Caribbean Court Of Justice Research Articles

Comunidade Caribenha (CARICOM) — Cultura

The role of culture in Caribbean Community’s (CARICOM’s) agenda is claimed to be very important. The CARICOM Secretariat has a culture program, aiming to strengthen the creativity of people. CARICOM annually manages the Caribbean Festival of Arts (CARIFESTA). A huge issue is that of the cultural restitutions. Most CARICOM Member States have become States Parties to International Conventions related to cultural heritage. Sadly, all international Conventions concerning protection of cultural heritage do not have retroactive effect. There is also a CARICOM commission on reparations for slavery and native genocide against the governments of Britain, France and the Netherlands, the transatlantic slave trade, between the 16th to 19th centuries, being much associated with the Caribbean heritage. Languages are important for the cultural identity of people. It may be stated on CARICOM’s site that “Our languages are part of the legacy of the various civilisations from which our ancestors came”, but it is also stated that “[f]or many member states, the English Language is a major unifying factor”. Indigenous languages should be of more concern to CARICOM. The creation of the Caribbean Court of Justice (CCJ) in 2005, is considered very important toward the Caribbean integration and thus, also to the protection of the region’s culture and cultural heritage – important part of their identity. However, only 4 Member States so far have accepted the CCJ as their Highest Court of Appeal. CARICOM should be more active in regard to the protection of culture and cultural heritage of its Member States.

The violence of disavowing Indigenous governance: exposing the colonial politics of "development" and FPIC in the Caribbean

After decades of community mobilizing and a protracted legal battle, Maya villages in southern Belize won a watershed Indigenous land rights victory in the Caribbean Court of Justice in 2015. Since then, the state has criminalized environmental defenders, violated communal land rights, and is argued by Maya activists and alcaldes (village leaders) to be operating in discriminatory bad faith. Accordingly, this Grassroots article casts critical light on a recent flashpoint conflict between the Government of Belize and Maya of Toledo District related to Free Prior and Informed Consent (FPIC). The article is directly informed by both the grounded knowledge of an autonomous movement engaged in frontline resistance, and participatory research that is rooted in a politics and spirit of "accompliceship." The structural analysis we offer from an explicitly anticolonial standpoint is instructive about the historical-imperial processes, social forces, and economic logics that underpin conventional approaches to both "development" and the state's duty to consult local communities. Ultimately, the article reveals the forms of political conflict and environmental degradation that continue to emerge globally at the conjuncture of capitalist development, (postcolonial) state power, and struggles for Indigenous self-determination.er, and struggles for Indigenous self-determination.

The Retention of the Mandatory Death Penalty in Trinidad and Tobago: An Ongoing Human Rights Concern

Commonwealth Caribbean countries account for a significant portion (roughly 15%) of the Global South region. The Republic of Trinidad and Tobago (“Trinidad and Tobago”) is the lone Commonwealth Caribbean country that retains the mandatory death penalty on its statute book in defiance of its human rights obligations. The retention of this anti-human rights punishment is due, in large measure, to decisions from Trinidad and Tobago’s final court of appeal, the Judicial Committee of the Privy Council (“JCPC”), which has affirmed the constitutionality of the mandatory death penalty. This article comparatively evaluates the jurisprudence on the mandatory death penalty from the JCPC and its regional counterpart, the Caribbean Court of Justice (“CCJ”), to demonstrate that while the CCJ rightly places a premium on the protection of human rights, the posture of the JCPC severely threatens the respect, protection, and fulfillment of human rights. The article argues that the most recent judicial decision from the JCPC on the mandatory death penalty continues to afford Trinidad and Tobago a free pass to disregard its international human rights obligations indefinitely. It further argues that this state of affairs is wholly censurable for a civilized nation that supposedly has respect for the fundamental rights of the individual. Consequently, the Parliament of Trinidad and Tobago should take the only corrective action remaining, which is to abolish the mandatory death penalty by legislative intervention.
 

Identity and Political Independence

Identity and Political Independence

RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW

AbstractInternational courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

The rule of law and the Caribbean Court of Justice: taking jus cogens for a spin

ABSTRACT The Caribbean Court of Justice was established in 2005 to have a determinative role in the further development of Caribbean jurisprudence, and, during its sixteen years of existence, the CCJ has made many important pronouncements on the rule of law. A recent study of these pronouncements suggests that the Court appears to be headed towards the acceptance of a substantive conception of the rule of law which is hierarchically superior to the Constitution and which limits the legislative power to amend the Constitution. But any such court-determined rule of law may be difficult to reconcile with orthodox principles of Caribbean constitutionalism and the orderly development of Caribbean Constitutional democracies. This paper identifies an alternative method of disciplining legislative action in the norms of jus cogens and explores the conceptual methodologies and precedents for making these norms applicable in domestic law.

Recognizing the Right to Engage in Consensual Gay Intimacy: A Judicial Solution to Constitutionalize the Jamaican Sodomy Laws

In this Essay I argue that in the absence of bold legislative action to repeal the Jamaican sodomy laws, the laws can be judicially modified to limit their application to the non-consensual sexual conduct, including sex with minors. This will ensure that non-consensual anal intercourse will continue to be a crime while at the same time protecting the fundamental right of gay men to engage in consensual intimacy. This modification can be achieved despite the existence of the savings law clause in section 13(2) (a) of the Charter of Fundamental Rights and Freedom. The Essay relies on the Roodal principle, recently adopted by the Caribbean Court of Justice in Nervais and McEwan, as well as a proper interpretation of section 13(2) of the Charter, to illustrate how to circumvent the debilitating effect of the savings law clause on judicial review of Jamaica’s sodomy laws.

Judicial diplomacy: International courts and legitimation

AbstractObservers of international courts (ICs) note that several ICs carry out a broad range of non-judicial activities, ranging from legal training workshops and public seminars to visits with public officials. Despite the growing prominence of these activities, they have received little attention from scholars. Seeking to fill this gap, this article examines these activities as a form of ‘judicial diplomacy’, asking how and why ICs employ judicial diplomacy. The article argues that ICs use judicial diplomacy as a means of legitimation. They seek to boost institutional legitimacy through their judicial diplomacy by targeting the public and communicating norm-referential narratives about their processes and outcomes. This argument bears out in case studies on the judicial diplomacy of the African Court of Human and Peoples’ Rights and the Caribbean Court of Justice. Both courts are shown to have judicial diplomacy that is public-oriented and people-centred. This argument has important implications for literature on international courts and the legitimacy of international institutions.

Law, Language, and a Nonsovereign Caribbean

ABSTRACTThis article argues that the Caribbean Court of Justice (CCJ), a tribunal serving twelve independent primarily Anglophone Caribbean states, uses a variety of linguistic techniques in its pursuit of a regional future. Created upon a complicated (post)colonial landscape and charged with resolving the nonsovereignty of its member states, which, for the most part, continue to utilize the United Kingdom's Privy Council for their final court of appeal, the CCJ does not view sovereignty as a solution. Instead, as I demonstrate through several examples of the Court's use of, talk about, and abstention from language, the CCJ's judges and employees seek to constitute a yet‐to‐be‐fully‐defined nonsovereign region that carves out a Caribbean people, pointedly rejects ongoing British legacies and logics, refuses to adopt the legal practices associated with sovereignty, and strives to remain untethered to either nation‐state or suprastate. [law, language, sovereignty, region, Caribbean]

Advisory Opinion of the Caribbean Court of Justice in Response to a Request from the Caribbean Community (Caribbean Ct. J.)

An Appellate Jurisdiction, which addresses municipal law cases on appeal from countries which accept this jurisdiction. To date, four Caribbean countries—Barbados, Guyana, Belize and Dominica—have accepted the appellate jurisdiction of the Court. The applicable law for each case under the appellate jurisdiction is the national law of the state from which the appeal emanates. The CCJ in its Appellate Jurisdiction is intended to replace the Judicial Committee of the Privy Council as the final court of appeal for Caribbean countries which were formerly British colonies.

The CCJ decolonizing Caribbean constitutionalism

The Caribbean Court of Justice was conceived to further the Anglophone Caribbean’s decolonization process. Decolonization included not just transitions from colony to independent statehood but also the repudiation of imperial formations. The Court’s capacity to do this is evident in the McEwan Case. Using bold approaches to interpretation, the CCJ effectively erased the general savings law clause (which was previously treated as effective in immunizing colonial laws from inconsistency with the Bill of Rights) and affirmed the fundamental rights of trans persons. Since those clauses tethered post-independence constitutionalism to colonial era legal arrangements, erasure has the effect of bringing the Constitution forward and home. I argue that erasure is the result of proper methods of interpretation and not overreach since savings clauses are now functionally obsolete. The CCJ also signalled its decolonising capacity by articulating Caribbean identity in inclusive terms. It rightly affirmed that trans persons are entitled to full membership in the political community, in circumstances where its position is likely an anti-majoritarian one. The CCJ is demonstrating its decolonizing capacity in a context where, it is argued, the Privy Council cannot. It is hoped that other Caribbean States will be encouraged to accede to the CCJ’s appellate jurisdiction.

Sociology of International Adjudication

This article presents the ways in which classical sociological theories can help unpack how international courts operate and how their adjudicative practices are in part steered by social and political structures. The main focus is on classic sociological theories, respectively Weberian interpetivist, Durkheimian functionalist, and Marxist and post-Marxist critical perspectives. In order to demonstrate how these sociological perspectives are relevant for the study of international adjudication, the article applies their tenets to a different set of international courts, including the European Court of Human Rights (ECtHR), the Inter-American Court of Human rights (IACtHR), the Caribbean Court of Justice (CCJ), the Central American Court of Justice (CACJ), the Court of Justice of the European Union (CJEU) and the East African Court of Justice (EACJ).

McEwan and Others v. Attorney General of Guyana (C.C.J.)

On November 13, 2018, the Caribbean Court of Justice (CCJ) decided on an appeal coming from Guyana in the case McEwan and Others v. Attorney General of Guyana. With this decision, the CCJ declared unconstitutional Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act of the Laws of Guyana, which made it a crime for a man to dress in female attire or for a woman to dress in male attire, in a public place, for an improper purpose. In the case, the CCJ also limited the extent to which the colonial “savings clause” present in the constitutions of the Commonwealth Caribbean countries limits the Court's judicial review powers.

The Post-Colonial Constitutional Order of the Commonwealth Caribbean: The Endurance of the Crown and the Judicial Committee of the Privy Council

ABSTRACTAmongst Britain's former colonies the independent countries of the Commonwealth Caribbean represent something of an anomaly in so far as the majority of them remain constitutional monarchies and continue to retain the Judicial Committee of the Privy Council (JCPC) as their final appellate court, even though the region has had its own final appellate court – the Caribbean Court of Justice – since 2006. This is in marked contrast to Britain's former colonies in Africa and South Asia, the majority of which switched to republicanism soon after independence and at the same time abolished rights of appeal to the JCPC. This paper seeks to uncover the reasons for this anomaly by examining how the path that led to independence was shaped by a particular conception of Dominion status and by the willingness of nationalist leaders to embrace a dual identity: equal parts West Indian nationalist and Empire loyalist. It will also examine the phenomenon of the ‘postcolony’; being the persistence of the colonial order following the acquisition of constitutional independence. The paper has three aims. Firstly, to contribute to a better understanding of the impact of Dominion status and all that it symbolised in a region which is often overlooked in the scholarly literature on this topic. Secondly, better to understand the competing political forces that led three countries in the region to adopt republicanism, but inhibited its adoption elsewhere in the region. Thirdly, and finally, to enhance discussion of the complex nexus between republicanism and the abolition of rights of appeal to the JCPC where political and juridical considerations do not neatly align.

Fashioning the Legal Subject: Popular Justice and Courtroom Attire in the Caribbean

AbstractClothing, as has been shown in a growing body of anthropological research, not only reflects reality but also works to make it. This article uses the unique lens provided by fashion to focus on the populace in which popular courts stake their legitimacy. Much in the way that laws, processes, and procedures affect people's relationship to law, courthouse attire, too, subtly and perhaps more cunningly contributes to the creation of subjects that interact with and understand the law in specific ways. Specifically, the clothing worn in and required by a popular courthouse helps to make the very community in which that court claims its popularity. Ethnographic examples from fieldwork in a municipal tribunal in Cuba and in the Caribbean Court of Justice in Trinidad and Tobago show how fashion reflects the historical development of each court while it simultaneously works to transform populations into ideal legal subjects.

“Yes, [We Bow,] But not a Deep Bow:” Qualia and the Thinkability of Caribbean Jurisprudence

Drawing from fourteen months of ethnographic research, this article offers an analysis of the Caribbean Court of Justice’s (CCJ) efforts to develop Caribbean jurisprudence as an example of how the work of postcolonial courts might be understood not as mimesis, but as productive qualia-tative labor. The semiotic concept of qualia helps to refocus attention on the deliberate “Caribbeanness” that the CCJ endeavors to combine with already well-established “courtly” features, such as deferential courtroom bows and familiar judicial robes. The article argues that by thoughtfully weaving together Caribbean and courtly qualities, the CCJ works to develop Caribbean jurisprudence by making it sensible – that is, both comprehensible and experienceable.

The Contribution of the Caribbean Court of Justice to the Development of Human and Fundamental Rights

On the 16 April 2005, after a period of gestation of about one hundred years, the Caribbean Court of Justice (CCJ) was inaugurated in Port of Spain, Trinidad and Tobago.1 The establishment of the Court was received by many as one of the most important events in Caribbean legal and political history as it was expected both to end the long lasting post-colonial legal and judicial dependence of the Caribbean on the UK2 and to strengthen Caribbean integration vis-à-vis the challenges posed by globalization at the end of the Cold War.3 In the words of its first President, Mr Michael de la Bastide: The establishment of this Court is certainly a landmark event in the history of the Caribbean. … The Court has the capacity to make an important contribution to the integration movement in the Region, and … to give to the people of the Caribbean ‘the full benefit of what a final Court can do to transform society’.4

CARICOM, the CSME, and absolute sovereignty: lessons learnt on the road towards regional integration

As a regional bloc, the Revised Treaty of Chaguaramas (RTC) provides an opportunity for all of its Member States to benefit from regional integration and to better withstand the effects of globalisation. This article examines two recent cases involving Guyana that were litigated before the Caribbean Court of Justice (CCJ) (the 2009 “TCL Case” and 2014 “Rudisa Case”) and discusses several important issues borne out during the cases, whereas also highlighting potential or emergent issues which may emanate from these cases in the future. These cases are analysed with a view to highlighting the important role of the CCJ in interpreting the RTC.

Resourcing Global Justice: The Resource Management Design of International Courts

AbstractThis article examines the resource management design of international courts (ICs) and asks: how are ICs designed in terms of the management of resources and what factors contribute to the resource management design of ICs? Theoretically, this article draws on existing literature to conceptualize resource management as a design feature of international courts and considers three causal mechanisms that might shape the resource management design of ICs: diffusion by emulation, the uploading of domestic governance norms, and bureaucrats who pursue institutional independence and sustainability. Empirically, I examine the resource management design of 24 ICs and assess who selects their chief administrators and approves their budgets. A case study on the Caribbean Court of Justice (CCJ) is also analyzed in order to gain traction on the causal mechanisms generating resource management design of ICs. The article shows that there is a strong tendency for ICs to have greater control over the appointment of their chief administrators, but less control over their budgets. States generally retain authority to approve ICs’ budgets. Moreover, it suggests that domestic judicial norms and national legal bureaucrats influenced the design of the CCJ's resource management.

Regional Integration through Law and International Courts – the Interplay betweenDe JureandDe FactoSupranationality in Central America and the Caribbean

AbstractThe article proposes an innovative theoretical framework outlining preconditions for Regional International Courts (RICs) to act as engines of supranationality in different institutional and socio-political contexts. In so doing, the article nuances the theoretical approaches to supranationality and supranational adjudication. The article focuses on the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ). Both courts have been branded institutional copies of the Court of Justice of the European Union (CJEU); they have even borrowed key jurisprudential principles from the Luxembourg Court with the goal of expanding the reach of Central American and Caribbean Community Laws. Yet, both the CACJ and the CCJ have thus far failed to foster supranationality in their respective systems. This is because the conditions allowing RICs to become engines of integration lie, for the most part, beyond the direct control of the judges, most notably, with other institutional, political, and societal actors, such as national judges, regional organs, legal and political elites, as well as academics. The article thus suggests that RICs can become engines of supranationality only to the extent to which they are supported by a set of institutional, political, and societal pre-conditions allowing for the concrete enforcement of the rulings of the RIC at the regional and national levels.