By

Mark D. Griffith, B.A (Hons.) Ph.D.; LLB (Hons.) LLM; MCIArb.

THE REVISED TREATY: A NEWFRAMEWORK FOR ENVIRONMENT

AND NATURAL RESOURCES MANAGEMENT IN THE CSME ZONE

OUTLINE

A NEW LEGAL ORDER

CORE ENVIRONMENTAL PRINCIPLES AN INCOMPLETE LEGAL AND INSTITUTIONAL FRAMEWORK

ACCESS TO THE COURT

INVESTMENT AND MEAs

1. International Environmental Law

Caribbean Community Environmental Law

Sub-set: Caribbean Community Law

2. National Environmental Law

STREAMS OF ENVIRONMENTAL LAW

THE BASIS FOR THE PROPOSITION

The Revised Treaty provides a new framework for Environment and Natural Resources Management in the CSME Zone.

What are the Principles of Environmental Law which underpins the RT which provide the basis for the development of a corpus of law called the Caribbean Community Environmental Law.

“by signing and ratifying the RT and conferring on the Court ipso facto a compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the RT, 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.. “

TCL v The Caribbean Community [2009] CCJ 2 (OJ)

A NEW LEGAL FRAMEWORK

THE BASIS OF THE RULE BASED SYSTEM

“... the regional legal system 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”.

TCL v The Caribbean Community [2009] CCJ 4

PRODUCTION INTEGRATION POLICY FRAMEWORKS

Community Industrial Policy (CIP) (Articles 51-55, RT)

Community Agricultural Policy (CAP) (Articles 56-61, RT)

A THIRD DIMENSION

“… a third dimension—the protection of human, animal and plant life or heath and the sustainable management and utilisation of the Community’s natural resources—can be carved out, incorporating elements from both the CIP and the CAP” Griffith and Oderson, 2009

COMPONENTS OF THE THIRD DIMENSION

“This dimension includes, but not limited to, environmental protection; natural resources management, including forests and oceans; land management and rural development; biodiversity and intellectual property elements of biodiversity; sustainable tourism development and a range of environmental measures including standards and technical regulations. It also includes the use of the general exceptions, by Member States, pursuant to Article 226.RT, to justify RT inconsistent measures, but only if such measures do not constitute arbitrary or unjustifiable discrimination between Member States where like conditions prevail, or a disguised restriction on trade within the Community. It also includes the range of environmental related activities, pursuant to Article 111.1.(d).RT, which could benefit from subsidies, under certain circumstances”. Griffith and Oderson, 2009

CONFIRMATION

Caribbean Community Environmental Policy and Natural Resources Policy Framework

CORE ENVIRONMENTAL PRINCIPLES

Sustainability and environmental protection; Precautionary principle; Polluters pay principle (PPP) Prevention Source principle Co-operation Protection of the rights of indigenous peoples Non-discrimination.

SUSTAINABILITY

“promote the development, management and conservation of the forest resources in Member States on a sustainable basis,” Article 61.RT

“the efficient management and sustainable exploitation of the Region’s natural resources, including forest and the living resources of the economic exclusive zone,” Article 56.(1).(f). RT

“effective measures to assist Member States in the management of natural resources in support of the transformation and sustainable development of the agricultural sector” Article 58.(1).RT

SUSTAINABILITY

1.The Parties reaffirm that the objective of sustainable development is to be applied and integrated at every level of their economic partnership,…… especially the general commitment to reducing and eventually eradicating poverty in a way that is consistent with the objectives of sustainable development.

2.The Parties understand this objective to apply in the case of the present Economic Partnership Agreement as a commitment that:

(a) the application of this Agreement shall fully take into account the human, cultural, economic, social, health and environmental best interests of their respective population and of future generations;

(b) decision-taking methods embrace the fundamental principles of ownership, participation and dialogue.

3. As a result of Parties agree to work cooperatively towards the realization of a sustainable development centred on the human person, who is the main beneficiary of development.. [Emphasis added] Article 3.CARIFORUM/EU EPA

ENVIRONMENTAL PROTECTION INCLUDING THE PROTECTION OF HUMAN, ANIMAL OR PLANT LIFE

“…the effective management of the soil, air and all water resources, the exclusive economic zone and all other maritime areas under the national jurisdiction of the Member States,” Article 58.2.(a).RT

ENVIRONMENTAL PROTECTION INCLUDING THE PROTECTION OF HUMAN, ANIMAL OR PLANT LIFE

1. The policies of the Community shall be implemented in a manner that ensures the prudent and rational management of the resources of Member States. In particular, the Community shall promote measures to ensure:

(a) the preservation, protection and improvement of the quality of the environment;

(b) the protection of the life and health of humans, animals and plants;

(c) the adoption of initiatives at the Community level to address regional environmental problems. [Emphasis added].

CREATION OF AN ENABLING ENVIRONMENT FOR THE FURTHER GROWTH ON THE ENVIRONMENTAL INDUSTRY IN THE CSME ZONE

LEGAL AND INSTITUTIONAL STRUCTURE INCOMPLETE

CARICOM COMMISSION [COMMISSIONER FOR ENVIRONMENT] [legislative, administrative, executive and judicial powers and be supra-national in character, be

independent and selected on the basis of competence, expertise and experience]

LEGAL MEANS FOR TRANSLATING DECISIONS INTO COMMUNITY LAW- SECONDARY LEGISLATION

[regulations, directives and decisions]

COMMUNITY OWN RESOURCES

ACCESS TO THE COURT

Advisory Opinion When a dispute arises which requires clarification on the interpretation

and application of the provisions of the RT, the Community has at its disposal, pursuant to Article 212.RT, a powerful mechanism, in the form of the “Advisory Opinion”; for which, the CCJ have exclusive jurisdiction to deliver, at the request of the Member States parties to a dispute or the Community. This mechanism can be used by the Community to propel the integration process forward. However, there seem to be a high degree of reluctance on the part of the Community to use this mechanism in the interests of the Community. Griffith and Oderson, 2009

NATIONAL COURTS OR TRIBUNALS

National courts or tribunals of a Member State have the power to make referrals to the Court under Article 214.RT.

For the purpose of Chapter Nine of the RT on “Dispute Resolution” under which Article 214.RT appears, “national courts” includes the Eastern Caribbean Supreme Court.

 

PRINCIPLE: NECESSITY

Where an issue whose resolution involves a question concerning the interpretation or application of RT, the court concerned, shall if it considers that a decision on the question is necessary to enable it to deliver judgment, refer the question to the CCJ for the determination before delivering judgment.

PRESONS NATURAL OR JURIDICAL

The expression “persons, natural or juridical, of a Contracting Party” as employed in Article 222.RT does not means nationals of a Contracting Party as defined in Article 32(5)(a) of the RT.

TCL and TCL Guyana Inc. v The State of Co-operative Republic of Guyana [2009] CCJ 1 (OJ) at [28].

SPECIAL LEAVE

Special leave is available to private entities to allow them to appear in proceeding before the CCJ, however they must situate themselves within the meaning of “persons, natural or juridical” as defined in Article 222.RT.

ESTABLISHMENT OF AN ARGUABLE CASE :Re: Article 222 (a) and (b)

It is sufficient for the applicant merely to make out an arguable case that each of these two conditions mandated by Article 222(a) and 222(b).RT can or will be satisfied at the substantive hearing.

Trinidad Cement Limited TCL Guyana Incorporated v The State of the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) at [33]  

QUALIFIED ACCESS

“persons, legal and juridical” of a Contraction Party have qualified access the Court, in their own right. It is therefore sufficient for an entity to be incorporated or registered in a Contracting Party to come within this meaning.

Trinidad Cement Limited and TCL Guyana Incorporated v The State of the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) at [20]

INVESTMENT AND ENVIRONMENTAL PROTECTION

1. Parties agree not to encourage trade or foreign direct investment to enhance or maintain a competitive advantage by:

(a) lowering the level of protection by provided by domestic environmental and public health legislation;

(b) derogating from, or failing to apply such legislation.

2. The Parties and the Signatory CARIFORUM States commit to not adopting or applying regional or national trade or investment-related legislation or other related administrative measures as the case may be in a way which has the effect of frustrating measures intended to benefit, protect or conserve the environment or natural resources or to protect public health. [Emphasis added], Article 188.CARIFORUM/EU EPA which

RESPONSIBILITY OF THE INVESTOR

Investors do not manage or operate their investments in a manner that circumvents international environmental or labour obligations arising from agreements to which the EC Party and the Signatory CARIFORUM States are parties.

THANK YOU

THANK YOU

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