Nested Communities:

The Implications of a Changing CARICOM for St. Kitts and Nevis

David S. Berry, 2000

Faculty of Law, University of the West Indies, Cave Hill Campus

P.O. Box 64, Bridgetown, Barbados.

Tel: (246) 417-4243. Fax: (246) 424-1788.

Internet: http://law.uwichill.edu.bb/davidberry

E-mail: David.Berry@uwichill.edu.bb

Introduction

The Caribbean possesses three regional organisations, the Organisation of Eastern Caribbean States (OECS), the Caribbean Community and Common Market (CARICOM), and the Association of Caribbean States (ACS). Due to the special historical, political and economic character of the region, each organisation primarily focuses upon economic, rather than political, forms of integration. Membership in all three organisations overlaps to a significant extent (as can be seen from the list of members in the appendix).

Two questions should arise when one looks at these organisations as a group. Firstly, why do all three exist? Secondly, if they must exist, why do they not come into conflict with one another? These questions arise because even though each organisation accomplishes a few unique objectives, all three reproduce many of the same functions. Since the Caribbean region is made up primarily of developing states, this would seem to involve a significant waste of resources. This concern re-emerged recently in the media in the context of a proposed South Commission, with Prime Minister Owen Arthur of Barbados questioning the need for membership in this new organisation.¹ This paper will answer these two questions and then raise and answer a third, namely, are these three organisations likely to conflict in the future?

The first question will be addressed by briefly looking at the historical development of regional integration in the Caribbean. A good case also can be made for the present, simultaneous existence of the OECS, CARICOM and the ACS on the basis of such factors as functional efficiency and political reality. The second question requires an in-depth examination of the basic provisions of the OECS, CARICOM and ACS treaties. Each constituent treaty sets out rights and obligations between the Member States, some of which overlap with those created by the other two treaties. As with three cooks in a kitchen attempting to prepare a single meal, it is hard to conceive of a lack of conflict. But in fact, as I will demonstrate by looking at the way the three organisations function, this is substantially the case. The final question regarding future conflict, however, is more interesting in the light of recent developments related to CARICOM. The nine new Protocols amending the CARICOM Treaty and Annex, as well as the likely creation of a Caribbean Court of Justice, create a greater potential for conflict. Since St. Kitts and Nevis is a Member State of all three regional organisations, it could be easily affected by any such conflict.

Let me preface the remainder of my paper by pointing out that although I will not speak about St. Kitts and Nevis specifically, I will use the OECS as my basic frame of reference from which to compare CARICOM and the ACS. As a result, this paper will highlight developments directly affecting St. Kitts and Nevis.

Let us start with a brief review of the backgrounds to the OECS, CARICOM and ACS before highlighting the provisions of their treaties that are meant to prevent any conflict between the organisations. In the second half of the paper I will discuss the new developments surrounding CARICOM and the Caribbean Court of Justice and their impact upon the other organisations.

Overview of CARICOM, OECS and ACS

The historical development of regional organisations in the Caribbean and their reasons for success or failure are well documented.² As a result I will merely point out some of the broad factors related to these developments that have an impact upon the topic at hand.

The current forms of CARICOM and the OECS are directly linked to the failure of the West Indies Federation, which represented the first serious attempt at complete regional integration (both political and economic).³ The demise of the West Indies Federation came about as a result of various factors, perhaps the most significant being the lack of political leadership and lack of a unifying purpose on the part of those federating. The latter is perhaps most important. The British Colonial Office on the one hand, supported the Federation as a means of achieving efficiency of administration, whereas the territories, on the other, sought federation as a means of achieving independence from Britain. Only a minority saw the Federation as a goal in itself rather than merely as a means to an end (independence).⁴

This instrumental approach to federation on the parts of both Britain and the Caribbean territories, and the general disappointment and disillusionment with integration following its failure, are crucial to an understanding of the shape of later Caribbean integration. After the collapse of the Federation there was a clear move away from political integration as each territory sought independent statehood. In the Eastern Caribbean the territories joined together under the West Indies Associated States (WISA) in 1967, complemented by the creation of the East Caribbean Common Market in 1968. In the larger Caribbean region negotiations resulted in the creation of the Caribbean Free Trade Association (CARIFTA). Both CARIFTA and the East Caribbean Common Market served the basis for the later Caribbean Community and Common Market (CARICOM, Treaty of Chaguaramas, 1973)⁵ and Organisation of Eastern Caribbean States (OECS, Treaty of Basseterre, 1981),⁶ respectively. The final regional organisation, the Association of Caribbean States (ACS) is a much more recent creation, established by its Convention of Cartagena de Indias, 1994.⁷ Its membership is much more extensive than the earlier organisations, including all of the states of the Caribbean basin.⁸

None of these three organisations has moved much beyond low levels of economic integration because of the strong desire of member states to retain control over their newly-won sovereignty.⁹ Perhaps the most advanced is the OECS, which has developed a significant institutional structure to help maintain and increase ties between Member States. The OECS has been successful in maintaining the Eastern Caribbean Central Bank, the Eastern Caribbean Dollar, the Eastern Caribbean Supreme Court, in creating Joint [Diplomatic] Missions of the OECS to London, Ottawa and Brussels, as well as in enhancing co-operation in areas such as education, sports, culture and health.¹⁰

Although political integration is unlikely to come about soon, and may not be desirable in any event, economic integration is likely to grow stronger in the Caribbean region. This goal is highlighted in the Preamble of the most recent treaty, the Convention Establishing the Association of Caribbean States, which describes one of the motivations behind forming the organisation as being "the need to forge an effective and timely response to the challenges and opportunities presented by the globalisation of the international economy and by the progressive liberalisation of hemispheric trade relations."

The continued viability of all three organisations, despite some duplication of functions, likely will be ensured as a result of geographical and functional factors. The ACS Preamble again reminds us that even in the broader Caribbean basin region there are significant connections between states as a result of "geographical proximity and historical linkages." The OECS Treaty’s Preamble highlights the reason why closer proximity, in the form of sub-groupings, may also remain desirable. The OECS Contracting States unite in part because they can thereby "increase their bargaining power as regards third countries or groupings of countries." The ability of sub-groupings of states to unite and protect their interests in larger organisations is one of the key checks and balances in the operation of Caribbean regional organisations. Although financial implications will continue to be a concern, the smaller regional organisations of the OECS and CARICOM cannot be collapsed into an all-purpose ACS without the loss of the Caribbean-specific representation and harmonisation offered by those organisations. In sum, there are sound historical reasons for the development of three separate regional organisations, and equally sound reasons for them to co-exist for so long as they continue to satisfy the needs of their membership.

If we accept that the OECS, CARICOM and ACS will continue to function in tandem, then what happens to a state that is caught in a conflict of obligations between two or more of these organisations? Has such a thing happened? Can it happen?

From information available in the public domain, the answer to the first question is "no." There has been no major legal conflict between the OECS, CARICOM or the ACS. There are two reasons for such harmonious relations: (1) adept political manoeuvring by national leaders, and (2) treaty provisions which combine to prevent such an occurrence. A third, less glamorous possibility is that until recently none of the organisations imposed sufficiently onerous obligations so as to be able to create the potential for such a conflict. This brings me to a further, more interesting possibility, namely, that conflicts will not arise until the organisations create binding and significant obligations. Put another way, the two factors that have prevented conflict in the past may not be as effective in the future. Political manoeuvring, for example, is much more helpful in avoiding conflict when there is little at stake. But to the extent that CARICOM starts to take on a strong role in regional integration there may arise divisive issues placing OECS Member States at odds with the remaining CARICOM Member States. Such a strong role may emerge following the recent CARICOM treaty amendments, which I will discuss below.

For the moment let us explore the ways in which the original versions of the constituent treaties of the three regional organisations prevented conflict, both by encouraging political settlement and by making it difficult to achieve clear, binding obligations (which have the most serious potential for conflict). Up until recently the CARICOM and OECS Treaties managed to avoid conflict because they were so slippery as to impose almost no enforceable obligations upon Member States. If no enforceable obligations conflict, then there can be no serious present conflict. We find this lack of substance in two aspects of the CARICOM, OECS and ACS Treaties, namely, their inadequate (1) decision-making processes, and (2) enforcement processes.

Under the CARICOM Treaty¹¹ the only binding decision that may arise is a decision taken by that bodies highest authority, the Conference. No other body is given explicit Treaty-based authority to bind Member States to its decisions. The Conference is made up of the Heads of Government of Member States (or designates), and takes decisions unanimously.¹² This requirement for unanimity, or at least lack of dissent, flows throughout the Treaty provisions describing the Conference. An exception is when the Conference wishes to take action against a Member State involved in a dispute, in which case the State is prevented from voting.¹³ Another exception is when several states wish to abstain rather than actively vote either in favour or against something.¹⁴ Abstentions will not negate a Conference decision if three quarters of the membership of the Community vote in favour of the proposal. But notice here that no Member State may vote against the proposal. Thus we see a kind of reluctant unanimity. All of these voting rules make it very difficult for CARICOM to make any binding decisions—if there is one dissenter, the whole process will stop.

Even if a binding decision is achieved, historically it has been very difficult to enforce such a decision against a delinquent member state.¹⁵ This situation is aggravated by the loose wording of the Treaty (italicised below), which imposes an obligation on Member States to fulfil their responsibilities in the following language:

Article 5

General Undertaking as to 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 of the Common Market. They shall facilitate the achievement of the objectives of the Common Market. They shall abstain from any measures which could jeopardise the attainment of the objectives this Treaty.

These are not phrases to instil terror in the hearts of Member States. Finally, even if a Member State decides to respect a Conference decision, as a matter of general international law as well as under the specific provisions of the Treaty, the State will not be bound to the decision until it has ratified it, and the citizens of the State will not be able to rely upon it until it has been transformed into the State’s own municipal law (i.e., by a statute).¹⁶ Article 31(2) of the CARICOM Treaty formally sets out this rule as follows: "Decisions taken under this Treaty requiring such action shall be subject to the relevant constitutional procedures of the respective Member States."¹⁷

Such are the difficulties with respect to creating binding rules and enforcing those rules in CARICOM. If a dispute regarding such matters breaks out between Member States or a Member State and an organ of CARICOM there are various quasi-legal dispute settlement processes at the hands of the Conference and the Community Council (the second highest organ).¹⁸ But these suffer from the same weaknesses as the decision-making processes, by either being non-binding, or subject to onerous voting requirements.

The OECS Treaty follows a similar pattern. Only the highest organ, the Authority, can make a binding decision and it works by a similar unanimity requirement.¹⁹ The OECS Treaty imposes a more stringent obligation upon its Member States, however, as there is a formal requirement that Member States give effect to these decisions.²⁰ These decisions are subject to nearly as slippery an undertaking on the part of Member States (highlighted with italics), as seen in the wording of Article 4 of the OECS Treaty:

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 institutions of the Organisation. They shall facilitate the achievement of the purposes of the Organisation; in particular, each Member State shall take all steps to secure the enactment of such legislation as is necessary to give effect to this Treaty and decisions taken thereunder.

Again notice, however, that this Article requires that Member States implement OECS Treaty obligations domestically.

In the event that a conflict arises between Member States the OECS envisages a special dispute settlement process. Members are required to enter into direct negotiation, and only in the event that they fail to reach agreement after 3 months of negotiating are they allowed to use other options.²¹ An annex to the OECS Treaty, Annex A, sets out a special conciliation process, involving the creation of a Conciliation Commission to resolve the dispute. This Commission is similar to most such international bodies except that it has stronger voting powers. Rather than acting by unanimity, it may make a decision by majority vote.²² A final complaints procedure is available under the OECS Treaty’s Annex I. This allows a complaint to be made to the Economic Affairs Committee, which may make non-binding recommendations by means of a majority vote.²³ Its only ‘enforcement’ power is the ability to authorise Member States to suspend their Treaty obligations towards the delinquent State.²⁴

In contrast to the CARICOM and the OECS, the ACS reveals almost no ability to make binding decisions or enforce obligations. The ACS Convention imposes a weak general undertaking in Article XVIII:

Member States of the Association shall take all appropriate and pertinent measures to carry out the provisions of the Convention. They shall facilitate the achievement of the purposes of the Association.

Its highest organ is the Meeting of Heads of State or Government but there are no treaty provisions regarding the way that such meetings are to be conducted or the voting procedures to be used therein.²⁵ By default, this would mean unanimous voting without binding result unless by express agreement. The second highest organ, the Ministerial Council, has the ability to make decisions but must do so by means of a process of consensus (i.e., agreement of all, with no formal vote).²⁶ The result is similar to unanimity: it is very difficult to reach agreement if one Member does not co-operate.

Any disputes between Member States are to be resolved by the Ministerial Council.²⁷ Interestingly, the same consensus process would seem to be applicable—meaning that the same delinquent state that starts a dispute could prevent its resolution by the Ministerial Council.

As a result, when comparing the three organisations we see (with some exception in the OECS), incredibly weak decision-making and enforcement mechanisms. Ironically, this will lessen the potential for conflict between the organisations. To the extent that the OECS, CARICOM and ACS are not overly active and do not create significant binding obligations then no difficulties will ensue between them. But CARICOM is going through a major overhaul as a result of the recent battery of Protocols amending the original Treaty of Chaguaramas. These Protocols envisage a much more active Caribbean Community and Common Market, one that might cause difficulties for OECS Member States. With the new teeth likely to be given to CARICOM by the Caribbean Court of Justice and the dispute settlement procedures under the Annex (via Protocol IX), interesting difficulties may arise.

Before we look at some of these new features of CARICOM, I should immediately point out that there are clear and explicit inter-treaty conflict-resolving mechanisms in each of the later two organisations’ constituent treaties.

Thus, in the ACS Convention Article XX states:

Article XX

Relationship to other Treaties and Mechanisms

Nothing in this Convention shall be construed as altering the rights and obligations of Parties which arise from other Agreements. In like manner, the provisions of this Convention shall not affect existing mechanisms for co-operation, concerted action and consultation.

The first half of this Article allows pre-existing treaty rights and obligations to be prioritised over those created by the ACS.²⁸ Interestingly, the language of this provision allows it to encompass the CARICOM Treaty as amended, since both CARICOM and its constituent document retain the same legal identities.

The OECS Treaty has two provisions dealing with conflicting international obligations. Article 15 expressly allows Member States to participate in "other arrangements" as long as this does not "derogate" from the provisions of the Treaty.²⁹ If an agreement is not compatible with the OECS Treaty then the Member States are required to "take all appropriate steps to eliminate the incompatibilities established."³⁰ Another provision, Article 16, specifically authorises the OECS to establish relations with other international organisations, even to the extent of concluding formal agreements between themselves.

The CARICOM Treaty and Annex do not contemplate conflicts between CARICOM provisions and provisions of other treaties and hence make no provision to avert them. Interestingly, the nine Protocols amending the Treaty and Annex do not address this issue either.

As a practical matter, each regional organisation also will be prevented from directly infringing either of the other two organisations simply as a combined result of shared membership and strict voting rules. Thus CARICOM could not act against any single OECS Member State because its voting rules require either unanimity or abstention. Each Member State retains an effective veto. The OECS Member States also could not act in contravention of their CARICOM or ACS treaty obligations without suffering the (admittedly weak) consequences—because they are by and large members of the three organisations and thus subject to the same binding obligations.³¹ The ACS could not act against CARICOM Member States since it must act by means of a consensus, with a single CARICOM dissenter being able to stop the whole process.

If there are provisions to prevent conflict in the OECS and ACS Treaties, and the voting rules combine create a similar effect, will conflict ever arise? Likely not. Inertia will in most cases prevent any non-unanimous decisions being taken by any group. But when non-state entities, such as the Caribbean Court of Justice or the new Arbitral Tribunal available under the CARICOM Annex, make binding decisions about the nature of CARICOM Treaty obligations then interesting possibilities arise. Both of these bodies create immediately binding and enforceable decisions, ones that could result in interpretation of CARICOM provisions in ways that may conflict with provisions of the OECS Treaty.

Let us now examine the changes to the dispute settlement processes under Protocol IX which amends the CARICOM Annex, and later look at the role of the proposed Caribbean Court of Justice.

Protocol IX introduces a variety of new dispute-settlement procedures under the Annex (Caribbean Common Market). Since the Common Market will be the area in which most disputes will emerge, these provisions are especially significant. Under the original version of the CARICOM Annex, the Common Market Council (now Community Council) could assist in settling disputes, either itself or through a special arbitral Tribunal.³² But each of these dispute settlement mechanisms was of limited value because neither had any real enforcement power. The strongest sanction that could be taken against a Member State was to allow other Members to suspend their obligations with respect to it.³³

The new dispute settlement provisions offer a variety of binding and non-binding mechanisms to help states conform to their treaty obligations. New Annex Articles 1 to 12(o) require Member States to settle their disputes regarding the CARICOM Treaty and Annex in good faith and through one of the following six modes of settlement: good offices, mediation, consultations, conciliation, arbitration and adjudication.³⁴ The first four of these processes are non-binding. Only arbitration and contentious adjudication are binding. These latter processes are the ones likely to cause difficulties between regional organisations. This is because if the Caribbean Court of Justice or an arbitral tribunal interprets a provision of the CARICOM Annex to require a form of behaviour that conflicts with the Member State’s obligations under another treaty, that State will be caught in a Catch-22 position.

But let me first briefly explain the other processes, which will not pose such a problem. All of the processes for dispute settlement are mandatory for Member States in disputes concerning the interpretation and application of the Treaty. Such disputes are said to include those regarding: (a) breaches and potential breaches of the Treaty by Member States, (b) injuries suffered by Member States as a result of the operation of the CARICOM Single Market and Economy, (c) breaches of the Treaty by CARICOM organs or bodies, and (d) allegations that the purpose or object of the Treaty is being frustrated.³⁵ Any of the six methods of dispute settlement may be utilised and the Annex provides wide flexibility in terms of allowing Member States to switch from one mechanism of dispute settlement to another.³⁶ States may even resort to one of the four non-binding modes while in the middle of arbitral or judicial proceedings, subject to the procedural rules of those proceedings.³⁷ States are required to choose their preferred method of settlement "expeditiously," and must notify the CARICOM Secretary-General of the existence of a dispute, the chosen method of settlement, and any settlement that is achieved as a result.³⁸

The four modes of non-binding dispute settlement—good offices, mediation, consultations and conciliation—are variations of the classic modes available to states under international law.³⁹

"Good offices" is a form of mediation that allows states to choose a neutral third party of high esteem (including the Secretary-General of CARICOM), to help resolve the dispute.⁴⁰ The good officer’s role is non-binding, with that person being able to assist by contributing to the discussions or proposing constructive solutions.

Full "mediation" appears to be slightly more formal than good offices under the CARICOM Annex, with the mediator being chosen from a special list, and the positions taken by parties during mediation proceedings expressly being said to be confidential and without prejudice to their rights in other proceedings.⁴¹

"Consultations" are an interesting development under the CARICOM Annex. Although in reality amounting to no more than a form of direct negotiations between states, Articles 6(c)-(d) of the Annex set out formal requirements regarding the manner of such consultations. Consultations are initiated when one Member State alleges that another has breached its Treaty obligations and requests consultations in writing.⁴² They must commence within fourteen days of receipt of the request or another mutually agreed period of time, and if they do not do so, or produce no settlement within forty-five days, the requesting state can resort to another mode of dispute settlement, including binding third party settlement.⁴³ Consultations are to be kept confidential and are without prejudice to the rights of States in further proceedings.⁴⁴ States are under an obligation to provide sufficient information during consultations and this information is to be treated in the same manner by all consulting parties (i.e., confidential if the state providing it so specifies).⁴⁵ Special mechanisms also exist for expedited forms of consultation and for third party interventions in the consultation process.⁴⁶

"Conciliation" involves the appointment of three or more neutral individuals of high esteem from a list of conciliators, to a special panel (a conciliation commission), to help resolve the dispute.⁴⁷ Each party is entitled to appoint a conciliator of its choice and then the appointed conciliators must chose a third.⁴⁸ In the event of disagreement the CARICOM Secretary-General is given the power to appoint a conciliator.⁴⁹ Conciliation commissions are entitled to draw to the attention of Member States any measures that might facilitate amicable settlement of the dispute, as well as must hear the claims of the parties, examine their claims and objections, and make proposals towards an amicable settlement.⁵⁰ Once the conciliation commission has heard the dispute it must report on the matter, expressing any agreements reached or its conclusions on questions of fact and law, as well as any recommendations it may deem appropriate.⁵¹ This report is not binding.⁵² Parties to the dispute must pay the fees and expenses of the conciliation commission and the proceedings of the commission are terminated upon settlement, or rejection of the report (in writing to the Secretary-General), or when one month has expired from the date of transmission of the report.⁵³

The two binding dispute settlement mechanisms envisaged under Protocol IX are Arbitration and reference to the Caribbean Court of Justice.

"Arbitration," is a formal, binding method of dispute settlement, by means of a specially created Arbitral Tribunal. Arbitration must be with the consent of both parties⁵⁴ and the Arbitral Tribunal is selected from a CARICOM List of Arbitrators.⁵⁵ Two arbitrators are selected from the List by each party to the dispute and those arbitrators select the third, with the Secretary-General being given the power to appoint arbitrators in the event of disagreement.⁵⁶ Unlike conciliation, Arbitral Tribunals "as far as practicable" are not to be made up of arbitrators possessing a disputing state’s nationality, and Member States can agree to appoint a sole arbitrator.⁵⁷ The Arbitral Tribunal establishes its own rules of procedure, including at least one hearing with written submissions.⁵⁸ Proceedings and their contents are confidential and the final decision (award) of the Tribunal is taken by a majority vote, and "shall be final and binding on the Member States parties to the dispute."⁵⁹ Expenses of the Tribunal are to be borne equally by the parties, including expenses of any experts required by the parties or Tribunal.⁶⁰ Interestingly, Article 10(d) of the CARICOM Annex also expressly entitles third parties to attend all hearings and receive written submissions of the parties to the arbitration.⁶¹ These third parties may even be given the right to make submissions to the Arbitral Tribunal.⁶²

The final dispute settlement mechanism contemplated under the CARICOM Annex is the future Caribbean Court of Justice ("CCJ" or "Court"): "The Court shall have compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Treaty."⁶³ This provision is fascinating because it makes the Court’s jurisdiction automatic (compulsory).⁶⁴ This means that despite the express reference to a symbiotic relationship between the CCJ and these other "voluntary" dispute settlement processes in the Annex,⁶⁵ at the end of the day any Member State may force another Member State to appear before the Court. This adds significant teeth to CARICOM in terms of enforceability of CARICOM Treaty obligations.

The provisions dealing with the Caribbean Court of Justice, set out in Articles 11 to 12(o) of the Annex, are almost identical to the relevant provisions in the Agreement Establishing the Caribbean Court of Justice.⁶⁶ The Court has both advisory and contentious jurisdiction.

Advisory jurisdiction allows "Member States parties to a dispute," or the Community itself, to ask the Court to provide opinions concerning the interpretation and application of the Treaty.⁶⁷ Traditionally under international law advisory opinions are concerned with abstract questions of law and should not be related to an ongoing dispute. This is the position taken in the Agreement Establishing the Caribbean Court of Justice, but seems frustrated by the use of the phrase "parties to a dispute" in Article 12(A).⁶⁸ If this phrase remains in the final document it will constitute a grave drafting error, since it makes the advisory and contentious jurisdictions almost identical (although, of course, only the latter is binding).

Contentious proceedings will be the main method of dispute settlement, since they result in binding, precedent-creating judgements.⁶⁹ Like the Arbitral Tribunal process, judgements of the Court will have the potential to interpret the CARICOM Treaty and Annex in such a way as to concretise obligations. The consequence will be that any conflict between CARICOM obligations and OECS or ACS obligations will become evident and real. The CCJ has exclusive jurisdiction to deal with contentious proceedings concerning: (a) disputes between Member States, (b) disputes between Member States and the Community, (c) referrals from national courts (including the Eastern Caribbean Supreme Court), and (d) individual applications by persons regarding the interpretation and application of the Treaty.⁷⁰

The Court’s first two forms of jurisdiction are those over disputes between Member States parties to the Agreement, inter se, and disputes between any of those states and the Community.⁷¹ This means, for example, that Barbados could bring a claim against Trinidad and Tobago before the Court, or Guyana could bring a claim against the CARICOM Secretariat.

The third type of jurisdiction the Court can exercise is over referrals from national courts of Member States parties to the Agreement.⁷² This is supplemented by Article 12(2) which provides that the phrase "‘national courts’ includes the Eastern Caribbean Supreme Court." Referrals simply allow a national court involved in a case that requires interpretation or application of the Treaty to refer the question to the Caribbean Court of Justice for its determination.⁷³ Once the CCJ has answered the particular CARICOM Treaty-related question, the matter is sent back to the national court so that it will be able to continue with its hearing of the case as well as render judgement. This is a very useful feature since it allows national judges access to the presumably greater expertise of the judges of the Caribbean Court of Justice when dealing with the intricacies of international law and international trade law.⁷⁴ This kind of expertise may be guaranteed because another provision of the Annex allows the Court to sit in smaller panels of experts, called Divisions.⁷⁵ These Divisions could be made up entirely of judges with special expertise in international law and international trade law, as provided in the Agreement.⁷⁶

The final basis for jurisdiction is over disputes involving an application from a national of a Party. These applications may be made by either a natural or a juridical (i.e., legal) person if they satisfy the test set out in Article 12(l) of the Annex. To summarise, this provision requires the national to obtain the "special leave of the Court," then show that (1) the right or benefit at issue was meant to be directly provided to her, (2) that she has been prejudiced in enjoying that benefit, (3) that her state omitted or declined to espouse the claim, or expressly agreed to allow her to espouse the claim, and (4) the interest of justice requires such espousal.⁷⁷ All of these requirements must be satisfied before an application may be heard by the Court. As a result, this could amount to a difficult hurdle for any applicant, depending upon how the Member States and the new Court interpret the article.

But the importance of this provision must not be underestimated. This is because as a practical matter most of the other bases for the Court’s jurisdiction are less likely to be used. Member States will not wish to bring cases against each other due to the political ramifications associated with such actions. Also, the Community itself does not have a sufficiently independent and powerful organ to bring claims against Member States.⁷⁸ As a result, the entity most likely to bring a claim will be the particular company or individual that has been adversely affected by CARICOM law. This makes intuitive sense, as she who has been most directly affected is most likely to bring a claim. It also has been the clear experience of the European Court of Justice, before which the individual citizens of EC states have been extremely active in using EC law to protect their interests.⁷⁹ As a result, any provision allowing persons, whether natural or legal, to bring a claim before the Court could have significant implications for the speedy and effective enforcement of CARICOM law.

An interesting complement to the ability of persons to bring claims before the CCJ is the requirement that Member States encourage and facilitate the use of arbitration and other modes of alternative dispute settlement for private disputes involving Community nationals.⁸⁰ This provision also requires Member States to provide procedures and mechanisms to assist in the recognition and enforcement of these awards within their territories.⁸¹ As a result, once these provisions have been implemented individuals will have the possibility of having disputes regarding the CARICOM Treaty and Annex solved by arbitration, alternative dispute settlement, or the Court.

Finally, two additional provisions related to the Court need be mentioned. Firstly, it may award interim measures, which is a particular form of Court order requiring a state to cease harmful actions. Interim measures are usually requested at the beginning of a hearing, and under these powers the Court can order either or both of the parties to cease activities harming the rights of another party. Secondly, the Court has the ability to have its judgements enforced by the national laws of Member States. Articles of the Agreement Establishing the Caribbean Court of Justice require judgements of the Court to be enforceable in the same manner as judgements of national courts.⁸²

In sum, we have the potential for conflict between the three regional organisations as a result of decisions of the Caribbean Court of Justice or an Arbitral Tribunal. It is fascinating to notice that of all three regional organisations, only CARICOM does not explicitly attempt to reconcile its treaty obligations with those of the other regional organisations. This is especially striking in light of the fact that the CARICOM Treaty and Annex are in the process of such substantial amendment. In this regard it may seem ironic that there is an express provision in the CARICOM Annex that would allow the Eastern Caribbean Supreme Court to refer any CARICOM Treaty matters to the Caribbean Court of Justice, but no mechanism by which OECS matters could be referred from CARICOM back to an organ in the OECS.

The non-binding dispute settlement mechanisms will not cause any difficulties if the Member States who are party to the dispute pay attention to the possibility of conflicting treaty obligations. If there is a conflict, then they simply can ignore that part of the non-binding decision of the mediator or conciliation commission. Arbitral awards will be binding, however, and this could lead to a substantive conflict of treaty obligations as a result of such a binding award. Let me address this now in my conclusion, as this is the kind of conflict that is most likely to occur, either with the Court or with an Arbitral Tribunal.

By substantive conflict I mean a conflict regarding particular, technical obligations under the different treaty regimes. A brief perusal of the Annex to the CARICOM Treaty or Annex I of the OECS Treaty should reveal the complexity of the economic regulation and co-ordination attempted by these documents. Let us play this out with a fictional example of a conflict that could occur between OECS and CARICOM treaty obligations.

In this fictional example an OECS Member State, State X, experiences difficulties in a particular sector of its economy as a result of decreased demand for its locally-produced products when faced by stiff competition from another OECS state, State Y. Under Article 22 of Annex I to the OECS Treaty, that State X (upon fulfilling the conditions set out in the article), may quantitatively limit imports of the competition’s product. Such limitations are subject to supervision by the OECS Council of Ministers (now Economic Affairs Committee), which makes decisions by majority vote. In our fictional example the Economic Affairs Committee sides with State X by a vote of four in favour, three against.

We return to State Y, whose disgruntled exporters demand action by their government. State Y alerts the CARICOM organ that is in charge of such matters, the Council for Trade and Economic Development (COTED). COTED will act under Article 26 of the CARICOM Annex. Article 26(9) of the Annex deals with situations where a Member State can demonstrate that its industries are being injured by quantitative restrictions of the form used by State X. So let’s say in our example that most of the CARICOM Member States agree with State Y and vote accordingly in the COTED meeting on the matter. Under Article 19 of the CARICOM Treaty decisions by COTED are made by qualified majority vote (i.e., three quarters), and recommendations can be made by a mere two-thirds majority. Of the fourteen CARICOM Member States entitled to participate in such matters (the Bahamas not being a party to the Annex), ten vote in favour of State Y. This is not enough for a "decision" but a non-binding recommendation is issued. The dispute festers and the Caribbean Court of Justice or an Arbitral Tribunal becomes involved. One of these bodies, agreeing with COTED, comes to a determination that State X is in breach of its CARICOM Treaty obligations.

What happens here? According to OECS Treaty law State X is acting fully within its rights. According to CARICOM law, it is in breach.

Although this example may seem far-fetched, and most CARICOM, OECS and ACS Member States would go out of their way to prevent such an occurrence, it is necessary to contemplate its possibility—if only in order to best avoid it.

In sum, I have been playing devil’s advocate with the different treaty regimes in the Caribbean, highlighting the potential for conflict created by the recent changes to CARICOM through its nine new Protocols and the creation of a Caribbean Court of Justice. I have been a devil’s advocate, because along with most commentators I too recognise the need for stronger Caribbean regional organisations if the states of the region are to survive in an increasingly competitive global environment. The amendments to the CARICOM Treaty and Annex will most likely enhance the effectiveness of CARICOM. When combined with the new dispute settlement processes in the Annex and the future creation of the Caribbean Court of Justice, CARICOM will have the building blocks for strong regional economic integration. In pursuing these goals, I would merely suggest that Member States of the OECS, CARICOM and ACS be extra vigilant so as to avoid duplication, or conflict, between organisations.

Appendix I: Chart of Membership of Caribbean Regional Organisations

Footnotes

1. Roy Morris, "'Overload'-PM: Barbados to review its part in regional bodies," Sunday Sun, 4 June 2000, pp. 1A & 5A; "PM: Make existing groups work first," Daily Nation, 5 June 2000, pp. 4 & 14.

2. See, e.g., William G. Demas, Critical Issues in Caribbean Development: West Indian Development and the Deepening and Widening of the Caribbean Community (Jamaica: Ian Randle Publishers/ISER, 1997), Christoph Müllerleile, CARICOM Integration: Progress and Hurdles-A European View (Kingston: Kingston Publishers, 1996), Peter Wickham, et al., Critical Issues in Caribbean Development: Elements of Regional Integration-The Way Forward (Barbados: Caribbean Policy Development Centre/Ian Randle Publishers, 1998), P.K. Menon, "Regional Integration: A Case Study of the Caribbean Community [CARICOM]," (1995) 5 Caribbean L. Rev. 81-143, P.K. Menon, "Sub-Regional Integration in the Caribbean: the OECS Experience" (Paper presented at the 1995 Latin American Studies Association meeting, September 28-30, 1995) [available at UWI Law Library, Cave Hill Campus]. See also the sources cited in footnotes 3 and 15, below. For a detailed analysis of the legal text of the original CARICOM treaty (1973) see Hans J. Geiser, Pamela Alleyne, Carroll Gajraj, Legal Problems of Caribbean Integration: A Study of the Legal Aspects of CARICOM (Leyden: Sijthoff, 1976). For further suggestions about strengthening Caribbean integration see Ian Boxill, Ideology and Caribbean Integration (Kingston, Jamaica: The Consortium Graduate School of Social Sciences, UWI, 1997).

3. See, e.g., Hugh W. Springer, Reflections on the Failure of the First West Indian Federation (Cambridge, MA: Harvard University, 1962). For the reaction in the Eastern Caribbean, see Sir Arthur Lewis, The Agony of the Eight (Barbados: Advocate Commercial Printery, ND). For a general background to the history of Caribbean regional integration, covering CARICOM and the OECS, see Christoph Müllerleile, CARICOM Integration: Progress and Hurdles-A European View (Kingston: Kingston Publishers, 1996), pp. 31-75.

4. E.g., Müllerleile, ibid.

5. The Member States of CARICOM are: Antigua and 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 and Tobago. The Bahamas is a Member of the Caribbean Community but not the Common Market. Haiti is in the process of depositing its instrument of ratification. The Associate Members of CARICOM are Anguilla, The British Virgin Islands and Turks and Caicos Islands.

6. The Member States of the OECS are Antigua and Barbuda, Dominica, Grenada, Montserrat, St Kitts and Nevis, Saint Lucia and St Vincent and the Grenadines. The British Virgin Islands and Anguilla are Associate Members.

7. The Convention Establishing the Association of Caribbean States, signed at Cartagena de Indias, Colombia, on July 24th, 1994, can be accessed on-line at http://www.acs-aec.org/Legal/Convention.htm. The ACS home page is located at http://www.acs-aec.org.

8. The Member States of the ACS are Antigua and Barbuda, The Bahamas, Barbados, Belize, Colombia, Costa Rica, Cuba, Dominica, the Dominican Republic, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago and Venezuela. The Associate Members of the ACS are Aruba, France (in respect of French Guiana, Guadeloupe and Martinique) and the Netherlands Antilles. The states, countries and territories eligible for Associate Membership in the ACS are Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Montserrat, Puerto Rico, Turks and Caicos Islands, and the United States Virgin Islands.

9. This can be contrasted to the developments in the European Union, where after the Second World War various factors coalesced to help bring about an economic community. These factors include: the need to re-build after the war, the strong desire of Germany to re-enter the European fold, and the desire of France to limit Germany's ability to re-arm itself. More recent political integration has been accepted by the Europeans because of their keen desire to compete on the global level and as a 'spillover' from functional integration. On the historical development of the European Union see, e.g., Simon Usherwood, "Historical Overview of the EU," in Gabriel Glöckler et al., Guide to EU Policies (London: Blackstone Press, 1998), pp. 12-27, David Armstrong, Lorna Lloyd and John Redmond, From Versailles to Maastricht: International Organisation in the Twentieth Century (London: Macmillan Press Ltd., 1996), pp. 138-218, Desmond Dinan, Ever Closer Union? An Introduction to the European Community (London: Lynne Reiner, 1994), Paul Craig and Gráinne de Búrca, "The Development of European Integration", in EU Law: Text, Cases and Materials, 2nd ed. (Oxford: Oxford University Press, 1998), pp. 3-48.

10. For a quick overview see the OECS home page at http://www.caribisles.org/count-09.htm.

11. The Treaty of Chaguaramas can be accessed on line at the CARICOM web site at http://www.caricom.org/expframes2.htm (select "Information Services" then "Treaties and Protocols"). The original Treaty of 1973 is in the process of radical overhaul through a series of nine amending Protocols, also reproduced on the CARICOM web site. I have created a rough 'consolidated version' of the Treaty and its amending Protocols at my web site: http://law.uwichill.edu.bb/davidberry/1999-2000/Caribint-99/caribint.htm. In this paper, unless otherwise indicated, all references will be to the Treaty as amended by the nine Protocols.

12. CARICOM Treaty, Arts. 7 and 18.

13. CARICOM Treaty, Art. 18(4).

14. CARICOM Treaty, Art. 18(2)-(3).

15. For general commentary on the political and legal problems with enforcement see: Kathy-Ann Brown, "The CARICOM-'Unity for Survival'", in Le libre-echange dans les Ameriques (Une perspective continentale) / Free trade in the Americas (A hemispheric approach), edited by N. Lacasse and L. Perret (Montreal: Wilson & Lafleur, 1994), pp. 335-368; Mills, et al., Report on Review of Regional Programmes and Organisation of the Caribbean Community (Georgetown, Guyana: Caribbean Community Secretariat, 1990), pp. 30-33; Hans J. Geiser, Pamela Alleyne, Carroll Gajraj, "Settlement of Disputes in CARICOM," in Legal Problems of Caribbean Integration: A Study of the Legal Aspects of CARICOM (Leyden: Sijthoff, 1976), pp. 158-73.

16. "Ratification" is "the international act […] whereby a State establishes on the international plane its consent to be bound by a treaty": Article 2(1)(b) of the 1969 Vienna Convention on the Law of Treaties. "Transformation" is the term used to describe the process by which a state brings binding international treaty obligations into force in domestic law, usually by means of implementing legislation. See generally, Ian Brownlie, Principles of Public International Law, 5th ed. (Oxford: Oxford University Press, 1998), Chapter II; Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th revised ed. (London: Routledge, 1997), pp. 63-71. For the Caribbean perspective see Winston Anderson, "Treaty Implementation in Caribbean Law and Practice" (1998) 8 Carib. L.R. 185-211. Until the international law is so transformed, the state remains bound by its obligations at the international level, but the domestic courts and other legal actors of the state can ignore those obligations internally as a matter of domestic law. There are some exceptions to this rule, and there is a line of cases that allows domestic courts to use such treaties (called "unincorporated treaties"), to help interpret domestic law, even though they are not legally bound to do so. See, e.g., Brownlie, Principles, pp. 47-9. In the Caribbean context this set of rules has had strong impact in preventing citizens from accessing CARICOM and OECS treaty privileges when the state concerned has failed to enact, or has improperly enacted, the treaty provision. See, e.g., J. Astaphan & Co. (1970) Ltd. v. A.G. Dominica, Dominica, Civil Appeal No. 5 of 1997, September 29, 1997 (unreported decision); Maharaj Furniture and Appliances Ltd. v. The Comptroller of Customs and Excise, Trinidad and Tobago, High Court of Justice, Number S-1499/93 (Judge Lucky), December 13, 1993 (unreported decision).

17. Note that Article 31(3) of the CARICOM Treaty requires Member States to take implementing action expeditiously. But the wording is slippery enough to allow some leeway to Member States: "31(3). Where necessary, Member States undertake to take steps as expeditiously as possible to give full effect in law to all decisions of the organs and institutions of the Community which are binding on them."

18. CARICOM Treaty, Arts. 7(A)(8) and 8(4)(g), respectively.

19. OECS Treaty, Art. 6(5). Abstentions are allowed here, but no decision can be made until every state either votes in favour of a proposal or formally notifies the Authority of its intention to abstain. Note that such decisions are said to be "binding on all Member States and all institutions of the Organisation," not just those that voted in favour of them: Art. 6(5).

20. OECS Treaty, Art. 6(5).

21. OECS Treaty, Art. 14.

22. OECS Treaty, Annex A, Art. 3.

23. OECS Annex I, Art. 20 (the Council of Ministers has been transformed into the Economic Affairs Committee under the OECS). Note that the Economic Affairs Committee can appoint an Examining Committee to help it deal with complaints: OECS Annex I, Arts. 20(2) and 21.

24. OECS Annex I, Art. 20(4).

25. Cf. ACS Convention, Art. VI.

26. ACS Convention, Art. XI(4).

27. ACS Convention, Art. XXIX. The Ministerial Council is also given authority to interpret the Convention under Art. IX(j). Presumably Art. IX(j) would not duplicate Art. XXIX, instead allowing interpretation in the absence of a dispute between Members (i.e., advisory function or disputes between Members and organs of the ACS).

28. The second half of Article XX of the ACS Convention allows Member States to undertake sub-regional arrangements:

"Within the scope of this Convention a number of Member States may undertake initiatives and conclude integration agreements among themselves consistent with its purposes and functions. Any such agreement or initiative may be open to any other Member State which is able and willing to participate therein."

29. OECS Treaty, Art. 15(1). Article 15(2) then goes on to say that rights and obligations "arising from agreements concluded before the entry into force of this Treaty" shall not be affected by the OECS Treaty. This means that since the CARICOM Treaty is merely being amended by the recent Protocols, Art. 15(2) will allow those amendments to escape being "affected by the provisions of this [OECS] Treaty."

30. OECS Treaty, Art. 15(3). This Article continues: "Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude."

31. The only exception is Montserrat, which is not yet a Member or Associate Member of the ACS.

32. CARICOM Annex, original Arts. 11 and 12.

33. CARICOM Annex, original Art. 11(4).

34. CARICOM Annex, Arts. 1 and 3(1).

35. CARICOM Annex, Art. 2 (Art. IV of Protocol IX). The full text of this Article is as follows:

Scope of the Protocol

The provisions of this Protocol shall apply to the settlement of disputes concerning the interpretation and application of the Treaty, including:

(a) allegations that an actual or proposed measure of another Member State is, or would be, inconsistent with the objectives of the Community;

(b) allegations of injury, serious prejudice suffered or likely to be suffered, nullification or impairment of benefits expected from the establishment and operation of the CARICOM Single Market and Economy (CSME);

(c) allegations that an organ or body of the Community has acted ultra vires; or

(d) allegations that the purpose or object of the Treaty is being frustrated or prejudiced.

36. CARICOM Annex, Arts. 3(2).

37. CARICOM Annex, Arts. 3(3).

38. CARICOM Annex, Arts. 5 and 6.

39. See Art. 33 of the Charter of the United Nations and J.G. Merrills' excellent work on the topic, International Dispute Settlement, 3rd ed. (Cambridge: Cambridge University Press, 1998).

40. CARICOM Annex, Art. 6(A).

41. CARICOM Annex, Art. 6(B). The rules regarding the list of mediators/conciliators are set out in Art. 8 of the Annex (Art. XIII of Protocol IX), including requirements for persons having the "highest reputation for fairness, competence and integrity." Each Member State is to entitled to nominate two conciliators for the list and these persons shall serve for (renewable) five year terms. Ibid.

42. CARICOM Annex, Art. 6(C)(1)-(2).

43. CARICOM Annex, Art. 6(C)(3).

44. CARICOM Annex, Art. 6(C)(6).

45. CARICOM Annex, Art. 6(D).

46. CARICOM Annex, Art. 6(C)(7)-(9).

47. CARICOM Annex, Arts. 7-9.

48. CARICOM Annex, Art. 9(b)-(d).

49. CARICOM Annex, Art. 9(d)-(e).

50. CARICOM Annex, Arts. 9(A)-(B).

51. CARICOM Annex, Arts. 9(C)-(D).

52. CARICOM Annex, Art. 9(D).

53. CARICOM Annex, Arts. 9(F) and (E), respectively.

54. CARICOM Annex, Art. 10 states: "A Member State party to a dispute may, with the consent of the other party, refer the matter to an Arbitral Tribunal constituted in accordance with the provisions of this Part" (emphasis added). Note, however, that in several sub-paragraphs of Art. 6(C), upon failure of consultations a Member State "may resort to binding third party settlement." Read in conjunction, Arts. 6(C) and 10 might seem to conflict. However, the better view is that Art. 6(C) merely allows resort to adjudicative settlement and would not override Art. 10.

55. CARICOM Annex, Art. 10(A) (Art. XXII of Protocol IX) sets out the requirements for arbitrators and the List of Arbitrators:

Constitution of the List of Arbitrators

1. For the purposes of constituting the Arbitral Tribunal referred to in Article XXI [Art. 10], the Secretary-General shall establish and maintain a List of Arbitrators comprising persons chosen strictly on the basis of impartiality, reliability and sound judgement and who shall:

(a) have expertise or experience in law, international trade, other matters covered by the Treaty, or the settlement of disputes arising under international trade agreements,

(b) be independent of, and not be affiliated with or take instructions from any Member State; and

(c) comply with the Code of Judicial Conduct governing the behaviour of judges of the Court;

2. The term of an arbitrator, including that of any arbitrator nominated to fill a vacancy, shall be five years and may be renewed.

56. CARICOM Annex, Art. 10(B)(1)-(2). This number also holds where there are more than two parties, in which case all disputants have to agree upon the constitution of the Arbitral Tribunal, or in default, the Secretary-General chooses three arbitrators: Art. 10(B)(3)-(4).

57. CARICOM Annex, Art. 10(B)(1) and (5).

58. CARICOM Annex, Art. 10(C)(1)-(3).

59. CARICOM Annex, Art. 10(C)(5) and (7).

60. CARICOM Annex, Art. 10(E). See also Art. 10(D) (regarding experts).

61. CARICOM Annex, Art. 10(D).

62. Ibid.

63. CARICOM Annex, Art. 11.

64. See also CARICOM Annex, Art. 12(F), which states:

Compulsory Jurisdiction of the Court

1. Member States agree that they recognise as compulsory, ipso facto and without special agreement, the original jurisdiction of the Court provided for in Article XXVIII [Art. 11].

2. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be determined by decision of the Court.

65. CARICOM Annex, Art. 2(4) reads: "Without prejudice to the exclusive and compulsory jurisdiction of the Court in the interpretation and application of the Treaty under Article XXVIII [Art. 11], the parties may use any of the voluntary modes of dispute settlement provided for in this Article in the settlement of a dispute."

66. The Agreement Establishing the Caribbean Court of Justice (hereafter "Agreement"), is available on-line from the CARICOM web site at http://www.caricom.org/infoserv.htm or at http://www.caricom.org/ccjagrmnt.htm and the relevant Articles in the Agreement are Arts. IX(A) to IX(N). The key differences between the Agreement and the Annex provisions are (1) the explicit inclusion of the Eastern Caribbean Supreme Court as one of the "national courts" that can refer matters of CARICOM Treaty interpretation to the CCJ, and (2) the ability of smaller panels of judges (Divisions) to sit for Annex-related cases. CARICOM Annex, Arts. 12(2) and 12(E), respectively.

67. CARICOM Annex, Art. 12(A).

68. Article IX(B) of the Agreement Establishing the Caribbean Court of Justice provides:

Advisory Opinions of the Court

1. The Court shall have exclusive jurisdiction to deliver advisory opinions concerning the interpretation and application of the Treaty.

2. Advisory opinions shall be delivered only at the request of Contracting Parties or the Community.

69. CARICOM Annex, Arts. 12(D) [obligation upon all Member States, Community Organs, Bodies and persons to whom a judgement applies to comply with it promptly], and 12(K) [judgements legally binding between parties and create precedents]. Note that Art. 12(I) allows judgements of the Court to be revised if some decisive factor unknown to the Parties or the Court is discovered within five years of the date of the judgement.

70. CARICOM Annex, Art. 12 provides:

Jurisdiction of the Court in Contentious Proceedings

1. Subject to the Treaty, the Court shall have exclusive jurisdiction to hear and deliver judgement on:

(a) disputes between Member States parties to the Agreement;

(b) disputes between Member States parties to the Agreement and the Community;

(c) referrals from national courts of Member States parties to the Agreement;

(d) applications by persons in accordance with Article XLI [Art. 12(L)],

concerning the interpretation and application of the Treaty.

2. For the purpose of this Part, "national courts" includes the Eastern Caribbean Supreme Court.

71. CARICOM Annex, Art. 12(1)(a)-(b).

72. CARICOM Annex, Art. 12(1)(c).

73. CARICOM Annex, Art. 12(C) (Art. XXXII of Protocol IX), states:

Referral to the Court

Where a national court or tribunal of a Member State is seised of an issue whose resolution involves a question concerning the interpretation or application of the Treaty, the court or tribunal concerned shall, if it considers that a decision on the question is necessary to enable it to deliver judgement, refer the question to the Court for determination before delivering judgement.

74. The two cases of Maharaj Furniture and Appliances Ltd. v. The Comptroller of Customs and Excise, and J. Astaphan & Co. (1970) Ltd. v. A.G. Dominica, referred to in footnote 17, above, reveal the kinds of difficulties that may be involved in asking national courts or national authorities to interpret international trade law rules.

75. CARICOM Annex, Art. 12(E) (Art. XXXIV of Protocol IX), states:

Establishment of a Division for the Original Jurisdiction of the Court

The Division established under Part II, Article IX(e) of the Agreement, may exercise the original jurisdiction of the Court.

76. Article IX(E) of the Agreement provides:

Establishment of a Division for the Original Jurisdiction of the Court

1. Notwithstanding paragraph 3 of Article IV, the President may establish a Division comprised of three Judges who shall possess the expertise necessary for the Court to exercise the original jurisdiction of the Court.

2. The deliberations of the Division shall be under the authority and control of a Chairman who shall be the most senior Judge appointed by the President to sit in the Division.

77. CARICOM Annex, Art. 12(L) (Art. XLI of Protocol IX) provides:

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 the Treaty intended that a right or benefit conferred by or under the 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 sub-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.

78. Such an action by CARICOM against a Member State is possible under Article 12(1)(b) of the Annex, which allows the Court to hear "(b) disputes between Member States parties to the Agreement and the Community." See also Article IX(A)(b) of the Agreement. Note that in theory, such a role could be served by the CARICOM Secretary-General, who is the Chief Executive Officer of the Community and is the personal representative of the Community for legal matters: Article 20(2) of the CARICOM Treaty. However at present the Secretariat and Secretary-General would not appear to have the resources to allow them to serve the role of watchdog over CARICOM law. The body that is entrusted with this task in the European Community is the Commission, which dwarfs the CARICOM Secretariat in terms of staff, resources, budget and treaty-conferred powers and authority. On the Commission, see e.g., John A. Usher, EC Institutions and Legislation (London: Longman, 1998), chap. 3; T.C. Hartley, The Foundations of European Community Law, 4th ed. (Oxford: Oxford University Press, 1998), pp. 11-17.

79. The European Commission is also entitled to bring cases before the European Court of Justice. The EC analogy is slightly more complicated, however, because EC law has been held to have 'direct effect' within national laws. This means that individuals within the EC can bring claims against their own states, as a matter of EC law, for breaching or improperly implementing EC obligations. See, e.g., Usher, ibid., chap. 8; Hartley, ibid., chap. 7.

80. CARICOM Annex, Art. 12(M).

81. CARICOM Annex, Art. 12(M)(2) provides: "To this end each Member State shall provide appropriate procedures in its legislation to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes." Note as well that Art. 12(N) requires Member States to implement the regime establishing the Court "as soon as possible," by completing the constitutional and legislative processes that may be necessary.

82. Art. XI of the Agreement requires Parties, inter alia, "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 judgement, 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 judgement, decree, order or sentence of a superior court of that Contracting Party.

CARICOM Annex, Art. 12(N) (Art. XLIII of Protocol IX) supplements this with a general undertaking:

General Undertaking

Member States undertake to employ their best endeavours to complete the constitutional and legislative procedures required for their participation in the regime establishing the Court as soon as possible.