Caribbean Integration has long been the goal of policy makers in the region. After the 1973 Treaty of Chaguaramas attempt, competent decision makers recognized that if the region is to function as a viable unit there must be a legal institution at its centre that will safeguard its integrity by providing stability, uniformity and certainty. To this end the original jurisdiction of the Caribbean Court of Justice (CCJ) finds its official roots in the Agreement Establishing the Caribbean Court of Justice and the Revised Treaty of Chaguaramas 2001(RTC).
As the spine of the Caribbean Single Market and Economy (CSME), The Court functions in its original jurisdiction as an organ of interpretation, enforcement and dispute settlement, regarding all issues under the RTC. In the dispensation of its duties the CCJ essentially operates like the European Court of Justice (ECJ) with the exception that the CCJ does not have supranational powers. The Court then relies heavily upon its status as an organ of an international treaty whose decisions, once incorporated, are binding upon member states. Even then, the CCJ’s ability to unite the region has been questioned; given that the CCJ lacks the capacity to establish a system of direct effect or supremacy as is practiced in the EU and arguably largely responsible for integration in that Community.
Despite this contention, the regional Court has demonstrated that even with its limited powers over national laws, it is willing to chart its own course for integration via its teleological judgements. Given its first set of rulings in its original jurisdiction, the Court seems poised to break from tradition, all the while transfusing new life into the worn idea of Caribbean integration to the benefit of the wider community.
THE ORIGINAL JURISDICTION OF THE CCJ – AN ORGAN OF INTEGRATION
In its role as an organ of integration the original jurisdiction of the CCJ functions in many ways like the ECJ. To this end, Article 211 of the RTC states that the rules of the CCJ are exclusive and compulsory. Each member state in the CSME must submit to the Courts jurisdiction by signing and ratifying the agreement. Exclusivity guarantees that member states refer only to the Court for clarification, interpretation and application of the RTC. Article 211 via the single interpretive body of the CCJ affords stability uniformity, predictability and certainty among trading partners in the CSME. Certainty in the community will also be assisted by the fact that, though the court can revise its judgements in extraordinary situations where there is new information produced, its pronouncements constitute stare decisis.
The CCJs decisions are binding and enforceable. The RTC is an international convention which affords rights and obligations to CARICOM States as subjects of international law. In keeping with the dualist perspective however, the provisions of the treaty must be incorporated into domestic law before it will have binding effect in that state.
It is this characterization of domestic and community law which perhaps is most distinctive in departure from the integration model set up by the ECJ. EU community organs aided by the doctrine of direct effect are given supranational status. In CARICOM however, independence from the will of the member states does not exist as national sovereignty takes precedence to community law. Furthermore, the Treaty of Rome which gives effect to the ECJ functions like a constitution. In Van Gend En Loos v Nederlandse Administratie Der Belastingen the Court remarked that the EC constitutes “a new legal order”…where states have limited their sovereign rights. Also, unlike CARICOM the EU has a system of supremacy, Costa v ENEL and Amministrazione delle Finanze v Simmerthal illustrate that EU law is supremely and uniformly applicable over national laws. Variola v Amministrazione delle Finanze also says that a community regulation must be automatically effected in the domestic State. Further, Factortame empowers EU citizens to request national courts to ignore national laws in favour of community laws when the national courts have been too slow in aligning their laws with those of the community. Given the dualist framework, this scenario does not exactly hold true in CARICOM.
Integration will not materialize if parties abstain from treaty obligations. RTC Article 215 provides for mandatory compliance with the judgements of the court which is buttressed by the fact that the CCJ is powered by an international treaty and as such member states have an obligation to comply.
Further, Article XXVI of the Agreement Establishing the CCJ speaks to the fact that it is the contracting parties that must agree to take the necessary steps including the enactment of the legislation to ensure adherence to any rule or order given by the CCJ. In the EU, the Commission plays a pivotal role in the enforcement of community law. It controls preliminary proceedings against a non compliant member after which they may bring an action before the Court. Commentators have argued that CARICOM would be enhanced by a similar structure, as opposed to such a heavy reliance on voluntary compliance with international law.
TELEOLOGICAL APPROACH- attempting to fulfil the overall purpose of the treaty
The CCJ in its original jurisdiction recently declared a judgement which illustrated the Courts eagerness to fulfil its mandate of integration in the region. The issue before the Court concerned the interpretation of Article 222 of the RTC which speaks to the locus standi of private entities. In Trinidad Cement Limited and TCL Guyana Inc v Guyana the issue was whether the cement companies had satisfied the conditions for special leave as set out by the Article. In holding that they did in fact satisfy those conditions the Court rejected the idea that to admit a direct challenge by a private entity to the decisions and processes of the community would greatly hinder its function.
In embracing the teleological approach to treaty interpretation, the court explained that: “Reliance on the text of a treaty to the detriment of its purpose is contrary to the rule expressed Article 31 of the VCLT… the Court must examine the context in which the provision appears in light of the object and purpose of the RTC and interpret the Article in a manner that renders the RTC effective. In effect the Court must adopt a teleological approach”
The teleological method of treaty interpretation is not unique to the CCJ. It is used by the ECJ judges who claim that via the Treaty of Rome teleology best promotes European Integration. Not surprisingly, the CCJ also looked to the Preamble of the RTC to support its interpretation.
Historically, the teleological interpretation is most favoured in situations where access to the Court or judicial remedies for the public or private entities are at stake as was the situation in this case. It has also been reasoned that the teleological approach is more favourable to systems of a community which has set is objectives to integration of modern states with advanced economic and social structures which present and demand a high degree of rationality. A subscription to this view would place the CCJ on track in meeting its objectives.
The ruling in TCL v Guyana is therefore not surprising. If the CCJ had chosen a textual interpretation of Article 222, they would have to look to the right of establishment which is essentially a CARICOM right and is not domestically enforceable. A company or individual would not have standing under textual interpretation as treaties are agreements between sovereign states in international law, only member states would have locus standi in respect of matters arising under a treaty. As the CCJ stated, to argue along that line would be faulty as any such prohibition would frustrate the achievement of the goals of the RTC
In agreement with the Court, President of the CCJ the Rt. Hon. Mr. Justice M.A. de la Bastide indicated well before this ruling that the provision in Article 222 “leaves ample scope for judicial interpretation…two of the most important decisions of the ECJ were handed down in matters in which the plaintiffs were individuals.” Professor Winston Anderson of the Faculty of Law at the University of the West Indies disagrees. He reasons that the CCJ erred in using the teleological approach in TCL v Guyana by overreaching its interpretation capabilities thereby expanding the scope of persons who can come before the court. He contends that Article 31 of the VCLT requires a literal or textual approach to treaty interpretation and that requirement is only to be cast aside when the literal approach would yield ambiguous, obscure, absurd or unreasonable results. In his view, the use of Article 31 of the VCLT to buttress the case for a teleological interpretation of Article 222 is erroneous as there would have been no ambiguity. He argues that the court should have invoked its power of referral as opposed to granting direct access. While this argument has merit, it should be considered that in furtherance of the integration process it would auger well for the community to demonstrate to potential trading entities that there will be stability in the region and that commercial interests will not be determined by any national court that may be opened to partialities. It is therefore best to follow the example of the EU and have the CCJ rule directly on such matters.
In keeping with its theme of integration,the Court employed the use of its Article 218 power to grant an Interim Order in TCL v Guyana so that submissions from other member states not party to the proceedings where solicited and taken into consideration for the judgment.
The other case before the Court was In Johnson v CARICAD, where it was held that CARICAD did not have jurisdiction before the court and would not fall within the scope of Article 228 of the RTC. CARICAD is a Caricom Institution and therefore not representative of CARICOM as an organ or body capable of being sued as a member of the Community. This ruling has attracted reasonable criticism. On one hand the ruling has been welcomed; had the CCJ accepted jurisdiction it would arguably widen the reach of the court’s jurisdiction beyond what could reasonable said to be within the contemplation of the drafters of the RTC, thereby clogging the court with matters that could be dealt with by another entity. On the other hand, it calls into question the fact that there are Caricom institutions which fall outside the compulsory and exclusive jurisdiction of the court but will nonetheless have matters such as labor disputes which may undermine the integration process and would require urgent attention. In response to this issue, Anderson rightfully points out that such disputes are dealt with via a separate tribunal from the ECJ in the EU, a similar model should be constructed in CARICOM.
Undoubtedly The CCJ is the institutional centre piece of the CSME, without this Court in its original jurisdiction, regional integration will not materialize. The court plays an integral role in the RTC Article 6 objectives of establishing CARICOM as an international organ that is specifically situated on the international plane to represent the interests of the community. With the CCJ-original jurisdiction offering legal and economic certainty / stability, CARICOM is able to bolster external relations by expanding trade and economic relations with third states and enhance levels of international competitiveness for the Community. Though limited in some respects due to the sovereign and independent states in the community, the Court has undoubtedly taken cues from the successful EU model. The examples of the Court’s most recent rulings on one hand demonstrates the Court’s willingness to follow the pivotal examples of the EU model and adopt a teleological approach to treaty interpretations where necessary. It also shows that the court is willing to depart from such interpretations where it is obvious no jurisdiction exists in light of its RTC mandate thereby not covertly extending its reach above national courts.