Regional Court Establishment
| Author | Cheryl Thompson-Barrow |
| Pages | 37-44 |
Page 37
The association of the practice of law across international borders with that of traditional international tribunals such as the International Court of Justice (ICJ) is now undergoing change with the emergence of regional courts. This is as a result of the thrust of globalisation, which has changed not only the financial landscape of the planet, but has increasingly modified the legal parameters of the traditional forms of justice at the international level and access thereto. At the regional level, the challenges are indeed assuming an energy of their own, and in some respects are in the process of developing regional jurisprudence as a hybrid form of international law within the general body of international law itself 75.
The forerunner of a regional court without doubt has been the Court of Justice of the European Communities, established pursuant to Article 177 of the Treaty of Rome, viz:
'The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
* the interpretation of this Treaty;
* the validity and interpretation of the acts of the institutions of the Community;
* the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide'.
In the southern hemisphere, the need for the creation of a regional court to adjudicate on matters deemed particular to the dictates of that region was evidenced in the Agreement Creating the Court of Justice of the Cartagena Agreement, which was signed in 1979 and came into effect in 1983. It will be recalled that the constituent members of the Andean Community - Bolivia, Colombia, Ecuador, Peru and Venezuela - are associated through the Andean system of integration, as they deem it necessary to co-exist on the mutuality of shared regional interests.
Since the formation of these regional courts, there has been heightened interest as the world is increasingly described as 'a global village'. At the same time, advances in technology now enlighten the manner in which multilateral conventions are to be elaborated for the trans-border movement of goods and services and the attendant institutional framework to let all that come together.
Communities in their regions have felt the need to, in some instances, deepen their traditional form of regional camaraderie so as to present a unified front to the challenges of globalisation. Weighing in the balance of all this are the justifiable concerns of developing and less-developed countries to maintain a posture of competitiveness on an uneven playing field. The need to associate not only becomes more compelling, but also evolves at a heightened level. It is at this stage that regional communities recognise the need to formalise the development of their communal law.
Page 38
In order to provide a legal framework for the operation of the regional system, pursuant to the particular treaty of association, a regional court will be established. In the instance of the Court of Justice of the European Communities, that institution assumes the characteristic of a court of supra-national status, effectively being the final instance of appeal from courts of nationaljurisdiction in the countries of the European member states themselves. A similar situation arises in the Court of Justice of the Cartagena Agreement: that agreement has expressed that the creation of a tribunal at the highest level shall have the authority to define 'communitarian' law.
In an examination of the regional activities of the Commonwealth family, the following judicial arrangements are of note:
* The Caribbean Court of Justice (CCJ) for the Caribbean Community (CARICOM)
* The Court of Justice of the Common Market For Eastern and Southern Africa (COMESA)
* The Court of Justice of the Economic Community of West African States (ECOWAS)
The various treaties of association of these regional groups and/or the instruments creating the courts are consistently thematic in their purposes.
The Treaty of Chaguaramas, which formed the Caribbean Community/Common Market (CARICOM) was signed on 4 July 1973, in the Republic of Trinidad and Tobago. The revisions of the treaty were completed in 2001, which also heralded the CARICOM Single Market and Economy (CSME). Discussions on the Caribbean Court of Justice hitherto have essentially focused on its appellate jurisdiction to replace the Judicial Committee of the Privy Council as the highest appellate municipal court of the member states. However, the CCJ is also a regional tribunal with the consequent attention to the rules of international law, particularly as they relate to the interpretation of the Caribbean Community's (CARICOM) treaty of association. As eloquently expressed by the Hon. Messieurs Justices Duke Pollard and Adrian Saunders76:
'The ...CCJ is a unique judicial institution in terms of its jurisdiction, composition, financing 77 and as a catalyst for regional economic integration. The uniqueness of the CCJ is not a function of its status as a multinational municipal court of appeal;... Nor is the uniqueness of the CCJ based on the fact that it combines in its composite remit an appellate and original jurisdiction... The uniqueness of the CCJ is to be found in the fact that it combines in its remit a municipal appellate jurisdiction of last resort and an original jurisdiction in the exercise if which it is mandated to employ rules of Page 39 international law in interpreting and applying the constituent instrument of the Caribbean Community'.
This latter function will see the CCJ rule, in originaljurisdiction mode, on matters relating to the operation of the CARICOM Single Market and Economy (CSME), as well as determining matters of community law.
It should also be noted that the...
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