Original Jurisdiction of the Caribbean Court of Justice

AuthorDuke Pollard
ProfessionDirector 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
Original Jurisdiction of the Caribbean Court of Justice
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Chapter FOur
Original Jurisdiction of the Caribbean Court of Justice
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

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