Caribbean Community BThe
Advisory Opinion Jurisdiction
And The Referral Procedure Of The
Agreement Establishing
The Caribbean Court Of Justice
By Sheldon A.McDonald, J.P.,LLM,
Project
Co-Ordinator, Caribbean
Court of Justice
Introduction
The process of establishing the Caribbean Court of Justice [CCJ] involves not only logistical tasks, or tasks involving the securing of the necessary resources, physical structures and infrastructure required to ensure its effective operation once inaugurated. Of equal importance is the need to begin developing a body of literature upon which the new judicial institution can turn for reflections on how similar tribunals operate. The Court will have two jurisdictions Ban Appellate and an Original. In the former sphere, the jurisprudence of the court systems of the Member States, up to and including the Judicial Committee of the Privy Council [where applicable] will be of inestimable value. In terms of the original jurisdiction, there is almost no jurisprudence indigenous to the Caribbean Community. There are a few cases in which national courts have been required to take judicial notice of the Dickensen Bay Agreement Establishing the Caribbean Free Trade Area and the Treaty of Chaguaramas Establishing the Caribbean Community. These however, have not been of sufficient judicial weight to be seen as exceptional. In consequence, the Court will be relying heavily a lot on the jurisprudence of other international tribunals concerned with the interpretation and application of the constituent instruments of regional economic integration movements. To the extent that there maybe a CARICOM generated Human Rights regime, the Court will undoubtedly become involved in jurisprudence in that area. That, however is yet to come. It will rely, to a lesser extent, on tribunals with wider membership concerned with general international law or international law in a specific context.
These tribunals include
** the
International Court of Justice
** the
International Tribunal for the Law of the Sea
** the
Dispute Settlement Body of the World Trade Organization
** the
Court of Justice of the European Communities and the Court of First
Instance of the European Communities
** the
European Free Trade Area Court
** the
Court of Justice of the Andean Community
** the
Central American Court of Justice
** the
Court of Justice of the Common Market for Eastern and Southern Africa
** the
Judicial Tribunal of the Economic Community of West African States
Naturally, the relevance of each for the work of the CCJ will vary. The tribunals treating with Developing Country disputes will be of importance from the point of view of how they apply the law flexibly, given the levels of development of the participants. The DSB of the WTO will assist in the interpretation and application of universal trade law norms in a >non-sympathetic= context. The ICJ and the ITLOS will be able to give guidance in terms of general international law, and that law applied in the more discrete context of one issue-area, the Law of the Sea.
In line with a recent decision of a Special Session of Conference, regional technocrats and policy-makers may have to begin work on the establishment of a Caribbean Human Rights Commission. It is undoubted that the Caribbean Court of Justice will become involved in that facet of regional governance and developing jurisprudence in that area. However, that is yet to come and will be the subject of a separate paper.
However,
without a doubt, the potentially greatest contributors to the growth and
development of the new and still emerging legal order of the Caribbean
Community will be the European Court of Justice, and the Court of
First Instance of the European Communities. The newer Court
of the European Free Trade Area will also be of relevance, given it is
interpreting and applying rules between the very strict European Union and the
more flexible European Free Trade Area, particularly as these have been
expressed in the European Economic Area Agreement.
AAll ideas on the future of
the Community=s
judicial system must
take into account three fundamental
requirements:
-the
need to secure the unity of Community law by means of
a supreme court;
-the
need to ensure that the judicial system is transparent,
comprehensible and accessible to the public;
-the
need to dispense justice without unacceptable delay.@[1]
These requirements are as fundamental for CARICOM as for the judicial system of the European Union .Indeed, it is arguably the case that they may be of greater, more primordial importance to the former, given that it is just about to begin the journey of comprehensive, coherent and cohesive legal ordering after floundering about indecisively for over a quarter century of existence.
Within the context of the CCJ=s Original Jurisdiction, the ensuing discussion will focus on the approaches the Court may wish to take in the development of the Advisory Opinion sub-head and the Procedure for Referrals from National Tribunals. The discussion rests on the posit that:
AThe...[advisory opinion role
and]...the preliminary ruling system ...[will be]..the veritable corner stone
of the operation of the...[Caribbean Single Market and Economy[...,since...[the Court will play]...a fundamental
role in ensuring that the law established by the Treaty retains its Community
character with a view
to guaranteeing that the law has the same effect in all circumstances in all
the Member States...Any weakening, even if only potential, of the uniform
application and interpretation of Community law throughout the...
[Community]...will be liable to give rise to distortions of competition and discrimination between economic operators, thus jeopardizing equality of opportunity between those operators and consequently the proper functioning of the internal market.[2]
One of the essential tasks of the new Court will be to A...ensure just such a uniform interpretation, and it...[will discharge]...that duty by answering the questions put to it by the national courts and tribunals.@[3]
As will be seen, the European Union instruments giving the ECJ jurisdiction, has an Advisory Opinion procedure, but one which is not used for present purposes. In the context of the CCJ such a procedure exists and will be the avenue through which Member States or Community Organs may ask questions of the Court with a view to arriving at precisely the same objective of a uniform interpretation [and application] of CARICOM law.
The discussion will be structured on the basis of
comparative analysis of the empowering provisions given to the CCJ
as well as the ECJ, EFTA Court, the ICJ and ITLOS. Prior to
setting out these provisions, an analysis of the jurisprudential bases for the
new Treaty
of Chaguaramas regime will be presented. The contemporary practice and
case law of the ECJ will then be used
in the attempt to find markers that
our judicial institution may find it possible and desirable to rely on. Usage
will also be made of analytical materials prepared by the European Union dealing
with reform of their judicial system and .A documents published as guidelines
for national tribunals wishing to use the referral procedure is appended, along
with a survey of the application of Community law .
THE JURISPRUDENTIAL BASES FOR THE REVISED DISPUTE SETTLEMENT REGIME .
John Jackson [in John H.Jackson, et al Eds., Legal Problems of International Economic Relations, Third Edition, West Publishing Co.,St.Paul, Minn., 1995, pp.327-8,] makes the following observation which is very relevant for current purposes:
A fundamental question that arises in
constructing and evaluating dispute settlement systems at the international
level is whether the system should be primarily designed to adjudicate disputes
or to mediate them. If mediation is the goal then a dispute settlement system
must emphasize methods designed to encourage the contending parties to
negotiate a solution to their dispute. If adjudication is the goal, then a
system must be able to apply the relevant rules consistently and ensure that
decisions produced by the system are implemented.”
The commentary of Parts One to Four of the Protocol demonstrate that the Caribbean regional integration movement does not accept that it has to be either mediation or adjudication. The experiences of the past 26 years has shown, through dismal failure of the former to weld together a tightly-knitted process, that optimal utilization of adjudication can only assist the process. Therefore, a key element of the policy can be couched in the following terms:
The traffic will have to bear a little more in the interest of the development, economic and social progress of the Member States of CARICOM and their nationals. The Gentleman’s agreement mode has been tried and tested and found severely wanting. The system now desperately needs an injection of the rule-based approach to which CARICOM is subjected, in any event, at the multilateral level and will be subjected to, shortly, at the hemispheric level as well.
Jackson posits a list of policies which underlie the way that institutions and procedures have been shaped in the United States in terms of the application of dispute settlement involving international economic and trade interactions. These procedures stated, standing on their own represent the kind of ideals to which the entire single Market and Economy regime aspires, and within that, as a particular, the Dispute Settlement System.
C
The procedure should maximize the
opportunity of government officials to receive all relevant information,
arguments, and perspectives. Thus, a procedure that allows all interested
parties to present evidence and arguments would enhance the realization of this
goal.
C
The procedure should prevent corruption and
ethical mala fides, even when the latter falls short of corruption and illegal
activities. Another way to express this
is that an important policy goal of the procedure is to prevent back room
political deals that favour special or particular interests while defeating the
broader policy objectives of the [US] government.
C
The procedure should enhance the perception
of all parties who will be affected by a decision that they have had their
chance to present information and arguments...they have had their “day in
court”
C
The procedure should be perceived by the
citizens at large as fair and tending to maximize the chances for a correct
decision. A sense of fairness will include a desire that even weaker
interests..be treated fairly..
C
The procedure should be reasonably efficient,
that is it should allow reasonably quick government decision and minimize the
cost both to government and to private parties of arriving at those decisions.
C
the procedure should maximize the likelihood
that a decision will be made on a general...international basis, not catering
particularly to special interests. In other words, the procedure should be
designed so that government officials can realistically be assisted in ‘fending
off” special interests that conflict with the general good of the...[Community.]
C
The procedure must fit into the overall
constitutional system[s] of the societ[ies] concerned and be consistent with
the policy goals underpinning the constitutional system[s]
.
C Predictability and stability of decisions are important values. Predictability of decisions, whether based on precedent, statutory formulas [sic], or something else, enable private parties and their counselors (lawyers, economists,) and politicians to calculate generally the potential or lack of potential for a favourable decision under each of a variety of different regulatory systems.
To
the extent that the framers of the Treaty of Chaguaramas and the State
Parties thereto, have agreed to establish a structure of unlimited duration,
with discrete powers, rights and duties, they
decided to set up a legal order separate and distinct from the existing
sovereignties. They volitionally ceded aspects of existing sovereignty in a
discrete and limited number of areas. While their decision in respect of
revising the Treaty conforms to the
rule-based approach postulated by Jackson, the process is not complete until we
have followed through and define the full external contours of the new legal
order; as well as have they decided on certain critical internal facets.
The premier regional integration arrangement, the European Union
has had to face these problems. They however, from the outset had in place
certain institutions, which would ensure there would be no faltering. The European Court of Justice stated inter
alia in Costa v. ENEL, 6/64
[1964] ECR 585:
“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having¼powers stemming from a limitation of sovereignty, or a transfer of powers from States to the , the community Member States have limited their own sovereign rights, albeit within limited fields, and have thus created a body of laws which binds both their nationals and themselves.” [Emphasis added]
Supranationality has not been a feature of the Caribbean Community, but the fact is there are treaty rules, which have purported to bind CARICOM nationals. A prime example of this is Article 14(6) of the Annex which treats with situations where there is an interruption or inadequacy of raw materials and the manufacturer wishes to obtain extra-regional supplies, there is a requirement that “¼he shall so inform the Competent Authority” of his country. This is a perfect legal duty, which requires nothing more to give it legal effect in a strict jurisprudential sense. This rule has been retained in Protocol IV, Article 17(3). The point is that while sovereignty is a critical facet of political independence, it behoves small States such as those in the Caribbean to pool their sovereignty. This is even more necessary as powerful extra-regional forces increasingly attempt to erode that sovereignty.
In
fact it is ironic that while the wider regional entity has not adopted a proper
dispute resolution system with outcomes having the force of decisions, a
sub-group, the Organization of Eastern Caribbean States in their
constituent instrument have in place a conciliatory procedure which is
mandatory. Under the Agreement
Establishing the OECS, disputes concerning the interpretation or
application of the Agreement must be settled by “direct agreement.” Where
settlement is not possible a Conciliation Committee process is triggered, the results of
which cannot be appealed and are binding on Members. It is very critical [as has been recognized by the Legal Affairs
Committee,] that the Member States of the Caribbean
Community understand and accept the place which the rules of public
international law and international trade law occupy in their integration
efforts.
To the extent that the thrust towards the Single Market and Economy incorporates
the creation of executive, judicial and administrative structures, implications
yet not properly understood by some are involved. The changes will pose
challenges. They must not be seen as
being frightening.
These changes will give flesh to the
‘skeletal’ Body of Community Law,
which has hitherto existed. We may here list some of the ‘candidates’ around
which the law will develop:
(i) Sources
of Caribbean Community Law
·
The Treaty of Chaguaramas, its Annex and
Protocols
·
Rules and principles of General
International Law – whether codified in international treaties and conventions,
or customary.
·
Rules and principles of International Trade
and Economic Law, particularly as
evidenced in the GATT, the WTO and where applicable, the practice of other
Regional Economic Groupings
·
International Treaties validly concluded by
the Community
* Opinions of the Legal Affairs Committee
·
Instruments, Regulations and Procedures
validly adopted by Community Organs, Subsidiary Bodies and Institutions
·
Decisions of the Organs, Subsidiary Bodies
and Institutions of the Community going back as far as CARIFTA
·
State Practice [of Members,] particularly as
evidenced in bilateral trade and economic agreements between themselves and
with third States or groups of third States
·
General Constitutional and legal principles,
and Fundamental Rights upon which the municipal legal order of the Member
States are built
·
Determinations by the Caribbean Court of
Justice and other Dispute
Resolution Bodies charged with making final determination of issues, for
example the Competition Commission and Arbitration Panels
* Legislative,
regulatory and administrative decisions of Member States having legal effect,
but which fall within the sphere of operation of the Treaty;that is, which
purport to give effect to Treaty dispositions.
·
Judicial decisions of municipal tribunals
impacting on provisions in the Treaty, or on decisions of Organizations,
Subsidiary Bodies and Institutions of the Community.
These sources, together with an enforcement
mechanism are
necessary
to:
(1) protect the organization, its agents and persons entitled through them;
(2)
give effect to non-political interpretation and
application of the Treaty and other Community decisions;
(3) make legal determinations concerning breaches of the outputs of the decision-making structures;
(4) examine the vires of acts of the Community Institutions;
(5) the settlement of all germane disputes;
(6) establishing the legal parameters of the relationship between the Community (and its Institutions) and Member States, as well as the relationship between both of these and natural and legal persons (Community nationals);
(7) generally, to control the acts of the organization and the legal limits to its power vis-á-vis the sovereignty of its members.