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The original jurisdiction jurisprudence of the Caribbean Court of Justice: promoting regional integration/La jurisdiccion temprana de la jurisprudencia del Tribunal Judicial Caribeno: promoviendo la integracion regional/La jurisprudence des premieres annees de la juridiction originale de la Cour Caribeenne de Justice: un outil pour l'integration regionale.

ABSTRACT

The Caribbean Court of Justice (CCJ) and the Revised Treaty of Chaguaramas add formal legal substance to the Caribbean Community's (CARICOM) regional integration project. Decisions by all of the main organs of CARICOM are legally binding and enforceable by an original, exclusive, compulsory and final tribunal. This paper outlines the demonstrated potential of the CCJ to further the CARICOM Single Market and Economy (CSME)--and regional integration more generally--by highlighting seminal passages from the first nine original jurisdiction decisions. These decisions illustrate the key role that the CCJ can play in resolving disputes impartially, non-politically and finally.

El Tribunal Judicial Caribeno (CCJ) y el Revisado Tratado de Chaguaramas aportan una sustancia legal formal al proyecto de integracion regional de CARICOM. Las decisiones de todos los 6rganos principales de CARICOM son legalmente obligatorias y aplicables por un tribunal original, exclusivo, obligatorio y decisivo. El trabajo presenta el demostrable potencial del CCJ para lograr la creacion de un sistema caribeno de economia y mercado comunes (CSME)--y la integracion regional de forma mas general--subrayando pasajes seminal partiendo de las primeras nueve decisiones de la jurisdicci6n original. Estas decisiones ilustran el crucial rol que puede jugar el CCJ en la soluci6n de disputas en una manera imparcial, apolltica y decisiva.

La Cour de Justice Caribeenne (CCJ) et le Traite Revise de Chaguaramas ajoutent une substance legale formelle au projet d'integration regionale de la CARICOM. Les decisions de tousles principaux organes de la CARICOM sont liees et applicables juridiquement par un tribunal original, exclusif, obligatoire et final. Cet article souligne le potentiel avere de la CCJ pour approfondir le Marche et l'Economie Unique de la Caraibe (CSME)--et plus generalement l'integration regionale--, en mettant en evidence des passages cles des neuf premieres decisions originales de cette juridiction. Ces decisions illustrent le role central que la CCJ peut jouer dans la resolution de conflits, de maniere impartiale, apolitique et en dernier ressort.

The implications of the Revised Treaty of Chaguaramas

The Revised Treaty of Chaguaramas entered into force on 1 January 2006. In doing so, it formally ushered into being a much stronger, legally binding regime for CARICOM. (1) Under the Revised Treaty each of the main organs--the Conference, the Community Council of Ministers, the Council for Finance and Planning, the Council for Trade and Economic Development, the Council for Foreign and Community Relations, and the Council for Human and Social Development--is empowered to make decisions which are binding as a matter of international law, (2) and which may be enforced through internal dispute settlement mechanisms (3) or by means of the Caribbean Court of Justice (CCJ).

The CCJ, which was created by the Agreement Establishing the Caribbean Court of Justice, (4) has been vested with this enforcement competence under what is termed its "original jurisdiction". Under that jurisdiction the Court is granted original, compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Treaty, including: (a) disputes between the Member States, (b) disputes between the Member States and the Community, (c) referrals from national courts, and (d) applications by persons. (5) This jurisdiction is 'original' in the sense that an applicant can file a case directly with the CCJ, without the need for a previous hearing before a national tribunal; it is 'compulsory' because all States that are parties to the Revised Treaty must "recognise as compulsory, ipso facto and without special agreement" the CCJ's original jurisdiction. (6) The CCJ's original jurisdiction decisions are also binding, (7) not subject to appeal (8) and create legal precedents under the doctrine of stare decisis. (9) The cumulative effect of these changes is significant, and will be more deeply appreciated over time by the states and peoples of the region.

This paper seeks to highlight some more recent developments which have been initiated by the CCJ in its first nine original jurisdiction decisions. (10) These nine decisions were made in the context of the different phases of four cases: (1) Trinidad Cement Limited and TCL Guyana Inc v. Guyana (2) Trinidad Cement Limited v. CARICOM (3) Johnson v. CARICAD and (4) Hummingbird Rice Mills v. Suriname and CARICOM. The first case involved a challenge by the two applicants--cement producing, packing and distributing companies incorporated in Trinidad and Tobago and Guyana, respectively--to the decision of Guyana to unilaterally waive a tax on non-CARICOM produced cement. This tax, called the Common External Tariff (CET), favours goods of CARICOM origin, such as the cement sold by the two applicant companies, since such goods are exempt from it. The second case involved a challenge by the applicant company to two decisions by CARICOM organs to allow the suspension of the CET in relation to cement, which it alleged caused it significant losses. The third case involved a challenge by the applicant to decisions by the Caribbean Centre for Development Administration (CARICAD) in relation to the termination of her employment (redundancy). The final case involved a challenge by a flour producer to a unilateral decision by Suriname to waive the CET on wheat or meslin flour from the Netherlands, and a challenge to CARICOM for not sanctioning Suriname for that waiver. All four cases required the CCJ to interpret and apply the Revised Treaty. In several instances the CCJ made seminal statements about such things as the nature of: the Court's jurisdiction, the Revised Treaty, the Caribbean Community and the CARICOM Single Market and Economy.

The paper commences with an introduction to the forms of original jurisdiction and the CCJ's interpretation of its jurisdictional competence in relation to applications by persons. It then examines several important statements by the CCJ about the nature and purpose of the Revised Treaty and the CSME it creates. This is followed by a brief overview of the strengths and limitations of the judicial sanctions and forms of reparation recognised by the CCJ in its original jurisdiction. The final section offers some tentative conclusions about the court's jurisprudence.

Original jurisdiction and locus standi

The CCJ's original jurisdiction encompasses four types of disputes. Article 211 provides the court with jurisdiction to hear and determine disputes concerning the interpretation and application of the Treaty, including:

(a) disputes between the Member States that are party to the Agreement;

(b) disputes between the Member States that are party to the Agreement and the Community;

(c) referrals from national courts of the Member States that are party to the Agreement;

(d) applications by persons in accordance with Article 222, concerning the interpretation and application of this Treaty.

State versus State claims

The first type of jurisdiction, over disputes between Member States who are parties to the Agreement, is unlikely to be of much significance to the development of regional integration jurisprudence. This is because Caribbean states, like most countries, seek to avoid direct, formal, state-to-state confrontations. Suing another state for an alleged breach of an international legal obligation is not conducive to smooth diplomatic relations. This aversion is shared by states of the European Union, as evidenced by the fact that a mere handful of cases have been brought under the comparable provision of the Treaty on the Functioning of the European Union and its antecedents since the 1950s. (11)

State versus Community claims

The second type of jurisdiction, that over disputes between the Member States and the Community (and vice versa) under Article 211(1)(b) of the Revised Treaty, may prove more significant. It has not yet been utilised: no Member State has sued the Community, nor has the Community sued a Member State. But as the Court's jurisprudence clarifies and develops the nature and effect of the legal obligations of the CSME, it is predicted that the Community itself may need to rely upon this provision as an instrument to convince states to more speedily and fully implement their Revised Treaty obligations. (12) Such a role is undertaken in the European Union (EU) by the European Commission, which brings Member States before the European Court of Justice (ECJ) in its function as guardian of EU law. (13) States may also wish to bring the Community before the CCJ for delays and inaction. However, this remains less likely because Member States already exercise considerable authority and control over Community processes.

Referral jurisdiction

The third type of jurisdiction exercisable by the Court under Article 211 is that over referrals from national courts. Although the CCJ has not yet heard a case under this jurisdiction, referrals will most likely play a pivotal role in deepening Caribbean regional integration. Under this provision and Article 214, a national court which is "seized of an issue whose resolution involves a question concerning the interpretation or application of [the Revised Treaty]", must refer the question to the CCJ for its determination. (14)

The referral procedure works as follows. A national judge who is confronted with a Revised Treaty question which is central to her or his case is obligated by Article 214 to transmit that question to the CCJ for its decision. The CCJ, after receiving the question, will examine and decide the legal issue it contains, and then transmit its decision to the national judge. Then the national judge will factor the CCJ's legal determination into her or his judgment and decide the overall case.

Several points can be made about this referral jurisdiction. The first is that it deepens regional integration by involving the national judiciary in the enforcement of the Revised Treaty. Only the CCJ can interpret the Revised Treaty; but the application of the Revised Treaty in national law (or more likely the dis-application of inconsistent national law) may require the assistance of national tribunals. Secondly, the referral jurisdiction ensures the uniformity of CARICOM law by allowing the CCJ--not national courts--to make final determinations of the meaning, and potential national legal consequences, of the Revised Treaty. (15) This is tremendously important since any significant lack of uniformity of Community law will frustrate the fundamental objectives of the Revised Treaty. Thirdly, the referral jurisdiction gives individuals an indirect way of enforcing compliance with CARICOM obligations. A person, whether natural or juridical, bringing a case in a national court against another person or against a Member State, can utilise this form of jurisdiction if the case raises issues related to the Revised Treaty so as to ensure that her or his national court understands the correct interpretation or application of the Revised Treaty. Finally, it should be noted that the form of jurisdiction in EU law most similar to the CCJ's referral jurisdiction--the ECJ's preliminary reference jurisdiction--has been crucial to the development of EU law. Using the preliminary reference procedure, the ECJ created one of the most revolutionary developments of the EU legal system, namely the doctrine of direct effect. (16) Whether such a doctrine, or a similar one, will be developed by the CCJ under its referral jurisdiction is an intriguing question. (17)

Applications by persons

The final form of jurisdiction provided by Articles 211 and 222 is that over 'applications by persons'. This form of jurisdiction might seem to be limited and difficult to access, given the four-part cumulative test that has to be satisfied by a person under Article 222. This Article provides as follows:

ARTICLE 222

Locus Standi of Private Entities

Persons, natural or juridical, of a Contracting Party may, with the special leave of the Court, be allowed to appear as parties in proceedings before the Court where:

(a) the Court has determined in any particular case that this Treaty intended that a right or benefit conferred by or under this Treaty on a Contracting Party shall enure to the benefit of such persons directly; and

(b) the persons concerned have established that such persons have been prejudiced in respect of the enjoyment of the right or benefit mentioned in paragraph (a) of this Article; and

(c) the Contracting Party entitled to espouse the claim in proceedings before the Court has:

(i) omitted or declined to espouse the claim, or

(ii) expressly agreed that the persons concerned may espouse the claim instead of the Contracting Party so entitled; and

(d) the Court has found that the interest of justice requires that the persons be allowed to espouse the claim. (18)

The test is cumulative, so that an individual applicant has to satisfy subsections (a)-(d) before being entitled to bring a case before the Court. Contrary to first impressions, however, the Court, in its original jurisdiction jurisprudence, has demonstrated that all of these hurdles can be overcome as a result of a very generous interpretation of Article 222.

In fact, in the case of Trinidad Cement Ltd and TCL Guyana Inc v. Guyana (Jurisdiction), (19) the Court arguably expanded its jurisdictional scope for individual applications. That case involved the applicants Trinidad Cement Ltd ('TCU) and TCL Guyana Inc ('TGI'), limited liability companies incorporated in Trinidad and Tobago and Guyana, respectively, whose main business was the production, packaging, sale and distribution of cement in the Common Market established by the Revised Treaty. They brought a claim against Guyana, alleging breach of Article 82 of the Revised Treaty of Chaguaramas for the latter's suspension of the Common External Tariff (CET) on cement imported from third states, which suspension they argued caused them prejudice and damages (by lessening demand for their own cement products). Interestingly, Guyana fully admitted the suspension and that it had not been authorised by the competent CARICOM organ, COTED. (20) In its defence, Guyana nevertheless contended that the applicants did not have locus standi to institute proceedings before the CCJ under Article 222 of the Revised Treaty. (21) In other words, Guyana challenged the ability of the applicants to bring their claim before the CCJ under its original jurisdiction.

In considering the matter, the Court looked at both the Revised Treaty and its own Agreement, and held in relation to the different terms used that locus standi is to be accorded to 'persons' under Article 222, not 'nationals' (as in the CCJ Agreement). In making such a determination, the Court accepted a lower threshold for admissibility, since other provisions of the Revised Treaty define 'national" very restrictively. (22) In terms of legal persons (companies), the Court also re-formulated the general international legal test for nationality of companies (as set out in the Barcelona Traction, Light and Power Company Case), for the purposes of assuming jurisdiction, so that it is "sufficient for such an entity to be incorporated or registered in a Contracting Party." (23) In addition, in coming to the conclusion that both TCL and TGI had locus standi, the CCJ held that the provisions of the Revised Treaty related to the CET provided rights to the applicants, who merely needed to make out (for the purposes of jurisdiction), an 'arguable case' regarding their infringement. (24) The Court also determined that it was in the interests of justice that the applicants be allowed to espouse their claim. (25) Finally, the Court held that TGI, a company incorporated in Guyana, was entitled to sue its own state under the Court's original jurisdiction. This was controversial, and I will return to it in the next section.

For now it is important to notice how expansively the Court has interpreted Article 222, by allowing a wide range of applicants and matters to fall within its jurisdiction. This does not, of course, mean that the Court will go on to find breaches in every case, since the threshold for proof is much higher at the merits phase. But it does mean that, at least at present, the Court's door appears to be wide open to potential applicants. (26)

Nature and purpose of the Revised Treaty and the CSME

The CCJ, in its original jurisdiction jurisprudence, also has substantially developed our understanding of the nature and purpose of both the Revised Treaty and the CARICOM Single Market and Economy (CSME). In its original jurisdiction cases the Court has held that the Revised Treaty: (1) confers rights and benefits on persons (2) embraces general principles of law (3) is subject to teleological or purposive interpretation (which may correct textual inadequacies) (4) creates a new system governed by the rule of law and subject to judicial review (5) creates a system of state liability in which there could be sanctions for its breach, and (6) is private sector driven (people centred). All of these developments are significant, but when added together they may give rise to even greater developments--a point highlighted later.

Rights conferred on persons

The first determination was made in the case of Trinidad Cement Ltd. and TCL Guyana Inc. v. Guyana (Jurisdiction), (27) where the Court made clear that the Revised Treaty not only grants rights and obligations to states, but also to individuals. The Court held that the Revised Treaty, although not always expressly conferring such rights or benefits to persons, nonetheless allows their derivation from correlative obligations imposed upon Parties: "Where an obligation is [imposed on Member States (or a class of Member States) collectively], it is capable of yielding a correlative right that enures directly to the benefit of private entities throughout the entire Community." (28) This is a significant judicial development, one that makes the Revised Treaty potentially relevant in any case where a concrete duty is imposed upon a Member State. It was crucial to the Court's decisions in four of the Trinidad Cement cases and in the Hummingbird case, since without the existence of such correlative rights the first part of the Article 222 test could not have been satisfied by the applicants. (29)

General principles

The second determination was made in the case of Trinidad Cement Ltd. and TCL Guyana Inc. v. Guyana (Jurisdiction), (30) where the Court recognised the applicability of general principles of law. At the conclusion of its judgment in that case, the Court expressly identified several forms of law potentially applicable to the merits of the case. Under Article 217(1) of the Revised Treaty, the Court is authorised to "apply such rules of international law as may be applicable". According to the Court, such phrasing allows it to consider "general principles of law recognised by civilised nations", which would include the "principles of law common to the principal legal systems of the Community". (31)

This latter concept--general principles of Community law-may prove particularly potent in the future, as demonstrated by the use of a similar formulation in the jurisprudence of the European Court of Justice (ECJ). (32) For example, the ECJ has used general principles of Community law to anchor and flesh out a system of human rights protections, one inherent in the law of the European Union (in its pre-European Convention on Human Rights form). (33) The CCJ's recognition of the potential of general principles is apparent: in the case of Trinidad Cement Ltd. and TCL Guyana Inc. v. Guyana (Judgment), the Court recognised the general principles of state liability and effectiveness. (34)

Revised Treaty subject to teleological or purposive interpretation

The third determination also was made in the case of Trinidad Cement Ltd. and TCL Guyana Inc. v. Guyana (Jurisdiction). (35) In this case, the second named company was incorporated in Guyana and therefore a Guyanese national. The question which arose was whether such a national could bring a claim against its own state. The crucial provision of the Revised Treaty appeared to deny such a possibility: Article 222(c) sets out the requirement that "the Contracting Party entitled to espouse the claim in proceedings before the Court has [either] (i) omitted or declined to espouse the claim, or (ii) expressly agreed that the persons concerned may espouse the claim instead of the Contracting Party so entitled." Guyana argued that it was the relevant Contracting Party and, since it could not bring a claim against itself, it could not be said to have either omitted or declined to bring a claim. Guyana also did not agree that TGI should be entitled to bring one. As a result, Guyana argued, TGI could not fulfil the requirements of Article 222(c).

The Court accepted that a literal interpretation would be capable of producing the restrictive effect suggested by Guyana. But the CCJ also noted that its interpretive process "cannot cease with a literal interpretation". (36) Rather, as stated in paragraph 38, under the rules of treaty interpretation the Court is required to "examine the context in which the provision appears in light of the object and purpose of the Revised Treaty and interpret the Article in a manner that renders the Revised Treaty effective. In effect the Court must adopt a teleological approach." The context did not support a restrictive interpretation, and nor was it the intention of Member States to prohibit a private entity from bringing proceedings against its own State. (37) Such a prohibition would frustrate the goals of the Revised Treaty; if such a restrictive approach were taken, nationals, and also "companies owned by non-nationals (including nationals of other States of the Community) who chose to incorporate in an allegedly delinquent State", would be adversely affected. (38) As a result, the Court held that the purpose of Article 222(c) is to prevent the duplication of suits, in cases where both a State Party and a private entity could bring proceedings against a defendant state. (39) Consequently, Article 222(c) is not applicable to proceedings by a private entity against its own state, and such proceedings are permissible under the Revised Treaty framework. (40) This result provoked some controversy amongst legal scholars, (41) but provides further evidence of the way which the Court has sought to interpret the Revised Treaty so as to ensure its effectiveness.

CARICOM as a rule-of-law system

The fourth fundamental determination, made by the CCJ in the case of Trinidad Cement Ltd. v. Caribbean Community (Jurisdiction), was that the Revised Treaty establishes a new, rule-of-law system. (42) In that case the applicant challenged two suspensions of the CET on cement by CARICOM, one made by the Secretary-General and the other by COTED. Since the case involved a challenge to CARICOM itself, the Caribbean Community and its Member States took the opportunity to vigorously respond. They argued that the Court should that not take jurisdiction over such a dispute, since doing so would hinder CARICOM's functioning or constrain state sovereignty. The Court firmly rejected such arguments, instead holding:

By signing and ratifying the Revised Treaty and thereby conferring on this Court ipso facto a compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Revised Treaty, the Member States transformed the erstwhile voluntary arrangements in CARICOM into a rule-based system, thus creating and accepting a regional system under the rule of law. A challenge by a private party to decisions of the Community is therefore not only precluded, but is a manifestation of such a system. Therefore it is not correct to say that by such challenge the functioning of the Community will be greatly hindered or that the exercise of state sovereignty by Member States parties to the Revised Treaty would be unduly constrained. The rule of law brings with it legal certainty and protection of rights of states and individuals alike, but at the same time of necessity it creates legal accountability. Even if such accountability imposes some constraint upon the exercise of sovereign rights of states, the very acceptance of such a constraint in a treaty is in itself an act of sovereignty. (43)

The Court established that the Revised Treaty created a new, rule-based system, one governed by the rule of law.

A key implication of this position is revealed in the later decision of Trinidad Cement Ltd. v. Caribbean Community (Judgment). (44) In that case the Court held that the nature of CARICOM had been transformed from a voluntary dispute settlement regime (under the original treaty), to a system under which the Revised Treaty "has made available to States and to private entities, mandatory resolution of disputes by the Court in accordance with the rule of law". (45) Such a system, the Court held, necessarily entails a "power of judicial review ... implicit in that mandate", which power was applicable to the case at hand. (46) In this way the Court derives a power of judicial review from the rule-based system established under the Revised Treaty.

State liability and sanctions

The fifth determination, naturally flowing from the Court's understanding of the Revised Treaty as establishing a rule of law system, is one regarding the necessity of liability for breach. In the case of Trinidad Cement Ltd. and TCL Guyana Inc. v. Guyana (Judgment), the Court determined that the Revised Treaty created a system of state liability within which there could be sanctions for non-compliance. (47) Although noting that there is no specific provision dealing with sanctions for breaching the Revised Treaty, the Court cited with approval the ECJ decision in Francovich v. Italy, which established "that the principle of State liability was inherent in the new legal system created by the EEC Treaty". (48) The CCJ noted that the ECJ grounded its decision on the principle of effectiveness and Article 5 of the EEC Treaty, parallels of both of which existed under the Revised Treaty regime. The Court held that the principle of effectiveness, which has been applied to breaches of treaty provisions in the EU jurisprudence, is equally applicable to the Revised Treaty. (49) The Court also noted that the Revised Treaty itself possesses an article paralleling that of Article 5 of the EEC Treaty, namely, Article 9 of the Revised Treaty. (50) In making such determinations, the Court places the Caribbean Community firmly within a formal legal system, one which must be recognised as generating binding rights and obligations, which are capable of being enforced against states and the Community itself.

CSME as private sector driven

The sixth determination of the CCJ, established in the earlier case of Trinidad Cement Ltd. and TCL Guyana Inc. v. Guyana (Jurisdiction), (51) is that the Revised Treaty creates a legal order which is private sector driven, one which creates rights for persons capable of being enforced on the international plane. In this case the CCJ examined the context, object and purpose of the Revised Treaty and held that CARICOM was created to ensure the sustainable economic and social development of its peoples; and that the CSME--the appropriate framework for this end--was intended to be private sector driven. (52) The Court also expressly recognised that the Revised Treaty provides rights to private entities:

Given the important role envisaged for private economic entities in achieving the objectives of the CSME, the Contracting Parties clearly intended that such entities should be important actors in the regime created by the RTC; that they should have conferred upon them and be entitled to enjoy rights capable of being enforced directly on the international plane. (53)

This private sector, or person-oriented, emphasis is striking. Under historic international legal doctrine, states were conceived as the primary, if not exclusive, subjects of international law, with very limited recognition being given to individuals as holders of international legal rights. (54) By shifting the focus the Court emphasises the key role of CARICOM as a framework for the lives and aspirations of the peoples of the region.

The EU comparison: Adding up the advances

The above determinations and developments in the original jurisdiction of the CCJ are striking in and of themselves, but their totality may add up to a more significant development. In this context it must be noted that the European Court of Justice developed the doctrine of direct effect--a doctrine which allows certain EU acts to become automatically a part of the domestic law of member states which can be relied upon by individuals in challenges before national courts--from very similar judicial foundations in Case 26/62 Van Gend en Loos [1963]. This case involved a challenge by Van Gend en Loos to a customs duty, which was alleged to have been imposed in violation of Article 12 of the Treaty Establishing the European Economic Community (EEC Treaty). The Dutch court referred to the ECJ the question of "whether Article 12 of the EEC Treaty has direct application within the territory of a Member State, in other words, whether nationals of such a state can, on the basis of the Article in question, lay claim to individual rights which the [national] courts must protect'. (55) In answering this question the ECJ considered the "spirit, the general scheme and the wording" of the provisions of the EEC Treaty and determined that the "objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states." (56)

The Court noted that the preamble to the Treaty referred not only to governments but to 'peoples'; the Treaty itself established "institutions endowed with sovereign rights, the exercise of which affects member states and also their citizens"; and the preliminary reference procedure provided by Article 177 (now 267 TFEU) confirmed that "the states have acknowledged that Community law has an authority which can be invoked by their nationals before those [national] courts and tribunals." (57)

As a result of such features of the European system, the ECJ held: The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community. (58)

In these words the Court concludes that the parties to the EEC Treaty agreed not only to achieve particular treaty-mandated results, but also to create a new legal order, one conferring rights upon individuals that can be enforced before national courts and tribunals. (59) Such a possibility was not intended by the original drafters of the EU treaties, and was vigorously resisted by states and the Advocate General during the Van Gend en Loos hearing. (60)

Taking the strikingly similar developments in the jurisprudence of the Caribbean Court of Justice into account, it is fair to say that many of the building blocks for the doctrine of direct effect already have been laid in Caribbean Community law. Whether the CCJ proceeds further in this direction will depend upon its view of the necessity for direct effect in Community law, and whether it is compatible with the Revised Treaty. As in the case of Van Gend en Loos, the Court will most likely wait until the question is raised in the context its referral jurisdiction, since any question referred by a domestic tribunal to the Court will likely require the Court to pronounce on the legal meaning and effect of the Revised Treaty in domestic law.

JUDICIAL SANCTIONS

In the previous sections we have seen how the Caribbean Court of Justice has laid the foundations for a far-reaching jurisprudence in its first original jurisdiction decisions. It has expanded its potential jurisdictional base for applications by persons under Article 222. It has provided the infrastructure for deriving individual rights from obligations placed upon states. It has recognised the creation of a new legal order, one subject to the rule of law, with consequent state liability and the potential of sanctions.

Let us now turn to the other side of the judicial decisionmaking, and look at the practical aspects of enforcement. Several of the Court's judgments flesh out this topic. The CCJ accepts that it holds significant powers in relation to reparations and sanctions. The Court held in the case of Trinidad Cement Ltd. v. Caribbean Community (Judgment), for example, that it possesses the competence to prescribe interim measures (as per Article 218 of the Revised Treaty), as well as to award appropriate relief, including coercive remedies. (61) In exercising these coercive powers in a subsequent case, the Court ordered Guyana to re-impose the Common External Tariff (CET) on cement. (62) The Court also held that it has the power to order declaratory relief, and has done so against the Caribbean Community, (63) and Guyana. (64) It has determined that it has the power to annul decisions, but has not yet done so. (65) The Court also has ordered respondents in four cases to pay a portion of the legal costs of the applicant. (66)

Such powers are significant. But the Court has been reluctant in relation to one of the key forms of judicial remedies available under international law, namely, that of damages or compensation. In fact, in looking closely at the issue of monetary damages in the case of Trinidad Cement Ltd. and TCL Guyana Inc. v. Guyana (Judgment), the Court came to the conclusion that it must reject the claim for damages for lost profits from TGI and the claim for exemplary damages from both TCL and TGI. (67) Such a position is striking in the context of the case before the Court, where during the oral hearing counsel for Guyana had expressly stated: "We take the position that we are in breach of the Treaty and are not trying to justify that breach, but advance this in explanation and mitigation of our breach". (68) Such a clear admission of liability would usually result in reparations under international law. As a result of this concession the character of the dispute was transformed: the case turned mainly on proof of loss and the causal connection between that loss and the unilateral and unauthorised suspension by Guyana. (69) However, in assessing the evidence, the Court did not find any proof of loss on the part of TGI "sufficiently proximate to the precise breach in question", and thus declined to award damages for lost profits. (70) In a similar vein, the Court declined to award exemplary damages, which it noted were not well-accepted in international law and tended to be linked to proven compensatory damages; "such relief is to augment compensatory damages awarded and not to provide a distinct and separate head of relief". (71) Since no compensatory damages were established, the Court was "not persuaded that exemplary damages may be awarded by it and in this case shall not award any such damages". (72)

These conclusions of the Court may be criticised as being unduly cautious and restrictive in their understanding of the potential of international law for reparations. Other fields of international jurisprudence provide examples of compensation without proof of financial loss. International human rights cases, for example, allow for the award of non-pecuniary liability, including moral damages, and nominal damages. (73) Moreover, as clearly articulated in the 1928 case of the Factory at Chorz6w, it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. In Judgment No. 8 [Factory at Chorz6w [1927] PCIJ, Series A, No. 9, 21] the Court has already said that reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself. (74)

In other words, a breach of an international legal obligation requires reparation. Moreover, the lack of an award of damages may have been misinterpreted by the defendant in the Trinidad Cement cases, since Guyana subsequently breached the Court's order. The Court itself noted in its later 2009 decision in the case of Trinidad Cement Limited and TCL Guyana Inc v. Guyana, in which Guyana requested a stay or variation of the Court's order, that the "Defendant failed to appreciate that this Court made a peremptory order for reinstatement of the CET". (75) In that case the Court declined to grant the stay or variation and ordered the defendant to pay the costs of the application. (76) Yet, once again, no damages were awarded against Guyana for breaching the Court's order. Additionally, in its 2010 decision in the same case, the Court was unable to make a finding of civil contempt against the Attorney-General of Guyana for non-compliance with its order. (77) The Court did make a declaration to the effect that "Guyana failed to comply promptly with the Order and so was in breach of Article 215 of the Revised Treaty". (78) But it is questionable whether this declaration had any practical consequences for Guyana.

Nevertheless, it must be emphasised that the Court has not foreclosed the possibility of awarding damages, and merely has refused to do so in cases involving lack of proof of a loss sufficiently proximate to the precise breach in question.

CONCLUSION

Foundations for a strong system of regional integration

In sum, the Caribbean Court of Justice has laid the foundations for a strong system of regional integration. It has issued nine decisions under its original jurisdiction; decisions which have clearly elaborated--and in an expansive way--the jurisdictional competence of the Court over individual applications under Article 222 of the Revised Treaty. The Court also has started to build the framework for successful Caribbean regional integration by elaborating upon its understandings of the Revised Treaty and the nature of CARICOM. It has revealed how individual rights can be derived from obligations imposed upon states. It has recognised general principles of law. It has accorded prominence to teleological or purposive forms of treaty interpretation, and in doing so has avoided potential deficiencies of the Revised Treaty. It has determined that the Revised Treaty creates a system governed by the rule of law, one giving rise to the principle of state liability and the potential for sanctions. It has established that the CSME is private sector driven, thereby anchoring the human, individual element firmly within the core of regional integration.

The only potential weakness of the original jurisdiction decisions appears to be their lack of effective punitive enforcement mechanisms. This is not unusual in the international sphere. The CCJ, as an international tribunal, is placed in the difficult position of having no real enforcement arm. The Court has no bailiff and states may not be imprisoned for violation of the law. However, other tribunals have found ways of giving teeth to the Chorz6w dictum, that any breach of a treaty entails the obligation for meaningful reparation. Whether the ultimate success of the Court will depend upon issues such as the award of damages remains to be seen. But in making calculations about whether to bring a claim before the Caribbean Court of Justice, it is very likely that the commercial sectors of the Caribbean will carefully assess the lack of damages received by Trinidad Cement Limited and TCL Guyana Limited.

It is hoped that such concerns will prove to be fleeting. The commencement of subsequent original jurisdiction cases shows that the Court's docket is unlikely to remain empty. Also, the CCJ's concrete decisions in these early cases may simply be setting the stage for future developments. Other regional tribunals have moved in stages to gradually introduce legal changes that otherwise might be resisted. The ECJ, for example, has developed its jurisprudence by acknowledging the existence of a right or power in an early case, but not applying that right or power at the time. Instead, the ECJ has chosen to apply the right in a subsequent case (after the foundation had been laid).

As a result, it is submitted that we should look forward to future developments in the original jurisdiction jurisprudence of the Court. Judicial pronouncements by the Court should be anticipated on such important issues as the doctrine of direct effect and on the range of general principles embraced by Community law. The CCJ has so far proved to be a fascinating mechanism for the deepening of Caribbean regional integration, and there is no doubt that it will continue to serve in this role.

REFERENCES

Agreement Establishing the Caribbean Court of Justice. 2001. Retrieved at http://www.caribbeancourtofjustice.org/wp- content/uploads/2011/09/ccj_agreement.pdf.

Arnull, Anthony. 1999. The European Union and its Court of Justice. Oxford: Oxford University Press.

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, 1970 ICJ Rep. 3, 46 ILR 178.

Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.

Case 29/69 Stauder v. Ulm [1969] ECR 419.

Case 4/73 Nold v. Commission [1974] ECR 491.

Case C-94/00 Roquette Freres SA v. Directeur general de la concurrence de la consommation et de la repression des fraudes (22 October 2002, ECJ).

Cases C-6 and 9/90 Francovich v. Italy [1991] ECR 1-5357.

Craig, Paul and Grainne de Burca. 2011. EU Law: Text, Cases and Materials. 5th edition. Oxford: Oxford University Press.

Factory at Chorzow [1928] PCIJ, Series A, No. 17, 29.

Hartley, TC. 2010. The Foundations of European Union Law. 7th edition. Oxford: Oxford University Press.

Hummingbird Rice Mills v. Suriname and CARICOM [2011] CCJ 1 (OJ). Retrieved at http://www.caribbeancourtofjustice.org/judgments- proceedings/original-jurisdiction-judgments.

Johnson v. CARICAD [2009] CCJ 3 (OJ). Retrieved at http://www.caribbeancourtofjustice.org/judgments- proceedings/originaljurisdiction-judgments.

Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy. 2001. Retrieved at http://caricom.org/jsp/community/revised_treaty-text.pdf.

Saunders, Adrian D. 2010. "A Commentary on the Early Decisions of the Caribbean Court of Justice in its Original Jurisdiction." International and Comparative Law Quarterly 59: 761-778.

Shelton, Dinah. 2005. Remedies in International Human Rights Law. 2nd edition. Oxford: Oxford University Press.

Treaty on European Union. In Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (OJ C 83, 30.3.2010). http://eur-lex.europa.eu/en/treaties/index.htm.

Treaty on the Functioning of the European Union. In Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (OJ C 83, 30.3.2010). http://eur- lex.europa.eu/en/treaties/index.htm.

Tridimas, Takis. 2006. The General Principles of EU Law. 2nd edition. Oxford: Oxford University Press.

Trinidad Cement Limited and TCL Guyana Inc v. Guyana [2008] CCJ 1 (OJ). http://www.caribbeancourtofjustice.org/judgments-proceedings/original- jurisdiction-judgments.

Trinidad Cement Limited and TCL Guyana Inc v. Guyana [2009] CCJ 1 (OJ), (2009) 74 WIR 302. http://www.caribbeancourtofjustice.org/judgments- proceedings/original-jurisdiction-judgments.

Trinidad Cement Limited and TCL Guyana Inc v. Guyana [2009] CCJ 5 (OJ). http://www.caribbeancourtofjustice.org/judgments-proceedings/original- jurisdiction-judgments.

Trinidad Cement Limited and TCL Guyana Inc v. Guyana [2009] CCJ 6 (OJ). http://www.caribbeancourtofjustice.org/judgments-proceedings/original- jurisdiction-judgments.

Trinidad Cement Limited and TCL Guyana Inc v. Guyana [2010] CCJ 1 (OJ). http://www.caribbeancourtofjustice.org/judgments-proceedings/original- jurisdiction-judgments.

Trinidad Cement Limited v. CARICOM [2009] CCJ 2 (OJ), (2009) 74 WIR 319. http://www.caribbeancourtofjustice.org/judgments-proceedings/original- jurisdiction-judgments.

Trinidad Cement Limited v. CARICOM [2009] CCJ 4 (OJ), (2009) 75 WIR 194. http://www.caribbeancourtofjustice.org/judgments-proceedings/original- jurisdiction-judgments.

Usher, John. 1998. General Principles of EC Law. London: Longman.

(1) Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy (2001)

(2) See Revised Treaty Articles 28-29.

(3) See Chapter Nine of the Revised Treaty which sets out dispute settlement mechanisms, including good offices, mediation, consultations, conciliation, arbitration and adjudication.

(4) Agreement Establishing the Caribbean Court of Justice (2001), referred to as the Agreement.

(5) Revised Treaty Article 221 (paraphrased).

(6) Ibid., Article 216.

(7) Ibid., Article 215.

(8) Note that judgments of the Court can be revised in exceptional circumstances, as provided for in Article 219 of the Revised Treaty, but this does not create an appellate mechanism.

(9) Ibid., Article 221.

(10) The nine decisions discussed are as follows:

* Trinidad Cement Limited and TCL Guyana Inc [TCL and TGI] v. Guyana [2008] CCJ 1 (OJ) [interim order];

* TCL and TGI v. Guyana [2009] CCJ 1 (OJ) [grant of special leave];

* TCL v. CARICOM [2009] CCJ 2 (OJ) [grant of special leave];

* Johnson v. CARICAD [2009] CCJ 3 (OJ) [denial special leave];

* TCL v. CARICOM [2009] CCJ 4 (OJ) [judgment];

* TCL and TGI v Guyana [2009] CCJ 5 (OJ) [judgment];

* TCL and TGI v. Guyana [2009] CCJ 6 (OJ) [denial of stay of execution];

* TCL and TGI v. Guyana [2010] CCJ 1 (OJ) [contempt]; and

* Hummingbird Rice Mills v. Suriname and CARICOM [2011] CCJ 1 (OJ) [grant of special leave].

(11) Treaty on the Functioning of the European Union (TFEU) Article 259. See Craig and de Burca 2011, 432-33.

(12) It is interesting to note that the Community itself has been the respondent in three of the Court's first original jurisdiction applications under Article 211, although all three cases involved individual applications: TCL v. CARICOM [2009] CCJ 2 (OJ), TCL v. CARICOM [2009] CCJ 4 (OJ), and Hummingbird Rice Mills Limited v. Suriname and CARICOM [2011] CCJ 1 (OJ).

(13) See Article 17 of the Treaty on European Union (TEU) and Article 258 of the TFEU.

(14) Revised Treaty Article 214.

(15) Subject to Revised Treaty Article 240.

(16) This doctrine was established in Case 26/62 Van Gend en Loos [1963]. The parallel provision in the TFEU, dealing with preliminary references, is Article 267.

(17) It may be possible for the CCJ to read the doctrine of direct effect into the Revised Treaty using a teleological form of interpretation. However, Article 240 of the Revised Treaty, and the lack of any form of CARICOM legislation similar to the EU's regulation, both present obstacles to such a development. See also the discussion of the Van Gend en Loos (1963) decision, below.

(18) Revised Treaty Article 222.

(19) [2009] CCJ 1 (OJ).

(20) Ibid. [3].

(21) Ibid.

(22) Article XXIV of the Agreement and Article 32 of the Revised Treaty both use the term 'nationals' and, when read together, could have significantly limited the ability of juridical applicants to access the Court.

(23) [2009] CCJ 1 (OJ) [28] (emphasis added). The test in Barcelona Traction, Light and Power Company, Limited [1970] establishes that a company's nationality will be that of (a) the state under whose laws it is incorporated, and (b) in whose territory its registered office is located.

(24) [20091 CCJ 1 (OJ) [32-33].

(25) Ibid., [45].

(26) But see the case of Doreen Johnson v. CARICAD [2009] CCJ 3 (OJ), in which the Court refused to take jurisdiction over a suit against an institution of the Community.

(27) [2009] CCJ 1 (OJ).

(28) Ibid., [32].

(29) See TCL and TGI v. Guyana [2009] CCJ 1 (OJ), TCL v. CARICOM [2009] CCJ 2 (OJ), TCL v. CARICOM [2009] CCJ 4 (OJ), TCL and TGI v. Guyana [2009] CCJ 5 (OJ), and Hummingbird Rice Mills v. Suriname and CARICOM [2011] CCJ 1 (OJ).

(30) [2009] CCJ 1 (OJ).

(31) Ibid., [41].

(32) See generally Tridimas (2006) and Usher (1998).

(33) See eg Case 29/69 Stauder v. Uhn [1969], Case 4/73 Nold v. Commission [1974], and Case C-94/00 Roquette Freres SA v. Directeur general de la concurrence de la consommation et de la repression des fraudes (2002).

(34) TCL and TGI v. Guyana [2009] CCJ 5 (OJ) [24]-[27].

(35) [2009] CCJ 1 (OJ).

(36) Ibid., [38].

(37) Ibid., [39]-[40].

(38) Ibid., [40].

(39) Ibid., [43].

(40) Ibid.

(41) See e.g. Saunders 2010, Fn 59 (citing the unpublished manuscript of Professor Winston Anderson, "The Most Recent CCJ Decision: Cause for Relief and Concern" [2009]).

(42) [2009] CCJ 2 (OJ).

(43) Ibid., [32].

(44) [2009] CCJ 4 (OJ).

(45) Ibid., [38].

(46) Ibid.

(47) [2009] CCJ 5 (OJ).

(48) Ibid., [24] (citing Cases C-6 and 9/90 Francovich v Italy [1991], [33]- [35]).

(49) Ibid., [27].

(50) Ibid., [25]-[27].

(51) [2009] CCJ 1 (OJ).

(52) Ibid., [13].

(53) Ibid. [18].

(54) See e.g. Ibid. [14]-[15].

(55) Case 26/62 Van Gend en Loos [1963], 3.

(56) Ibid., 12.

(57) Ibid.

(58) Ibid.

(59) Cf. Hartley 2010, 205.

(60) See Arnull 1999, 77-86.

(61) TCL v. CARICOM [2009] CCJ 4 (OJ), [42]-[43].

(62) TCL and TGI v. Guyana [2009] CCJ 5 (OJ), [43].

(63) TCL v. CARICOM [2009] CCJ 4 (OJ), [81].

(64) TCL and TGI v. Guyana [2010] CCJ 1 (OJ), [25].

(65) Cf. TCL v. CARICOM [2009] CCJ 4 (OJ), [75].

(66) TCL v. CARICOM [2009] CCJ 4 (OJ), [82] (ordering payment of one half of the costs); TCL and TGI v. Guyana [2009] CCJ 5 (OJ), [46] (ordering payment of two thirds of the costs); TCL and TGI v. Guyana [2009] CCJ 6 (OJ), [15] (ordering payment of the costs of the application); TCL and TGI v. Guyana [2010] CCJ 1 (OJ), [54] (ordering payment of one half of the costs).

(67) TCL and TGI v. Guyana [2009] CCJ 5 (OJ), [13].

(68) Ibid., [18] (emphasis in original). Note that during the course of the proceedings Guyana was also unable to offer any excuses or justifications for its breach: Ibid., [29].

(69) Ibid., [19].

(70) Ibid., [33].

(71) Ibid., [39]; see also Ibid., [36]-[38].

(72) Ibid., [40].

(73) Cf. Shelton 2005, 306-14.

(74) Factory at Chorzow [1928], 29.

(75) TCL and TGI v. Guyana [2009] CCJ 6 (OJ) [9].

(76) Ibid., [15].

(77) TCL and TGI v. Guyana [2010] CCJ 1 (OJ) [29].

(78) Ibid., [25].
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