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:

by Nazma Muller

Source: Trinidad and Tobago Express

Sunday, June 28th 2009

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

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.

Privy Coucil Must Go

Ramphal makes an appeal...

Privy Council must go

Published: 26 Jun 2009

Source: Trinidad and Tobago Guardian.

Leading Caribbean jurist Sir Shridath Ramphal yesterday called on all Caribbean Community (Caricom) countries to abolish appeals to the Judicial Committee of the Privy Council in London, and to join the Caribbean Court of Justice (CCJ), in both its appellate and original jurisdiction. Speaking at the inaugural conference of the Caribbean Association of Judicial Officers (CAJO) at the Hyatt Regency Hotel in Port-of-Spain, Ramphal said, “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,” he added.

Welcome remarks came from CCJ President Michael de la Bastide and Chief Justice Ivor Archie. Jurists from throughout the Caribbean are attending the three-day conference. Ramphal, a former Commonwealth secretary-general, pointed out that Guyana abolished appeals to the Privy Council when it became 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,” he said.

“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. Ramphal, a Guyanese, said Caribbean countries must move forward quickly in endorsing the appellate jurisdiction of the CCJ.

He said, “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,” he said.

CCJ Reserves Decision in Original Jurisdiction Case

CCJ reserves decision in cement case
Source Stabroek News

June 17, 2009 in Local News

Guyana admits breaching treaty

The Caribbean Court of Justice (CCJ) has reserved judgment in the closely watched case of Trinidad Cement Ltd (TCL) and TCL Guyana Incorporated (TGI) against the Guyana Govern-ment over the application of the Common External Tariff.

Guyana conceded on Monday at the commencement of the two-day hearing in Trinidad and Tobago that it was wrong for breaching the Revised Treaty of Chagua-ramas by unilaterally suspending the Common External Tariff (CET) on cement imported from countries outside of Caricom, and noting too 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 (Caricom Council for Trade and Economic Development) was approached for a waiver”.

Through its admission of wrongdoing the government here faces the issue of compensation as TCL/TGI are claiming some US$2.5M in damages. The case is also seen as critical as it is the first test of the regional court in its original jurisdiction – interpretation of the Treaty of Chaguaramas – as distinct from its appellate role.

Senior Counsel Dr Claude Denbow, who filed the application on behalf of the cement companies, argued that the case is a fundamental one because it focuses on how the CCJ will treat a breach of the regional treaty, adding that it cuts to the core of the issue of “whether one member state will be allowed to tear up the treaty and treat it in an arbitrary and whimsical fashion”.

Dr. Denbow said that Guyana still refuses to implement the CET after being requested to do so. He contended that Guyana’s actions set a dangerous precedent for the sanctity and continuing viability of the treaty. He said too that Guyana showed total contempt for the treaty.

Massiah had conceded on Monday that Guyana should have approached COTED prior to suspending the CET. But, he argued that TCL and TGI were unable to meet the demands of local distributors, adding that “the inability to do so has continued”.

But he pointed to the independent cement audit report released by COTED late last year, which showed that TCL was unable to meet the requests of distributors in Guyana up to the period November 2008, and respectfully submitted that the court pay some consideration to the findings.

Counsel also pointed to the sworn evidence of Guyana’s Foreign Trade Director, identified in court as Mrs. Stephens, who testified that a monitoring unit within the ministry routinely checks in with distributors here as well as documents their complaints.

Massiah said further the matter would not have reached the court if TCL had the “ability to meet the demands of Guyanese distributors”.

BackgroundTCL and TGI had accused the Guyana government of breaching the Revised Treaty of Chaguaramas by unilaterally suspending the CET on cement imported from countries outside of Caricom and was later granted leave to sue the government here after approaching the CCJ.
TCL and TGI alleged a breach by Guyana of the provisions of Article 82 of the revised treaty under which Guyana is obliged to establish and maintain a Common External Tariff (CET) on cement imported into Guyana from outside of Caricom. The CET is incorporated into the laws of Guyana.

According to their submission, TCL and TGI alleged that Guyana is required to establish and maintain a CET in respect of all goods which do not qualify for community treatment in accordance with plans and schedules set out in the relevant determinations of COTED; that the CET on cement is imposed at the rate of 15% on imports of cement from third states as reflected in the First Schedule of the Guyana Customs Act Chapter 82:01; that the imposition of the CET on imports of cement into Guyana extra-regionally is of great commercial benefit to them because of the protection afforded to their products; and that when the CET is imposed TCL and TGI enjoy a competitive advantage over imports which do not qualify for community treatment in accordance with the treaty.

Though they confined their allegations of not enjoying such a competitive advantage to the period from January 2007 and continuing even though the suspension of the CET commenced before January 2007, they said that at present they do not enjoy such a competitive advantage because of the decision of the Guyana government to suspend the implementation of the CET.

TCL and TGI alleged too that the revised treaty provides for COTED to authorise an alteration or suspension of the CET by a member state but the government sought no permission for this but Guyana was allowing the importation of cement from extra-regional sources without paying the CET as mandated by the relevant provisions of the revised treaty.

Retired Attorney General Doodnauth Singh submitted then that TCL and TGI were guilty of abusing their dominant position in the market and the court needed to protect consumers within Caricom; and that throughout Caricom there were complaints about the inability of TCL to supply the Caribbean market and in the period between 2001 – 2007 CET waivers were sought and obtained from COTED by Suriname, T&T, Jamaica and the member countries of the Organisation of Eastern Caribbean States (OECS).

The CCJ panel of judges presiding in the case comprised, President of the court, Justice Michael De La Bastide and Justices Rolston Nelson, Duke Pollard, Adrian Saunders, Desiree Bernard, Jacob Wit and David Hayton.

Caricom, whither goest thou?

Caricom, whither goest thou?
By : ANTHONY GOMES
Wednesday, June 03, 2009
Source: The Jamaican Observer.com

Following the April 22 column, "Caricom's meandering direction", the situation has deteriorated with a reversion to the niggling trade tactics of the 70s and 80s between Jamaica and Trinidad and Tobago.

Some would recall the "Welding Rods" episode, and the MAD technique - Maximum Administrative Delay - on Jamaican exports that gave rise to the sobriquet "Port of Pain", and the imports of goods from Trinidad manufactured in free zones without application of tariffs, and the "Tit for Tat" reciprocal counter measures, all of which were eventually resolved by political interventions. This piqued behaviour was seen as Caricom's "growing pains".

It is not that Caricom has entered its second childhood, as it is only 36 years old. However, it is demonstrating a level of immaturity that makes one wonder why the region is still mired in the aberrant ways of the past, instead of moving ahead with its economic growth and development. In the previous article mentioned above it was written: "To avoid further diverting, there must be established a central purpose and method to bring the regional group back to the narrow path of governance towards unity and stability, which are basic requirements of a well-organised and managed coalition of Caricom states, moving forward together towards the same goals. The maligned EPA could be a needed catalyst in achieving this end."

Over the years there have been endless reports, studies and recommendations on unification of the 15 member states, to achieve economies of scale and solidarity when dealing with third countries in a globalised world. All the recommendations, including Federation, Confederation and a Caribbean Commission have been unacceptable. In light of this impasse, pray tell what consolidating configuration would be acceptable to the Conference of Heads of Government? So far, the silence has been deafening, and Caricom continues to wallow in a sea of uncertainty.

This state of suspended animation does little to improve the region's image abroad, and distinctly hampers our posture in negotiations with foreign countries. Vacillation has resulted with the region being overtaken by the world recession, thus compounding its difficulties. The region's problems and suggested remedies have been fully ventilated in all media. What is left is for the 30th Annual Heads of Government Conference in Guyana to devise dynamic strategies to restart and re-energise the region's forward momentum. Failure to change the status quo would create intensified regional tensions, likely to prompt fragmentation of the Community according to the maxim that if "the centre cannot hold, things fall apart".

Jamaica expected the result of Trinidad's Phyto-sanitary tests on a shipment of patties to be completed on May 29. The tests were satisfactory and the shipment of patties was allowed entry to the Trinidad market. The situation of Trinidad requiring tests arises at a critical time when Caricom economies are being ravaged by the global recession, and increased trade between members is vital for survival. Protectionism will only aggravate and prolong recovery which is not in the region's interest.

At this critical juncture, the Dominican Republic and Haiti have applied for Caricom membership; this is the Dominican Republic's second application. Haiti has now completed the entry obligations and has applied for full membership. Both applications come with issues attached.

At the meeting of Caricom's Council for Foreign and Community Relations held in Kingston on May 9, the minister of foreign affairs and foreign trade, Dr Kenneth Baugh, said in reference to the Dominican Republic's application for Caricom membership: "There are a lot of issues to be addressed, in the context of this relationship with the Dominican Republic , but the general spirit is yes." He continued: "It is in our interest to expand in terms of penetrating those markets. the bigger the marketplace the better it is."

However, the global crisis must be considered when assessing Jamaica's anaemic economy and its ability to withstand concerted competition from the Dominican Republic whose economy grew by 5.5 per cent last year, with a debt ratio of 41 per cent of GDP compared with Jamaica's approximately 125 per cent, and the January-July 2009 ballooning trade deficit with the Dominican Republic of -US$42.2 million! If the process time for full membership is expected to be five years, and the impact study is favourable, then full membership could be conferred at that time.

The Dominican Republic's population of 9.5 million is an attractive growing market for exploitation by Carcom's private sector. However, membership should be on a phased asymmetrical negotiating basis over five years with the same EPA liberalising periods. The first offer could be associate membership with terms and conditions customised by conference, subject to a five-year review, and granting full membership if an improved economic climate prevails, with a resulting positive impact study.

Haiti, with 8.7 million inhabitants, is the Caribbean's only Least Developed Country, which has Everything But Arms access to the EU and also participates in the EPA. With full membership, attention is drawn to those categories of people allowed regional free movement and influenced by Haiti's high unemployment rate. Haiti's national health record, when dealing with immigrants and temporary migrants under mode 4 would likely necessitate border health controls to avoid exacerbation of the region's precarious health environment. Haiti and the Dominican Republic would have to enshrine the Caribbean Court of Justice with original jurisdiction for intra-Caricom trade to flourish. These are but a few issues requiring the Dominican Republic's views on full membership to assist with Caricom's response to Haiti's application. So, Conference, where do we go from here?

Citizenship and the Constitution

Published: Sunday | May 31, 2009

Source: Jamaica Gleaner - Jamaica

By: Robert Buddan, Contributor

At its most essential, a Constitution sets out the just and right relations between the State and the citizen. One relationship involves the basis upon which citizens can represent themselves through the state. This is about elections  The other relationship is about how the state represents citizens. This is about sovereignty. The point at which the two meet is where the citizen can represent him or herself in a way that does not undermine the sovereignty of the state.

The matter of dual citizenship  has to be seen in this context - a context of where rights and justice begin and/or end. Rights and justice cannot only be topical when it is convenient to the State and citizen. Nor can constitutional reform be reduced only to dual citizenship because it is politically expedient for a government and its supporters to do so. Yet, this is often what politics is about and when things are done for convenience and expedience, the problem at hand becomes politicised. The real problem then becomes lost in a confusion of convenient arguments and expedient actions.

Higher authority

Take the court rulings for by-elections in West Portland and North East St Catherine. A government has a thin majority by the certification of the Electoral Office. But that thin margin has still to be certified by the constitution, which is a higher authority than the Electoral Office. Election petitions have sought the decision of the courts. The courts have ruled in two cases that the persons elected could not be certified as being legitimately elected because they held dual citizenship. So, in this sense, the elections of September 2007 are still being certified. In the meantime, a slate of candidates certified by the Electoral Office is allowed to govern.

The Government and its spokespersons have made three expedient arguments. One is that it is an absurdity for a Jamaican's right to be elected (though he has dual citizenship) to be less than the right of a Commonwealth citizen who has spent a year in Jamaica. The second is that the Opposition is seeking to topple the Government through the courts. The third is that holding these by-elections is a distraction, is unnecessary, and is a waste of money. Prime Minister Bruce Golding made the first two arguments and Shahine Robinson, who is suspected of holding her seat illegitimately on the same grounds of dual citizenship and dual allegiance, made the last.

Political compromise

The solution offered by the Government is a political compromise, which is what convenience and expediency typically come down to. The compromise is that both sides in Parliament should agree to change the inconvenient clause(s) in the constitution and avoid a possible general election, which the country supposedly does not want at this time - an argument of political expediency. Political compromises are not in themselves bad. But they should be made to save, not substitute fundamental principles, those very principles that often get lost and forgotten in the pursuit of convenience and expediency.

The Opposition's response to the issue rests on three points. It has maintained that these by-elections were important to satisfy constitutional requirements for parliamentary representation; that its challenges in the court seek to uphold the constitution as it stands and that those challenges have been vindicated by the court's decisions so far; and that changes of the relevant clauses in the constitution required a referendum and a decision by the people, and could not be achieved by a compromise of convenience between the members of Parliament. Ultimately, it is saying that the fundamental issue at stake is the constitution, not the government majority. Section 39 is after all, entrenched. For purposes of expediency this might be regarded as absurd. For purposes of democracy, the constitutional fathers might be regarded as wise. It involves the grounds on which a citizen is qualified to represent the sovereign state.

Resolving the problem

This question has come down in practical terms to the problem of dual citizenship and how the country should treat it. Parliament is an important oversight body of the constitution. But sometimes, by an oversight, Parliament itself fails to see and correct some of the problems of the constitution. For 35 years since the Michael Manley government declared its intention to pursue comprehensive reform of the Jamaican Constitution the various joint committees and commissions on constitutional and electoral reform have failed to anticipate this problem or they saw nothing wrong with the section on dual citizenship. This is why it appears expedient now for the matter to be raised the way it has been since September 2007. The press and citizens, especially those who have dual citizenship, have also failed to raise it in the context of constitutional reform.

Hot debates

The hot debates over the constitution have been about whether we should retain the British monarch as head of state or have one of our own; deepen entrenchment over the fundamental rights of citizens and limit the state's powers to suspend those rights; adopt a more proportional arrangement for electing governments rather than keeping the 'winner-takes-all' electoral system; and have the Caribbean Court of Justice as our court of final appeal rather than using the British Privy Council for that purpose.

These are all vital matters. But as more and more Jamaicans came to live overseas and as we called upon more of them to serve the country, we (and they) somehow failed to ask the logical follow-up: Can they serve in Parliament even if they have dual citizenship and do Jamaican citizens, dual or otherwise, have the same right to serve as Commonwealth citizens?

Now that the matter has come to light we have to address it. But we cannot address it conveniently and expediently. To do that will get us into trouble of inconsistency.

Upcoming by-election

In the short weeks ahead the country will focus on the upcoming by-election in St Catherine. The by-election will get more attention than constitutional reform has received in any three-week period over the past 12 years save the attention given to the Caribbean Court of Justice. At least that issue was not about political expediency. It had no bearing on the Government's majority. The focus will narrowly be on the PNP-JLP competition for power, election tactics, spending, and who wins. When all of these by-elections are over, we should return to comprehensively review our Constitution. We cannot simply pick out the parts that are convenient from time to time to debate. No wonder constitutional reform has failed to get anywhere.

Caricom: Lost within a widened Caribbean Community?

Caricom: Lost within a widened Caribbean Community?
Sir Ronald Sanders
Sunday, May 24, 2009

Source: Jamaica Observer

A technical team has been appointed by the foreign ministers of the Caribbean Community and Common Market (Caricom) to consider an application from the Dominican Republic to join the 15-nation group. The team has been asked to have the report ready for consideration by Caricom heads of government when they meet in Guyana in July.

This will not be an easy process by any means.

Three factors are at play.

The first of these is that Caricom has not yet sufficiently deepened the relationship among its existing members. The second is the different interests of the Caricom countries - some might see an advantage in greater access to the DR's market, while others would regard opening their own markets to the DR as a disadvantage to local companies. The third is deep concerns of Haiti about the DR with regard to human rights issues related to labour and migration.

When the West Indian Commission (WIC) produced its report, "Time for Action", in 1992, it placed great importance on deepening the relationship between the then 13 Caricom member states - all of whom were English-speaking. The Commission regarded the 13 as a "core group" who should deepen their relationship in furtherance of their collective interest in the region, the hemisphere and the wider world.

Amongst the actions that the WIC recommended was the creation of a Single Market and Economy, the establishment of the Caribbean Court of Justice (CCJ) to resolve trade and investment disputes and to replace the British Privy Council as a final appellate court, and the institutionalisation of a Commission - similar to the Commission of the European Union - to manage the operations of Caricom including the Single Market and Economy and external economic relations.

Specifically, the WIC said: "The West Indies must both deepen the process of integration and reach out to a wider Caribbean in appropriate levels of co-operation. The dual-track approach may produce differing levels of integration within the Caribbean; it may produce circles of association that start with the intimate West Indian family and others that encompass an extended family of the non-English-speaking islands of the Caribbean, and a still larger circle of closer relations with countries of the Caribbean Basin that include territories of the South and Central American littoral."

The WIC was especially concerned that "on the economic side, we have to feel our way in enlarging the Caricom market so that we make progress in that direction without being overwhelmed by new members and end up being lost within our own widened community".
President of the Dominican Republic, Leonel Fernandez. The DR has applied for membership to the 15-nation Caricom.

This process was not followed.

Caricom admitted Suriname and then Haiti to membership before the process of deepening the relationship between its core members had advanced very far. The Single Market was not launched until 2006 - 14 years after it was proposed - and its implementation by several countries has been painfully slow since then. The CCJ, while it operates as a court of original jurisdiction for trade and investment disputes among Caricom countries, is not the final appellate court for all but two countries, and the machinery for governance of Caricom remains ineffective since neither a Commission with executive authority nor anything akin to it has been established.

This failure to consolidate and advance the Caricom inner core has weakened the organisation and the capacity of its member states to bargain effectively in the international community and to strengthen their own economies. And, the introduction of new members, before the relationship has been deepened, complicates the process even more, particularly as new members have brought different laws, different domestic decision-making processes and different ambitions.

The argument remains valid that even now Caricom should deepen its own core arrangements by completing the establishment of its Single Market before attempting to expand its membership further. Indeed, expanded membership may serve to slow down - if not derail - the process of moving toward a Single Economy which would have to include a common currency, harmonised tax policies, the development of a Caricom-wide social security system, and free movement of people for several categories of workers.

The DR may not be interested in pursuing these stated goals of Caricom.

On the external relations of Caricom, expanded membership now could also impair the development of harmonised foreign policies. While the Caricom Treaty calls for the co-ordination of the foreign policies of its member states, it is clear that to deal effectively with the international community, co-ordination will not be enough. This is a matter that both existing Caricom countries and the DR will have to consider carefully in their separate interests, for their interests will not always converge.

With regard to new market opportunities, while a free trade agreement exists between the DR and Caricom countries, it covers only trade in about 400 products; it does not cover services. The free trade agreement between the DR and Caricom countries was worth US$578 million last year. But, of that total, natural gas imports from Trinidad and Tobago alone accounted for US$546 million; the remaining US$32 million was neither here nor there. Trinidad and Tobago's natural gas exports to the DR would have taken place even in the absence of a free trade agreement.

Significantly, in 2007 every Caricom country, except Belize and Trinidad and Tobago, had a negative trade balance with the DR. In other words, they did not benefit from the free trade agreement.

But since the European Union (EU) insisted that the DR be part of the Economic Partnership Agreement (EPA) with Caricom, which was signed last year, Caricom countries are compelled to liberalise goods, services and investment with the DR at the same rate as with the EU. Therefore, from the DR's viewpoint, even though there would be benefits in participating in Caricom's single market, the obligations of the "Single Economy" and "Community" aspects of the Caricom Treaty may be too much for it to bear. In any event, it would have to seek a waiver from Caricom's common external tariff since it is higher than the DR's and would increase the cost of imports and make exports less competitive.

Then there are human rights issues over labour and migration between Haiti - already a member state of Caricom - and the DR. Even if other Caricom countries would be willing to limit the DR's membership of Caricom to its Common Market aspects only and not to the Community dimension which would include foreign policy, it is unlikely that Haiti would agree to the DR's membership without binding assurances on these two issues - they are assurances the DR may not be able to give.

The Caricom Treaty does provide for associate membership of Caricom. It is an option that both the DR and existing Caricom states might consider at this time in both their interests.

Sir Ronald Sanders is a consultant and former Caribbean diplomat

Lawyers in Jamaica press Govt on CCJ

Lawyers press Gov't on CCJ
Published: Thursday May 21, 2009
Daraine Luton, Staff Reporter

Source: Jamaica Gleaner

THE JAMAICAN Bar Association has moved a resolution at its annual general meeting, urging the Government to move forward with the Caribbean Court of Justice (CCJ).

The resolution calls for "the Government of Jamaica and the other treaty states to address the outstanding obstacles to Jamaica's participation in the Caribbean Court of Justice at the appellate level".

The Bar Association also called for the Government "to take appropriate steps to increase the insulation of the court from political interference, to make the court more accessible as regards cost and jurisdiction and in particular to entrench the Caribbean Court of Justice".

The United Kingdom-based Judicial Committee of the Privy Council is the country's final court of appeal.

The Opposition People's National Party (PNP), which set in motion the CCJ when it held state power, has said that it would like the obstacles to be removed for the abolition of the Privy Council and for the CCJ to become the country's final court of appeal.

Referendum

However, the governing Jamaica Labour Party (JLP) has maintained that it would only remove the Privy Council as the country's final court of appeal through a referendum. However, the PNP has said that a referendum is not necessary.

The PNP has hinted that it would be pressuring the Government to scrap links to the Privy Council as it is not willing to have the Charter of Rights, which is a review of chapter three of the Jamaican Constitution, being adjudicated by the Privy Council.

"We would want some guarantees about moving towards the Caribbean Court of Justice," A.J. Nicholson, opposition spokesperson on justice, has said.

Meanwhile, during its AGM on March 13, the Bar Association noted that Jamaica now expends considerable funds by way of repayment of the loan from the Caribbean Development Bank, which established the trust which funds the court.

It also said that it is desirable that the final Court of Appeal of Jamaica be more accessible to the average joe, with regard to expense and distance, as well as the requirements for United Kingdom visas.

Synopsis: The Vagaries of Democracy in the Caribbean

Commentary: The vagaries of democracy in the Caribbean Source: Caribbean Net News
Published on Monday, May 18, 2009	Full Text:  Print Version

.......But since political culture affects the well-being of all other institutions in society for better or for worse, short of reconciling deeper psychological, social and leadership dysfunctions, the Caribbean Single Market Economy and the Caribbean Court of Justice remains a tenderly affectionate promise, unlikely to unify, strengthen, and improve the region. 

When will the Caribbean mind yearn to become the motif for our growth and inter-dependence? Exploring this possibility may reveal the splendor of our imagination and a heart of gold.

Review of the CCJ - 5 years later

After five years only two countries accept CCJ as final appellate court
Published on Saturday, May 16, 2009	Print Version
Source: Caribbean Net News The Caribbean Court of Justice (CCJ) entered its fifth year on April 12 since it was inaugurated at a lavish ceremony in Port of Spain, which was attended by nearly all the Heads of Government of the Caribbean Community (CARICOM) as well as most legal luminaries in the region.  The Court was, however, initially established in February 2001, more than eight years ago.  It is very unfortunate that, after such a long time, only two countries, Guyana and Barbados, have accepted the CCJ as the final court. No other country has joined after 48 long months. This is indeed a misfortune since most Caribbean countries rid themselves of colonial rule more than four decades ago: Jamaica and Trinidad and Tobago in 1962, Guyana and Barbados in 1966 and the Eastern Caribbean countries a few years later.  Since these former British colonies achieved political independence so long ago, one would have expected them to have judicial independence as well, especially since they have highly qualified and experienced judges.  I had the privilege of visiting the Court while in Trinidad for the Fifth Summit of the Americas and was impressed by what I saw -- besides the well equipped libraries, spacious conference room, robing room, etc., I was elated with the Court room’s appearance, with the most modern electronic equipment, which is said to be one of the best in the world. The facilities include: a document reader/visual presenter; the ability to use laptop computers; DVF/VCR; audio/video digital recording (microphones situated throughout the courtroom); wireless internet access, and audio/video transcripts.  Former Trinidad and Tobago Attorney General Ramesh Maharaj said that the judges have little to do and it is a waste of taxpayers’ money. His statement is somewhat surprising since it was under his party's administration that the Court was established and up to this day Trinidad and Tobago has not joined.  Dominica’s Prime Minister Roosevelt Skerrit made a sweeping statement when he said that if the region is not serious about the CCJ, it should close down the court.  Skeritt, a few months ago, asked his Attorney General to engage the local Bar Association as well as the political opposition with a view of having the decision fully implemented. I have not heard the progress of those discussions.  However, there is some glimmer of hope that at least one more country will join. Belize’s Prime Minister Dean Barrow, one of the first graduates from the Council of Legal Education in the Caribbean, has announced that his country will take steps to remove the Privy Council as the final Court of Appeal.  I contacted his office on Tuesday and was advised that a Bill will be presented to Parliament next month to pave the way to remove the Privy Council as the final Court. Three-fourths of parliamentary votes are required, but it is understood that the opposition will support the move since it had advocated the measure when it was in government.  There is no doubt that there is reluctance on the part of governments to get rid of the Privy Council as the final court for varying reasons. Jamaica at one stage claimed that the CCJ will be a hanging court, but they cannot press that issue now because that government recently passed legislation to retain the death penalty.  The JLP government was in power when the idea of setting up of the CCJ first started, but now the party, which is back in power after 15 years, is somewhat reluctant -- new reasons have surfaced, including the heavy costs of maintaining the Court, pointing out that, when the first idea was mooted 20 years ago, the Jamaican dollar was much stronger, and the latest is that the Court does not have a Jamaican as a judge, although its population is nearly 2.5 million -- more than all the other 11 countries combined.  Former Jamaican Attorney General Dr Oswald Harding, who was the AG in 1988, said that he is very disturbed that no Jamaican was appointed as judge when he knew that about eight well qualified jurists had applied.  I have been advocating for a distinguished West Indian to be appointed as a lobbyist, but both CARICOM and the CCJ are both reluctant to do so. CARICOM, it is understood, feels it should distance itself from the CCJ, especially since it is a party to recent litigation before the Court. I refer to a law suit brought by Trinidad and Tobago Cement Company against CARICOM.  On the other hand, the CCJ feels that it should not indulge in such an exercise; but they nevertheless held seminars in jurisdictions such as Jamaica, Antigua, Barbados, Belize on the functions and the operations of the original jurisdiction of the CCJ.  It is worrying that CARICOM countries do not even use the CCJ in its original jurisdictions, since they do not have to seek constitutional amendments to do so. In four long years only three such matters have reached the Court.  It is my humble and respectful view that CARICOM should have sensitised the public and ensured that the necessary legislation was in place to accept the CCJ as the final court long before the Court was established and, as Dame Dr Bernice Lake, QC, a distinguished jurist from Anguilla, put it, "The regional governments disenfranchised the public when they set up the CCJ without referenda."

Duke Pollard CJC endorsed as a candidate to seek election as a judge of the ICC.

Region bids for ICC seat -by Rickey Singh Source: Trinidad news Saturday, May 16th 2009

CARICOM Foreign Ministers have endorsed candidatures for a seat on the International Criminal Court (ICC) and re-election of an Assistant Secretary General of the Organisation of American States (OAS). Guyana-born jurist Dr Duke Pollard, currently one of the seven justices of the Port of Spain-based Caribbean Court of Justice (CCJ), has been endorsed as a candidate to seek election as a judge of the ICC. The current Assistant Secretary General of the OAS, Suriname-born diplomat, Albert Ramdin, was given the green light to seek re-election in that post of the Washington-based hemispheric organisation. The unanimous endorsements, which came during last week's meeting of Caricom Foreign Ministers in Kingston, Jamaica, will be forwarded for expected ratification by Heads of Government when they meet for their regular annual summit in Guyana in July. Pollard, a former consultant on international law projects for the UN and Director of the Caricom Legislative Drafting Facility prior to his CCJ appointment, may have to compete with other candidates of  the Latin America region. Trinidad and Tobago's former attorney general, Karl Hudson-Phillips QC, was the first candidate of the Carib-bean/Latin America region to be elected as a judge of the ICC which he served for four years before opting to resign for personal reasons. Ramdin, a former assistant secretary general of Caricom with responsibilities for Foreign and Community Relations, had served for three years as special adviser to ex-OAS Secretary General, Cesar Gaviria, before seeking the office he has now been holding since 2005. The offices of both OAS incumbents-Secretary General, Jose Miguel Insulza, Chile's former foreign minister, and Ramdin are due for election at the organisation's General Assembly in June 2010.

Barbados seeks to extend retirement age of CCJ judges to 75

Barbados seeks to extend retirement age of CCJ judges to 75
Published on Friday, May 15, 2009	Print Version
By Oscar Ramjeet  Source: Caribbean Net News Special Correspondent  Email: oscar@caribbeanetnews.com   BRIDGETOWN, Barbados -- While most Caribbean countries seem hesitant or reluctant to join the Caribbean Court of Justice, Barbados, which is one of the two countries who have joined the Appellate Jurisdiction of the regional court, is seeking parliamentary approval to extend the retirement age of judges.  The Barbados Parliament is now debating a Bill that primarily speaks to extending the age of retirement of the judges from 72 to 75.  The Barbados Advocate reported that Senator Haynesley Benn, acting Leader of Government Business in the Senate, was leading the debate in the Upper House to the Caribbean Court of Justice (Amendment Bill) and the Constitution (Amendment) Bill.  Benn, who is also Minister of Agriculture, said that it is regrettable that, after nearly 50 years of independence, by some Caribbean Community (CARICOM) member states, that they are still hesitating, and toying with the issue of whether this region should have its own final appellate court, rather than having to rely on its former colonial masters.  The minister also said that it is being suggested that Britain is considering revamping its own judicial system and plans in the near future perhaps to dismantle the Privy Council. He explained that, if agreed to by their legislators, it will probably give way to a system similar to that which presently obtains in the United States of America.  "So we should feel comfortable in the Caribbean having our own Caribbean Court of Justice, where all matters pertaining to the Caribbean can be dealt with here, rather than having to be at the doorsteps of the Privy Council in Britain." Benn said.  Benn said that the extension is a good one, as it allowed the judges to have more time to give of their value to the entity and by extension the judicial culture in the region.