Suchergebnisse

There are elements in the Caribbean who hold the view that the independence project could not be deemed complete until the Privy Council was replaced as the final court of appeal for the Caribbean by an indigenous body. The arguments advanced for abolition of the former imperial court are varied. The most important is that one cannot be half-independent; one was either independent and sovereign or not. One could not demand one's political and economic independence and remain subject to a foreign colonial court. Legal independence was the logical capstone of political independence. As Jamaica's Prime Minister P.J. Patterson expressed it, "if we are fit to enact our own laws, we should be fit to interpret them ourselves" (cited in Vasciannie 1996:2). Patterson was even more explicit in an address given February 2000, when he asked:Can our sovereignty be completewhen the final word on the law asan essential ingredient in thefunctioning of our state is still thesubject of external decision-makingand interpretation by a . court thatis not indigenous? (cited inVasciannie 1998:47)This view had been endorsed by the Organisation of Commonwealth Bar Associations at its Sixth Biennial Meeting in Jamaica in 1970. One notes that several former colonial states have abolished appeals to the Privy Council. Among them are Grenada, Guyana, Australia, India, Canada, Cyprus, Ghana, Nigeria, Tanzania, Malaysia, Kenya and Zanzibar. It is however worth noting that being sovereign also means that a state can share responsibilities with another state or with some other regional or international body. It could also contract out functions to some extra-territorial agency, including bodies like the Caribbean Court of Justice or the Privy Council. Sovereignty could thus be devolved and reclaimed (Vasciannie 1998: 45-51).

Not all international and regional courts survive the test of time. There is more literature on those that did as compared with those that failed. The Caribbean Court of Justice (CCJ) created in 2001 is today at a juncture where the usefulness and longevity of the Court sometimes comes into question by legal theorists and legal practitioners given the apparent lentitude of political adhesion to its appellate jurisdiction by some regional states. There has been substantial debate in the region over the readiness of the region to embrace the Court's appellate jurisdiction, it centres on perceptions and debates around legitimacy, representativeness, bias, independence and indigenous jurisprudence. To understand and contextualise the apparent difficulties that this young court faces, this article puts these debates within the wider international relations contexts of regionalism and the growth and demise of regional and international courts. Within this context, four factors contribute to our understanding of the value and success, or lack thereof, of regional courts: the nature of their historical evolution; adverse public opinion on their legitimacy; the extent to which powerful states do not feel threatened by them and allow their development and the economic and political contexts within which they develop.

The inauguration of the Caribbean Court of Justice in April 2005 represented the culmination of aspirations in earlier years to establish a court of last resort for the Caribbean Region to replace the Judicial Committee of the Privy Council (The Privy Council) which was and still is for most Commonwealth Caribbean jurisdictions, the final court. These aspirations were endorsed by the legal profession through the Organisation of Commonwealth Caribbean Bar Associations (OCCBA) over thirty years ago, although the idea of such a court was not an original one having been contemplated early in the last century. The court was envisaged as a Caribbean Court of Appeal with an appellate jurisdiction hearing appeals from domestic appellate courts and an original jurisdiction to interpret regional treaties.

CARICOM, which is one of the oldest regional integration organizations in the developing world, has recently been transformed by the decision of its Member States to move to the next level of integration by establishing a CARICOM Single Market and Economy (CSME) under the Revised Treaty of Chaguaramas (RTC) and by investing the Caribbean Court of Justice (CCJ) with a compulsory and exclusive jurisdiction to interpret the RTC. The Preamble of the RTC affirms that the CCJ is essential for the successful operation of the CSME, but much will depend on how the CCJ approaches the exercise of its original jurisdiction. With the delivery of the CCJ's first two judgements in the exercise of its original jurisdiction, it has been possible to gain a valuable insight into the judges' approach towards the interpretation of the RTC and to the right of individuals and businesses to hold Member States accountable for their failure to comply with the requirements of the RTC by bringing proceedings directly before the CCJ.

Notes that we need urgently a Caribbean Court of Justice to adjudicate on disputes arising within the Caribbean Community. We need urgently this judicial forum whether the litigants are two or more States, an individual and a 'public authority', two or more individuals, or a State and a Community organ. The Caribbean Single Market and Economy, when it is established, will create a new legal order within the space attributed to the member states of CARlCOM. This new order must be founded on respect for democratic values and the rule of law if the Caribbean People are to remain faithful to the cornerstone of their respective constitutions. In this new enterprise, the Caribbean Court of Justice has a pivotal role to play.

An Appellate Jurisdiction, which addresses municipal law cases on appeal from countries which accept this jurisdiction. To date, four Caribbean countries—Barbados, Guyana, Belize and Dominica—have accepted the appellate jurisdiction of the Court. The applicable law for each case under the appellate jurisdiction is the national law of the state from which the appeal emanates. The CCJ in its Appellate Jurisdiction is intended to replace the Judicial Committee of the Privy Council as the final court of appeal for Caribbean countries which were formerly British colonies.

The Revised Treaty of Chaguaramas ('the RTC') is an attempt on the part of a group of Caribbean States to respond in a collective manner to the pressing challenges posed by the forces of globalization and liberalization. The RTC seeks, inter alia, to deepen regional economic integration through the establishment of a Caribbean Community ('CARICOM') including a CARICOM Single Market and Economy ('CSME'). The States in question—Antigua & Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St Kitts and Nevis, Saint Lucia, St Vincent and the Grenadines, Suriname and Trinidad & Tobago—are for the most part former British colonies that gained their independence in the 1960s and 1970s. The RTC signals yet another important step in the tortuous path taken by these Anglophone Caribbean States 'to avoid the looming threat of marginalization'1 following the failure in 1962 of the West Indies Federation.2 Significantly, this latest step is being taken side by side with the non English speaking civil law States of Haiti and Suriname thereby adding a new and interesting dimension to the integration process.

In this paper the Hon. Mme. Justice Desiree P. Bernard (Judge, Caribbean Court of Justice and 2013 Inns of Court Fellow at the Institute of Advanced Legal Studies) outlines the history of co-operation in the Caribbean Region and considers how changes in the treaty which established the Caribbean Community, including the Caribbean Common Market (CARICOM), impact on the work of the Caribbean Court of Justice and the continuing development of the international organisations and institutions designed to support united political and economic collaboration in the Caribbean Region.