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Winston Anderson, PhD (Cantab)
Professor of International Law&
Executive DirectorCaribbean Law Institute CentreUniversity of the West Indies
Xth OAS Workshop on International Law
San Jose, Costa Rica February 2-5, 2010
GREETINGS:
Professor E Nigel Harris, Vice-Chancellor of the University of the West Indies (UWI)
UWI as a venue for future OAS Workshop on International Law
SOME ASPECTS OF CARIBBEAN COMMUNITY LAW:
Convergence of regional law and of private and public international law
OUTLINE OF PRESENTATION
Caribbean Community Law CARICOM Law and Public International Law CARICOM Law and Private International Law Role of Caribbean Court of Justice
THE CARIBBEAN COMMUNITY : FOUNDATION AGREEMENTS
The Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the CARICOM Single Market and Economy (CSME), adopted July 2001, entered into force January 2006
The Agreement Establishing the Caribbean Court of Justice (CCJ), adopted February 2001, entered into force March 2002
THE CARIBBEAN COMMUNITY: FOUNDING MEMBERS Article 3 (1), Revised Treaty:
Antigua and Barbuda (pop. 85,000) The Bahamas* (pop. 309,000) Barbados (pop. 285,000) Belize (pop. 308,000) Dominica (pop. 73,000) Grenada (pop. 90,000) Guyana (pop. 772,000) Jamaica (pop. 2,800,000) Montserrat* (pop. 5,097) St. Lucia (pop. 160,000) St. Kitts and Nevis (pop. 40,000) St. Vincent and the Grenadines (pop. 105,000) Suriname** (pop. 481,267) Trinidad and Tobago (pop. 1,230,000)
THE CARIBBEAN COMMUNITY: ACCESSION BY CARIBBEAN STATES
Article 3 (2), Revised Treaty: Haiti, (2003)*** (pop. 9,000,000)
MAP OF THE CARIBBEAN COMMUNITY
THE CARIBBEAN COMMUNITY: SOURCES OF LAW (1)
TreatiesActs of Member StatesRevised Treaty
Protocols to be adopted (Article 239)Agreements creating CARICOM InstitutionsCARICOM Regional Organization on Standards and Quality (CROSQ)
CARICOM Fisheries Mechanism (CRFM)Centre for Administration Development (CARICAD)
THE CARIBBEAN COMMUNITY: SOURCES OF LAW (2)
Legislative Acts of Organs of the CommunityPolitical institutions created by the
TreatiesConference of Heads of GovernmentCouncil for Trade and Economic
Development (COTED)Council for Foreign and Community
Relations (COFCOR)
THE CARIBBEAN COMMUNITY: SOURCES OF LAW (3)
Judgments of the CCJ
Article 221Judgment of the Court to constitute
Stare Decisis“Judgments of the Court shall constitute
legally binding precedents for the parties in proceedings before the
Court...”
AGREEMENT ESTABLISHING THE CARIBBEAN COURT OF JUSTICE, 2001 Regional Judicial and Legal Services
Commission (RJLSC)Professionals from legal, business, public
service, NGOsAppoints Judges, recommends President
CCJ Trust Fund (separate agreement)US$100 million raised on capital market by
CDBTransferred to trusteesRepayment of CDB by Member States
JURISDICTION OF THE CARIBBEAN COURT OF JUSTICE (CCJ) Appellate jurisdiction
Replace the Privy CouncilBarbados (2005), Guyana (2005)Suriname?
Original jurisdictionRevised Treaty, Articles 211-222; CCJ
Agreement, Articles XI-XXIV“Compulsory and exclusive jurisdiction”Use of CCJ by non-CARICOM States
PUBLIC INTERNATIONAL LAW AND CARIBBEAN COMMUNITY LAW
CARICOM Law most trade and trade-related disputes between CARICOM countries
Revised Treaty interpreted and applied by CCJ Apply “applicable” rules of international law
Article 38 (1), Statute of ICJRevised TreatyRegional custom/practiceNo finding of non liquetFill blanks with general international law
CSM: RIGHTS OF COMMUNITY NATIONALS
Ten (10) categories of skilled workers entitled to move to seek employment: Graduates (holders of degrees); Media workers; Sportspersons; Artistes; Musicians; Teachers; Nurses; Holders of associate degrees; Artisans with a Caribbean Vocational Qualification
(CVQ); Domestic helpers
Freedom to establish businesses Freedom to provide services Freedom to move capital
RIGHTS OF ALL PERSONS IN THE COMMUNITY
Nationals have “core” rights (above)
All persons in the Community have certain rights “peripheral” or “ancillary” to the core rights
Free movement of goods of community origin
Protection of the common external tariff (CET)
PUBLIC INTERNATIONAL LAW DISPUTES RESOLVED IN THE ORIGINAL JURISDICTION
Trinidad Cement Limited & TCL Guyana Inc. v. Republic of Guyana, [2009] CCJ 1 (OJ)
Trinidad Cement Limited v. The Community [2009] CCJ 2 (OJ)
UNRESOLVED ISSUES AT BORDER OF PUBLIC INTERNATIONAL LAW AND CARICOM LAW CCJ’s “Compulsory” and “exclusive” jurisdiction
Revised Treaty arrangements Conference, Competition Commission, (Chap. 9) Trinidad Cement Limited et al v. Guyana [2009]
CCJ
World Trade Organization (WTO) Mexico-Soft Drinks case, (US, Canada v Mexico),
WTO, 24th March 2006
European Partnership Agreements (EPA)
MATTERS AT BORDER OF PUBLIC INTERNATIONAL AND CARICOM LAW Issues falling within the scope of the Revised
Treaty Governed by regional law Compulsory and exclusive jurisdiction of CCJ
Law of the Sea Preamble (access to collective resources) Articles 58 (natural resource management); 60 (fisheries
management and development); 141 (special status of Caribbean Sea)
Caribbean Regional Fisheries Mechanism (CRFM) Barbados/Trinidad and Tobago, (2006) PCIA under Annex
VII, LOSC 1982 Guyana-Suriname, (2007) Tribunal under Annex VII,
LOSC 1982
ISSUES CONTINUING TO BE GOVERNED BY RULES OF PUBLIC INTERNATIONAL LAW?
Law of Sea Labor disputes between staff and CARICOM
Institutions (Doreen Johnson v CARICAD, [2009] OJ 3
Human rights Unfinished Agenda: Revised Treaty, Article
239: Electronic commerce Government procurement Treatment of goods produced in free zones Free circulation of goods in the CSME Contingent rights
A SPECIAL CASE: BILATERAL FREE TRADE AGREEMENTS
CARICOM-Venezuela (1992) CARICOM-Columbia (1994) CARICOM-Dominican Republic (1998) CARICOM-Cuba (2000) CARICOM-Costa Rica (2004) CARICOM in discussion with Canada (2009) CARICOM in discussions with MERCUSOR and
with SICA
CARICOM / COSTA RICA, RTA, 2004
CARICOM - Costa Rica Free Trade Agreement Signed March 2004. Free trade or preferential access for a wide range
of products Sensitive products excluded 95% of tariffs are to be phased out when the
agreement takes full effect. A limited number of products will continue to
attract duty.
BILATERAL FREE TRADE AGREEMENTS
Specialized legal rules/self-contained CARICOM is contracting party Consistency with CARICOM Principles
Less Developed Countries (LDC)Ratification in accordance with
constitutional principles Potential role of CCJ
CARIBBEAN COMMUNITY LAW AND PRIVATE INTERNATIONAL LAW
Sources of private international lawCommon lawLegislationConstitution
SOURCES OF PRIVATE INTERNATIONAL LAW CONT’D
Relevance of Public International Law:DualismCommon law could recognize International
law as “custom”Revere Copper v. Overseas Private
Investment Corporation (OPIC), 24 August 1978; 8 December 1978; 56 I.L.R.258
CENTRAL CONCEPTS IN PRIVATE INTERNATIONAL LAW
Choice of lawParty autonomy in commercial
transactions: Robinson v Bland (1760)Domicile in family law matters: Udny v
Udny (1869) Choice of courts
Presence (Maharanee of Baroda [1972])Extended jurisdiction (Ord. 11; CPR)
Foreign judgment Jurisdiction of foreign courtFinal and conclusive
IMPORTANCE OF PRIVATE INT’L LAW
Financial and economic growth and developmentSimpson v. McCallum (1869) Supreme Court of Jamaica
International trade Offshore financial sector (BVI, The Bahamas) Direct foreign investment Transnational marriages Succession
THE ENGLISH INFLUENCE Settlers brought “all such laws of England as
would be necessary to their new condition” : Stulz v Wallace [1839] Supreme Court Jamaica
Caribbean statutes adopt legislative changes made by English parliament in private international law rules: Mills v Mills [1975] Supreme Court of The Bahamas
Recognition and enforcement of foreign and commonwealth judgments a codification of English position: Sardina v Johnson [1977] Supreme Court of Barbados
LIMITED REFORM OF PRIVATE INT’L LAW Forum non conveniens
Common law reform of jurisdictional rules No distinction between Caribbean and ‘foreign’
cases Continued application even with UK now in the EU
Domicile Legislative reform Approximate domicile with “home” Adoption of alternative factors: residence, nationality
Foreign judgments Legislation Codification of common law
IMPACT OF CARIBBEAN COMMUNITY LAW 1
Choice of courts and the Caribbean Court of Justice:
Appellate jurisdictionUltimate supreme courtUnify rules of jurisdictionAllocate competence in transnational
cases
Original jurisdiction ‘compulsory’ and ‘exclusive’
IMPACT OF CARIBBEAN COMMUNITY LAW 2
Choice of Law and the Caribbean Court of Justice
Appellate jurisdictionApply national law from which the appeal
comesPersuasive value throughout Community Joseph and Boyce v Attorney General
[2006]
Original jurisdiction ‘applicable rules of international law’Article 217, Revised Treaty, Article XVII,
CCJ Agreement
IMPACT OF CARIBBEAN COMMUNITY LAW 3
Foreign Judgments and the Caribbean Court of Justice
CCJ judgment to be enforced in national systems As if made by superior court of state Power to punish for contempt Article XXVI, CCJ Agreement Rules of Court (CCJ)
Registrars of Supreme Court Deputy registrar of CCJ Article XXVII, CCJ Agreement
PRIVATE INTERNATIONAL LAW CASES RESOLVED IN CCJ ORIGINAL JURISDICTION
Trinidad Cement Limited & TCL Guyana Inc. v. Republic of Guyana, [2009] CCJ 1 (OJ)
Trinidad Cement Limited v. The Community [2009] CCJ 2 (OJ)
CONCLUSIONS (1) Founding of Caribbean Community
profoundly impacts Public Int’l Law
Creates specialized community of states with rules derogating from general PIL
Unresolved questions at intersection:Some matters resolved by Caribbean Int’l
LawForum is the CCJPotential for other states to use CCJSome matters remain to be resolved by
general Public International Law
CONCLUSIONS (2)
Establishment of Caribbean Community has profound effects on Private International LawChoice of courts Choice of lawsForeign judgments
In future, most private international law questions in the region will be resolved by Caribbean Court of Justice
CONCLUSION (3)
OAS contribution to reform of public and private international law should :
Consider implications of Community Law
Consider University of the West Indies as partner/conduit
Involve the CCJ
MUCHAS GRACIAS!