Should access to CCJ be fundamental right?

Professor Rosalyn Higgins QC in her book Problems and Prospects defines human rights law as that which stipulates that obligations are owed directly to individuals (and not to the national government of an individual); and which provides, increasingly, for individuals to have access to tribunals and fora for the effective guarantee of those obligations. She acknowledges that classical international law allows States to enter into treaties with each other for the protection of the ethnic, national, or religious groups of one party who are resident in the territory of another. However, she is of the view that this does not go far enough, in that the individual is left with no direct access to a forum, with no legal right he can call his own, and with no redress against his own state.

She further adds that although human rights may most effectively be implemented by the domestic legal system, the system itself is not the source of the right. The source of the obligation is international human-rights law. In so far as individuals may seek access to the original jurisdiction of the Caribbean Court of Justice (CCJ), such access is entirely in the discretion of the Court under Article 222 of the Revised Treaty of Chaguaramas. The impact of this limitation will be felt the most in cases involving basic principles relating to free movement of goods and persons, competition law and discrimination based on the grounds of sex and nationality. All of these areas are expected to form part of the Caricom Single Market and Economy regime.

Under the European Community law concept of “direct effect” individuals can gain rights, and obligations be imposed, under provisions of the EC Treaty, which they may enforce before their national courts, see the Van Gend en Loos Case (1963) ECR 1, 12. Certain provisions of the EC Treaty, which are directly effective, deal with subject matter which could be regarded as being of constitutional or fundamental rights, such as equal pay and sex discrimination under Article 119. Sheldon Mc Donald, Project Coordinator of the CCJ, in an article entitled “Signposts to the Development of Judicial Institutions in the Caribbean Community” stated that in terms of the CCJ’s original jurisdiction there is almost no jurisprudence indigenous to the Caribbean Community.

As a result he argues that the Court will rely heavily on the jurisprudence of other international tribunals concerned with the interpretation and application of the constituent instruments of regional economic integration movements such as the European Court of Justice and the Court of First Instance of the European Communities. He also sees that given moves by regional technocrats and policy-makers to establish a Caribbean Human Rights Commission, the CCJ will also become involved in jurisprudence in that area. Eminent Caribbean writer in the area of public international law, Dr Cuthbert Joseph, in his paper “The Caribbean Court of Justice: some aspects of its original jurisdiction” argues that perhaps the first jurisprudential challenge of the Court will be for it to define its pivotal role as custodian and guardian of the rule of law in the legal order of the Caribbean Community.

He sees this jurisprudential challenge to become even greater if the Charter of Civil Society is formally incorporated into the Revised Treaty of Chaguaramas. He elaborates that the Charter of Civil Society is an Agreement that binds Caribbean Contracting Parties to observe the internationally accepted ideals and values of democratic societies as guiding principles for the operation of the Caribbean Community. Such principles include respect for all of the fundamental human rights and freedoms, ie civil, political, economic, social and cultural. Dr Joseph also views the regime of international law applicable to integration systems like Caricom as being sui generis, ie it is Community law similar to that of European Community law.

The Charter of Civil Society however provides for a Reports- only system of ensuring compliance by Member States with the fundamental provisions in the Charter. If these provisions are to have any significant relevance then the Charter should be included in the Revised Treaty of Chaguaramas and there should be a mechanism whereby such substantive fundamental rights in the Charter and principles in the Revised Treaty provisions would receive procedural protection. It is therefore, in my opinion, necessary that there be an amendment to Article 222, to provide individuals, both natural and juridical, with a right of access to the original jurisdiction of the CCJ.

This article was prepared for the Hugh Wooding Law School Human Rights Clinic by a student. Any opinions expressed are those of the writer and not necessarily of the Law School.