ENFORCEABILITY OF ORIGINAL JURISDICTION DECISIONS
Dr.. David S Berry
Dean of Law
Faculty of Law , University of the West Indies, Cave Hill Campus, Barbados
Email: [email protected]
Third Biennial CALCA Seminar on Law, Port of Spain, December 2‐4, 2014
OVERVIEW
 Central issue – enforcing international legal obligations against sovereign states
 Nature of the Court – its twin jurisdictions  Potential mechanisms for enforcement of original jurisdiction decisions
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Self‐enforcing
Domestic legislation
National courts and tribunals
CCJ’s Appellate Jurisdiction
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CENTRAL ISSUE
 Under its original jurisdiction the Caribbean Court of Justice (CCJ) has original, compulsory, exclusive and final decision‐making authority.
 Can an original jurisdiction decision/order be enforced?  How?
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CENTRAL ISSUE
 For example, how can the Court ensure that  Guyana re‐imposes the CET on cement?
 Barbados pays damages to Ms. Shanique Myrie?
 Trinidad and Belize (possibly) repeal their laws?
 The defendants here are all sovereign states
 The CCJ has no Marshall, no Bailiff, no judicial police unit, to enforce its decisions…
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CENTRAL ISSUE
 Four possibilities:
 Self‐enforcing – Member States obey CCJ’s decisions directly
 Domestic legislation – provides for enforcement (express or by implication)
 National courts and tribunals – assist the Court with enforcement  Through CCJ’s Appellate Jurisdiction – non‐enforcement becomes appealable issue
 Before exploring these potential enforcement mechanism let us briefly examine the nature of the Court
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TWIN JURISDICTIONS: ORIGINAL
 CCJ acts as both:  A treaty‐interpreting tribunal (Original Jurisdiction)  In this role it acts as a regional tribunal, like the European Court of Justice, empowered to interpret and apply international law – final interpreter of the Revised Treaty of Chaguaramas (‘RTC’, 2001)
 A final Court of Appeal (Appellate Jurisdiction)
 In this role it serves as a final or supreme court, like the Judicial Committee of the Privy Council or the Supreme Court of Canada – final interpreter of domestic law –
provided for in Agreement Establishing the Caribbean Court of Justice (‘CCJ Agreement’, 2001)
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TWIN JURISDICTIONS: ORIGINAL
 Original jurisdiction: Revised Treaty of Chaguaramas (‘RTC’)
 Article 211: Jurisdiction over disputes between:
 Member States
 Member States and the Community (and vice versa)
 Referrals from national courts
 Applications by persons
 Article 212
 Advisory opinions concerning the interpretation or application of the RTC brought by Member States parties to the dispute or the Community
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TWIN JURISDICTIONS: APPELLATE
 Appellate Jurisdiction: CCJ Agreement, Article XXV:
 1. In the exercise of its appellate jurisdiction, the Court is a superior Court of record with such jurisdiction and powers as are conferred on it by this Agreement or by the Constitution or any other law of a Contracting Party.  2. Appeals shall lie to the Court from decisions of the Court of Appeal … as of right in the following cases [paraphrased]: 
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(a) final decisions in civil proceedings; (b) final decisions for dissolution or nullity of marriage; (c) final decisions for interpretation of the Constitution; (d) final decisions for protection of fundamental rights; (e) final decisions for questions for which a right of access to the superior court of a Contracting Party is expressly provided by its Constitution;  (f) such other cases as may be prescribed by any law of the Contracting Party. 12/4/2014
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TWIN JURISDICTIONS: APPELLATE
 3. An appeal shall lie to the Court with the leave of the Court of Appeal … in the following cases:  (a) final decisions in any civil proceedings where the question is one of great general or public importance; and
 (b) such other cases as may be prescribed by any law of the Contracting Party.  4. Subject to paragraph 2, an appeal shall lie to the Court with the special leave of the Court from any decision of the Court of Appeal of a Contracting Party in any civil or criminal matter. …
 6. The Court shall, in relation to any appeal to it in any case, have all the jurisdiction and powers possessed in relation to that case by the Court of Appeal of the Contracting Party from which the appeal was brought. 12/4/2014
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ENFORCEMENT IN INTERNATIONAL LAW
 Enforcement of international legal obligations in general
 Louis Henkin, in How Nations Behave (1968), at p. 42, famously explained that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”
 Key: most states comply without external compulsion
 Exception – obedience can be compelled (rarely) – i.e., UN Security Council Resolutions acting under Chapter VII of the UN Charter
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ENFORCEMENT IN INTERNATIONAL LAW
 States also can engage in forms of self‐help to ensure respect for international law:  Countermeasures – an illegal action (response) by a state that is rendered lawful because it is in retaliation to a prior illegal action. See e.g., Articles 49‐54 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001)
 Retorsion – an unfriendly, but legal act, in retaliation for an action by another state (whether legal or illegal)
 Note: countermeasures and/or retorsion could be taken in relation to non‐compliance with any international legal obligation by another state, including with a judgment of an international court
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ENFORCEMENT BY OTHER INTERNATIONAL TRIBUNALS
 International tribunals for the most part rely upon voluntary compliance by states. The international judgment imposes an obligation upon the Executive, which must find ways to comply
 Exception: Under Article 94 (2) of the UN Charter if one of the states that is a party to a case before the International Court of Justice fails to comply with the judgement or the orders of the court, the other party may refer the matter to the UN Security Council. The UN Security Council, acting under Chapter VII of the Charter, may authorise coercive measures
 General practice – states largely comply with international judgments
 Exceptions – i.e., in the Corfu Channel Case – took approximately 30 years for Albania to pay damages awarded by the International Court of Justice to the UK.  [Note: paid, but late.]
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RATIONALE FOR COMPLIANCE: RECIPROCITY
 Compliance by states with their international legal obligations is based to a large extent on the idea of reciprocity.  If a state breaks a rule of international law then it will be worried that it has created a precedent which will be followed by other states and may in the future be used against itself.  As summarised by Higgins, in Problems and Process: International Law and How We Use It (1994) at p. 16: “It rarely is in the national interest to violate international law, even though there might be short‐term advantages in doing so.” 12/4/2014
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SELF‐ENFORCEMENT: NATURE OF THE OBLIGATION
 Do Original Jurisdiction decisions create full (complete) international legal obligations, capable of self‐enforcement like other norms of international law?
 CCJ Agreement, Article XV, Compliance with Judgments of the Court  Member States, Organs, Bodies of the Community or persons to whom a judgment of the Court applies, shall comply with that judgment.  Revised Treaty of Chaguaramas , Article 9, General Undertaking on Implementation
 Member States shall take all appropriate measures, whether general or particular, to ensure the carrying out of obligations arising out of this Treaty or resulting from decisions taken by the Organs and Bodies of the Community. They shall facilitate the achievement of the objectives of the Community. They shall abstain from any measures which could jeopardise the attainment of the objectives of this Treaty.
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SELF‐ENFORCEMENT: NATURE OF THE OBLIGATION
 Revised Treaty of Chaguaramas, Article 215, Compliance with Judgments of the Court
 The Member States, Organs, Bodies of the Community, entities or persons to whom a judgment of the Court applies, shall comply with that judgment promptly.
 Vienna Convention on the Law of Treaties (1969)
 Article 26, Pacta sunt servanda
 Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
 Article 27, Internal law and observance of treaties
 A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
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SELF‐ENFORCING
 Result: The obligation to obey a decision of the CCJ, acting under its original jurisdiction, is a complete obligation under international and regional law. It is enshrined in two regional treaties, and supported by the general international norm of pacta sunt servanda. CCJ decisions must therefore be understood to be self‐
enforcing. The Executive must implement them in the same manner as any other international legal obligation.  Non‐compliance will attract international censure.
 Practical mechanisms in face of continued non‐compliance?
 Ostracism by other Member States
 Decision of organ of CARICOM to allow other member states to sanction delinquent state?
 Countermeasures and retorsion
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DOMESTIC LEGISLATION
 CCJ Agreement, Article XXVI : Enforcement of Orders of the Court  The Contracting Parties agree to take all the necessary steps, including the enactment of legislation to ensure that:  (a) all authorities of a Contracting Party act in aid of the Court and that any judgment, decree, order or sentence of the Court given in exercise of its jurisdiction shall be enforced by all courts and authorities in any territory of the Contracting Parties as if it were a judgment, decree, order or sentence of a superior court of that Contracting Party;  (b) the Court has power to make any order for the purpose of securing the attendance of any person, the discovery or production of any document, or the investigation or punishment of any contempt of court that any superior court of a Contracting Party has power to make as respects the area within its jurisdiction. 12/4/2014
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DOMESTIC LEGISLATION
 Obligation is to ensure enforceability of judgments and orders of the Court. Also mandated by RTC Article 9:
 Member States shall take all appropriate measures, whether general or particular, to ensure the carrying out of obligations arising out of this Treaty or resulting from decisions taken by the Organs and Bodies of the Community. They shall facilitate the achievement of the objectives of the Community. They shall abstain from any measures which could jeopardise the attainment of the objectives of this Treaty.
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DOMESTIC LEGISLATION
 Two methods of ensuring compliance with judgments:
 Enact specific enforcement legislation for original jurisdiction decisions of the CCJ – i.e., amendment to statutory framework for domestic courts to allow for enforcement? If so, this would allow speedy and efficient enforcement.
 What if the state has not enacted any specific legislation? No enforcement?
 Note that all Member States have enacted legislation to bring both the CCJ Agreement and RTC into force in their domestic legal system:
 CARICOM Acts
 CCJ Agreement Acts
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DOMESTIC LEGISLATION / NATIONAL COURTS AND TRIBUNALS
 What is the effect of this transformation legislation?
 Even if the CCJ Agreement was transformed simply by including the treaty as a ‘Schedule’ in the Act, it can be argued that Member States have thereby brought into force in domestic law the international legal obligation in CCJ Agreement to ensure enforceability of CCJ decisions. CCJ Agreement Article XXVI (Enforcement of Orders of the Court) provides:
 The Contracting Parties agree to take all the necessary steps, including the enactment of legislation to ensure that:  (a) all authorities of a Contracting Party act in aid of the Court and that any judgment, decree, order or sentence of the Court given in exercise of its jurisdiction shall be enforced by all courts and authorities in any territory of the Contracting Parties as if it were a judgment, decree, order or sentence of a superior court of that Contracting Party; …
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DOMESTIC LEGISLATION / NATIONAL COURTS AND TRIBUNALS
 Questions
 Would such a provision in a CCJ Agreement Act be enough for a domestic tribunal to rely upon to enforce an original jurisdiction order of the CCJ?  In the alternative, would it be necessary to amend the specific national legislation which empowers courts and tribunals?
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NATIONAL COURTS AND TRIBUNALS
 In any event, national courts would most likely need to be involved in the enforcement of original jurisdiction decisions (unless specifically excluded by legislation).
 If party attempts to lodge an original jurisdiction order with the High Court, or somehow seeks to invoke legal consequences of an original jurisdiction decision in domestic litigation, how should a domestic tribunal respond?
 National courts should rely upon the referral procedure to raise the question before the CCJ. 12/4/2014
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NATIONAL COURTS AND TRIBUNALS
 Referral Jurisdiction  Under RTC Article 214 courts may refer questions concerning the ‘interpretation or application’ of the RTC to the CCJ
 Note that any proceedings through which a party seeks to enforce an original jurisdiction decision of the CCJ would automatically concern the interpretation or application of the RTC and thus could be subject to referral.
 Referred questions would be answered by the CCJ , helping the national court to decide the case.
 In its referral decision the CCJ would most likely explore the legal consequences of its own original jurisdiction judgments or orders in domestic legal systems.
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NATIONAL COURTS AND TRIBUNALS
 Potential consequences of referral question – enforcement of obligation by national courts as matter of Community law
 The ECJ has developed a number of doctrines, primarily through its preliminary reference procedure, which allow EU law to have substantial impact within the laws of its Member States. These doctrines could be established by the CCJ so as to allow national courts to uphold Community obligations in domestic law (including obligations imposed by a judgment of the CCJ in its original jurisdiction).
 Direct effect – see Case 26/62 NV Algemene Transport‐en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. The ECJ held at p 13 that ‘Court held that ‘according to the spirit, the general scheme and the wording of the Treaty, Article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect.’
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NATIONAL COURTS AND TRIBUNALS
 Indirect effect / conform interpretation – see Case 14/83 Von Colson and Kamann v Land Nordrhein‐Westfalen [1984] ECR 1891 (ECJ). ECJ held at para 26 that ‘national courts are required to interpret their national law in the light of the wording and the purpose of the [EU legal act]’ in order to achieve the required result .
 See Shanique Myrie v Barbados [2013] CCJ 3 (OJ) (merits) at [54] – administrative or judicial implementation of RTC obligations. At para [80] the CCJ held:  [80] A violation of Community law is not so much caused by the existence of domestic laws that seemingly contradict it but by whether and how these laws are applied in practice. The Court observes in this respect that the domestic courts of Barbados, including this Court in its appellate jurisdiction, are constrained to interpret domestic laws so as, if possible, to render them consistent with international treaties such as the RTC.
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NATIONAL COURTS AND TRIBUNALS
 Supremacy of Community law – see Case 6/64 Costa v ENEL [1964] ECR 585 (ECJ). The ECJ held at pp 593‐4:  By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. […]  It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.
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NATIONAL COURTS AND TRIBUNALS
 Supremacy of Community law
 E.g., in Shanique Myrie v Barbados [2013] CCJ 3 (OJ) (merits) at [69] the CCJ held:  [69] Implementation of the very idea and concept of a Community of States necessarily entails as an exercise of sovereignty the creation of a new legal order and certain self‐imposed, albeit perhaps relatively modest, limits to particular areas of State sovereignty. Community law and the limits it imposes on the Member States must take precedence over national legislation, in any event at the Community level.
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NATIONAL COURTS AND TRIBUNALS
 Interpretation of other domestic legislation
 National courts could interpret domestic legislation (i.e., Supreme Court of Judicature Act) in light of more recent domestic legislation which incorporates RTC and CCJ Agreement obligations (CARICOM Acts and CCJ Agreement Acts)
 Arguable that CCJ Agreement Acts implicitly amended or repealed national legislation so as to empower national courts to enforce the CCJ’s original jurisdiction decisions.
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NATIONAL COURTS AND TRIBUNALS
 Interpretation of other domestic legislation
 CCJ hints at this approach in Rudisa Beverages & Juices NV v Guyana [2014] CCJ 1 (OJ) (merits), at para [20]:
 [20] … Article 9 of the RTC clearly requires Member States to take appropriate measures to carry out their treaty obligations. Indeed, in this case, it would seem that it was open to the Government of Guyana to conform to its treaty obligations by ceasing to collect the environmental tax on non‐returnable beverage containers which qualify for Community treatment on the premise that s 8(1) of Guyana’s Caribbean Community Act [2006] had impliedly repealed the relevant provision of the Customs Act [amended 1995] in so far as the latter applies to imports from CARICOM States. 12/4/2014
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NATIONAL COURTS AND TRIBUNALS
 Legitimate Expectations
 In its appellate jurisdiction the CCJ has highlighted the potential role of the doctrine of legitimate expectations as a way of enforcing unincorporated international legal obligations
 AG v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104 (BDS)  British Caribbean Bank v AG [2013] CCJ 4 (AJ) (BZE)
 Could legitimate expectations play an even stronger role in relation to incorporated obligations (CCJ Agreement Acts)?
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APPELLATE JURISDICTION
 Acting under its Appellate Jurisdiction the CCJ can correct any improper interpretation of domestic law by a lower court.
 Nevertheless in order for the CCJ to hear a case under this jurisdiction it requires an appeal from domestic decision.  Enforcement of an original jurisdiction decision/order depends upon such a decision/order coming before a national court and being included in the appeal to the CCJ as the final Court of Appeal. This may happen in two cases:
 Enforcement of original jurisdiction judgment/order arises in national proceedings – appeal of enforcement issue
 Referral question is not asked in such proceedings – appeal of referral decision
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APPELLATE JURISDICTION: CORRECTIVE CHECK
1. Appeal re enforcement of original jurisdiction decision
National tribunal –
asked to enforce CCJ original jurisdiction decision
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Enforces // does not enforce
Appeal to Court of Appeal
Appeal to CCJ (Appellate Jurisdiction)
• Question of national law whether original jurisdiction decision enforceable
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APPELLATE JURISDICTION: CORRECTIVE CHECK
2. Non‐referral
Question referred to CCJ
• Court provides opinion
National tribunal –
asked to enforce CCJ original jurisdiction decision (question about role of RTC or CCJ Agreement)
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Appeal
Question not
referred to CCJ
• Question of law whether lower court required to have referred
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CONCLUSIONS
 Several possible mechanisms through which original jurisdiction decisions of the CCJ can be enforced. Spectrum:
 Conservative
New / existing legislation
Traditional self‐
enforcing
 Executive implementation
 Creation of new ‘judgment enforcement’ legislation
EU‐style doctrines
CCJ decision
 Moderate
 Interpret existing legislation
 Bold
 Referral  Create EU‐style doctrines (direct effect, indirect effect, supremacy)
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National courts
Referral
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CONCLUSIONS
 Given the range of mechanisms for enforcement, perhaps the focus should be less on immediate enforceability and more on developing a wider public understanding of the role and potential of international tribunals, including the CCJ.
 Effectiveness in this sense must be assessed over time.
 Greater understanding, by state officials and the wider public, should aid in the development of the Court’s jurisprudence. More work needs to be done in this area.
Thank you.
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