Transjudicialism and Institutional Redesign
In terms of institutional challenges, perhaps the key change alluded to peripherally in several of the chapters in this book is the creation of the CCJ.[89] The CCJ plays two roles in the region, and thus can simultaneously influence different levels of Caribbean jurisprudence: (1) it sits as a final appellate court, and thus can interpret national laws and the common law, and (2) it sits as a treaty-interpreting tribunal, empowered to interpret and apply norms governing CARICOM’s Single Market and Economy and, at least potentially, regional customary international law.[90]
The formation of the CCJ, a unique �hybrid institution’ and a regional court designed to advance economic integration and a Caribbean jurisprudence, is understood commonly in nationalist terms, as �completing the independence’ of Caribbean states.
Still, the concept of the independent nation-state that propelled the decolonization process in the mid-to-late twentieth century has been altered dramatically by the forces of globalization and the internationalization of law. As demonstrated by Janet McClean, globalization is connected to the experiences of empire; she argues that the colonial experience of looking outside national borders at different sources of law and seeking to be a part of a broader legal community created �habits of mind that help ease the transition to new supranational tribunals and supranational law.’[91] Likewise today the Caribbean Court of Justice has noted the �distinct, irreversible tendency towards confluence of domestic and international jurisprudence.’[92] Arguably, the establishment of the court exemplifies the trend towards �judicial globalization,’ which is described a �process of judicial interaction across, above and below borders, exchanging ideas and cooperating in cases involving national as much as international law.’[93] The establishment of a transnational regional/international court, that is the final arbiter of domestic legal matters in sovereign countries is, if nothing else, a concession to cosmopolitanism and interdependence.[94]With respect to the CCJ’s appellate jurisdiction, although for a time, only Barbados and Guyana allowed such cases to go to the court.
They recently have been joined by Belize, and the number of countries allowing such appeals is likely to increase in the future.[95] Although similar to the jurisdiction of the Privy Council, the CCJ’s appellate jurisdiction may possess a greater potential to change the nature of Commonwealth Caribbean law. This is because as a post-independence, regionally- created appellate court, the CCJ automatically will be vested with a legitimacy that must be envied by the Privy Council. Judges are selected by an independent Regional Judicial and Legal Services Commission,[96] are safeguarded in terms of autonomy and independence by regional treaties,[97] and bring with them considerable personal experience of the cultural, social and legal norms of Commonwealth Caribbean jurisdictions.In its second role the CCJ is the original, exclusive, compulsory, and final interpreter of CARICOM’s constituent treaty, the Revised Treaty of Chaguaramas (Revised Treaty),[98] and other relevant rules of international law.[99] This original jurisdiction is not subject to significant commentary in the chapters of this book, but is worth highlighting because it may prove to be another source of unification for the Caribbean. Sitting in its original jurisdiction, the CCJ can overtly influence Caribbean integration by interpreting, implementing and enforcing the rules, values and overarching legal architecture of the Revised Treaty. But it can also do so in a subtler manner, in a way similar to the Privy Council. The decisions of the Privy Council - by drawing parallels between constitutional and legal provisions from several Commonwealth Caribbean states - push states to rethink their laws whenever similar provisions elsewhere are found wanting, and also inculcate a regional �comparative law’ habit. So too can the CCJ push states to compare, and at times borrow from, regional legislative developments which are meant to implement CARICOM rules.
Further, the CCJ may force Caribbean countries to think more deeply about our regional enterprise, since the task of interpreting and enforcing the Revised Treaty will require the Court to deal with the real economic practicalities of regional trade and economic interaction. For example, several of the first original jurisdiction decisions deal concretely with the requirements for upholding, or seeking waiver of, the common external tariff (CET) on a fundamental natural resource necessary for regional development - cement.[100] In these cases, the CCJ initiated a bold new regional jurisprudence on issues concerning the requirements for locus standi of persons before the Court, the rules of treaty interpretation, the nature of CARICOM, the purpose of the Single Market and Economy, and the availability of forms of relief in the original jurisdiction. More profoundly, these original jurisdiction decisions already reveal that by ratifying the Revised Treaty Member States of the Caribbean Community have changed the legal nature of the region. They have conferred upon private economic entities �rights capable of being enforced directly on the international plane,’[101] and created �a regional system under the rule of law,’[102] one which implies a power of judicial review[103] and the potential for state liability in damages for breach of the Revised Treaty.[104] In these decisions, the CCJ also has signalled its willingness to interpret and apply general rules of customary international law, general principles of international law, and general principles of Community law.[105] The latter could serve as the basis for a number of far-reaching legal developments, as seen in other jurisdictions. In the jurisprudence of the European Court of Justice, for example, general principles of Community law were used as the judicial foundation for the principle of fundamental rights, long before human rights were recognized in the EU treaty regime.[106] In the Inter-American system of human rights, the rules of treaty interpretation have been construed to enable the use of regional declaratory instruments to read human rights into the broader treaty regime,[107] and a similar development could take place in the jurisprudence of the CCJ through interpretation of the Revised Treaty in light of the human rights principles of CARICOM’s Charter of Civil Society.[108] Such developments, and potential developments, augur well for increased regional integration which, although in this instance focused on the CARICOM Single Market and Economy, may have broader long term implications for the development of both regional and national legal systems, including human rights systems. By acting on both the national and regional planes the CCJ is at the forefront of developing national, and perhaps even regional, constitutional law.