June 30, 2009

Unfinished Business with the CCJ

Source: Jamaica Observer

Published June 29, 2009

We don't know if Prime Minister Bruce Golding is privy to the content of a speech delivered last week by Sir Shridath Ramphal, the Guyanese former secretary general of the Commonwealth, at the inaugural conference of the Caribbean Association of Judicial Officers in Port-of-Spain.

Should the PM be, Sir Shridath's remarks ought to have reminded him that whatever else may be on his regional agenda, there is unfinished business with regard to justice and Jamaica's relationship with the Caribbean Community (CARICOM), to which his administration has to attend. For, we sense an absence of clarity on the part of Mr Golding and his Jamaica Labour Party (JLP), in its current configuration, on the Caribbean Court of Justice (CCJ).

Jamaica, we would remind, is one of the signatories to the treaty establishing the court. The US$27 million it put up to seed a trust fund to finance the CCJ represented over quarter of the US$100 million that established the account.

Jurisdictions participation

Yet, Jamaica does not participate in the court in its criminal or civil jurisdictions, although it embraces its authority in its original jurisdiction -that is, as the interpreter of the provisions of the Revised Treaty of Chaguaramas, the treaty that establishes CARICOM as a single market and economy.

The CCJ, from contemplation to inception, has been dogged, especially in Jamaica, by pragmatic questions of economics, overlaid with suspicion and political cynicism. It was juridically cheaper, and jurisprudentially safer, the CCJ's critics insisted, to maintain the Privy Council, based in London, as Jamaica's court of last resort, rather than being part of a Caribbean court, headquartered in Trinidad and Tobago.

The question of the independence and likely jurisprudential competence of the CCJ found expression, in Jamaica's case, in a legal challenge, by the JLP and others, to the constitutionality of its establishment. That challenge was upheld by the Privy Council.

Act of Parliament

The law lords held that while the Jamaican legislators, by a simple act of Parliament, could remove the unentrenched Privy Council as the island's final court, it could not similarly replace it with the CCJ. For the CCJ to be a superior court to the entrenched Jamaica Appeal Court, the Privy Council ruled, the law establishing the CCJ would have to be passed by two-thirds majority and then underpinned by a referendum.

The Privy Council's decision in the Jamaica case has constrained other countries with constitutional provisions similar to Jamaica's from proceeding to full entry into the CCJ. Only Barbados and Guyana have the CCJ as their final court for criminal and civil matters, a fact on which Sir Shridath commented.

"I am frankly ashamed when I see the small list of Commonwealth countries that still cling to that jurisdiction - a list dominated by the Caribbean," he said.

The question for Mr Golding, who was not the leader of his party at the time of the CCJ debate, is whether his party and government, having watched the performance of the CCJ for more than two years, adhere to the position that it was a bad philosophical and economic investment. After all, US$27 million is a lot of money, which Mr Golding may want to get back - at least some of it.

In any event, it is a time for a serious, balanced, non-hectoring discourse on Jamaica's place in the CCJ.

The Paradox of Heritage and Hesitancy

The Paradox of heritage and hesitancy

Source: Stabroek News

Address by Sir Shridath Ramphal at the Inauguration of the Caribbean Association of Judicial Officers

Port-of-Spain, June 25, 2009

(The salutations have been edited from this presentation)

From the time we lost the Federal Supreme Court in 1962, I had dreamed of the creation of this Court as the Court of final jurisdiction in our Region, the fountain head of our jurisprudence. Thirty years later, as Chairman of the West Indian Commission, I was proud to be associated in our 1992 Report, “Time for Action,” with the conclusion that the case for the Court “with both a general appellate jurisdiction and an original regional one is now overwhelming – indeed it is fundamental to the process of integration itself.” To be invited now to give this address in the company of the Court’s judicial pioneers and other members of the judiciaries of the Caribbean, all of whom I know have shared the vision of its establishment and some of whom have worked tirelessly to secure it, is a very special honour. I thank you, Mr President, and your colleagues on the Court, from a full heart.

 Sir Shridath Ramphal

Sir Shridath Ramphal

That it is part of the purposes of the Conference to inaugurate the Caribbean Association of Judicial Officers enhances the significance of this unique occasion of comingling. It promises continuity – a kind of Community of Caribbean Judges held together by common allegiance to the rule of law in the lands (and waters) around our Sea. That is a purpose to be extolled and encouraged. It is at least thrice blessed; in nourishing the rule of law at all levels within our wider Caribbean Region, in strengthening the capacities of Caribbean judiciaries in their role as its custodians, and in fulfilling the promise of law as the keystone of the more intimate Community we call CARICOM.

Those are purposes both lofty and practicable, inspiring and functional. Their fulfillment can make all the difference to success or failure of our regional project. Without the culture and rule of law our regionalism will wither on the vine. The Inauguration of the Caribbean Association of Judicial Officers here in Port of Spain sends a message of assurance to the Region and beyond.

The Caribbean Court of Justice

The Caribbean Court of Justice

And that ‘beyond’ is significant – as the theme of this Conference acknowledges: CARIBBEAN JUDICIARIES IN AN ERA OF GLOBALISATION: MEETING THE CHALLENGES OF THE TIME. Law in the Caribbean was never just a home grown plant. Its roots lie in the Common Law of England. Its transplantation was simply one of the incidents of colonialism; and for the most part one of its better legacies. From the beginning, our law was interlaced with the legal culture of England; and beyond England as the Common Law put down roots in a far flung Empire and flourished in and was enriched by its new environments – one of which was ours. It was an era of imperialism – Pax Britannica – which was itself to pass. The trauma of the Second World War in the last Century was to make way for new eras – the era of globalization and the inseparable yet anachronistic era of an aspiring Pax Americana. Together, they provided the dominant environment of our time and the one in which Caribbean judiciaries have had to function. Meeting the legal challenges of this time is an ineluctable vocation of the Judicial Officers of today’s Caribbean – as it is of judiciaries worldwide.

Michael De La Bastide, President of the Caribbean Court of Justice

Michael De La Bastide, President of the Caribbean Court of Justice

There is a temptation in small countries and regions far from centres of great power to believe that because we cannot influence events there, we can conduct our lives as if those events did not matter. It was never ever true of the Caribbean; colonialism was its antithesis; and markets for our production of sugar and later bananas meant that the world beyond always was very relevant to us. The era of globalization simply smothered any temptation to think otherwise. But the new era did more than confirm our primordial needs; it enlarged and extended them and changed them qualitatively. Our two dimensional world had gone global affecting not only us but also all others on the planet. And basic to that change was law. That is the essential truth our profession must grasp.

Thirty-two (32) years ago, in 1977, speaking to Commonwealth lawyers in Edinburgh (at the 5th Commonwealth Law Conference) I alluded to this change in words that I think remain apposite. I said then, and repeat to you today:

It is simply no longer possible and never was justifiable for an ethos of social and economic justice to stop at national frontiers. Nationalism and sovereignty, for too long a masquerade of national bigotry and self-aggrandizement, must now give way to internationalism and interdependence – and not just for moral reasons related to our spiritual health, but for practical reasons related to our planetary survival…

Commonwealth lawyers – heirs to (a) great tradition of fashioning a new jurisprudence out of the rigidities of the old – should be in the forefront of a movement that will fashion a new world legal order for the twenty-first century. Great challenges are already at hand in such frontier areas as the international commons….But, as the law of the sea dialogue confirms, these challenges will only be met by new systems and structures when we make the essential conceptual breakthrough about the nature of the human condition; when we acknowledge that the vision of one world has become the reality of one human community. It is worth remembering that Lord Atkin’s catalytic formulation of the duty to take care could only have entered a jurisprudence already sensitized to the concept of ‘neighbour’.

All this is a part of the new global ‘equity’ of which I speak – a consciousness that each man – not just each fellow citizen – is our neighbour, and an acknowledgement that to all men and by all men are rights and duties owed. These are the ultimate challenges to all lawyers.

You see, I hope, why I have taken you back so far; the world of sovereign freedoms, with few international rules to constrain the behaviour of governments and people was passing – in some respects, had passed. But, let me take you back further still. In the lives of many there are moments of revelation that make all the difference thereafter. Saul’s was on the road to Damascus; mine, less mystical, had to do with a place not far away, Suez. For me, the Anglo-French-Israeli military operation against Egypt in 1956, in response to Nasser’s nationalization of the Suez Canal Company, was an awakening – an awakening to the intrinsicality of international law to human civilization. The UN Charter had provided a general prohibition against the use of force; but I was a young lawyer, and public international law was still esoteric. Suez changed all that. I felt passionately the wrong of foreign military occupation of the Canal. Today, over fifty years later, it is ironic and salutary to recall that an American Administration (President Eisenhower) spoke up then for international law and for the UN as the custodian of its precepts. And that stand for global rules, for international law, made all the difference.

What has this to do with ‘Caribbean judiciaries in an era of globalization’? Everything, I answer; because it was a moment when law at the global level was contemptuously violated and the rule of law everywhere imperiled – even in the smallest jurisdictions where judiciaries are charged to ensure that power – political, economic, military – does not trump law.

Sometimes the role of international law is of direct application to our countries. When I spoke to Commonwealth lawyers in Edinburgh in 1977 I mentioned (as you have heard) the then emerging Law of the Sea. It remains one of the best examples of a new legal order in and for the era of globalization. We can all be proud that international lawyers from the Caribbean, (Guyana, Jamaica and Trinidad and Tobago in particular) made significant contributions to the formulation of the United Nations Convention on the Law of the Sea (UNCLOS), which was signed in the Caribbean (in Jamaica) on 10 December 1982 by 119 countries. A Caribbean ratification brought the Convention into force in 1994; it remains a supreme example of international treaty law. Its Dispute Settlement provisions have already served the Caribbean through arbitral proceedings involving Barbados and Trinidad & Tobago and Guyana and Suriname – the latter developing important maritime jurisprudence on the concept of ‘the use of force’ under the Convention and the UN Charter. Those Awards are now part of general international law and, more specifically, the law of the four Caribbean countries. UNCLOS, signed and ratified by Caribbean countries, is part of the body of law applicable to this Region of which Caribbean judiciaries, and the Caribbean Court of Justice specifically, must take account.

The same is true of a large body of international treaty law to which Caribbean countries have become parties since independence. Sometimes rights and obligations under this treaty law, particularly human rights law, present problems for particular Caribbean countries. In the context of the admitedly emotive issues relating to capital punishment and appeals to the Privy Council, it will be remembered that following the decision in ‘Pratt and Morgan’ (in 1993) Jamaica withdrew from the Optional Protocol to the International Convention on Civil and Political Rights and that Trinidad & Tobago denounced (in legal terms) the Inter-American Convention on Human Rights to which it was a signatory in the wake of the 1999 Privy Council decision in ’Thomas and Hilaire’. In that case, the Privy Council had ordered that the execution of two Trinidadians be suspended until their cases before the Inter-American Commission of Human Rights had been decided. Ironically, these denunciations served to acknowledge the relevance of international law, including international treaty law, in these otherwise domestic matters.

Let me be clear, however, I say no more, but no less either, than Lord Bingham said recently in the House of Lords decision in A v. Home Secretary [2005] UKHL71 at
para 27, namely:

The appellants’ submission has a further, more international, dimension. They accept, as they must, that a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law….But they rely on the well-established principle that the words of a United Kingdom statute, passed after the date of a treaty and dealing with the same subject matter, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it….. If, and to the extent that, development of the common law is called for, such development should ordinarily be in harmony with the United Kingdom’s international obligations and not antithetical to them. I do not understand these principles to be contentious – concluded Lord Bingham. Nor should they be in the Caribbean!

An enlarged regime of law is the quintessential underpinning of globalization. In a globalised world, activities which were previously limited to the local or national levels are internationalized, requiring law-making beyond the single state. The result is a rules based system of international relations including, with special relevance to our countries, international economic relations. I have spoken earlier of the Law of the Sea Convention which is now the basic law of our maritime spaces; but even more widely pertinent is the international treaty establishing the World Trade Organisation to which all Caribbean countries are now parties. If you go to the WTOs ‘home page’ on the internet you will see that it describes itself modestly as an organisation that ”deals with the rules of trade between nations at a global or near global level”. Because the ‘Agreement’ is a treaty between States, and because those member States are ‘near global’ those ‘rules of trade’ are global trade laws – a legal regime underpinning international trade.- those rules of trade are international treaty law. Deriving from the WTO Agreement, therefore, is a complex matrix of legal rights and duties applicable to Caribbean countries. The very essence of law in the era of globalization.

Small countries like ours have many complaints and contests within the WTO as to its rule-making machinery and its rules; and there will be occasions of recourse to its dispute settlement machinery – as there has been already between Antigua & Barbuda and the United States. The Caribbean struggles alongside the rest of the developing world to make the WTO fairer to developing countries, and to small states among them: fairer than it is now. Hence necessary battles like those at Seattle, at Cancun, at Doha, at Hong Kong, at Geneva. Necessary, because as small developing countries we need a rules based international trading system, rather than face the hazards of trade in a globalised world without equitable legal rules that bind all countries – a world in which economic power holds sway unimpeded. Caribbean judiciaries have to be aware of this body of new law and its implications (sometimes in terms of rights) for Caribbean countries. If, in the Caribbean, domestic law, and what I believe we must now begin to recognize as regional law, is to be applied consistently with international law we had better gear up ourselves as lawyers for the new realities. That is a challenge of our time

Of course, this process of looking beyond the strict boundaries of domestic law will not be strange to Caribbean judiciaries who have already to take account of the law of the Community in and under the Revised Treaty of Chaguaramas. This jurisprudence is developing slowly and Caribbean lawyers, not just judges, have a major responsibility to be at the forefront of its development. Innumerable rights and obligations will be explored and defined and enforced over the years ahead. I believe that in the process Governments will discover that in CARICOM’s evolution they have indeed pooled their sovereignties , and properly so. The understanding by Caribbean judiciaries of the aims and aspirations of Caribbean Governments signatories to the Revised Treaty of Chaguaramas will be every inch as important to Caribbean people as the judicial opinion of Chief Justice John Marshall in Marbury v. Madison was and is to the American people – in what Simeon McIntosh describes as ‘a construction of the meaning of the American Republic itself’.

I do not want to imply by anything I have said that the rule of international law in our globalised world is secure beyond denial – any more than the rule of law at domestic levels anywhere is impervious to threat. Four years ago, at the 50th Anniversary Commonwealth Law Conference in London, in an address which I entitled Can the Rule of Law in the Commonwealth be Secure in a Lawless World? I was constrained to speak
of current retrogressions thus:

intimations of a global society under law surrounded us in the second half of the 20th century, their reality compelling save only to those who would not see….. Among them were environmental issues like global warming or other elements of humanity’s footprint on the planet; survival issues of the possession and use of nuclear weapons; humanitarian issues like the marginalization of billions through dire poverty and the general widening of economic inequalities – within and between all countries. And many others.

Globalisation simply gave those intimations a sharper edge and a larger substance. Still, the 21st century has not dawned well for humanity. Instead of going forward, for example, to a new era of global security that responds to law and collective will and common responsibility, we are going backwards to the spirit and methods of the sheriff’s posse dressed up masquerade as global action .

There should be no question of which way we go; but the right way requires assertion of the values of internationalism – including very specially the primacy of the rule of law worldwide – and institutional structures, like the International Criminal Court, that secure and sustain those values. Instead, these first years of this century in particular have shown, though the signs were there decades before, that the ambition for world domination, which has ever been a global curse, remains so still….

all of this did not happen overnight. September 11, 2001 was not the fons et origo of present dangers. The decision, as we now know, to effect regime change in Iraq was taken within the first months of the Bush administration. International terrorism in any form is a grotesque abomination; and 9/11 was an enormously criminal act of terrorism. It was also enormously stupid – even by the distorted standards of those who perpetrated it. What it did was to provide a timely opportunity for a new imperium to emerge with plumes of a virtue and trumpets of righteousness. It offered opportunities otherwise only dreamt of by the globally regressive forces of the right. It gave plausible validation to an assault on the rule of law internationally. And that assault has come.

The magnitude of the assault on international law by the Bush administration from 2000 to 2008 in furtherance of what ‘neo-con’ ideologues conceived as the Project for the New American Century, was simply staggering – particularly coming from a nation that had played so large a part in erecting that edifice of global rules and the ethic of internationalism. That political environment has now changed providing an opportunity for law to be once more ascendant; but even before the change in the political environment, American judiciaries had taken up the challenge and begun to reassert the values of law.

In 2004, in the Rasul and Hamdi cases, the American Supreme Court began the fight back. They were the first two cases relating to the Bush Administration’s policies in the ‘War on Terror’ to reach the Court. Each case resulted in defeat for the Administration and affirmed the jurisdiction of the United States courts to review the legality of executive detention even in times of emergency or perceived emergency. Given the magnitude of the threat to the rule of law that the Administration’s policies at Guantanamo Bay held for all the world, the Commonwealth Lawyers Association which co-mingles the lawyers of over 50 Common Law jurisdictions (including our own) took the exceptional ( and exceptionally worthy) step of filing an amicus curiae brief with the US Supreme Court in the Rasul case: the most practical way, you might think, of identifying common law jurisdictions worldwide with the issues at stake in these ‘non-combatant’ cases. They did so as well in the House of Lords case in 2005 (dealing with ‘confessions’ secured under torture) to which I referred earlier when citing Lord Bingham’s judgment. It was everybody’s business.

In delivering the opinion of the Court allowing habeas corpus to run to the ‘legal black hole’ of Guantanamo Bay, Justice Stevens drew expressly on the case law addressed in the CLA brief in tracing the history of the writ back to Magna Carta and referring to English authorities going back over four centuries. I like to think that in both jurisdictions the CLA was acting for all Caribbean lawyers. The very next day, in Sosa v.Alvarez Machain the Supreme Court indicated that claims alleging breaches of international law norms, including torture, by United States authorities committed outside the United States would be actionable in United States courts. The attempt to remake the global legal rules was beginning to falter.

What followed the Rasul and Hamdi cases had at its heart Common Article 3 of the Geneva Conventions. No country had done more to put them in place or respect them than the United States. The Geneva Conventions were agreed in 1949 as part of the post-Second World War settlement to create a new rules-based global order. The aim was to limit the horrors of war by setting minimum standards that everyone had to follow. Common Article 3 is so called because it appears in each of the four Geneva Conventions. It reflects the most fundamental of the Conventions’ rules: that anyone who was not taking an active part in hostilities must be treated humanely, in all circumstances. Some acts are considered so heinous that they are expressly prohibited by Common Article 3; they include cruel treatment and torture, as well as outrages upon personal dignity, in particular, humiliating and degrading treatment ‘ .

The ‘Common Article 3’ outturn has been authoritatively described by Philippe Sands, QC. – Professor of International Law at University College, London, in his legal best-seller Torture Team: Deception, Cruelty and the Compromise of Law (at p.212) -

In Hamdan v. Rumsfeld (in 2006) (the Supreme Court) by a majority of five to three ruled that Common Article 3 had been violated. Of the eight Justices, only two – Clarence Thomas and Samuel Alito – agreed with the Administration’s arguments that Common Article 3 wasn’t applicable at all; the majority ruled that Common Article3 established ‘requirements’ that the US was bound to follow and all the Guantanamo detainees could rely upon it as of right.

The majority opinion was written by Justice John Paul Stevens,’ Common Article 3’, he wrote, ‘affords some minimal protection, falling short of full protection under the Conventions, to individuals who are involved in a conflict in the territory of a signatory’. This conclusion had been reached by looking at the official commentaries to the Geneva Conventions, which confirmed its wide scope. They invoked the US Army’s Law of War Handbook, which described Common Article 3 as ‘a minimum yardstick of protection in all conflicts, not just internal armed conflicts’. They also relied on decisions of the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia…,

One of the Justices went even further. ’Common Article 3 was part of the law of war and of a treaty that the US had ratified and accepted as binding law. By Act of Congress, Justice Anthony Kennedy wrote pointedly, ‘violations of Common Article 3 are considered “war crimes”, punishable as federal offences, when committed by or against United States nationals and military personnel….

Ultimately, (wrote Prof. Sands), the Americans’ violations of Geneva at Guantanamo were brought to an end by the decisions of the court’s.

I have said enough, I think, on this larger plane of the challenges to the rule of law in an era of globalisation – challenges which in one form or another could confront Caribbean judiciaries. As I said to Commonwealth lawyers in London:

let it not be thought that the challenges to freedom under law derives only from the response to ‘terrorism’; there are countless Commonwealth jurisdictions which face not wholly dissimilar challenges to national security, national stability, sometimes even national survival. They may not wear the label of ‘terrorism’; but the perception of endangerment is often as acute, and the instinct to respond with ferocity is always as tempting. In these times, political judgment can be easily blurred, sometimes the judgment of whole societies.

Allow me now, two final comments pertinent to our Caribbean Court of Justice and to our Community itself.

It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters. A century old tradition of erudition and excellence in the legal profession of the Region leaves no room for hesitancy. Ending the jurisdiction of the Judicial Committee of the Privy Council was actually treated as consequential on Guyana becoming a Republic 39 years ago. I am frankly ashamed when I see the small list of Commonwealth countries that still cling to that jurisdiction – a list dominated by the Caribbean. Now that we have created our Caribbean Court of Justice in a manner that has won the respect and admiration of the common law world, it is an act of abysmal contrariety that we have withheld so substantially its appellate jurisdiction in favour of that of the Privy Council – we who have sent Judges to the International Court of Justice, to the International Criminal Court and to the International Court for the former Yugoslavia, to the Presidency of the United Nations Tribunal on the Law of the Sea; we from whose Caribbean shores have sprung in lineal descent the current Attorneys General of Britain and of the United States.

This paradox of heritage and hesitancy must be repudiated by action – action of the kind Belize has just taken to embrace the appellate jurisdiction of the CCJ and abolish appeals to the Privy Council. It is enlightened action taken by way of constitutional amendment, and Belize deserves the applause of the Caribbean Community – not just its legal fraternity. Those countries still hesitant must find the will and the way to follow Belize – and perhaps it will be easier if they act as one. The truth is that the alternative to such action is too self-destructive to contemplate. If we remain casual and complacent about such anomalies much longer we will end up making a virtue of them and lose all we have built.

To ensure against that – and to give confidence to our publics in so doing – Governments must be as assiduous in demonstrating respect for all independent constitutional bodies, like the Director of Public Prosecutions, for example, as the Caribbean Court of Justice itself must be in demonstrating its own independence. In the end, the independence of Caribbean judiciaries must rest on a broad culture of respect for the authority and independence of all Constitutional office holders so endowed.

And in the particular matter of the Caribbean Court of Justice we must act positively, not negatively. We must not abolish appeals to the Privy Council merely because we disagree with its rulings in capital punishment cases; that abolition, which must come, must be a consequence of our determination to endow our own Caribbean Court of Justice with the status of our final Court of Appeal in all matters; a consequence of the exercise of our right to self-determination in judicial matters too. We have not established the Caribbean Court of Justice to give decisions to our liking; but to give decisions under law.

Finally, we would confirm the myopia of which lawyers are often accused if we did not recognize that our Community faces dangers on other fronts – dangers which are apposite to all Caribbean judiciaries The basic premise of our regional lives is that West Indians are one people; and like all comingled people are of many varieties. In our case, the varieties have enriched the composite oneness, yielding now a characteristic mosaic identity of which we all tend to be proud and often boast. Personally, I have been a West Indian from the first moment of awareness of such things; and wherever I have lived in the region – from Guyana to Trinidad, to Jamaica, to Barbados – I have been in my West Indian home. I am not unique in this; it is true for most ordinary West Indians; the more ’ordinary’, the more true. It is always a sadness when, however propelled, our societies are caught in a downward spiral of separateness with fellow West Indians cast as ‘outsiders’; those times when, as Annalee Davis (the Barbadian Researcher) has described them, we become “locked into nationalist crevices … and exclusivist cultural legitimacy”.

We are at such a time, and both policies and practices are deepening Caribbean divides. ‘The knock on the door at night’ is not within our regional culture; still less are intimations of ‘ethnic cleansing’. No Caribbean leader would countenance such departures from our norms and values; but all must not only believe, but also act as if they believe, that we forget our oneness at our peril; whether the ‘otherness’ that displaces it is an accidental place of regional birth, or otherness of any kind. I say ‘accidental’ because in the Caribbean the age-old process of trans-migration has made us all family: as a great Barbadian regionalist, the Rt. Excellent Errol Barrow, reminded us twenty-three years ago – concluding in his practical common-sense way that:

“If we have sometimes failed to comprehend the essence of the regional integration movement, the truth is that thousands of ordinary Caribbean people do in fact live that reality every day. … we are a family … and this fact of regional togetherness is lived every day by ordinary West Indian men and women in their comings and goings.”

So indeed it was; and for a very long time. My great-great grandfather on my mother’s side came to Guyana from Barbados looking for land and settlement, and found them – and so it has been up and down the chain of island societies that free movement fused into one: freedom curbed ironically with the arrival of our separate ‘national’ freedoms. But the roots of those family trees are now spread out in the sub-soil of the Caribbean. Social antipathy and divisiveness deny them; but DNA’s defy even Constitutions.

“CARICOM is at risk”, we have been warned. So it is; and few are blameless. Political leaders, in particular, have to be less casual about CARICOM, less minimalist in their ambition for it, less negative in their vision of it. Its foundations have been built on our oneness; not on the geography of a dividing sea. The Revised Treaty of Chaguaramas is not just embellished parchment; it is the logic of that oneness in a world which threatens our separate survival. And the revised treaty is not all; there are international Conventions to which all CARICOM member states are parties that are relevant to our rights and obligations to each other as human beings, much less family. The Caribbean Community is now our regional mansion within a global home. We have to make it more secure and habitable – through reaching goals like the CSME (or even the CSM), and reaching them together.

Next month is the 20th Anniversary of the Grand Anse Resolution on Preparing the Peoples of the West Indies for the Twenty-first Century – the Resolution that established the West Indian Commission. Nearing the end of the new century’s first decade, we are still ‘preparing’. No wonder ‘CARICOM is at risk’. In the era of globalization, we retrogress if we simply mark time while the world moves ahead. As CARICOM’s political directorate meet in Georgetown next week at their XXXth Summit they must demonstrate credibly that they still believe in Caribbean integration, that they care about securing it against risk, and that they are serious in their commitment to the objectives of the Treaty of Chaguaramas. I believe the people the Caribbean yearn for that assurance from inspired leadership.

And so must we all here; for without CARICOM, without the Community, where is the Caribbean Court of Justice; where, even, are Caribbean judiciaries? The siren song of separatism lures us to self-destruction – as it once did with the federal nation we were about to be 47 years ago. The Federation – ‘The West Indies’ – (how quickly we have forgotten its name) did not founder on technical rocks; it foundered on political ones. We have now re-built pains-takingly over nearly half a century; and are again ‘about to be’ – this time an economic community. And again the siren sings seductive songs of separatism. In our collective self-interest, resistance of that enticement has become a major challenge of our time; and it is from our political directorates that the will to resist must mainly come.

The Caribbean Court of Justice, with the full jurisdiction with which it must soon be endowed, with its rich inheritance of the common law and of that international law which is the under-pinning of globalization, is for me the greatest assurance that as a Community of Caribbean people we can meet and overcome the challenges of the time.

June 28, 2009

Greasing the wheels of justice

Greasing the wheels of justice
Source: Trinidad and Tobago Express
Date: Monday June 29, 2009

At a symposium organised last month by the Crime and Justice Commission, a wide range of issues were repeated by many of the speakers and panelists, about the state of the Trinidad and Tobago justice system.

Among them the shortage of lawyers at the Office of the Director of Public Prosecutions, the severe constraints on the operations of the Legal Aid and Advisory Authority, the poor record on implementation of recommendations ostensibly agreed to by administrations, the appalling conditions under which some offenders are held and the debate over calls for the abolition of the jury system.

Prison conditions were revisited particularly from the point of view of the remand facilities, given what all agreed was the inordinate length of time it took for preliminary enquiries to take place.

Indeed, the retention of the preliminary enquiry is another hot topic in the long list of matters relative to the country's justice system. And this is tied to the other matter about the granting of bail.

One attorney at the symposium declared that on average it takes more than a year for a preliminary enquiry to begin. And then it takes on average more than two years for those hearings to be completed, and sometimes a further two years at best for a case to get started after it has been "sent upstairs'' from the magistrate's court.

The now spectacular case of the accused in the Piarco Airport Corruption matter took eight years at the preliminary enquiry stage. The matters are yet to begin at the assizes.

As a point of reference, American citizens who were accused and charged with offences related to this same project, after the local courts began hearing of the matters, have long ago been found guilty on several counts and are well into serving their time in prison.

Looking in on the justice system in Trinidad and Tobago, the lone non-Caribbean national on the Caribbean Court of Justice, British Jurist Justice David Hayton has cited the inordinate lengths of time criminal matters take to get through the system here as a significant deficiency.

Honing in on what he termed "the old fashioned preliminary enquiry system'', Justice Hayton said it contributed considerably to a system which lacked efficiency. He cited the Piarco Airport case, and then considered some matters in which it took up to five years before hearings began in the High Court, after leaving the magistrate's court.

His observation partly was that "it gives plenty of time for witnesses to have second thoughts, or to be intimidated or threatened or just leave the jurisdiction.''

Coming out of the Crime and Justice Symposium, a fresh set of recommendations, with attendant plan of action with timeframes for meeting critical objectives is slated to go forward to the authorities.

By all accounts and from our well lived experiences, the dictum that justice delayed is justice denied is a reality warranting the most urgent attention, as one of the weapons in meeting the daunting crime wave which the country has been battling for sometime now.


Jagdeo slams TCL over move to Caribbean Court
Source: Stabroek News - Georgetown,Guyana
June 28, 2009

President Bharrat Jagdeo adopted a hard-line position in the legal case of Trinidad Cement Ltd (TCL) and TCL Guyana Incorporated (TGI) against his government saying on Friday that the administration was defending the national interest which is “very important to us”.

Asserting that the government did not admit to defaulting during the recent trial, which ended with the Caribbean Court of Justice (CCJ) reserving its judgment, Jagdeo criticized the move to the court and pointed to what he described as the “hypocrisy of it all”.

He said: “Can you imagine going to the court about not being able to access countries’ markets when you cannot supply and then another country not fulfilling its obligations with regard to free movement of labour, but they want free movement of goods into your territories?
“We will have to discuss this issue at the heads,” Jagdeo added, clearly indicating that he intends to raise the issue at the Caricom Heads of Government meeting here next week.

Guyana did in fact concede at the commencement of the two-day hearing in Trinidad and Tobago that it was wrong to breach the Revised Treaty of Chaguaramas by unilaterally suspending the Common External Tariff (CET) on cement imported from countries outside Caricom, and adding that it was making “no justifications for doing so”.

But, according to the audio of the proceedings, when asked whether Guyana is still in breach, lead counsel Keith Massiah, SC replied, “I cannot say that the waiver is not in place and I have no information that COTED [Council for Trade and Economic Development] was approached for a waiver.”

TCL and TGI had accused the Guyana government of breaching the treaty and were later granted leave to sue the government here after approaching the CCJ.

The case underscores the issue of Guyana’s suspension of the CET and its implications for the regional treaty, but the President said on Friday that an equally important issue is whether the jurisdiction of the court extended to a private group. He was responding to a question posed by a member of the media.

“The meeting in Belize was clear… many of the countries represented there agreed on the TCL matter and the issue of whether a private group could take a case to the CCJ,” Jagdeo said at a press conference at the Office of the President on Friday.

The President said too that the decision to proceed in the case was made on “some erroneous submissions”, adding that the issue would be forwarded to Guyana’s Attorney General and likely, other Attorney Generals across the region.

“… I am not at liberty to speak about it all, but I hope that you will investigate this matter a bit more,” he said to reporters.
According to the President, Guyana was defending its interest from the beginning given that TCL has been unable to meet the demands of this country. He said its forecast for demand in Guyana was way out of line with actual use. This, he said, led to a serious escalation in prices and a shortage of the product.

“The decision to open up the market was based on that, and we were simply defending the national interest,” he reiterated. Further, he said that the region had been weighing the issue of whether CET protection should be offered to companies that are internationally competitive, some of which he said, have majority shareholders that are extra-regional.

Jagdeo said that the issue came up with Trinidad and Tobago’s oil, stating that Guyana was paying more for oil from T&T than it was selling for in the US. He questioned again why companies selling in the US market competitively should be offered CET protection in Guyana.

With respect to the issue raised by the President of whether TCL and TGI qualified as candidates for special leave to bring proceedings before the CCJ, the regional court had ruled earlier this year that the incorporation of a company in a Caricom state (which is a party to the treaty) is enough to qualify the company as a candidate for special leave to bring proceedings. It also ruled that an individual or a company may possibly approach the CCJ to seek relief against the state of which he is a national or any other Caricom state, which is a contracting party.

Further, in the judgment on whether a national of a state party to the treaty can bring an action, the court said it rejected a literal interpretation of the relevant article, Article 222 of the Treaty and took into consideration the policy and objectives of the Treaty as disclosed both in its preamble and its substantive provisions. In the judgment, the court held that it is possible for an individual or a company to seek relief from the CCJ for breach of a treaty obligation undertaken by a state whether or not that individual or company is a national of the offending state.

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THE INTERNATIONAL LAW COMMISSION AT ABOUT 60

by STEPHEN VASCIANNIE

Sunday, June 28, 2009

Source: Jamaica Observer

The United Nations International Law Commission had its first elections for members in November 1948, and held its first session in April 1949. It may therefore be about 60 or 61 years old, depending on the date one chooses as the formal starting point.

The commission is a subsidiary body of the United Nations General Assembly, and its mandate, in keeping with Article 13(1)(a) of the United Nations Charter, is to work for the progressive development and codification of international law. Thus, at its meetings, held in Geneva in two sessions per year, members of the commission are called upon to consider particular international developments, and place them within the framework of international law.

Trinidad Cement

As the history of the International Law Commission demonstrates, the work of progressive development and codification of the law is of considerable practical significance. For example, one of the leading treaties in the world today, the Vienna Convention on the Law of Treaties (1969), sometimes referred to as "the treaty about treaties", was drafted by the International Law Commission, and now has at least 108 States Parties.

Numerous rules in this treaty now represent the international law that is binding on all states; and, generally speaking, if you want to understand fully the terms of any treaty, you would be well-advised to consult the rules of interpretation set out in the Vienna Convention on the Law of Treaties.

This is not just theory for academic use.

The Caribbean Court of Justice, in the first case under its Original Jurisdiction - Trinidad Cement Limited and TCL (Guyana) v. Guyana (2009) - was called upon to interpret the meaning of Article 222 of the Revised Treaty of Chaguaramas, pertaining to whether, and in what circumstances, a national company of Guyana may bring a case to the Court against the Government of Guyana.

Not surprisingly, in reaching its conclusion in this case, the Caribbean Court of Justice relied on the rules of interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties, rules that had their origin in the work of the International Law Commission.

Similarly, in a series of cases, including the Case of the Territorial Dispute between the Libyan Arab Jamahiriya and Chad (1994) and the Maritime Delimitation and Territorial Questions Case (Qatar v. Bahrain) (1995), the International Court of Justice, based in The Hague, has expressly accepted that the commission's rules on treaty interpretation have the status of customary international law.

Montego Bay Convention

Nor should it be believed that the impact of the International Law Commission's work is confined to the law of treaties. Matters concerning the regulation of activities in the sea are now, generally speaking, governed by the 1982 Montego Bay Convention (or the Law of the Sea Convention), which was drawn up after years of negotiations among states at the Third United Nations Conference on the Law of the Sea (UNCLOS III).

What is not often appreciated, however, is that several parts of the Montego Bay Convention draw direct inspiration from three treaties on the law of the sea originally prepared by the International Law Commission. These treaties - the Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental Shelf and the Convention on the High Seas - provided the basis for many rules in the law of the sea from 1958 until they were overtaken by, or incorporated into, the rules in the Montego Bay Convention.

Particularly with reference to the Convention on the Territorial Sea and Contiguous Zone, and the Convention on the High Seas, the basic template created by the International Law Commission prevails in the law today. Thus, in the current discussions about piracy off the coast of Africa, or in the past debate about Caribbean Shiprider agreements with the United States of America, rules originating from the commission have been at issue.

Also, on one reading, the rules applied by the arbitral tribunal in the maritime delimitation case between Trinidad and Tobago and Barbados (the "Flying Fish Case") have their roots in the Convention on the Continental Shelf drafted by the commission.

The day-to-day significance of past work by the International Law Commission is further exemplified by the Vienna Convention on Diplomatic Relations (1961), which entered into force in 1964, and now has over 177 states parties. From time to time, when there are apparent instances of abuse of diplomatic privileges and immunities, lay persons will call for amendments to the terms of this treaty; but, in fairness, the current system concerning the treatment of diplomats has worked well throughout the world: these rules have protected diplomats from the vagaries of host country decisions, and have thereby facilitated lawful means of diplomatic exchange.

Current Work

But, to be sure, the International Law Commission cannot rest on its past achievements, and must tend to the progressive development and codification of new areas of international law. With this in mind, the following items, among others, are now on the agenda of the commission:

(a) the expulsion of aliens;
(b) protection of persons in the event of disasters;
(c) immunity of state officials from foreign criminal jurisdiction;
(d) the Most-Favoured-Nation clause;
(e) responsibility of international organisations;
(f) shared natural resources;
(g) the obligation to extradite or prosecute (aut dedere aut judicare);
(h) reservations to treaties; and
(i) treaties over time.

The work of the commission on some of these issues is far more advanced than on others. And it will be evident from the list that some will be of immediate relevance to Caribbean countries, while others may affect us only occasionally.

In the former category, the question of expulsion of aliens (in the context of Caribbean migration), the most-favoured-nation clause (in the context of the recent EPA arguments), and the protection of persons in disasters (in a region prone to hurricane damage), all seem to merit special, though not exclusive, attention.

Finally, in this brief overview, it should be noted that the International Law Commission comprises 34 lawyers drawn from all regions of the world, as recognised in the United Nations system. The equitable distribution of seats on the commission on the basis of geographical representation ensures that the different legal systems of the world are represented, and that divergent perspectives on different points of law are fully represented.

The members of the commission serve in their personal capacities, and are drawn from among practitioners, professors of law, and diplomats.

- Stephen Vasciannie, principal of the Norman Manley Law School, is a member of the United Nations Law Commission

Justice David Hayton

Speed up wheels of justice
Only non-Caribbean judge on CCJ bench:

Not many people would say that working in the judiciary in Trinidad and Tobago is a holiday. Except, perhaps, if you're a judge with the Caribbean Court of Justice.

Just last November, Justice David Hayton, the only non-Caribbean judge on the bench of the regional judicial tribunal, boasted in the Law Report, a journal of King's College in London, that 'I have found the ideal job, broadening my legal and territorial horizons, while, for once, leaving me under-worked with time to play tennis, squash and golf and sit under palm-trees, and reflect upon.

"The court took off very slowly," Justice Hayton explained in an interview on Friday at the Hyatt Regency hotel in Port of Spain.

"For the first two or three years we had no cases," said the esteemed professor of law who specialises in trust and equity, and private international law. Within the last year or so, cases have begun to trickle in to the CCJ-Trinidad Cement Ltd has brought a case against the Guyanese government for not imposing the agreed 15 per cent tariff on cement it imported from Venezuela.

Twelve Caricom states signed the agreement to establish the court in 2005. Since then, only Barbados and Guyana have removed the Privy Council as their final court of appeal, and replaced it with the CCJ.

Having given up his various positions as a part-time judge in London, a professor of law at King's College and his bar consultancy, Hayton talked about security of tenure last week. He has discovered that he, and the other six judges on the CCJ-according to the Privy Council on the implication of the CCJ replacing the Privy Council-are put above local High Court judges and local Court of Appeal judges but without the same or better protection.

If it is alleged that a High Court judge is guilty of misbehaviour or misconduct, a special ad hoc tribunal is formed to decide if a judge is guilty, following which a recommendation is made to the Privy Council for him to be removed. With the CCJ replacing the Privy Council, the CCJ's judges would not be subject to the Privy Council jurisdiction.

"And so what was our security of tenure?" Hayton asked. "We were appointed, transparently, by the Regional Judicial and Legal Services Commission and we can only be sacked by them.

"We are the most financially independent court in the world with a $100 million trust fund that was set up to secure the future of the court. We have legal independence. I think it was Lord Bingham who said, 'Ah, but these 12 prime ministers could always get together and decide to abolish your security of tenure by amending the Treaty.'

"In theory that's possible but it's fanciful, and it showed a rather belittling view of the Privy Council," he said.

Justice Hayton, who was hired as an acting Supreme Court judge in the Bahamas in 2000 and 2001 for 12 weeks each year to clear up the backlog of cases, believes T&T, and indeed all of Caricom, should make the CCJ the final court of appeal.

"I heard one or two people say that we're all worried in the Caribbean about judges being a little too close to people, being politically tainted in one way or another.

"Of course, the Privy Council is thousands of miles away so they won't be tainted by anything. Obviously I've come from England and I don't have any close connections with any politicians and the other members of the court are highly respected people of independent integrity and impartiality and so on, every bit as much as the Privy Council.

"So I don't see that as a sensible argument. As Sonny Ramphal made clear in the opening address to this conference, it makes absolute sense for independent Caribbean countries to assert their independence by saying we've got very able jurists in the Caribbean area, a lot are in international courts throughout the world now and we've got very good ones on the CCJ."

Hayton speculates, however, that in T&T, the CCJ would probably never replace the Privy Council given the current political landscape.

"I don't see T&T taking the CCJ until (Opposition Leader Basdeo) Panday ceases to be leader of the UNC. You have to have a special majority [to make the change] and that means you've got to have both the ruling party and the Opposition agree, he said.

His argument was was the personalities of both leaders dictated against this happening, even though he noted that it was Panday, who as Prime Minister, signed up to the international agreement to have the CCJ.

Hayton also believes that after four years in Trinidad, one has a better perspective of Caribbean attitudes "which is something the Privy Council don't have".

Although criminal law is not his area of expertise, Justice Hayton pointed to deficiencies in the local judicial system as it relates to crime.

"First of all you, need a more effective police force to catch more criminals-the detection rate seems pretty low," he said.

"Then, of course you need an efficient criminal law justice to process them through the system reasonably quickly," he added, contending that one of the main problems with the local system was the retention of the old-fashioned preliminary enquiry process before magistrates where it's possible to take constitutional points and go for judicial review when these proceedings were going on.

"It's appalling. It took eight years before the Piarco Enquiry case got through the magistrates system," he noted.

"You also need to put more money in the system so you have more judges, so that cases can be heard much more swiftly.

"I gather at the moment it can easily take two years before a murder case is heard after the indictment, after the magistrate's hearing is over.

"And in some cases it can take up to four or five years and meanwhile, of course, it gives plenty of time for witnesses to have second thoughts, or to be intimidated or threatened or just leave the jurisdiction so we've really got to speed up the whole criminal justice system to make it more efficient," he said.

Legislation should also be brought to Parliament to allow security agencies to intercept telephone conversations and communications and use this as evidence in court, Hayton suggested.

On the matter of constitutional reform, Hayton said that already the Prime Minister of T&T has too much power. His power of veto over the appointment of the DPP, the Commissioner of Police, the Solicitor-General and the Chief Parliamentary Draftsman basically allows him to turn down all proposed candidates "until he gets the person he considers the right sort of person for the job", Justice Hayton said. He said it would be preferable to have an independent body, like the Regional Judicial and Legal Services Commission appoint these people, without any power of veto from the Prime Minister.

"It seems to me, already, under the Constitution, the Prime Minister has perhaps too much influence, so I don't see the need quite so much for an executive presidency.

"But I haven't been following the constitutional debate that closely. It seems a lot of it is a red herring to distract one's attention because for all these major constitutional changes, aren't you going to need the consent of the Opposition?" he asked.

He also noted that as far as the PNM was concerned, Prime Minister Patrick Manning has absolute powers over who actually stands for a constituency in an election.

"So people who had very distinguished records, like Ken Valley, despite the support of their constituency, were vetoed as a member.

"And that means the leader of the PNM has much more power than the parties in England. You don't have such power vested in the leader," he noted.


See: Profile: http://www.caribbeancourtofjustice.org/judges_pages/hayton.html

June 27, 2009

Sir Ramphal on the CCJ

Source: Antigua Sun

Written by Sir Shridath Ramphal

FRIDAY, 26 JUNE 2009 20:18

Address by Sir Shridath Ramphal at the inauguration of the Caribbean Association of Judicial Officers, Port-of-Spain, 25 June, 2009.

It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters. A century old tradition of erudition and excellence in the legal profession of the region leaves no room for hesitancy. Ending the jurisdiction of the Judicial Committee of the Privy Council was actually treated as consequential on Guyana becoming a Republic 39 years ago.

I am frankly ashamed when I see the small list of Commonwealth countries that still cling to that jurisdiction – a list dominated by the Caribbean. Now that we have created our Caribbean Court of Justice in a manner that has won the respect and admiration of the common law world, it is an act of abysmal contrariety that we have withheld so substantially its appellate jurisdiction in favour of that of the Privy Council – we who have sent Judges to the International Court of Justice, to the International Criminal Court and to the International Court for the former Yugoslavia, to the presidency of the United Nations Tribunal on the Law of the Sea; we from whose Caribbean shores have sprung in lineal descent the current attorneys-general of Britain and of the United States.

This paradox of heritage and hesitancy must be repudiated by action – action of the kind Belize has just taken to embrace the appellate jurisdiction of the CCJ and abolish appeals to the Privy Council.

It is enlightened action taken by way of constitutional amendment, and Belize deserves the applause of the Caribbean Community – not just its legal fraternity. Those countries still hesitant must find the will and the way to follow Belize – and perhaps it will be easier if they act as one. The truth is that the alternative to such action is too self-destructive to contemplate. If we remain casual and complacent about such anomalies much longer, we will end up making a virtue of them and lose all we have built.

To ensure against that – and to give confidence to our publics in so doing – governments must be as assiduous in demonstrating respect for all independent constitutional bodies, like the director of public prosecutions, for example, as the Caribbean Court of Justice itself must be in demonstrating its own independence. In the end, the independence of Caribbean judiciaries must rest on a broad culture of respect for the authority and independence of all Constitutional office holders so endowed.

And in the particular matter of the Caribbean Court of Justice we must act positively, not negatively. We must not abolish appeals to the Privy Council merely because we disagree with its rulings in capital punishment cases; that abolition, which must come, must be a consequence of our determination to endow our own Caribbean Court of Justice with the status of our final Court of Appeal in all matters; a consequence of the exercise of our right to self-determination in judicial matters too. We have not established the Caribbean Court of Justice to give decisions to our liking; but to give decisions under law.

Finally, we would confirm the myopia of which lawyers are often accused if we did not recognise that our Community faces dangers on other fronts – dangers which are apposite to all Caribbean judiciaries The basic premise of our regional lives is that West Indians are one people; and like all comingled people are of many varieties. In our case, the varieties have enriched the composite oneness, yielding now a characteristic mosaic identity of which we all tend to be proud and often boast.

Personally, I have been a West Indian from the first moment of awareness of such things; and wherever I have lived in the region – from Guyana to Trinidad, to Jamaica, to Barbados – I have been in my West Indian home.

I am not unique in this; it is true for most ordinary West Indians; the more "ordinary", the more true. It is always a sadness when, however propelled, our societies are caught in a downward spiral of separateness with fellow West Indians cast as ‘outsiders’; those times when, as Annalee Davis (the Barbadian Researcher) has described them, we become "locked into nationalist crevices … and exclusivist cultural legitimacy".

We are at such a time, and both policies and practices are deepening Caribbean divides. "The knock on the door at night" is not within our regional culture; still less are intimations of "ethnic cleansing".

No Caribbean leader would countenance such departures from our norms and values; but all must not only believe, but also act as if they believe, that we forget our oneness at our peril; whether the "otherness" that displaces it is an accidental place of regional birth, or otherness of any kind. I say ‘accidental’ because in the Caribbean the age-old process of trans-migration has made us all family: as a great Barbadian regionalist, the Rt. Excellent Errol Barrow, reminded us 23 years ago – concluding in his practical common-sense way that:

"If we have sometimes failed to comprehend the essence of the regional integration movement, the truth is that thousands of ordinary Caribbean people do in fact live that reality every day. … we are a family … and this fact of regional togetherness is lived every day by ordinary West Indian men and women in their comings and goings."

So indeed it was; and for a very long time. My great-great grandfather on my mother’s side came to Guyana from Barbados looking for land and settlement, and found them – and so it has been up and down the chain of island societies that free movement fused into one: freedom curbed ironically with the arrival of our separate ‘national’ freedoms. But the roots of those family trees are now spread out in the sub-soil of the Caribbean. Social antipathy and divisiveness deny them; but DNA’s defy even Constitutions.

"Caricom is at risk", we have been warned. So it is; and few are blameless. Political leaders, in particular, have to be less casual about Caricom, less minimalist in their ambition for it, less negative in their vision of it. Its foundations have been built on our oneness; not on the geography of a dividing sea.

The Revised Treaty of Chaguaramas is not just embellished parchment; it is the logic of that oneness in a world which threatens our separate survival. And the revised treaty is not all; there are international Conventions to which all Caricom member states are parties that are relevant to our rights and obligations to each other as human beings, much less family.

The Caribbean Community is now our regional mansion within a global home. We have to make it more secure and habitable – through reaching goals like the CSME (or even the CSM) and reaching them together.

Next month is the 20th anniversary of the Grand Anse Resolution on Preparing the peoples of the West Indies for the Twenty-first Century – the Resolution that established the West Indian Commission. Nearing the end of the new century’s first decade, we are still ‘preparing’. No wonder "Caricom is at risk". In the era of globalisation, we retrogress if we simply mark time while the world moves ahead.

As Caricom’s political directorate meet in Georgetown next week at their 30th Summit, they must demonstrate credibly that they still believe in Caribbean integration, that they care about securing it against risk and that they are serious in their commitment to the objectives of the Treaty of Chaguaramas. I believe the people the Caribbean yearn for that assurance from inspired leadership.

And so must we all here; for without Caricom, without the Community, where is the Caribbean Court of Justice; where, even, are Caribbean judiciaries?

The siren song of separatism lures us to self-destruction – as it once did with the federal nation we were about to be 47 years ago. The Federation – "The West Indies" – (how quickly we have forgotten its name) did not founder on technical rocks; it foundered on political ones. We have now re-built pains-takingly over nearly half a century; and are again "about to be" – this time an economic community. And again the siren sings seductive songs of separatism. In our collective self-interest, resistance of that enticement has become a major challenge of our time; and it is from our political directorates that the will to resist must mainly come.

The Caribbean Court of Justice, with the full jurisdiction with which it must soon be endowed, with its rich inheritance of the common law and of that international law which is the under-pinning of globalisation, is for me the greatest assurance that as a Community of Caribbean people, we can meet and overcome the challenges of the time.