Enhancing the law of international organizations

• Author: Sheldon McDonald
• Profession: International lawyer specializing in the fields of public international law, regional integration law, law of the sea, international trade law, law of international organizations and human rights law
• Pages: 1-79

1Enhancing the Law of International Organizations

INTRODUCTION

Whether one is concerned with the United Nations Convention on the Law of

the Sea, the United Nations Conference on the Environment and Development,

or the plethora of extant international legal regimes, developing countries,

including the Caribbean, are accustomed to contributing in a significant way

to the growth of international law and attempting to secure increasing respect

for that law. Now, a grouping of ten small Island States, three mainland

States, and one colonial dependency in the Caribbean has taken actions which

will challenge the frontiers of international law.1

The establishment of the Caribbean Court of Justice (“CCJ” or “the

Court”) by the Member States of the Caribbean Community (“CARICOM”)

has already begun to contribute to the codification and progressive

development of international law. At the present time, its contribution lies

in the institutional architecture utilized in the design of the Court and the

jurisdictional tasks assigned to it. In the future, it will be the manner in

which the institution carries out those tasks assigned to it, and the manner

in which its pivots – the treaty bodies – carry out their duties, that will

THE CARIBBEAN COURT OF JUSTICE

ENHANCING THE LAW OF

INTERNATIONAL ORGANIZATIONS

1. The Island State Members of the Community are Antigua and Barbuda, The Bahamas,

Barbados, Dominica, Grenada, Haiti, Jamaica, Montserrat, St. Kitts and Nevis, Saint Lucia,

St. Vincent and the Grenadines, and Trinidad & Tobago. Caribbean Community

(“CARICOM”) Secretariat, Caricom Member States, available at www.caricom.org/

members.htm. The Continental Members are Belize, Guyana and Suriname. Id. Montserrat

is a British Overseas Territory and requires Instruments of Entrustment from the United

Kingdom to participate in the “new” Community. Id. Haiti and Suriname are purely civil

law countries whereas Saint Lucia, and to a much lesser extent Grenada, Dominica, and

Guyana have vestiges of civil law. Id. At this time, The Bahamas does not participate in the

integration arrangements. Id. Given the new legal architecture of an integrated economy

and institutional arrangements this is not legally sustainable. Id.

2 THE CARIBBEAN COURT OF JUSTICE

ensure its independence and sustainability. In both the procedural and

substantive facets of the corpus of the law of international organizations and

international economic law (and within both, regional integration law), the

CCJ is on the threshold of taking them to new levels. The CCJ is an entity

sui generis. On the one hand, the Court will serve as the judicial organ of

CARICOM interpreting and applying the rights and obligations set out in

the constituent instrument of the Community: The Revised Treaty of

Chaguaramas Including The CARICOM Single Market and Economy (the

Revised Treaty), (“CSME”).2 In the Court’s Original Jurisdiction, it will be

an international judicial tribunal basing its judgments, advisory opinions,

orders, on rules of international law. This will give flesh to the plethora of

new rights and concomitant obligations granted to, and imposed upon the

Member States, Community Organs and Bodies, and, most importantly, to

natural and legal persons. The Court has the important task of defining the

contours and guaranteeing the observance of the law of the Revised Treaty,

thus ensuring its supremacy, facilitating uniformity in the application of

that law, and thereby contributing to legal and economic cohesion from the

outset of the operation of the CSME.

On the other hand, the CCJ will also sit at the apex of the judiciary of

those Member States that have chosen to adhere to its Appellate Jurisdiction,

in substitution for the Judicial Committee of Her Majesty’s Privy Council in

England. The tribunal in this instance will be applying the Constitution,

statutes, and the common law3 of the country from which it hears matters as

the court of final instance. The Commonwealth Caribbean Member States of

the Community have decided on this step in order to complete the cycle of

independence by patriating the highest judicial function. This unique legal

craftsmanship is all the more surprising given the political ethos of the Member

States of the Community, particularly as regards sovereignty. There is the

recognition however, that for small States wishing to make their way in an

often misanthropic world order, insistence on abstract, if not absolute,

sovereignty often leads to the negation of that very sovereignty. In the words

of the Basic Propositions put forward by the Expert Group of Heads of

2. Revised Treaty of Chaguaramas Establishing the Caribbean Community including the

CARICOM Single Market and Economy, July 5, 2001, available at http://www.caricom.org/

infoserv.htm [hereinafter Revised Treaty].

3. The civil law Member States will not accede to the Court in its Appellate Jurisdiction for the

time being.

3Enhancing the Law of International Organizations

Government in their report, Regional Integration: Carrying the Process Forward

(“Regional Integration”):4

The basic precept that CARICOM is a Community of Sovereign States

acknowledges the ultimate sovereignty of the Member States of the Community.

This does not, of course, preclude them in the exercise of that sovereignty, from

pursuing collective action to deepen and perfect the integration process – as we

have done, for example, in the case of the Caribbean Court of Justice.

The authors then go on to make the following fundamental observation:

Indeed, we believe that the Community must explore diligently, other possibilities

for the collective exercise of sovereignty by way of a creative approach to regional

governance in cases where such an arrangement clearly advances the integration of

our Community while maintaining its essential character. The collective exercise of

national sovereignty, as in the case of the Caribbean Court of Justice, highlights

our Community’s special challenge of fashioning an approach to regional

governance that is both functional and imaginative – one that could perhaps serve

as a model for others to follow in the pursuit of innovative forms of integration.5

It is submitted that the latter statement is most appropriate for many

developing countries wishing to carry out regional integration schemes, but

wary of fundamentally compromising hard-won independence and sovereignty.

This Article will consider the following: Part I will discuss some general

issues concerning dispute settlement internationally. Part II discusses dispute

settlement systems in the Regional Economic Groupings, including the World

Trade Organization (“ WTO”) (as evidenced in the infamous “Banana Dispute”)

and the future Free Trade Area of the Americas (“FTAA”), given that the Revised

Treaty will be notified under Article XXIV of the General Agreement on Trade

and Tariffs 1994 and will presumably be accepted as being consistent with

the understanding thereunder. Part III will examine the Role of the CCJ as

the judicial organ of CARICOM and the interplay between the original and

appellate jurisdictions of the CCJ. Part IV will analyse the institutional and

jurisdictional distinctiveness of the CCJ (including its referral procedure) and

the features of the CCJ that make it sui generis. Part V addresses the role of

precedent, stare decisis, and the rule of Non liquet in the regime and their

implications for the interface of common law and civil law. Part V will also

4. Sir Shridath Ramphal et al., Regional Integration: Carrying the Process Forward: Report on the

Establishment of a CARICOM commission or other Executive Mechanism, Draft 2.10.03 (Nov.

2003) [hereinafter Regional Integration].

5. Id.