The Caribbean Court of Justice in International Law

• 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: 158-195

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Chapter sIX

The Caribbean Court of Justice in Inter national Law

THE CARIBBEAN COURT OF JUSTICE IN

INTERNATIONAL LAW

Evaluation of the Caribbean Court of Justice as an institution in

international law has to address both the juridical personality of

the Court as well as the dual status of this institution, which, on

the one hand, is a municipal tribunal, and, on the other, an

international tribunal required to apply rules of international law

for the resolution of disputes touching on the interpretation and

application of an international instrument, namely, the Treaty

establishing the Caribbean Community including the CARICOM

Single Market and Economy.1 For present purposes, international

law will be construed to mean the corpus of norms generally

recognised as regulating interstate intercourse as well as the

conduct of collectivities of states or inter-governmental

institutions in their mutual interactions. This body of norms also

regulates their interface with other subjects of international law,

such as private entities and individuals who have been accorded

a measure of recognition in terms of espousing international

claims. Whether or not the determinations of the Caribbean

Court of Justice will be seen as generating or complementing

general rules of international law or creating a body of regional

norms applicable to the Member States of the Caribbean

Community in their normal interface, like the Calvo doctrine,

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only the future will tell. But, as mentioned in Chapter Four the

norms applicable to the Member States of the Caribbean

Community are unlikely to have the sui generis status of

‘Community law’ issuing from the institutions of the European

Union as a supranational entity and creating a normative regime

recognised by the European Court of Justice and the courts of

the Member States of the European Union as being superior to

their own national law.2

The international instruments which speak to the juridical

personality of the Court and Commission are the Agreement

Establishing the Caribbean Court of Justice, the Protocol to the

Agreement Establishing the Caribbean Court of Justice Relating

to the Juridical Personality and Legal Capacity of the Court, the

Agreement Establishing the Seat of the Caribbean Court of Justice

and the Offices of the Regional Judicial and Legal Services

Commission, and the Protocol on Privileges and Immunities of

the Caribbean Court of Justice and the Regional Judicial and

Legal Services Commission. Related instruments are the

Agreement Establishing the Caribbean Court of Justice Trust

Fund and the Vesting Deed of the Caribbean Court of Justice

Trust Fund. On the advice of the Caribbean Development Bank,

consideration is being given to incorporating the provisions of

the Vesting Deed in the regulations of the Trust Fund in order to

assimilate the applicable law.3 These instruments impact variously

on the Court and Commission, but at the end of the day the

objective was to create a Court which was seen to be free from

political control. All of these instruments to a greater or lesser

degree contribute to the independence of the Court and the

Commission. In this connection, it is useful to remember that

independence of judicial institutions speaks to institutional

arrangements and composition of these bodies, as distinct from

integrity which speak to personal character attributes.

As an international tribunal, applying rules of international

law in interpreting and applying the Revised Treaty, the

Caribbean Court of Justice will be required to employ norms

applicable to third states in such areas as subsidies and anti-

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dumping and rules of competition, all of which are addressed in

relevant provisions of the Revised Treaty. All of these rules are

based on international instruments currently forming part of the

World Trade Organization regime or rules of law generally

accepted in the international community. Of course, the

constituent instrument of the Caribbean Community also contains

rules peculiar to relations of the parties to the regime and not

generally applicable to third states. It is also likely that norms

developed and applied in the European Union relating to the rights

of establishment, to provide services and to move capital in trans-

border transactions will have considerable influence on

determinations of the Caribbean Court of Justice which, like the

European Court of Justice and European Court of First Instance,

cannot be insensitive to the existence of two systems of law in

the operational environment – the common law system and the

civil law system, even though international norms apply equally

to both systems. Where situations arise for which no generally

applicable rules of international law are known to exist, the

Treaty requires the Court to provide a solution, presumably by

reference to general principles of law applied by states,4

subscribing to both the civil law and common law traditions.

However, with the rapid convergence of values of both an

economic and humanitarian genre, it does appear to be the subject

of a reasonable assumption that the tension in norms applicable

to jurisdictions of differing cultural orientation will be relieved

and that juridical dissonance between the jurisdictions of North

and South will diminish. But such dissonance may never disappear

due to inherent divergencies in religious, ethical and moral

imperatives and the disposition of human kind to hold firm to

traditional values. Consequently, the Caribbean Court of Justice

in the exercise of its original jurisdiction would be expected to

weigh the regional interest against third party interests in

determining the applicability of international norms to regional

intercourse. And this is to be expected since many of the norms

sought to be applied in interstate conduct emanate from older

sovereignties, reflect the values and experiences of those