The next step for the CCJ

Anika Gray, Contributor

The CARICOM Single Market Economy (CSME), established by virtue of the Revised Treaty of Chaguaramas (RTC), is designed to represent a single economic space where people, goods, services and capital can move freely.

Ultimately, it is expected that the CSME will provide an effective means by which Caribbean economies can be successfully integrated into global trade on terms that will minimise the inevitable dislocations from such integration.

The RTC delineates the nature of member states' obligations under the treaty and provides the enabling legal framework for the operation of the CSME and its grand objective. The survival of the CSME, therefore, depends, to a large extent, on developing effective enforcement mechanisms to ensure that member states comply with, and individuals benefit from, the provisions of the RTC.

To this end, the RTC has conferred on the Caribbean Court of Justice (CCJ) the sole jurisdiction to hear and determine disputes concerning the interpretation and application of the treaty. It is, therefore, anticipated that the CCJ will ensure that the rules relating to the CSME will operate uniformly and consistently.

principle of direct effect

However, the RTC's failure to provide effective sanctions, forcing member states to respect their obligations, as well as its dependence on member states to enforce judgments from the CCJ in domestic law, undermines the court's legitimacy. This state of affairs threatens the uniform application of the RTC in the domestic law of member states and, by extension, the CSME's raison d'ètre.

The CCJ can remedy this deficiency by adopting the principle of direct effect and thereby make the court's judgments directly enforceable in the domestic law of member states. Direct effect is a product of judicial activism undertaken by the European Court of Justice (ECJ). It was spawned from the ECJ's attempts at crafting a constitutional framework to propel, buttress and legitimise European integration.

In Van Gend en Loos v Nederlandse Administratie der Berlastingen Case 26/62 [1963] ECR 1, the ECJ held that EC law creates enforceable rights for the individual within the national state, even where the member state has failed to incorporate EC law within its domestic legal system. Article 9 of the RTC, as well as the principles of estoppel and l'effet utile, provides the perfect legal basis for the transplantation of the direct effect into the CCJ's legal framework.

Currently, if the CCJ makes an order against a member state, the state's obligation is limited to the international plane; a private entity or individual cannot benefit from the order of the court until the member state chooses to implement the court's decision in its domestic law.

This process is counterintuitive to the principle, articulated by the CCJ in Trinidad Cement Limited (TCL) v The State of the Cooperative Republic of Guyana [2009] CCJ 1 (OJ), paragraph 13, that the CSME must be private sector-driven.

will nations comply?

The CCJ was perceptive enough to recognise that implementation and enforcement of the RTC in domestic law demand the active participation of private entities. Most Caribbean states are skittish about any perceived whittling away of their sovereignty. Therefore, they are not usually prepared to be forced into compliance by the decisions of an international tribunal, even those to which they have ceded jurisdiction.

The paralysis the court faces in getting member states to enforce its judgment in domestic law was recently evidenced in Guyana's failure to comply with an order from the court to implement and, thereafter, maintain the Common External Tariff (CET).

In Trinidad Cement Limited (TCL) v The State of the Cooperative Republic of Guyana [2010] CCJ 1 (OJ), TCL requested that Guyana be found in contempt of court for failing to implement and give effect to the order of the court. The CCJ held that it had no jurisdiction to grant a civil-contempt order against Guyana.

However, in giving its judgment, the court lamented the absence of any machinery to enforce its orders domestically. Its only cure for this defect was to suggest that the member states should create a protocol to the CCJ agreement that would clarify the meaning of 'contempt of court'. In giving such undue deference to member states, the court lost the opportunity and ceded its discretion to tailor legal principles which would effectuate its judgments.

In Van Gend, the ECJ referred to a member state's obligation under Article 10 EC as a key element in its finding that provisions of the EC treaty ought to be directly applicable in domestic law. Article 9 of the RTC, which is almost identical to Article 10 EC, places an obligation on member states to both refrain from acts which undermine the RTC's objective and to take appropriate measures to fulfil their obligations under the RTC.

The ineluctable conclusion is that since the CCJ is created by virtue of the RTC, a member state's laws must be interpreted in a manner that is consistent with any obligations arising from the court's orders.

Moreover, Article 240, which stipulates that all decisions of competent organs and bodies of the Caribbean Community must be incorporated into domestic law before they become enforceable in the national state, does not apply to the CCJ. The RTC does not list the CCJ as either an organ or body of the Caribbean Community.

The ECJ has relied heavily on the principle of l'effet utile and estoppel to justify its introduction of direct effect into EC law. In relation to the principle of l'effet utile, the court, in Pubblico Ministero v Ratti Case 148/78, [1979] E.C.R. 1629 maintained that the effectiveness of directives would be weakened 'if persons were prevented from relying on them in legal proceedings and national courts prevented from taking them into consideration as an element of community law'.

Similarly, the court in Ratti used the estoppel principle to hold that a member state that has failed to implement a directive in its national law should not be allowed to rely on 'its own failure to perform the obligations which the directive entails' as a means to deny the individuals the rights guaranteed by the directive.

The TCL v Guyana case clearly illustrates that the effectiveness of an order from the CCJ is significantly weakened when the individual cannot enforce the judgment in domestic law without the intervention of the state. Guyana's refusal to execute the order, six months after it had been given, not only undermined the CCJ's authority but, more important, it defeated the whole purpose of the order; TCL continued to haemorrhage financially over the period the CET remained unimplemented.

On the other hand, the estoppel principle would have disbarred Guyana from using its own failure to implement the CCJ's judgment into domestic law as a means to deny TCL the benefit of the CCJ's judgment. If this had been the case, TCL would have had no need to take a wasted trip to the CCJ; the company would have been able to obtain the order for civil contempt from the domestic courts of Guyana.

The CCJ has been unabashedly described as the institutional centrepiece of the CSME. However, to live up to this epithet, the court needs to expand its judicial wings and adopt the principle of direct effect. If not, Caribbean economic integration will be no more than a flurry of great expectations.

Anika Gray is an attorney-at-law and tutor in the Faculty of Law, UWI, Mona. Email feedback to columns@gleanerjm.com and anika_gray@yahoo.co.uk.