I write in reference to your editorial of 9/10/13 headlined ‘Can the CCJ impose law on non members?’

Notwithstanding the headline, your real concern appears to be whether in the Shanique Myrie judgement the Court has correctly interpreted Article 240(1) of the Revised Treaty of Chaguaramas (RTC), which reads, “Decisions of competent organs taken under this treaty shall be subject to the relevant constitutional procedures of the member states before creating legally binding rights and obligations for nationals of such states.”

That Article had to be interpreted because in the proceedings Barbados submitted that the 2007 Conference Decision (The Conference Decision) could not have created a legally binding right for Caricom Community nationals since Barbados had not yet enacted legislation to implement it as required by Article 240 (1).

The Conference Decision provided ‘that all Caricom nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to and can move in the Caribbean Community, subject to the rights of member states to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds’.

I’ll explain why the Court was entirely correct to reject that submission. But before specifically addressing that issue, some background comments on the approach of Caricom states to international law in general and treaties in particular may be useful.

For better or for worse (in my view, for better) Commonwealth Caribbean states, like most Commonwealth countries, follow the UK’s dualist approach to international law. (See the reference to dualism in paragraph 51 of the judgement). Generally, dualist countries see international law as separate from domestic law, and therefore require legislation for the domestic enforceability of treaties; in some cases treaties may be implemented at the domestic level by means other than legislation, for example, administrative measures.

Generally, monist countries see international law and domestic law as part of a unified system, a continuum with the former at the apex. Generally in such countries, unlike the position in dualist countries, treaties have the force of law and legislation is not required for their domestic enforcement. In Caricom, Suriname is monist.

But the fact that a dualist country requires legislation for the domestic enforceability of a treaty does not affect its obligations under the treaty at the international level. Thus, if a dualist country becomes party to a treaty and fails to enact legislation to implement it at the domestic level, while the provisions of the treaty may not be enforceable in the courts of that country, they yet remain enforceable at the international level and international responsibility may attach to that country for a breach of the treaty.

It would not avail that country to plead its domestic law as the reason for its breach, since it is a fundamental principle of the law of treaties that a party to a treaty may not invoke the provisions of its internal law as justification for its breach of the treaty — see Article 27(1) of the Vienna Convention of the Law of Treaties.

The dualist dichotomous approach to international law, resulting in the possibility that in a dualist country a treaty may not be enforceable in its courts, but at the international level that country may be in breach of the treaty, quite often creates difficulties and a kind of legal paradox; nonetheless that paradox and dichotomy remain an essential part of the constitutional system of dualist countries.

Now to the interpretation of Article 240 (1) of the RTC.

The general rule of treaty interpretation set out in Article 31(1) of The Vienna Convention on the Law of Treaties is that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’.

We must therefore ascertain the ordinary meaning of the terms in Article 240(1) and interpret the provision in the context in which it applies and in light of its object and purpose.

Although Article 240(1) is obviously addressed to all Caricom states, those that would be most affected by it are the Commonwealth common law members whose constitutional system requires legislation for the domestic enforceability of treaties. I very much doubt that Suriname’s constitutional system requires such legislation.

In the first place it is noteworthy that Article 240(1) is not concerned with the binding rights and obligations of Caricom states; it is specifically concerned with the binding rights and obligations of nationals of such states. That much is clear from the ordinary meaning of the term ‘before creating legally binding rights and obligations for nationals of such states’.

Moreover, Article 240(2), which is a companion provision to Article 240(1), by requiring ‘member states to act expeditiously to give effect to decisions of the competent organs and bodies in their municipal law’ (my emphasis), makes it abundantly clear that the Article as a whole, and paragraph 1 in particular, apply to the implementation of decisions of competent Caricom organs at the domestic and not the international level.

Article 240(1) is therefore concerned with the domestic enforceability of decisions of organs taken under the treaty; it leaves untouched the obligation of member states at the international community level to implement the RTC’s provisions, in the instant case, the Conference Decision giving effect to the free movement of Caricom nationals within the community, unless of course that obligation is in any way qualified by some other provision of the RTC.

Bear in mind also that Article 240(1) must be read in conjunction with Article 9 which imposes a general obligation on member states to adopt all measures necessary to discharge obligations under the RTC or those that arise from decisions of the organs and bodies of the community.

That general undertaking on implementation also includes the obligation of member states to facilitate the achievement of the objectives of the community.

Article 240(1) is therefore saying to Caricom states: those of you whose constitutional system requires legislation or some other measures to implement Caricom decisions, you must ensure that those measures are put in place and, in terms of Article 240 (2), you must do so expeditiously. Incidentally the failure to take such measures and to do so expeditiously is itself a breach of the RTC.

But the failure to adopt the implementing measures — or even if the measures have been adopted in a manner inconsistent with the treaty obligations under the Conference Decision — does not affect the responsibility of a delinquent Caricom state at the international community level for a possible breach of the Conference Decision.

I suspect that, as was the case with Barbados, there are other Caricom countries which have not enacted domestic legislation to implement the Conference Decision. In the Commonwealth we have a culture of the non-incorporation of treaties; the UK took 47 years to enact legislation to implement the European Convention on Human Rights.

Practically, what Article 240(1) means is that more than likely Miss Myrie would not have succeeded had she filed suit in the Barbados Supreme Court because the absence of domestic legislation to implement the Conference Decision would have been a complete answer to her complaint. But that is not where she went.

When we examine the object and purpose of Article 240(1) we find an even stronger justification for the Court’s rejection of Barbados’ submission. Essentially, that submission, if accepted, would mean that each and every member of Caricom would be able to invoke the lack of implementing domestic legislation as justification for failure to perform its obligations arising from a Conference Decision.

This would certainly defeat the achievement of the community’s object and purpose in relation to travel within the community as set out in Article 45, which provides ‘member states to commit themselves to the goal of free movement of their nationals within the community’.

In that regard, the Court is correct to view the Conference Decision as “another step in furthering the community goal of free movement…?” see paragraph 62. Free movement of nationals is essential to the achievement of the rights of establishment and the provision of services. See paragraph 60 of the judgement. The centrality of the principle of free movement of nationals within the community is beyond question.

The acceptance of the Barbados submission would also defeat the community’s noble object of enhancing among Caricom nationals through free movement ‘their sense that they belong to and can move in the Caricom Community’. In sum, the community’s object of free movement of nationals within the community would be nullified if the application of that principle were made to depend on the enactment of implementing legislation by each Caricom state.

Since it is clear from the ordinary meaning of the provision that it relates to the rights and obligations of nationals at the domestic level, recourse may not be had to subsidiary means of interpretation (travaux preparatoires — preparatory work) set out in Article 31(2) of The Vienna Convention on the Law of Treaties to ascertain the meaning of the provision.

In conclusion on this point, the combined application of the textual, contextual and teleological interpretative tools yields the conclusion that Article 240(1) was not intended to qualify the obligation of Barbados or any other Caricom state to give effect to the Conference Decision by making the discharge of that obligation dependent on the enactment of implementing domestic legislation. The Court was therefore right to reject the Barbados submission.

But in my view the phrase ‘before creating legally rights and obligations for nationals of such states’ is somewhat otiose; it certainly does not say anything that would not have been clearly understood had it been omitted. For we have seen that in the constitutional system of a Commonwealth Caribbean country, absent implementing legislation for a treaty, its provisions are not enforceable in the courts of that country not only by the nationals of that country, but also by the nationals of other Caricom states.

It is perfectly understandable that in a community system community law must override national law where it is inconsistent with community law; otherwise there would be no community. Consider this: suppose Caricom state A enacted legislation to implement the Conference Decision, but did so in a manner that precluded nationals of state B from entering its territory. Both state B and its nationals would be seriously prejudiced.

It is only right in such a case that the free movement of nationals within the community, set forth in the Conference Decision, should prevail over state A’s legislation and for the CCJ to so hold. This is what is required by community doctrine and law and this is what has happened in the Myrie case: Community law requiring free movement of nationals within the community has prevailed over Barbadian law, which has no legislation to implement community law; it has prevailed because, properly construed, the RTC does not make the discharge by Barbados of its obligations under the Conference Decision dependent on its enactment of domestic implementing legislation.

I fail to understand why Jamaica or any other Caricom state would have a difficulty with such an approach and outcome.

You say in the editorial that paragraph 54 of the judgement concludes thus: “However there is no guarantee that member states of the Caribbean community will obey the ruling, especially those that have not accepted the Caribbean Court of Justice as their court of ultimate jurisprudence.” I am bound to say that several readings of this paragraph have failed to unearth this sentence.

I would also find it an astonishingly inappropriate comment for the Court to make. The concept of a community necessarily involves, as the Court said in paragraph 69, “certain self-imposed, albeit perhaps relatively modest, limits to particular areas of state sovereignty”.

The benefits of such limitations outweigh the disadvantages. Moreover, community law has carved out certain exceptional areas in which state sovereignty operates in the interest of certain public policy considerations (for example, security exceptions under Article 225 and measures to protect public morals or to maintain public order and safety under Article 226), though, as the Court has pointed out, not without limits.

Miss Myrie’s action and the success attending it should be a fillip for other aggrieved Caricom nationals to follow suit and invoke the CCJ’s original jurisdiction for redress.

However, the significance of this judgement for Jamaica does not consist primarily in the favourable result for Miss Myrie. Support for the Court should not be based on its adjudication of cases in favour of Jamaica and Jamaicans; that approach is unwise, since it is almost inevitable that while some cases may be decided in favour of Jamaica, others may not.

I am absolutely certain that Barbados, which is one of only three Caricom members to have accepted the Court’s appellate jurisdiction and is a leading partner in the Caribbean Single Market, will not allow the outcome of this case to affect its support for the Court. The significance of the judgement for Jamaica and other members of the community consists in its patent demonstration of the fitness, competence and impartiality of the CCJ.

I regard the lack of confidence in ourselves, the belief that we are not ‘ready’ as the worst relic of colonialism.

While I credited Miss Myrie’s story from the outset, I was always concerned about how the Court would, in a case that was so fact-intensive, assess the issue of credibility and determine the burden and standard of proof which, undoubtedly, would have been on her.

Having read the judgement I cannot overstate my admiration for the way in which the Court approached these issues, in particular its careful examination of the evidence and submissions — see for example paragraphs 11, 12 and 38-42.

It would be difficult for the objective reader of this judgement not to conclude that Miss Myrie’s version of the events was more believable and that she had discharged the burden of proof to the requisite degree. I am also in admiration of the several directions given by the Court on such matters as the right to counsel as well as the recourse it had to judgements of the European Court of Justice.

It is sensible that the Court should examine and, where appropriate, be influenced by another court with a somewhat similar jurisdiction.

I make no comment on whether, if exemplary or punitive damages could be awarded, this would be an appropriate case for such an award. I am more concerned with the principle that damages of that kind, not being known to civil law jurisdictions, cannot be awarded by the Court in its original jurisdiction (see paragraph 94 of the judgement).

I understand the rationale behind that decision, since awarding such damages would lead to an inequality among member states of the community. Nonetheless I feel almost instinctively that there must be a solution to this issue and wonder how it is addressed by the European Court of Justice, if indeed it has arisen in that jurisdiction where the UK is the single common law country in a big ocean of civil law jurisdictions.

In closing, I have to say that I am lost as to the significance of the headline. I do not see how the question of the CCJ imposing law on non-members arises. As you are aware, the Court’s original jurisdiction applies to all Caricom states while its appellate jurisdiction applies to those Caricom states which have accepted that jurisdiction.

When the Court ruled that the discharge by Barbados of its obligations under the Conference Decision did not depend on its enactment of implementing legislation for that decision, it was not imposing law on Barbados as a member state of Caricom and far less on non members; it was simply interpreting and applying the law of the community on the basis of Article 240(1) of the treaty to which all Caricom countries have expressed their consent to be bound.

My sincerest congratulations to the plucky and courageous Miss Myrie.

Patrick Robinson is a former president of the International Criminal Tribunal for the former Yugoslavia