct fromcivil law jurisdictions.

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Since Suriname arid Haiti have civil law jurisdictions. canthey participate in the regime establish~ngthe CCJ?

The response to this question would depend on the jurisdictionof the CCJ to which access is desired. Both civil law andcommon law jurisdictions can participate in the CCJ in theexercise of its original jurisdiction. This is so because the CCJin

exercising its original jurisdiction is discharging the functions ofan international tribunal applying rules of international law.International law rules are common to both common law and

civil law jurisdictions. However, problems would occur ifSuriname or Haiti wished to participate in the appellate

jurisdiction of the CCJ where municipal law rules and notinternational law rules apply.

Can private entities. like enterprises or individuals. appearin proceedings before the CCJ?

The simple answer is yes, but only by special leave of the Courtin special circumstances where the Court determines that theinterest of justice requires it. However, in the ordinary course ofevents, only States would be allowed to espouse a claim inproceedings before the CCJ. Consequently, where a privateentity is aggrieved, the State of nationality !concerned wouldespouse its cause in proceedings before the CCJ.This is one ofthe peculiarities of international law. For example, the parties tothe "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 would allowtheir nationals to espouse their claims in proceedings before theCCJwherever the opportunity presents itself.

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SECURING CARIBBEAN NATIONHOOD

The creation of a new court is one of the most fundamental and

important decisions for a State. For the Caribbean Community(CARICOM) States, it is the most dynamic step in securing theirsovereignty and undoubtedly preserving the Rights of theircitizens. Furthermore, with the advancement of the regionalintegration movement and by extension the thrust towards thecreation of a single market and economy, there are certainattendant rights and corresponding obligations placed upon boththe State and Citizen. It is therefore necessary for a regionaljudicial institution to authoritatively and definitively pronounceon those rights and obligations.

PRESERVING CARIBBEANCITIZENS· RIGHTS

The Caribbean Court of Justice will be the final court of appealfrom civil and criminal decisions of the Courts of Appeal of the.Member States of the Caribbean Community (CARICOM) whoso opt to utilise it.

The CCJwill most certainly protect the rights of litigants to a fair,impartial. efficient and competent judicial process.

The CCJwill be an itinerant court. It is provided in the Agreementestablishing the CCJ that the Seat of the Court shall be in theterritory of a Contracting Party as determined by a qualifiedmajority of the Contracting Parties; but upon the application of aparty to an action or as the circumstances warrant, the Court

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may sit in the territory of any Contracting Party. The CCJwill belocated in Trinidad and Tobago. However, as is necessary, theCourt will travel from State to State to conduct its business. This

mode of operation represents a vast reduction in expenditureagainst what would normally be incurred in taking a case to theJudicial Committee of the Privy Council.

The Attorney-General of Jamaica wryly observed that the sumsexpended annually by the Jamaican Government in appeals tothe Privy Council would significantly defray the proportionateshare of Jamaica's cost towards the establishment andmaintenance of the CCJ.

CARIBBEAN INTEGRATION BENEFITS

The Court will also function as an international tribunal, hearingdisputes arising from the interpretation and application of theRevised Treaty of Chaguaramas establishing the CaribbeanCommunity including the CARICOM Single Market andEconomy.

The rights and obligations created by the CSME are soimportant and extensive, relating as they do to theestablishment of economic enterprises, the provision ofprofessional services, the movement of capital. and the

acquisition of land for the operation ofbusine~ses that there is aclear need to have a permanent, central. regional judicialinstitution to authoritatively and definitively pronounce on thoserights and corresponding obligations. The CCJ is intended to besuch an institution.

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ALL-EMBRACING INCLUSIVE PEOPLE

The Preparatory Committee for the' Establishment of the CCJ'has endorsed a vigorous programme of consultations on the CCJwith the various stakeholders both at the national and regionallevels. National Committees have been established in

CARICOM Member States to spearhead the process. This is inaddition to an all-embracing Public Education Programme topromote an inclusive process of public engagement to fostertransparency of the exercise, and reaffirm peoples' confidence inthe judicial process.

The formulation of the Instruments for the establishment of the

CCJ has been receiving meaningful contributions culled from across fertilisation of input spanning the various sectors of thepopulation across the Region.

FINANCING THE CCJ

The Governments of CARl COM have established a Trust Fund in

an amount, of US$lOOM. The Fund is to be mani3ged byprofessionals to yield income for the management andoperations of the Court. Consequently, the CCJ'will be the onlyintegration Court of its kind financially independent of thelargess of governments and free from their administrativecontrol.

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APPOINTMENT OF JUDGES

Article IV paragraph 6 of "the Agreement Establishing the CCJstates that:

"the President shall be appointed or removed by the

qualified majority vote of three-quarters of the Heads ofthe Contracting Parties on the recommendation of theRegional Judicial and Legal Services Commission".

The appointment of the remainder of the judges will beundertaken by the Regional Judicial and Legal ServicesCommission which is established for that purpose. There will be

at least 9 other judges apart from the President. The Agreementestablishing the CCJclearly establishes that the appointment ofthe judges of the CCJwill not be influenced by politicians.

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THE REGIONAL JUDICIAL AND LEGALSERVICES'COIVIMISSION

The Regional judicial and Legal Services Commission is broad­based and does not contain any political representation. In fact

the Court belongs to the people and not just the legalprofession. The Commission has been structured to ensurerepresentation from Haiti and Suriname, the Civil Law Member

States of the Community. The composition of the Commissionis as follows:

(a) the President who shall be the Chairman of the Commission;

(b) two nominees proposed by the Organisation of theCommonwealth Caribbean Bar Association (OCCBA) and theOECS Bar Association;

(c) the Chairman of the judicial Services Commissions of a

Contracting Party selected in rotation in the Englishalphabetical order for a period of three years;

(d) the Chairman of a Public Service Commission of a

Contracting Party selected in rotation in the Englishalphabetical order for a period of three years;

(e) two members of Civil Society appointed jointly by theSecretary-General of the Caribbean Community (CARICOM)and the Director General of the Organisation of EasternCaribbean States (OECS) to serve for a period of three years;

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(f) two distinguished jurists nominated by the Dean of theFaculties of Law of the University, the Dean of the Facultyof Law of any Contracting Party, together with the Chairmanof the Council of Legal Education; and

(g) two persons nominated jointly by the Bar or LawAssociations of the Contracting Parties.

SECURING THE INTEGRITYOF THE BENCH

judges on the bench of the CCJwill be subjected to a strict Codeof judicial Conduct. Salaries and conditions of service cannot be

varied to their disadvantage while they are in office. They willenjoy privileges and immunities to further safeguard and protecttheir independence. These privileges and immunities have beenset out in a protocol to which all Member States will be Parties.

The selection process is geared to field the highest levels ofprofessional competence and moral integrity. The qualificationsfor appointment as judge to the Court require that servingjudges must have had as least 5 years in a Court of unlimitedjurisdiction, or 15 years aggregate a~ a legal practitioner or anacademic in the legal field in the Caribbean or in the

Commonwealth or a country linked with the civil laws system ofHaiti and Suriname. In addition. candidates must possessoutstanding moral character" intellectual and analytical ability,sound judgment, integrity and understanding of people andsociety.

Securing the integrity of the Bench is a critical element in theefficient and effective functioning of the CSME.

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RESTORING NATIONALINSTITUTIONAL· PRESTI GE

The working conditions of many CARICOM courts are indeeddeplorable. Dilapidated buildings, which in many instances arewanting in the minimum of basic physical amenities, lawjournals and transcripts characterise the system; but the systemcontinues to be in service, and has in no way detracted fromcitizens' confidence in due process as appeals continue to goforward to the Privy Council. The proposed establishment of theCCJ, therefore, augurs well for national efforts to restore thenations' institutional prestige in its Courts generally, andspecifically upholding the integrity of the sovereign State.

NO RUSH FOR A CARIBBEAN COURT

Proposals for the establishment of a Caribbean Court as the finalcourt of appeal have been under consideration since 19LQ, andare in no way being rushed .. "

The idea was first advanced by the Organisation ofCommc;mwealth Caribbean Bar Associations (OCCBA) in 1970and was then taken before the Sixth Meeting of the Heads ofGovernment of the Commonwealth Caribbean. In 1989 the

leaders had committed themselves to pursuing the proposedCaribbean Court.

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In 1992, the West Indian Commission following its wide­

ranging consultations, ,in. its celebrated report to the Region'sleaders, II~nmefor Action ", the 'Commission recommended thatthe time was right to establish a Court which was indigenous toour people and which would assist in deepening the integrationprocess.

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