Abstract
In the Caribbean two sub-regional integration movements, the Caribbean Community (CARICOM) and the Organisation of Eastern Caribbean States (OECS), are developing and strengthening their regional economic regimes. CARICOM is assisted by the Caribbean Court of Justice (CCJ), a court that serves two distinct roles. Under its appellate jurisdiction the CCJ acts as a final court of appeal; under its original jurisdiction the CCJ acts as an international, treaty-interpreting tribunal. After providing a brief overview of the two Caribbean regional integration movements, the chapter examines the potential of judicial enforcement of treaty rules through the CCJ, particularly in the context of conflicting national legislation. It also scrutinises the practical problems of a closer co-operation regime for CARICOM, in light of recent OECS initiatives, and finishes with concluding observations.
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Notes
- 1.
CARICOM was created by the Treaty Establishing the Caribbean Community (adopted 4 Jul 1973, in force 1 Aug 1973) 949 UNTS 17; which has been replaced by the Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the CARICOM Single Market and Economy (adopted 5 Jul 2001, in force 1 Jan 2006) 2259 UNTS 293 [RTC]. For further information on the process leading to the entry into force of the RTC, and the regime it creates, see Berry (2014), Chs 2–3 [Berry, Caribbean Integration Law].
- 2.
See CARICOM (2001), ‘Member States and Associate Members’, at http://caricom.org/about-caricom/who-we-are/our-governance/members-and-associate-members/ (last accessed October 8, 2016). Note that one “Member of the Community” listed in Art 3 of the RTC is not a state, but rather an overseas territory: Montserrat. For more on such territories and their legal status see e.g., Hendry and Dickson (2011).
- 3.
Created by the Treaty Establishing the Organisation of Eastern Caribbean States (adopted 18 June 1981, in force 2 Jul 1981) 1338 UNTS 97. This treaty has been amended by the Revised Treaty of Basseterre Establishing the Organisation of Eastern Caribbean States Economic Union (adopted 18 Jun 2010, in force 21 Jan 2011) [RTB]. For further information on the process leading to the entry into force of the RTB, and the regime it creates, see Berry, Caribbean Integration Law, Chs 2–3.
- 4.
See OECS, ‘About the OECS’, at http://www.oecs.org/index.php/homepage/about-us and OECS, ‘Member States’, at http://www.oecs.org/index.php/homepage/member-states (last accessed October 8, 2016).
- 5.
The Caribbean Court of Justice (CCJ) was created by the Agreement Establishing the Caribbean Court of Justice (adopted 14 Feb 2001, entered into force 23 Jul 2002) 2255 UNTS 319 (CCJ Agreement). The court was inaugurated on April 16, 2005. See generally, Berry, Caribbean Integration Law, Ch 14.
- 6.
Data for all states except the overseas territories of Montserrat and Anguilla were obtained from the World Bank (2017), World Development Indicators database, available at http://databank.worldbank.org/data/reports.aspx?source=2&series=AG.LND.TOTL.K2&country= (last accessed October 6, 2016). Data for the latter two territories were obtained from http://montserrat-gov.org/index.php/about-us (last accessed June 11, 2017), and CIA World Factbook (2017), ‘Country Comparison: Area’, at https://www.cia.gov/library/publications/the-world-factbook/rankorder/2147rank.html (last accessed October 6, 2016). Attempts were made to obtain data for overseas territories from official government websites. Where information was unavailable it was drawn from other sources.
- 7.
These states and territory are Dominica, St Lucia, Antigua and Barbuda, Barbados, St Vincent and the Grenadines, Grenada, St Kitts and Nevis and Montserrat. World Bank, ibid. If one includes Associate Members the following territories would be added: Cayman Islands, British Virgin Islands, and Anguilla. Data for the British Virgin Islands were obtained from Government of the British Virgin Islands, London Office, ‘On the Map’, at http://bvi.org.uk/islands/onthemap (last accessed August 10, 2017). For the other two territories data were obtained from the CIA World Factbook, ibid.
- 8.
Population data were obtained from the World Bank (2017), ‘World Development Indicators’ database, at http://data.worldbank.org/indicator/SP.POP.TOTL?view=chart (last accessed October 8, 2016).
- 9.
Population data for Montserrat were obtained from http://montserrat-gov.org/index.php/about-us (last accessed June 11, 2017).
- 10.
2011 GDP data, per capita PPP (current international $), for the Cayman Islands, were obtained from the World Bank (2017), ‘World Development Indicators’ database, available through http://data.worldbank.org/country/cayman-islands (last accessed October 8, 2016).
- 11.
2015 GDP per capita data were obtained from World Bank (2017), ‘World Development Indicators’ database at http://databank.worldbank.org/data/reports.aspx?Code=NY.GDP.PCAP.CD&id=af3ce82b&report_name=Popular_indicators&populartype=series&ispopular=y (last accessed October 18, 2016).
- 12.
- 13.
See RTC, Chs 3 and 5.
- 14.
See RTC, Chs 3 and 5.
- 15.
See RTC, Arts 45–46 (movement of persons) and 32–35 (establishment).
- 16.
CCJ Agreement, supra note 5.
- 17.
See the CCJ Agreement, Arts XII (original jurisdiction) and XXV (appellate jurisdiction); see also the RTC, Art 211 (original jurisdiction).
- 18.
See e.g. CARICOM Today, ‘CCJ welcomes Dominica to appellate jurisdiction’, at http://today.caricom.org/2015/03/06/ccj-welcomes-dominica-to-appellate-jurisdiction/ (last accessed 13 October 2016).
- 19.
See e.g. CARICOM, ‘The Revised Treaty’, at http://caricom.org/about-caricom/who-we-are/our-governance/the-revised-treaty/ (last accessed 13 October 2016).
- 20.
Haiti has been described as not yet a full member of the CSME but as benefitting from a ‘temporary trade concession arrangement in December (2010) under which it will be able to export within the Single Market on a non-reciprocal preferential basis for three years’. See e.g. Jamaica Observer, ‘Five years later, Caricom pleased with progress of CSME’ (2011), at http://www.jamaicaobserver.com/news/Five-years-later--Caricom-pleased-with-progress-of-CSME_8323246 (last accessed October 13, 2016).
- 21.
See RTC Art 211.
- 22.
Shanique Myrie v Barbados (2013) CCJ 3 (OJ), (2013) 83 WIR 104 [merits], (2) [Myrie].
- 23.
Myrie (2).
- 24.
See Shanique Myrie v Barbados (2012) CCJ 3 (OJ) [intervention].
- 25.
As reproduced in Myrie at (43).
- 26.
Myrie (55).
- 27.
The court held in Trinidad Cement Ltd and TCL Guyana Inc v Guyana (2009) CCJ 1 (OJ), (2009) 74 WIR 302 [special leave] at (32): “Where an obligation is … imposed [by the RTC on Member States collectively], it is capable of yielding a correlative right that enures directly to the benefit of private entities throughout the entire Community.”
- 28.
Myrie (62)-(63). For the CCJ’s analysis of the exceptions see ibid (68)-(76).
- 29.
Myrie (54) (emphasis in original).
- 30.
In Myrie at (80), the court held:
A violation of Community law is not so much caused by the existence of domestic laws that seemingly contradict it but by whether and how these laws are applied in practice. The Court observes in this respect that the domestic courts of Barbados, including this Court in its appellate jurisdiction, are constrained to interpret domestic laws so as, if possible, to render them consistent with international treaties such as the RTC.[citations omitted]
This approach foreshadows (in a weak and limited manner), what has emerged in the EU as the doctrine of conform interpretation/indirect effect. See e.g. Berry, Caribbean Integration Law, Ch 8.4.
- 31.
Myrie (69) (emphasis added).
- 32.
It should be noted that all judgments of the CCJ must be enforced in domestic law in the same manner as a judgment of a superior court. Art XXVI(a) of the CCJ Agreement requires “Contracting Parties agree to take all the necessary steps, including the enactment of legislation to ensure that: (a) all authorities of a Contracting Party act in aid of the Court and that any judgment, decree, order or sentence of the Court given in exercise of its jurisdiction shall be enforced by all courts and authorities in any territory of the Contracting Parties as if it were a judgment, decree, order or sentence of a superior court of that Contracting Party”.
- 33.
It could be argued that since the CCJ in the above-quoted passage does not adopt the full, EU-style model of supremacy, the concept of ‘nascent supremacy’ is misplaced. However it is submitted that this passage must be read in its broader context. A key phrase in this paragraph – ‘new legal order’ – referring to the transformation of Community law under the RTC, has been used along with similar phrases in other CCJ judgments to introduce important legal mechanisms into Community law, including the rule of law, state liability and judicial review. See e.g., Trinidad Cement Ltd v CARICOM (2009) CCJ 2 (OJ) [special leave] at (32) (rule of law); Trinidad Cement Ltd and TCL Guyana Inc v Guyana (2009) CCJ 5 (OJ) [merits] at (24)-(27) (state liability); Trinidad Cement Ltd v CARICOM (2009) CCJ 4 (OJ) [merits] at (38) (judicial review). The inclusion of this phrase in the same paragraph as the notion of supremacy would appear to foreshadow future legal developments.
- 34.
Maurice Tomlinson v The State of Belize and Maurice Tomlinson v The State of Trinidad and Tobago (2016) CCJ 1(OJ) [merits] [Tomlinson].
- 35.
Tomlinson (3).
- 36.
Tomlinson filed his application for special leave on May 31, 2013; the court’s judgment was delivered over three years later, on June 10, 2016.
- 37.
Tomlinson (14).
- 38.
Ibid.
- 39.
Tomlinson (15).
- 40.
Note, however, that free movement rights under the RTC are not fundamental human rights in the traditional sense, because they are conditional upon possession of nationality of a CARICOM Member which is a party to the RTC. For a similar point in relation to free movement in EU law see White (2005), pp. 885, at 902 [hereafter White, ‘Free Movement’].
- 41.
See Charter of the Organization of American States (adopted 30 Apr 1948, in force 13 Dec 1951) 119 UNTS 46, OASTS No 1, as amended; American Declaration of the Rights and Duties of Man (1948), O.A.S. Res. XXX, adopted by the Ninth International Conference of American States, as available at http://www.oas.org/en/iachr/mandate/Basics/declaration.asp (last accessed October 22, 2016).
- 42.
International Covenant on Civil and Political Rights (1966), U.N.G.A. Res. 2200 (XXI), G.A.O.R., 21st Sess., Supp. 16, p. 49, 6 I.L.M. 368; treaty status as available at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=18&Lang=EN (last accessed October 22, 2016). It should be noted that the CCJ in its earlier special leave decision in the Tomlinson case expressly highlights a decision of the Human Rights Commission which is on point. The court states, in paragraph (6) of Tomlinson v the State of Belize and Tomlinson v the State of Trinidad and Tobago (2014) CCJ 2 (OJ); (2014) 84 WIR 239:
In relation to homosexuals, there is indeed international case law, in particular jurisprudence of the European Court of Human Rights3 and the UN Human Rights Committee,4 which suggests that under certain circumstances the mere existence of legislation, even if not enforced, may justify a natural or legal person to be considered a victim of a violation of his or her rights under an international human rights instrument. [Citing: 3. Norris v Ireland (1991) 13 EHRR 186 (33), and 4. Toonen v Australia Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).]
- 43.
Tomlinson (16).
- 44.
Tomlinson (23).
- 45.
Tomlinson (24).
- 46.
Tomlinson (25)–(26) and (28).
- 47.
Ibid (emphasis in the original; citing: Elettronica Sicula S.p.A (ELSI) (United States of America v Italy) I.C.J. Reports (1989) 5).
- 48.
Tomlinson (34).
- 49.
Section 5(1)(e) of the Immigration Act, Cap 156, Laws of Belize, as reproduced in Tomlinson at (10), reads: ‘(e) any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behaviour’ [emphasis added]. Tomlinson’s reading of the section was that it created three categories of prohibited immigrants: (1) prostitutes, (2) homosexuals, or (3) ‘pimps’. The court’s reading of the section appears to be that it governs three categories of persons (prostitutes, homosexuals or ‘pimps’) who are living off the proceeds of sexual behaviour.
- 50.
On the interpretive techniques which may be relied upon by a court to arrive at an ‘informed interpretation’, see generally Bennion (2008).
- 51.
Tomlinson (33).
- 52.
Tomlinson (36).
- 53.
The CCJ held in Tomlinson at (37):
[37] The Court reminds itself that its role in the Original Jurisdiction differs from its role in the Appellate Jurisdiction. At the same time, however, the Court cannot ignore the fact that it is the final appellate court for Belize. Accordingly, when the Court pronounces on the meaning, interpretation or application of a provision of the national law of Belize that pronouncement is authoritative even when it sits in its original jurisdiction.
This is a novel position and appears to fundamentally confuse the court’s two bases of jurisdiction.
- 54.
Tomlinson (39). Section 8(1)(e) of the Immigration Act, Chap 18:01 of the Laws of Trinidad and Tobago, as reproduced in Tomlinson at (11) prohibits entry of ‘prostitutes, homosexuals or persons living on the earnings of prostitutes or homosexuals, or persons reasonably suspected as coming to Trinidad and Tobago for these or any other immoral purposes.’
- 55.
The court cites a lengthy passage from the testimony of the Chief Immigration Officer, testimony which does not appear to be entirely supportive of the Government’s case. The Chief Immigration Officer, when discussing what would happen if an individual showed proof that he was a homosexual to an immigration officer, simply indicated that a lower level officer would take the matter to a higher level one, and onwards. He also indicated that if a person was dissatisfied with the decision he would have a right of appeal to the Minister of National Security: Tomlinson (50). Neither statement suggests a practice of not hindering free movement of homosexuals.
- 56.
Tomlinson (43) (citing, inter alia, Salomon v Commissioners of Customs and Excise (1967) 2 Q.B. 116, Dietrich v R (1992) HCA 57, (1992) 177 CLR 292, and Myrie (80)).
- 57.
Tomlinson (44).
- 58.
Tomlinson (45).
- 59.
Tomlinson (47) (citing: Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV: C-397/01 to C-403/01 (2004) ECRI–8835, (2005) IRLR 137).
- 60.
Tomlinson (55).
- 61.
Tomlinson (56).
- 62.
Ibid.
- 63.
Tomlinson (53).
- 64.
The court held in Tomlinson at (20) that ‘[t]o the extent that these rights [of entry and stay under the 2007 Conference decision] are sufficiently clear, precise and legally complete, they are capable of direct application, though subject to the relevant constitutional procedures of the Member States (per Article 240 of the RTC).’
- 65.
In the Tomlinson case harmonisation would have been relatively simple. A single section of a statute could have been amended to remove the offending words. However harmonisation in other cases might be more difficult, especially where Community law diverges from traditionally held views.
- 66.
Caserta and Madsen (2016b), pp. 533, at p 539, highlight this practice of international human rights bodies finding breaches of treaty obligations simply as a result of the formal/abstract existence of statutory provisions. They also stress, at ibid, that the CCJ was itself aware of this practice.
- 67.
See e.g. Craig and Búrca (2015), pp. 209–216. For the potential for indirect effect in the Caribbean, see Berry, Caribbean Integration Law, pp. 212–215.
- 68.
Tomlinson (47).
- 69.
Tomlinson (17); Rudisa Beverages & Juices NV v Guyana (2014) CCJ 1 (OJ) [merits] at (20).
- 70.
Caserta and Madsen (2016a), pp. 89 at 114, note about the Tomlinson case:
Although the two cases [Tomlinson v Belize and Tomlinson v Trinidad and Tobago] are therefore generally suggestive of the Court’s intermediate authority [a higher level of acceptance], the cases are also viewed by many as potentially explosive. To these critics, the Court risks the reverse effect of a backlash because such a holding could potentially incite a clash of international human rights and local cultural sensitivities – a clash similar to the conflict over death row. Moreover, if the CCJ chooses to [repeal] the domestic laws of Trinidad and Tobago and Belize, the Court is effectively establishing a power of judicial review that might come as a surprise to some of the member states. [citations omitted]
- 71.
See e.g. Caserta and Madsen, ibid, at 106–107.
- 72.
This tension between the two treaty regimes is real. There is a clear contrast between the rights provided under Art 12.2 of the RTB regarding free movement of persons, which requires “abolition of any discrimination based on nationality between citizens of the Protocol Member States as regards employment, remuneration and other conditions of work and employment” and the limited free movement provided under Arts 45–46 of the RTC. Under the RTC the goal of free movement is identified, but free movement for the purposes of seeking employment is available only to the limited category of Skilled Community Nationals. If OECS Members apply Art 12.2 of the RTB to OECS nationals only (as intended by the RTB), they would likely violate Arts 7–8 of the RTC, which prohibit discrimination on the basis of nationality and require Most Favoured Nation treatment, respectively.
- 73.
See the population statistics and sources discussed a p. 5 above.
- 74.
See World Bank (2017), ‘World Development Indicators’ database at http://databank.worldbank.org/data/reports.aspx?Code=NY.GDP.PCAP.CD&id=af3ce82b&report_name=Popular_indicators&populartype=series&ispopular=y (last accessed October 18, 2016).
- 75.
For similar concerns about economic migrants in the EU see, e.g., White, ‘Free Movement’, at 905.
- 76.
For an analysis of asymmetries in this context, see Holly et al. (2003), pp. 819–834.
- 77.
Population data for Montserrat were obtained from the CIA World Factbook, ‘Country Comparison: Population’, at https://www.cia.gov/library/publications/resources/the-world-factbook/rankorder/2119rank.html (last accessed October 6, 2016). See also See World Bank (2017), ‘World Development Indicators’ database at http://databank.worldbank.org/data/reports.aspx?Code=NY.GDP.PCAP.CD&id=af3ce82b&report_name=Popular_indicators&populartype=series&ispopular=y (last accessed October 18, 2016).
- 78.
See the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2016/C 202/1, as available through http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2016:202:FULL&from=EN (last accessed October 23, 2016).
- 79.
TEU, Art 20 (1). Under TFEU Art 326 enhanced co-operation must also ‘comply with the Treaties and Union law’ and ‘shall not undermine the internal market or economic, social and territorial cohesion. It shall not constitute a barrier to or discrimination in trade between Member States, nor shall it distort competition between them.’
- 80.
TFEU Art 329.
- 81.
TFEU Art 327.
- 82.
TEU Art 20(1) and TFEU Art 328. For the process for joining an existing enhanced co-operation regime see TFEU Art 331.
- 83.
TEU Art 20(2) and TEFU Art 329(1).
- 84.
TEU Art 20(2).
- 85.
TEU Art 20(3) and TFEU Art 330.
- 86.
TEU Art 20(4).
- 87.
TFEU Art 334.
- 88.
Cases C-274 and 295/11 Spain and Italy v Council ECLI:EU:C:2013:240, available through http://eur-lex.europa.eu/collection/eu-law/eu-case-law.html (October 23, 2016), para (2) (reproducing Art 1 of the decision).
- 89.
Ibid (27)-(29).
- 90.
Ibid (31).
- 91.
Ibid (35).
- 92.
Ibid (37).
- 93.
The court stated, in ibid at (49): ‘The Union’s interests and the process of integration would, quite clearly, not be protected if all fruitless negotiations could lead to one or more instances of enhanced co-operation, to the detriment of the search for a compromise enabling the adoption of legislation for the Union as a whole.’
- 94.
Ibid (50) [citing the Opinion of the Advocate General].
- 95.
The court notes, in ibid at (92):
The Council was not obliged to provide, in the contested decision, further information with regard to the possible content of the system adopted by the participants in the enhanced co-operation in question. The sole purpose of that decision was to authorise the requesting Member States to establish that co-operation. It was thereafter for those States, having recourse to the institutions of the Union following the procedures laid down in Articles 20 TEU and 326 TFEU to 334 TFEU, to set up the unitary patent and to lay down the rules attaching to it, including, if necessary, specific rules in the judicial sphere.
- 96.
For an example of a challenge to enhanced co-operation by a smaller grouping of states, in the area of financial transaction tax, see Case C-209/13 UK v Council, ECLI:EU:C:2014:283, available through http://eur-lex.europa.eu/collection/eu-law/eu-case-law.html (last accessed October 23, 2016).
- 97.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (2004) OJ L 158/77, at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF (last accessed October 23, 2016). See also European Commission, ‘Free Movement and Residence’ (2017), at http://ec.europa.eu/justice/citizen/move-live/index_en.htm (last accessed October 23, 2016).
- 98.
Ibid, preamble, para (9), and Arts 5–6.
- 99.
Ibid, preamble, paras (10)-(12), and Arts 7–8.
- 100.
Ibid, Art 23.
- 101.
Ibid, preamble, paras (16) and (22), and Arts 7, 14, 27.
- 102.
Ibid, Art 27(2) provides:
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
- 103.
See ibid, Art 29.
- 104.
Ibid, Art 35.
- 105.
Ibid, Art 24(1) (Equal treatment) provides:
1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
- 106.
For example, caps could be placed upon the number of persons eligible to enter each OECS country, calculated in relation to such factors as the OECS country’s population or territorial size, economic capacity, etc.
- 107.
See e.g., Shaw (2012) (Edinburgh School of Law), as available at http://www.citsee.ed.ac.uk/working_papers (October 23, 2016) [Shaw, ‘EU citizenship’]. For example, the requirement of self-sufficiency may not apply to migrant, school-going children or their parents (as primary carers): Cambien (2012), p. 4, at 26–32.
- 108.
For comments on the limited utility of these transitional provisions see e.g., White, ‘Free Movement’, at 892–894.
- 109.
Shaw, in ‘EU citizenship’, at pp. 12–13, highlights the non-implementation of the Directive.
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Berry, D.S. (2018). Enforcement of Regional Economic Integration in the Caribbean: Treaty Enforcement by the Caribbean Court of Justice and Regimes for Enhanced Co-Operation. In: Butler, P., Lein, E., Salim, R. (eds) Integration and International Dispute Resolution in Small States. The World of Small States, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-74573-2_3
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DOI: https://doi.org/10.1007/978-3-319-74573-2_3
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