Stephen Vasciannie

Two weeks ago, the Com-monwealth Secretariat sponsored a seminar in Kingston on the Caribbean Court of Justice (CCJ). I have already used the occasion of the seminar to list in truncated form the arguments for and against the establishment of the appellate jurisdiction of the CCJ. This week, however, I wish to consider the less controversial matter of the original jurisdiction of the CCJ.

The appellate jurisdiction of the CCJ concerns itself with appeals from local courts, through the local court of appeal, to the CCJ as the final appellate court. It is the part of the court with which most persons will be familiar, for this is what we usually contemplate when we refer to a domestic court system.

The original jurisdiction of the CCJ is different. It is concerned essentially with disputes between states arising under the Revised Treaty of Chagua-ramas. Thus, the original jurisdiction will be used when one CARICOM member state has a dispute with another CARICOM member state about the interpretation of some aspect of the main treaty governing the CARICOM Single Market and Economy.

The jurisdiction in that context is described as original because cases under this heading will not normally pass through local courts - these cases begin, or have their origin, in the CCJ. This approach is consistent with international law. Normally, in a dispute between two states, it is considered inappropriate for the matter to be considered in the courts of one of the disputing states. This is to ensure both the appearance and reality of fairness to both countries, to respect the sovereignty of each state, and to demonstrate comity or friendly relations between both states.

But, in addition, cases between states are not normally heard within local courts in order to avoid difficult problems of enforcement.

Let's say that State A wins a case against State B in the courts of State A. Whether or not the victory is justifiable, State B may be disinclined to obey the order of the court. What would happen next?

If State A seeks to enforce the judgement of the court, the authorities in State B could simply ignore it. At this stage, there are no further enforcement mechanisms, unless there is an agreement about the enforcement of such decisions in cases between States A and B.

Challenges

This issue - the problem of enforcement - may still create challenges for the CCJ, for a state party to the original jurisdiction of the CCJ may opt not to enforce judgments of the new court. Notice, however, that in the case of the CCJ, the state would then be in breach of the treaty establishing the CCJ and the Revised Treaty of Chaguaramas. In that situation, other countries could at least put moral and political pressure on the country at fault to obey the instructions of the CCJ.

Generally, the subject matter of the disputes that will come to be considered in the original jurisdiction of the CCJ is to be found in the Revised Treaty of Chaguaramas. This treaty sets out a substantial number of rules concerning trade and investment relations between and among CARICOM states. It also contemplates the full implementation of competition policy rules applicable throughout CARICOM, rules on free movement across borders, and other arrangements meant to harmonise relations within the region.

Given the significant range of matters that may arise under the Revised Treaty of Chaguaramas, the CCJ could eventually have much work in its original jurisdiction. This possibility is reinforced by two considerations. In the first place, the terms of the treaty establishing the CCJ make it clear that CARICOM as an institution may also be a party to cases before the CCJ; and, second, individuals in various CARICOM countries may raise points of law arising under the Revised Treaty of Chaguaramas in their disputes with other litigants.

On this point, the CARICOM arrangements are interesting. If there is a dispute between John Brown and Mary Smith, and this dispute gives rise to a question concerning the Revised Treaty of Chaguaramas, then either party may invoke the Revised Treaty. And if they do, or if the judge in the local court does, then the point of law in question must immediately be transferred to the CCJ. This is to ensure that on matters concerning the interpretation of the Revised Treaty of Chaguaramas, the Caribbean will speak with one voice. The CCJ will determine the meaning of the Revised Treaty in all cases.

Footnote: The Gleaner was unquestionably wrong to publish the awful cartoon of the Prime Minister in last week's paper. Senior persons at the institution should apologise for the error in judgement.