Original Jurisdiction of the Caribbean Court of Justice

• Author: Duke Pollard
• Profession: Director of the CARICOM Legislative Drafting Facility and one of the principal consultants on all development aspects of the Caribbean Court of Justice on which he now sits as a Judge
• Pages: 85-125

Original Jurisdiction of the Caribbean Court of Justice

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Chapter FOur

Original Jurisdiction of the Caribbean Court of Justice

DEVELOPMENT OF INTERNATIONAL ADJUDICATION

An appreciation of the attributes and functions of the Caribbean

Court of Justice would be considerably enhanced if viewed

against the historical background of international adjudicatory

bodies. In this context, it is important to bear in mind the

emergence of the nation state in the sixteenth century as a product

of the Renaissance and Reformation. The legitimisation of the

nation state as the unit of governance and the modern state system

as the basis of international relations followed at the Treaty of

Westphalia, 1648, which terminated a century of unprecedented

blood-letting in Europe, benignly called the wars of religion, where

religious dogmatism provided a convenient and callous

rationalisation for conquest, territorial expansion and personal

aggrandizement. The ensuing decades witnessed an appalling

intensification of the attributes of personal sovereignty

culminating in a century characterised by unqualified absolutism

and enlightened despotism which, in turn, gave way to the era of

popular sovereignty heralded by the French Revolutionary and

Napoleonic Wars at the turn of the eighteenth century. Although

international disputes continued to be settled by force, the Jay

Treaty 1794 between Britain and the United States introduced a

method of disputes-settlement through mixed commissions. The

novelty of the procedure, however, precluded its taking root in

the practice of states.

The Caribbean Court of Justice

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The nineteenth century, however, saw no abatement at the

international level of the doctrine of untrammelled national

sovereignty and international disputes continued to be settled,

traditionally, on the basis of military might, or innovatively, on

the basis of ad hoc third party adjudicatory bodies, for example,

the Alabama Arbitration, 1872 until the creation of the Permanent

Court of Arbitration whose establishment after the Hague

Conferences of 1899 and 1907 was a significant turning point in

international adjudication. Predictably, the Permanent Court of

Arbitration was not a spectacular success. The preferred modes

of disputes settlement continued to be good offices, mediation

and negotiation which did not compromise national sovereignty.

Conciliation, as a mode of dispute settlement, received a fillip

from the Hague Conferences of 1899 and 1907. And, as wars

became more calamitous, genocidal, catastrophic and costly to

the national treasury, as exemplified by the two world wars of

1914 and 1939, serious consideration was given to the peaceful

settlement of international disputes through the establishment of

norms to be applied by permanent adjudicatory bodies. The most

celebrated cases in point were the Permanent Court of

International justice (PCIJ) 1921 and its worthy successor, the

International Court of Justice (ICJ) 1946 which was accorded

the status of an organ of the United Nations. The establishment

of these organisations set a commendable precedent for the setting

up of a plethora of international adjudicatory bodies in the

twentieth century both at the regional level and the wider

international plane. The more distinguished of these are the

European Court of Justice, the Court of First Instance of the

European Union, the European Court of Human Rights, the Inter-

American Court of Human Rights, the Court of Justice of the

European Free Trade Area, the Andean Court of Justice, the

Central American Court of Justice, the Disputes Settlement Body

of the World Trade Organization, the International Tribunal on

the Law of the Sea, the International Centre for the Settlement

of Investment Disputes, the Court of Justice of the Common

Market for Eastern and Southern Africa (COMESA) and latterly,

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the Caribbean Court of Justice, whose gestation period spanned

the entire twentieth century and which is due to come on stream

during the first quarter of 2004.

Some of these adjudicatory bodies leaned heavily on the

traditional doctrines of international law and located states at

the centre of the international adjudicatory process. Thus, only

states were ordinarily accorded locus standi in proceedings before

these bodies,1 and only agents of states parties before the Court

could represent the interests of litigants. Consider in this context

the practice of the International Court of Justice and contrast

the applicable law of the Caribbean Court of Justice. Interestingly

enough, this hallowed tradition was broken by a Member State

of the Caribbean Community when Saint Lucia, a microstate by

international standards, intervened in the Banana Dispute in the

World Trade Organization as an interested party and the

Appellate Body allowed Saint Lucia to be represented by private

lawyers. In the submission of the Appellate Body:

… representation by counsel of a government’s own choice may

well be a matter of particular significance – especially for

developing country Members – to enable them to participate

fully in dispute settlement proceedings. Moreover, given the

Appellate Body’s mandate to review only issues of law or legal

interpretation in panel reports, it is particularly important that

governments be represented by qualified counsel in Appellate

Body proceedings.2

Reliance by international adjudicatory bodies on traditional

international law doctrines also informed the general exclusion

of private entities, natural and juridical, from their proceedings

which did not cater for objects of international law. This practice

was eroded by the advent of international human rights

adjudicatory bodies and inter-governmental bodies boasting

attributes of supranationality to a greater or lesser extent. Cases

in point are the European Court of Human Rights, the Inter-

American Court of Human Rights, the European Court of Justice,

and the European Court of First Instance, institutions of the

European Union, the Court of Justice of the Cartagena Agreement

and the Court of Justice of COMESA (CJC) which accorded locus