1. Introduction 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 Being a product of both Caribbean economic and functional integration processes dating back to the 1960s and of the struggle to replace the British colonial influence over law in the region, the Court was granted a unique double jurisdiction.5 The CCJ’s appellate jurisdiction (AJ) is aimed at replacing the Judicial Committee of the Privy Council (JCPC) as the apex court of those Caribbean countries that have accepted such jurisdiction through constitutional amendments, namely, Barbados, Guyana, Belize and Dominica. Under its original jurisdiction (OJ), the CCJ is a regional economic court that adjudicates legal matters arising under the Revised Treaty of Chaguaramas (RTC), the founding Treaty of the Caribbean Common Market (CARICOM).6 In the Myrie case—one of the Court’s most recent OJ rulings—the CCJ explicitly denied that it will develop into another human rights court and stated that it would focus on interpreting and applying the RTC and secondary Community law.7 In the Court’s own words: The Court has no jurisdiction to adjudicate violations of international human rights treaties and conventions. Those instruments generally provide for their own dispute resolution mechanism which must be the port of call for an aggrieved person who alleges a breach of those treaties.8 This statement, however, does not reflect the reality of the CCJ’s practice. A systematic analysis of the Court’s case-law reveals that the CCJ has, in fact, explored the full potential of its hybrid jurisdiction and has built a tripartite system for protecting human and fundamental rights in the Caribbean9—one that operates at the national, supranational and international levels. Among the Court’s human and fundamental rights cases,10 there are judgments against Barbados on the constitutionality of the mandatory death penalty for murder and on the effect of unincorporated international treaties into national legal orders,11 and for violating the free movement of persons within the CARICOM;12 and against Belize for not granting constitutional protection to indigenous communal property rights.13 This article highlights some of the most important legal developments in the CCJ’s jurisprudence with the goal of clarifying its role as a human and fundamental rights court. The article also assesses these developments in the light of the Court’s authority. It will be argued that, through its case-law, the CCJ has succeeded in formally becoming an important player in the enforcement of human and fundamental rights in the region. In particular, the Court has shown a remarkable capacity to navigate the various different jurisdictions of the Caribbean States (that is, those in both common and civil law systems) as well as the different legal cultures and approaches to the incorporation of international human rights and laws (that is, dualism and monism). This formal authority, however, still has to be transformed into de facto authority. Human and fundamental rights cases remain a relatively marginal part of the CCJ’s jurisprudence, especially in the OJ, where the Court is mostly occupied with trade and tariff matters. Moreover, although the human and fundamental rights cases decided by the CCJ have been generally complied with, the Court’s involvement in politically sensitive issues has been often criticized by the Caribbean legal and political elites and Member States.14 Section 2 presents the most significant cases decided by the CCJ, beginning with discussing two crucial AJ cases: Joseph and Boyce and Maya Leaders Alliance. These two cases have been chosen both because they allowed the Court to adjudicate on key human rights issues and because they have played a central role in establishing the Court’s authority in this field. It then proceeds by analysing two OJ cases, Myrie and Tomlinson, by means of which the CCJ has signaled the intention to transform the CARICOM from a mere trade arrangement into a political community based on the rule of law. Section 3 analyses the cases presented in Section 2, discussing how these decisions have impacted on the Court’s role and authority over human and fundamental rights cases. 2. The CCJ’s Jurisprudence on Human and Fundamental Rights Since 2005 the CCJ has developed a considerable jurisprudence on human and fundamental rights. This has contributed to the transformation of the Court from an institution aimed at creating, developing and implementing a common market and trade liberalization into a court seeking to enforce the rule of law and human, as well as fundamental, rights in the Caribbean. These developments have occurred mostly when the Court has exercised its AJ. In such jurisdiction, the Court is formally competent to rule over human and fundamental rights, it being vested with the twofold role of an apex court in criminal and civil matters and of final interpreter of the constitutions of those States that have accepted such jurisdiction.15 Equally important developments have occurred when the Court has exercised its OJ, despite the more limited scope of this jurisdiction (that is, relating to disputes arising under the RTC). A. A Highly Political Starting Point: Death Penalty and the Effect of Unincorporated International Treaties into National Law One of the most important human rights cases decided by the CCJ is The Attorney General of Barbados v Joseph and Boyce, which was decided by the Court shortly after its inauguration in 2006.16 In 2001 Joseph and Boyce were found guilty of murder and were sentenced to death according to the laws of Barbados.17 The men appealed their sentences, requesting that they be commuted to life imprisonment. These appeals were unsuccessful. The two men then appealed to the JCPC asking whether the mandatory nature of the death penalty was unlawful and unconstitutional. The JCPC dismissed the appeal, upholding the mandatory death penalty in Barbados.18 Joseph and Boyce then filed an application before the Inter-American Commission on Human Rights (IACHR), seeking declarations that their rights under the American Convention on Human Rights (ACHR) had been violated.19 While the application to the Inter-American Commission was pending, the Barbadian Privy Council read death warrants against the two men.20 In order to block their execution, the two men filed a motion before the High Court of Barbados, seeking declarations that their rights to life, security, protection of the law, and not to be subjected to inhuman and degrading treatment were infringed.21 The Inter-American Court of Human Rights (IACtHR) then issued provisional measures requiring Barbados to preserve the lives of the two men until the petitions before the Inter-American system were decided.22 The Barbadian High Court, however, rejected the motion, declaring that Barbados was not bound to postpone the execution of the two men as the Parliament of Barbados had not incorporated the ACHR into national law.23 Joseph and Boyce appealed—with success this time—to the Court of Appeal of Barbados, whereupon the Attorney General of Barbados appealed to the CCJ (which had then been established).24 The case before the CCJ had strong political implications, as it placed the newly-inaugurated CCJ in the middle of a long-standing dispute between the Caribbean States, the JCPC, and the organs of various international human rights instruments25 on issues related to death penalty. The dispute was initiated in 1994 by the well-known decision of the JCPC—Pratt and Morgan v The Attorney General of Jamaica—in which it was established that a prolonged delay of more than five years in carrying out a death sentence constituted ‘inhuman and degrading punishment’.26 This decision was strongly criticized in the Caribbean for failing to take into consideration that, very often, delays in executing death row inmates were caused by the latter’s repeated appeals to international human rights bodies (that is, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights) and not necessarily by the inefficiencies of the local systems of criminal justice. The uproar caused in the region by this decision was so significant that Jamaica, Guyana and Trinidad and Tobago denounced the international human rights instruments they were party to,27 and the CCJ was established with the goal of replacing the JCPC as the apex court of the Caribbean countries.28 Given the nature and the timing of the appeal, Joseph and Boyce gave the CCJ the chance to rule on several pressing issues for the future of Caribbean legal systems and societies, including: the justiciability of the right to mercy,29 the relationship between the newly established CCJ and the JCPC, and the effects of unincorporated treaties in dualist countries.30 Only this last aspect of the CCJ’s ruling will be discussed in this note (it being the most relevant for a discussion over the CCJ’s role and authority over human and fundamental rights). The CCJ rejected the dualist view of international law advanced by Barbados, according to which international treaties when ratified by the executive form no part of domestic law unless they have been specifically incorporated by the legislature.31 The Court was of the view that a rigid application of these dualistic precepts did not accord with the times, since the proliferation of international treaties had made individuals ‘active players on the international plane pursuant to treaties entered into by their Governments’,32 even where those treaties have not been transposed into national law. Moreover, the CCJ considered that the jurisprudence of the JCPC on the death penalty created a paradoxical situation. On the one hand, with Pratt and Morgan, the JCPC required that inmates should not be kept on death row for more than five years.33 On the other hand, in Lewis,34 the JCPC ruled that in situations in which the Government of a State had ratified a treaty granting individuals the right to petition an international body, a person sentenced to death was entitled to require that the sentence should not be carried out until the international body had made a final decision.35 The combined effects of these two rulings was that, in many cases, the Caribbean States were not able to carry out death penalty sentences within the time-limit set by the JCPC without fault.36 In order to solve the issue, the CCJ borrowed a principle already used by the High Court of Australia37 and softened the effects of dualism in Barbados without entirely rejecting it. The CCJ ruled that unincorporated international treaties give rise to ‘legitimate expectations’ that the procedures established by such treaties will be followed. In the specific case at hand, this meant that inmates who had been condemned to death would not be executed until a reasonable time had been allowed for the international systems to run their course.38 Accordingly, the CCJ dismissed the appeal and upheld the treaty rights of Joseph and Boyce to have their petition to the institutions of the Inter-American system determined prior to execution.39 B. The Maya Case and the Deepening of the Protection of Human Rights in the Caribbean Joseph and Boyce was one of the first in what is now a long list of appellate cases decided by the CCJ, several of which deepened the protection of human and fundamental rights in the Caribbean.40 Probably the most important of these is The Maya Leaders Alliance et al. v The Attorney General of Belize.41 In this case, the Petitioners appealed against a ruling of the Court of Appeal of Belize, which, despite recognizing constitutional protection42 of Maya customary land tenure in the villages in the Toledo District, had found no violation of any constitutional provisions by the Belizean Government in relation to such property.43 The salience of the case can only be grasped by an analysis of its wider socio-political context. This decision was the last act in a long-standing dispute between the Government and the Maya minorities of Southern Belize concerning indigenous rights over land and natural resources. The dispute began in 1995, when the Government of Belize issued logging and oil drilling concessions over 500,000 acres of land occupied by Maya villages in the Toledo District. In reaction to this, the Mayan communities filed a constitutional motion before the Belizean Supreme Court requesting the acknowledgement of their customary property rights.44 As no decision on this case was reached, in 1998 the Mayan communities filed a petition before the IACHR.45 Subsequently, in 2000, the Government of Belize and the Maya Leaders signed the Ten-Points Agreement by means of which it was established that the Mayan communities enjoyed rights over land and resources and that the Government of Belize would establish programmes to address their land needs.46 In 2004, the IACHR published the Report in the Mayan Indigenous Communities case, in which Belize was found to have violated the right to property and the right to equality, both protected by the American Declaration of Rights and Duties of Men. The IACHR further determined that Belize had violated the right to judicial protection protected by Article XVIII of the American Declaration by rendering judicial proceedings brought by the Mayan communities ineffective through unreasonable delay.47 Finally, the IACHR recommended that Belize adopt the measures necessary to grant the Mayan communities the enjoyment of their communal property rights in accordance with their customary land use and practices; abstain from any act that might lead the agents of the States or third parties to affect the existence, values, use, or enjoyment of the property in the area occupied by the Maya people; and repair the environmental damage resulting from the concessions granted by Belize on the Maya land.48 Both the Ten-Points Agreement and the Recommendations of the IACHR remain unimplemented. In 2007, the Mayan communities of Conejo and Santa Cruz filed two constitutional motions claiming the recognition of their customary land rights.49 These motions were decided by Justice Conteh in 2008, who recognized that the Mayan customary land in the Toledo District constituted ‘a kind or species of property that is deserving of the protection of the Belizean Constitution’.50 This decision was not appealed by the Government of Belize, which even engaged in a series of meetings with the leaders of the Mayan communities with the goal of implementing the judgment.51 In 2008, the Solicitor General of Belize issued a Memorandum notifying that the Government was in discussions with the representatives of the Mayan communities of Southern Belize concerning the most appropriate way to implement the Mayan Land case and that all Government officials were to cease all activities and operations in the Toledo District.52 Shortly afterwards, however, the Solicitor General published another Memorandum, in which the actual effects of the Mayan Land case were limited to the land currently occupied by the villagers of Santa Cruz and Conejo. This second Memorandum also stated that the other Mayan communities in Southern Belize may enjoy similar rights and that the Belizean officials were encouraged to give ‘proper consideration’ to this when releasing concessions for that territory.53 However, what the Solicitor General meant by ‘proper consideration’ was not clearly spelt out in the document. In response to these events, the Maya Leaders Alliance sent a letter to the Belizean Prime Minister claiming that the revision of the Governmental position was an error that needed to be reconsidered. The Government, however, maintained its position and resumed the issuance of concessions outside the territory of the two villages of Conejo and Santa Cruz.54 Finally, in 2008, Mr Francis Johnston—a Belizean farmer who, since 2004, had been farming by virtue of a lease from the Government in the lands of Golden Stream—began surveying additional lands that were being farmed by the Mayan communities of Golden Stream. When ordered by the police to stop these activities, he complied with the order. However, following the publication of the second Memorandum of 2008, he resumed surveying and damaging Mayan farmlands by clearing them with a bulldozer. After a series of events that led to an altercation between the villagers and the bulldozer operator, the village of Golden Stream filed an application at the Belizean Supreme Court requesting a preliminary injunction to stop Mr Johnston’s bulldozing activities.55 Shortly after, the Mayan communities filed a suit alleging the failure of the Government to recognize and protect their customary land rights. This case was also decided by Justice Conteh, who concluded that the Mayan customary tenure existed in all the villages in the Toledo District. However, Justice Conteh did not find that the Government of Belize had breached any constitutional provisions and, thus, refused to make an award of damages.56 The Mayan communities appealed to the Court of Appeal, while the Government of Belize cross-appealed against the findings that Mayan customary land tenure constituted property within the meaning of the Belizean Constitution. The Court of Appeal confirmed the decision of Justice Conteh.57 Once again, both the Mayan communities and the Belizean Government appealed to the CCJ. In the appeal, the CCJ discussed whether the Mayan communities underwent an arbitrary deprivation of property; were treated unequally and/or discriminated on the ground of race or ethnicity; were denied the right to protection of the law; and were entitled to compensation for the infringement of their rights.58 The CCJ rejected the first and the second points as it considered it more appropriate to assess the loss of the Mayan communities in the context of their right to protection of the law protected by Article 3(a) of the Constitution of Belize.59 In its reasoning, the Court reversed the traditional (and narrow) reading of the right, according to which this right merely secures access to independent and impartial courts and tribunals.60 The CCJ, however, described the right to protection of the law as a ‘broad spectrum right’ that ‘includes not only access to the court … but also [access] to administrative tribunals with the power to affect constitutional rights or rights under the Constitution of an individual’.61 The Court further specified that: The right to protection of the law is a multi-dimensional, broad and pervasive constitutional precept grounded in fundamental notions of justice and the rule of law. The right to protection of the law prohibits acts by the Government which arbitrarily or unfairly deprive individuals of their basic constitutional rights to life, liberty or property. It encompasses the right of every citizen of access to the courts and other judicial bodies established by law to prosecute and demand effective relief to remedy any breaches of their constitutional rights. However the concept goes beyond such questions of access and … may, in appropriate cases, require the relevant organs of the State to take positive action in order to secure and ensure the enjoyment of basic constitutional rights. … Where the citizen has been denied rights of access and the procedural fairness demanded by natural justice, or where the citizen’s rights have otherwise been frustrated because of government action or omission, there may be ample grounds for finding a breach of the protection of the law for which damages may be an appropriate remedy.62 Having clarified the nature and extent of the right to protection of the law, the CCJ proceeded to apply it to the issue of indigenous land rights. Here, the Court relied on several cases of the IACtHR,63 and other international instruments,64 as well as the preamble of the Constitution of Belize65 to establish the existence of indigenous property rights.66 The Court ruled as follows: Whilst the complexities and intricacies involved in attempting to reconcile two competing systems of land tenure are readily understandable, the delay of the Government of Belize in resolving the issues of indigenous title cannot go unchecked. In light of the foregoing, this Court is clearly of the view that the Appellants’ right to protection of the law, founded on the concept of the rule of law, which itself imports an obligation to adhere to international law commitments, has been breached.67 Finally, the CCJ proceeded to evaluate whether compensation was available to the Mayan communities. In terms of pecuniary damages, the Court rejected the Appellants’ claim on the basis of a lack of evidence related to the actual and concrete material loss suffered by the Mayan communities. However, relying on a previous decision of the JCPC, the CCJ accepted the claim of the Appellants for moral and vindicatory damages and ordered the establishment a fund of BZ$300,000 as a first step towards protecting Mayan customary land tenure. C. Transforming the CARICOM into a Rights-Based System by Expanding the Scope of the Right to Free Movement The CCJ has also delivered several important judgments on fundamental and human rights issues under its OJ. Perhaps the most significant for the Court’s authority is Myrie v The State of Barbados.68 The case was filed by a Jamaican citizen who alleged that some Barbadian border officers—who had conducted a cavity search of her, detained her overnight in a cell, repeatedly insulted her, and denied her access to Barbados—had violated her human and fundamental rights contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the American Convention on Human Rights; her right to free movement within the CARICOM; and her right to non-discrimination on the ground of nationality granted to CARICOM nationals by the RTC.69 While the CCJ ruled in favor of Ms Myrie, ordering Barbados to pay compensatory damages to her for the violation of her right to free movement, the Court refused to rule on the alleged violations of international human rights law. For the Court, Article 211 of the RTC and Article XII of the Agreement Establishing the CCJ limited its OJ mandate to interpreting and applying the RTC and secondary Community law.70 The CCJ, however, did acknowledge that the RTC expressly authorized the Court to apply ‘such rules of international law as may be applicable’, and thus also general principles of international human rights law.71 This statement may have interesting consequences in future OJ cases. Most importantly, by means of its decision in Myrie, the CCJ clarified the relationship between CARICOM law and domestic law, as well as the nature and the scope of Community rights. The Court had to establish the legal status of the 2007 Conference Decision on free movement, which had not been incorporated into national law in Barbados.72 In relation to this, the CCJ produced a landmark ruling, which, echoing the seminal European Court of Justice judgment of Costa v Enel on the supremacy of EU law, revolutionized the nature of CARICOM law.73 For the CCJ, The RTC … and more particularly the 2007 Conference Decision brought about a fundamental change in the legal landscape … Although it is evident that a State with a dualist approach to international law sometimes may need to incorporate decisions taken under a treaty and thus enact them into municipal law in order to make them enforceable at the domestic level, it is inconceivable that such a transformation would be necessary in order to create binding rights and obligations at the Community level.74 This means that, although not formally incorporated into the law of Barbados, the 2007 Conference Decision creates binding international obligations enforceable at the Community level. Moreover, the CCJ coupled this idea of binding and applicable Community law with the doctrine of ‘correlative rights’. According to this doctrine, although formally the RTC does not give rights to individuals but only establishes obligations for the Member States, these obligations are mirrored by ‘correlative rights’ when their non-fulfillment damages the interests of individuals.75 This is a strong articulation of the idea of ‘indirect effect’, which the Court derived from the fact that the RTC obliges Member States to ensure compliance with Community law and to harmonize statutory provisions with international obligations, either through incorporation or otherwise by interpretation.76 This, in turn, entitled individuals within the jurisdiction of CARICOM States to rights under both the RTC and secondary Community law. In turn, these rights are directly enforceable before the CCJ without exhaustion of local remedies and without passing through the, at times, inefficient and slow national judiciaries. In the words of the Court: If binding regional decisions can be invalidated at the Community level by the failure on the part of a particular State to incorporate those decisions locally the efficacy of the entire CARICOM regime is jeopardized and effectively the States would not have progressed beyond the pre 2001 voluntary system that was in force. The original jurisdiction of the Court has been established to ensure observance by the Member States of obligations voluntarily undertaken by them at the Community level. … It is the obligation of each State, having consented to the creation of the Community obligation, to ensure that its domestic law, at least in its application, reflects and supports Community law.77 In other words, with Myrie the CCJ created an autonomous legal regime of Community law aimed not only at creating a common market and enforcing trade liberalization, but also at protecting fundamental and individual rights. The operationalization of such a system of Community rights was further refined by the CCJ in two further OJ cases: Tomlinson v the State of Belize and Tomlinson v the State of Trinidad and Tobago.78 In these cases, the Court was called to rule whether Immigration Acts of Belize and Trinidad and Tobago, which contain provisions banning the entrance of homosexuals into these two countries, violated Mr Tomlinson’s right to free movement within the CARICOM. The Court dismissed the case holding that the practices of both States in relation to their Immigration Acts were not incompatible with the CARICOM law, as it was proved that homosexuals—and in several instances even the Claimant—were repeatedly admitted into Belize and Trinidad and Tobago. The Court, however, also held that the dismissal of Mr Tomlinson’s claims should not allow Belize and Trinidad and Tobago to indefinitely retain laws seemingly in conflict with Community law obligations, which make the admission of homosexuals from other CARICOM Member States a legal requirement. In the two Tomlinson cases, the CCJ also clarified the status of CARICOM law vis-à-vis national law and how the Court will exercise its role as a hybrid court. As to the latter, the CCJ clearly pointed out that its status for some countries as both a Community court and highest court of appeal means that it can directly interpret national law when adjudicating Community laws and obligations when exercising its OJ. Finally, the Court confirmed the principles expressed in Myrie, according to which individuals and corporations receive robust and direct protection of Community rights at the Community level, thus cementing its position of key institution in the protection and enforcement of human and fundamental rights under its OJ. 3. The Growing Authority of the CCJ over Human and Fundamental Rights Through the judicial decisions presented above, the CCJ has gradually established its legal authority over human and fundamental rights in the Caribbean. At its inauguration in 2005 the authority of the CCJ in these matters was practically nil. Under its OJ, the CCJ was almost completely detached from human and fundamental rights issues, and it mostly ruled on trade and tariff related disputes. Simultaneously, the AJ of the Court was criticized by several human rights lawyers for being established, arguably, to ensure an unrestricted use of capital punishment in the Caribbean.79 Some stakeholders even labelled the CCJ as a ‘hanging court’, a court specifically set up to overcome the limitation imposed by the JCPC on the use of death penalty.80 In this regard, Joseph and Boyce constitutes the first meaningful step by the CCJ towards establishing its authority in human and fundamental rights matters in the region. In this ruling the CCJ showed a remarkable capacity to handle highly sensitive issues in a way that has satisfied the Caribbean legal elites and academics and that conforms to international human rights standards. More specifically, by accepting the term of five years for executing death row prisoners established by the JCPC in Pratt and Morgan, the Court dismissed the charge of being a ‘hanging court’. At the same time, by critically approaching the idea that unincorporated treaties are directly enforceable in domestic legal orders, the Court demonstrated that it was not a mere local epigone of the JCPC but a Court in its own right. Several Caribbean and non-Caribbean scholars hailed the decision as a seminal development in Caribbean law.81 As explained by Rose-Marie Belle Antoine: The Court has also displayed a remarkable ability to manoeuvre between competing schools of thought, often weaving through a multitude of precedents from several jurisdictions (usually from the Commonwealth, the UK, the international human rights system, as well as Caribbean jurisprudence). This, combined with a fine appreciation of the local circumstances at play, have enabled the Court to master the art of distinguishing precedent to find appropriate judicial balances in problem solving. This is certainly not a court that simply adopts the latest Privy Council decision.82 Moreover, by ruling that ratified but unincorporated treaties create a ‘legitimate expectation’ that the procedures established by such treaties would be respected, the CCJ found a legally sound and refined way to indirectly allow international obligations into national legal orders without requiring the parliamentary approval required by the Constitutions of Caribbean States and, most importantly, without directly challenging the dualist tradition to which Caribbean States subscribe. Similar considerations apply in relation to the other relevant appellate ruling: the Maya Leaders Alliance case. Probably the most remarkable aspect of this decision was the capacity of the CCJ to maintain a firm—and legally sound—position in favour of indigenous rights, despite the important economic and political interests at stake. This case launched the CCJ into a new and wider dimension. The judgment brought the Court to the attention of a wider set of audiences, triggering the interest and positive remarks of local media, the general public,83 international human rights NGOs and local and international academics. In the words of Professor James Anaya:84 ‘This judgment of the Caribbean Court of Justice sets an important precedent worldwide, building upon ever greater recognition of the rights of indigenous peoples internationally’. In his view, this judgement ‘reinforces the international standard that indigenous peoples have collective property rights based on their own customary land tenure systems, even when they do not have a formal title or other official recognition of those rights, and that States are bound to recognize and protect those rights’.85 Myrie also proved to be of pivotal importance for establishing the CCJ’s authority on human and fundamental rights. With this decision, the Court redefined the scope and the nature of CARICOM law by clearly demarcating a directly enforceable rights-based sphere within the context of the RTC. In particular, with Myrie the CCJ made CARICOM law directly applicable domestically irrespective of whether it has been incorporated or not, and directly enforceable before the CCJ without the need for the exhaustion of local remedies and without necessarily a referral from national judges. The result is a unique regime of Community rights, which expands the tools in the hands of Caribbean citizens for securing the enforcement and protection of their human and fundamental rights.86 Moreover, similar to the Maya Leaders Alliance case, Myrie attracted attention from both the Caribbean legal field and the wider public.87 One newspaper article reported the Myrie judgment as the ‘Caribbean Court of Justice delivers for the Caribbean’s people’.88 A portion of the Caribbean legal academia was mobilized during and after the proceedings at the Court. Professor David Berry, the Dean of the Faculty of Law of the University of West Indies, was part of the legal team that defended Barbados, while the CARICOM Secretariat intervened as a third party, providing important documents needed to reach the decision and, ultimately, giving leverage to the Court in producing one of its boldest and most pro-integration judgments.89 Most importantly, Myrie was greeted by the entire Caribbean legal professions for transforming the CCJ from a mere venue for large businesses and trade and tariff matters to be determined into a judicial institution able to promote and enforce fundamental rights. Finally, although not happy with the outcome of the case, Barbados did not challenge the authority of the decision of the Court. After several months of false promises, delays, and discussions with the Jamaican authorities, Barbados eventually complied with the judgment and paid the damages awarded to Ms Myrie.90 The combined effects of this case-law is that the CCJ has provided Caribbean citizens with three different jurisdictional spheres for the protection and enforcement of human and fundamental rights: the domestic layer, consisting of the national judicial systems and the AJ of the CCJ in the countries in which it is accepted; the international layer, constituted either by the rights and procedures enshrined in incorporated international human rights treaties or by ‘legitimate expectations’ stemming from ratified but unincorporated international treaties; and a rather unique Community layer, constituted by the ‘correlative rights’ derived from the obligations established by the RTC which, after Myrie, can be enforced by private parties directly before the CCJ.91 It is submitted that it is especially this last jurisdictional sphere that may be of key importance for the development and enforcement of human and fundamental rights in the region. This is particularly so given the, at times, slow and inefficient national systems of justice, the still widespread lack of acceptance of the AJ of the CCJ, and of the obstacles to the effective enforcement of international human rights in the domestic legal orders of dualist Caribbean States. No matter what, however, the actual authority of the CCJ over human and fundamental rights is not only dependent on legal and jurisprudential developments but also on contextual factors, ranging from the willingness of the Member States and the legal professions to respect both the supranational character of the Court and its constitutional role, to the ability of the Court to make a wise use of the cases that will be presented to it, addressing them constructively but always with an eye on not stepping on too many toes, at least until the Court achieves more stable forms of authority.92 Thus far, the Court has demonstrated its capacity to be the Caribbean legal authority in the enforcement of human and fundamental rights in the region. Yet the Court’s real success will depend on whether this authoritative legal voice will be transformed into authority in fact. 4. Conclusion The CCJ has laid down the foundations for becoming an authoritative legal voice in the protection and enforcement of human and fundamental rights in the Caribbean. It has done this mostly through high-level judicial decisions both under its AJ and OJ. These decisions have expanded the jurisdictional competences of the Court and clarified several pressing issues connected to human and fundamental rights, such as the effect of unincorporated international treaties in domestic legal orders; the constitutional protection of communal property rights of indigenous minorities; the existence and enforceability of individual rights under the RTC; and the extent and scope of the right to freedom of movement in the CARICOM. Through these decisions, the Court has also confirmed a tripartite framework for the protection of human and fundamental rights in the Caribbean. This jurisprudence is the first step towards developing a system for the protection of human and fundamental rights in the Caribbean. The next challenge the CCJ must face is to transform this refined legal framework into a de facto authoritative system. Footnotes 1 O’Brien and Foadi, ‘CARICOM and its Court of Justice’ (2008) 37 Common Law World Review 334. See also Paine, The Political History of the CARICOM (2008). 2 De la Bastide, ‘The Case for a Caribbean Court of Appeal’ (1995) 5 Caribbean Law Review 401; Pollard, The Caribbean Court of Justice: Closing the Circle of Independence (2004). 3 Ramphal et al., Report of the West Indian Commission: Time for Action (1992). 4 CCJ’s inauguration speech delivered by Mr Michael de la Bastide. 5 Caserta and Madsen, ‘Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies’ (2016) 79 Law and Contemporary Problems 89. 6 Under Article 211 of the Revised Treaty of Chaguaramas (RTC) the CCJ has ‘compulsory and exclusive’ power to solve disputes concerning the interpretation and application of RTC. In this function, the Court adjudicates controversies arising under the RTC between the Caribbean Common Market (CARICOM) Member States, and between those States and the Community. 7 Other regional economic courts have recently developed into human rights tribunals: see Alter et al., ‘A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107 American Journal of International Law 737; Gathii, ‘Mission Creep or a Search for Relevance: The East African Court of Justice's Human Rights Strategy’ (2013) 24 Duke Journal of Comparative & International Law 249. 8 Myrie v The State of Barbados  CCJ 1 (OJ) at . 9 For the purposes of this article, I marginalize the discussion about possible differences between human and fundamental rights and between these two and market and economic rights as well as the issue of whether the CARICOM’s goal is merely to create a single market, or a politically and socially integrated polity. On similar issues, see De Sousa, ‘Quest for the Holy Grail - Is a Unified Approach to the Market Freedoms and European Citizenship Justified?’ (2014) 20 European Law Journal 499. 10 A list of the CCJ’s judgements is available on the Court’s website, see: www.caribbeancourtofjustice.org [last accessed 6 December 2017]. 11 The Attorney General of Barbados v Joseph and Boyce  CCJ 3 (AJ). 12 Myrie, supra n 8. 13 The Maya Leaders Alliance et al. v Attorney General of Belize  CCJ 15 (AJ). Recently, the CCJ also ruled in a case brought by a Jamaican LGBT rights activist against Belize and Trinidad and Tobago for maintaining laws that forbid the entrance of homosexuals on their territory: see Tomlinson v the State of Belize and v The State of Trinidad and Tobago  CCJ 1 (OJ). 14 Caserta, Institutionalizing Regional International Courts: Creation, Authority, and Power of the Central American and Caribbean Courts of Justice (PhD thesis, University of Copenhagen, 2016). 15 Article XXV of the Agreement Establishing the CCJ. 16 Joseph and Boyce, supra n 11. 17 Ibid. at . 18 Boyce and Joseph v The Queen  UKPC 32. 19 In particular, they claimed that Barbados had violated Articles 1(1), 4(1) and (2), 5 and 8 of the Convention, in relation to the mandatory nature of the death penalty, to the conditions of detention, the reading of warrants of execution, and the reading of warrants of execution to the victims, while their complaints were pending before the Inter-American system. It was further alleged that section 2 of the Offences Against the Person Act of 1994 and section 26 of the Constitution of Barbados were incompatible with Article 2 of the Convention: see Case 12.480, Boyce et al. v Barbados Report No 03/06 (2006). 20 Joseph and Boyce, supra n 11 at . 21 Ibid. at . 22 Order issued by the Inter-American Court on 25 November 2004. See Boyce et al. v Barbados IACtHR Series C 169 (2007). 23 Joseph and Boyce, supra n 11 at  – . 24 Joseph and Boyce, supra n 11 at . 25 Most notably, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. 26  UKPC 1 at –. Similar cases were decided against Trinidad and Tobago and Barbados: see Guerra and Wallen v The State of Trinidad and Tobago  UKPC 31 and Bradshaw and Roberts v Attorney General for Barbados et al.  UKPC 21. 27 Helfer, ‘Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes’ (2002) 102 Columbia Law Review 1832. 28 Caserta and Madsen, supra n 5. 29 Protected by the Article 4(6) of the American Convention on Human Rights, according to which: ‘Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such petition is pending decision by the competent authority’. 30 In the specific case, on the effect of the IACHR in Barbados, which was only signed and ratified by Barbados, but not incorporated into national law by its Parliament. 31 Joseph and Boyce, supra n 11 at . 32 Ibid. at . 33 Pratt and Morgan, supra n 26 at –. 34 Neville Lewis et al. v The Attorney General  2 AC 50. 35 Joseph and Boyce, supra n 11 at . 36 Ibid. at . 37 Minister for Immigration and Ethnic Affairs v Teoh  HCA 20 (1995) 183 CLR 273. See also Groves, ‘Treaties and Legitimate Expectations: The Rise and Fall of Teoh in Australia’ (2010) 15 Judicial Review 323. 38 Joseph and Boyce, supra n 11 at . 39 Ibid. at . 40 The CCJ’s appellate cases chiefly concern convictions for murder and relative conversion of the death penalty in incarceration, defamation, transfer of land and property, delays in carrying out trials and judgments, employment issues, removal of public officers, land rights, disrespect of debentures, corruption of public officials, constitutionality of laws, taxes privileges, issues related to foreign arbitration, and so on. See: www.caribbeancourtofjustice.org/judgments-proceedings/appellate-jurisdiction-judgments [last accessed 6 December 2017]. 41 Supra n 13. 42 Protected by sections 3(d) and 17 Belizean Constitution. 43 Maya Leaders Alliance et al., supra n 13. 44 Toledo Maya Cultural Council et al. v Attorney General of Belize, Unreported, Action No. 510, 29 November 1996 (Sc Bze). 45 Petition to the Inter-American Commission on Human Rights, submitted by The Toledo Maya Cultural Council on behalf of Maya Indigenous Communities of the Toledo District v Belize. 46 Maya Leaders Alliance et al., supra n 13 at . 47 Case 12.053, Maya Indigenous Communities of the Toledo District v Belize Report No 40/04, 12 October 2004 at –. 48 Ibid. at . 49 Aurelio Cal v Attorney General of Belize and Manuel Coy v Attorney General of Belize, also known as the Mayan Land case (2007) 71 WIR 110. 50 Ibid. at . 51 Maya Leaders Alliance et al., supra n 13 at . 52 Ibid. 53 SGF/40/01/08/ (3). 54 Maya Leaders Alliance et al., supra n 13 at . 55 Ibid. at . 56 Maya Leaders Alliance et al. v The Attorney General of Belize and Another (2010) 77 WIR 108 at . 57 Attorney General of Belize and Another v Maya Leaders Alliance et al. (Unreported), Civil Appeal No. 27 of 2010, 14 March 2014 (CA Bze). 58 Ibid. at . More specifically, the case concerned whether the Maya were to be granted compensatory damages, for the impairment of the use of their customary property, as well as moral and vindicatory damages, for the violation of the Mayan constitutional right to protection of the law, the right to non-discriminatory treatment, and the right to non-arbitrary deprivation of property. 59 According to which: ‘Whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: (a) life, liberty, security of the person, and the protection of the law.’ 60 Maya Leaders Alliance et al., supra n 13 at . 61 Ibid. at . 62 Ibid. at . 63 The Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua Series C 79 (2001); The Case of the Moiwana Community v Suriname Series C 124 (2005); The Case of the Indigenous Community Yakye Axa v Paraguay Series C 142 (2006); and The Saramaka People v Suriname Series C 172 (2007). 64 Universal Declaration of Human Rights 1948, A/RES/217(II); Article 2 Convention on the Prevention and Punishment of the Crime of Genocide, GA RES 260A (III), 9 December 1948; Article 27 the International Covenant on Civil and Political Rights 1966, 999 UNTS 171; Article 1 International Convention on the Elimination of All Forms of Racial Discrimination 1965, 660 UNTS 195; Article 30 Convention on the Rights of the Child 1989, 1577 UNTS 3; and, finally, the United Nations Declaration on the Rights of Indigenous People, A/RES/61/295, 13 September 2007. 65 According to which, State policies must protect the culture and identity of its indigenous peoples but also must promote respect for international law and treaty obligations: see para (e) of the Preamble of the Constitution of Belize. 66 Maya Leaders Alliance et al., supra n 13 at –. 67 Ibid. at –. 68 Myrie, supra n 8. 69 Ibid. at ,  and . 70 Ibid. at . 71 Ibid. 72 Decision taken at the Twenty-Eight Meeting of the Conference of the Heads of CARICOM, July 2007, Barbados. 73 C-6/64 Costa v E.N.E.L.  ECR 585. 74 Myrie, supra n 8 at –. 75 The doctrine of ‘correlative rights’ was already established by the CCJ in one of its previous cases: see Trinidad Cement Ltd. v Guyana  CCJ 1 (OJ) at . See also Caserta and Madsen, ‘Consolidating Supranational Authority: The Caribbean Court of Justice decisions in the Tomlinson Cases’ (2016) 110 American Journal of International Law 533; and Berry, Caribbean Integration Law (2014). 76 Caserta and Madsen, ibid. at 539. 77 Myrie, supra n 8 at . 78 The two cases were then merged into one case: Tomlinson, supra 13. 79 Simmons, ‘The Caribbean Court of Justice: A Unique Institution of Caribbean Creativity’ (2005) 29 Nova Law Review 69. 80 See Caserta and Madsen, supra n 5. 81 Among others, see Anderson, ‘The Role of the Caribbean Court of Justice in Human Rights Adjudication: International Treaty Law Dimensions’ (2012) 21 Journal of Transnational Law and Policy 1; and Aaron, ‘Reconsidering Dualism: The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law’ (2007) 6 The Law and Practice of International Courts and Tribunals 233. 82 Belle Antoine, ‘Assessing 10 Years of the Caribbean Court of Justice in its Appellate Jurisdiction: Encouraging Signs of a Mature, Relevant Jurisprudence’ (2015) 3 Caribbean Journal of International Relations & Diplomacy 69. 83 See for instance: ‘CCJ grants historic constitutional relief to Maya people’ Caribbean 360, 31 October 2015, available at: www.caribbean360.com [last accessed 6 December 2017]. 84 Professor Anaya is a leading scholar in international human rights and indigenous rights. He participated in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples and was UN Special Rapporteur in the rights of indigenous people. Professor Anaya has also been lead counsel for indigenous parties in several cases before the Belizean Supreme Court, the Inter-American Court of Human Rights, as well as the Inter-American Commission on Human Rights. 85 However, ‘IPLP wins Landmark Human Rights Case in Belize’, The University of Arizona James E. Rogers College of Law, 24 April 2015, available at: law.arizona.edu [last accessed 6 December 2017]. 86 Caserta and Madsen, supra n 81. 87 The newspaper The Jamaican Observer published a series of articles both to the case and to the subsequent difficulties of Ms Myrie of getting her damages paid by Barbados. But all major newspapers have published news items on the matter: see www.jamaicaobserver.com [last accessed 6 December 2017]. 88 Saunders, ‘Caribbean Court of Justice delivers for the Caribbean people’, Kaieteur News, 13 October 2015, available at: www.jamaicaobserver.com [last accessed 6 December 2017]. 89 Myrie, supra n 8. 90 ‘Shanique Myrie paid by Barbados Government’, Jamaica Observer, 24 June 2014, available at: www.jamaicaobserver.com [last accessed 6 December 2017]. 91 A similar argument is made by Belle Antoine, supra n 82. 92 On the importance of contextual factors for the authority of the CCJ, see Caserta and Madsen, supra n 5. This research is funded by the Danish National Research Foundation Grant No. DNRF105 and conducted under the auspices of the Danish National Research Foundation's Centre of Excellence for International Courts (iCourts). © The Author(s) . Published by Oxford University Press. All rights reserved. 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Human Rights Law Review – Oxford University Press
Published: Mar 1, 2018
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