Legitimate Expectations, International Treaties and the Caribbean Court of Justice

• Author: Eddy D. Ventose
• Pages: 128-147

Legitimate Expectations,

International Treaties and the

Caribbean Court of Justice

Eddy D. Ventose

1. Introduction

The decision of the recently-established Caribbean Court of Justice

(CCJ) in AG v Joseph and Boyce1 has been hailed as revolutionary by legal

practitioners and academic lawyers. And in many respects it is. It has

clearly given public lawyers much food for thought and it will take some

    

administrative law areas are fully explored.2 The focus of this chapter

is the exploration of the CCJ’s approach to legitimate expectations.

Notwithstanding that the discussion of legitimate expectations was

obiter, the decision still indicates the approach the CCJ might take if

the issue arises directly for consideration in the near future.3 Although

the CCJ did not engage in any rigorous analysis of the issues that lie

at the heart of legal protection for substantive legitimate expectations,

its approach seems to be in accordance with the evolving approach to

legitimate expectations in England and elsewhere. And, even if it is

accepted that the boundaries of substantive legitimate expectations

are still being drawn, as will be seen in due course, the CCJ’s approach

1. [2006] CCJ 3, (2006) 69 WIR 104 (Bdos). See also D. Pollard, ‘Unincorporated Treaties and Small

States’ (2007) 33 Comm LB 389; P. Sales, ‘International Law in Domestic Courts: A Developing

Framework’ (2008) 124 LQR 288; and M. Taggart, ‘Legitimate Expectations and Treaties in the

High Court of Australia’ (1996) 112 LQR 50.

2. See A. Fiadjoe, ‘A Pandora’s Box in Commonwealth Caribbean Public Law: The CCJ’s Approach

to the Doctrine of Legitimate Expectations’ UWI Faculty of Law Faculty Workshop Series Paper

(28 November 2007); D. McKoy, ‘Identifying the Chi in Commonwealth Caribbean Law: The

Contribution of the Common Law and Human Rights Law to Constitutional Interpretation’ UWI

Faculty of Law Faculty Workshop Series Paper (18 October 2007), and T. Robinson, ‘Our Inherent

Constitution,’ Chapter 11.

3.        

  

following Pratt v AG [1994] 2 AC 1 (PC Ja). The appellants succeeded on that basis alone. However,

the CCJ went on to state at page 16 that although it was now possible to dispose of this appeal

without deciding whether it was lawful for the respondents to be executed before the Barbados

Privy Council received and considered the decision of the Inter-American body, it believed that the



lower courts and answered differently by Greenidge J and the Court of Appeal (Joseph v AG (2005)



raised by the appeal to the CCJ.

129

Legitimate Expectations, International Treaties and the Caribbean Court of Justice

        

England.

This chapter is an examination of the treatment by the CCJ of the

doctrine of legitimate expectations, in particular, the standard of review

the courts must deploy when faced with a substantive, as opposed to

a procedural, legitimate expectation.4 Before the CCJ explored that

issue, it delineated its view on the role of legitimate expectations and

unincorporated treaties, accepting that such treaties do create legitimate

expectations – a notion that has been rejected in most Commonwealth

countries. In any event, the result in the decision is almost inevitable, in



how the Judicial Committee of the Privy Council (Privy Council) has dealt

with the issue of legitimate expectations and international treaties; and,

second, critically examines the standard of review articulated by the CCJ

in Joseph to determine when a legitimate expectation can prevail over

any compelling state interest advanced. It will also outline the central

arguments accepted by the CCJ in relation to unincorporated treaties

and legitimate expectations.

2. The Privy Council’s Approach

In recent years, the issue of whether a state had to await the decision

of any international human rights body before it can lawfully execute a

condemned prisoner was one that has been explored by the Privy Council

in a myriad of decisions. The law was in a state of confusion and has

only recently given a hint of certainty by some rather dubious legal

reasoning. In light of the subject matter at issue – the lawfulness of the

execution of the condemned person – it is hardly surprising that the CCJ

in Joseph and Boyce came to the conclusion that it did. It traversed the

much-trodden terrain of decisions of the Privy Council relating to the

 

international proceedings before it can lawfully execute the condemned

man.5

A. Fisher v Minister of Public Safety and Immigration No 2



canvassed is Fisher v Minister of Public Safety and Immigration No 2.6

4. P. Craig, ‘Substantive Legitimate Expectations in Domestic and Community Law’ (1996) 55 CLJ

291.

5. D. O’Brien and V. Carter, ‘Constitutional Rights, Legitimate Expectations and the Death Penalty’

(2000) PL 573.

6. (1998) 52 WIR 27 (PC Bah).