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.

KEYWORDS:

• Rule of law
• Caribbean Court of Justice
• Constitution
• jus cogens
• incorporation
• separation of powers

Acknowledgments

I am very grateful to The Honourable Mr Justice Denys Barrow, my colleague judge at the Caribbean Court of Justice, and to Professor Stephen Vasciannie, my friend and immediate past president of the University of Technology, Jamaica, for reading and making valuable comments on an earlier draft of this article.

Notes

1 Douglas Mendes, ‘The Caribbean Court of Justice and the Rule of Law’ (Caribbean Association of Judicial Officers Conference, Belize City, 31 October 2019) <www.thecajo.org/cajo/wp-content/uploads/2019/12/Rule-of-Law-Material-3.pdf> accessed 30 November 2020. Mendes is also President of the Law Association of Trinidad and Tobago and has served on the Court of Appeal of Belize as a Justice of Appeal.

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

2 Mendes (n 1) 12–13, citing Bar Association of Belize v A-G of Belize [2017] 2 LRC 595 (CCJ) [50] and Nervais v The Queen [2018] CCJ 19 (AJ) (CCJ) [74].

3 Agreement Establishing the Caribbean Court of Justice, adopted at Saint Michael, Barbados on 14 February 2001 and entered into force on 23 July 2003, Preamble.

4 See eg The Barbados Independence Order 1966, sch 2 (1966 Barbados Constitution), s 1; The Guyana Independence Order 1966, sch 2 (1966 Guyana Constitution), art 2; The Saint Lucia Constitution Order 1978, s 120. Note, however that the first eight words of the quote do not appear in the Constitution of Jamaica 1962 (Jamaica (Constitution) Order in Council 1962, sch 2 (1962 Jamaican Constitution), s 2).

5 HLA Hart, The Concept of Law (3rd edn, Oxford University Press 2012) 120.

6 Simeon CR McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (The Caribbean Law Publishing Co 2002) 90.

7 [2004] UKPC 34 (Privy Council (PC)) [53].

8 See eg 1962 Jamaican Constitution, s 48(1).

9 ibid s 49(1).

10 See eg 1962 Jamaican Constitution, ss 48(1), 49(1), 55(1), 56(1), 57(1) and 68(2).

11 See also The A-G of Guyana v Richardson [2018] CCJ 17 (AJ) (CCJ) 124 (Anderson J).

12 Note the discussions in Jamaica and Trinidad and Tobago about having referenda to decide whether to accept the appellate jurisdiction of the CCJ; neither state’s constitution requires a referendum in relation to acceptance of that jurisdiction.

13 John Locke, An Essay Concerning the True Original, Extent and End of Civil Government (first published 1689, Oxford University Press 1960) 79.

14 Francis Alexis, Changing Caribbean Constitutions (Antilles Publications 1983) 12–49.

15 [1977] AC 195 (PC).

16 ibid 212.

17 ibid 212 (emphasis added).

18 See eg DPP of Jamaica v Mollison [2003] 2 AC 411 (PC); The State v Khoyratty (Mauritius) [2006] UKPC 13 (PC).

19 Baron de Montesquieu, The Spirit of the Laws (first published 1748, Batoche Books 2001).

20 Aristotle, Politics (first published 13th century, Oxford University Press 2020).

21 Polybius, The Histories (Harvard University Press 2011), Book 6, 11–13.

22 See Lee Ward, Modern Democracy and the Theological-Political Problem in Spinoza, Rousseau, and Jefferson (Palgrave Macmillan 2014) 25–26:

Calvin’s republican sympathies derived from his view of human nature as deeply flawed. Compound or mixed governments reflect the reality that human frailty justifies and necessitates institutional checks and balances to the magistrate’s presumed propensity to abuse power. It was this commitment to checks and balances that became the basis of Calvin’s resistance theory, according to which inferior magistrates have a duty to resist or restrain a tyrannical sovereign.

23 John Locke, Two Treatises on Civil Government (first published 1690, Cambridge University Press 1960).

24 Baron de Montesquieu (n 19) 173–174.

25 Alexander Hamilton, James Madison and John Jay, The Federalist Papers (first published 1788, Champaign IL Project Gutenberg 1990s), Federalist No. 51, 333–334.

26 Immanuel Kant, ‘Perpetual Peace’ in Hans Reiss (ed), Kant’s Political Writings (Cambridge University Press 1970) 112–13.

27 (1967) 12 WIR 5 (Court of Appeal of Trinidad and Tobago (CATT)) 9.

28 [2013] CCJ 5 (AJ) (CCJ).

29 ibid 42 (footnotes omitted).

30 Hinds (n 15); Independent Jamaica Council for Human Rights (1998) Ltd v Marshall-Burnett [2005] UKPC 3 (PC).

31 BCB Holdings (n 29).

32 Hochoy v NUGE (1964) 7 WIR 174 (CATT); Hinds (n 15); CO Williams Construction Ltd v Blackman [1995] 1 WLR 102 (PC).

33 Maharaj v A-G of Trinidad and Tobago [1977] 1 All ER 411 (PC).

34 This issue does not appear to have engaged Caribbean courts but was affirmed in South African Association of Personal Injury Lawyers v Health [2001] 4 LRC 99 (Constitutional Court of South Africa).

35 Namely, a person is regarded as having a relevant interest ‘only if the contravention of [the] Constitution alleged by him is such as to affect his interests’: see eg The Commonwealth of Dominica Constitution Order 1978, sch 1 (The Constitution of the Commonwealth of Dominica), ss 103(1), 103(5); The Saint Vincent Constitution Order 1979, sch 1 (The Constitution of Saint Vincent and the Grenadines), ss 96(1), 96(5). See also Richards v A-G of Saint Vincent and The Grenadines VC 1990 HC 1 (High Court of Saint Vincent); Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2003] UKPC 63 (PC); Francis Alexis, ‘Key Issues in Commonwealth Caribbean Constitutional Law Arising from “Payne v. A-G”’ (1982) 6 West Indian Law Journal 33, 57, 63–64.

36 Ya’Axchè Conservation Trust v Chief Forest Officer [2014] CCJ 14 (AJ) (CCJ) (Anderson JCCJ).

37 Harrikissoon v A-G of Trinidad and Tobago [1980] AC 265 (PC); Jaroo v A-G of Trinidad and Tobago [2002] UKPC 5 (PC); Lucas v The Chief Education Officer [2015] CCJ 6 (AJ) (CCJ); Taitt v Caribbean Development Bank BB 2019 HC 33 (Barbados High Court) (Richards J).

38 A-G of Belize v British Caribbean Bank Ltd BZ 2012 CA 17 (Court of Appeal of Belize); see, particularly judgment of Mendes JA at [238]–[275].

39 See Flast v Cohen 392 US 83 (1968) (Appeal from the United States District Court for the Southern District of New York).

40 Mendes (n 1) 2, citing: Tracy Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitution Law (Sweet & Maxwell 2015); Jeffrey Jowell, ‘The Rule of Law Today’ in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (3rd edn, Oxford Clarendon Press 1994) 57–78; Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195; Mark Ellis, ‘Towards a Common Ground Definition of the Rule of Law Incorporating Substantive Principles of Justice’ (2010) 72 University of Pittsburgh Law Review 191; Lord Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67; Paul Craig, ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) 3 Public Law 467; TRS Allan, ‘The rule of law as the rule of reason’ (1999) 115 Law Quarterly Review 221; Peter W Hogg and Cara F Zwibel, ‘The Rule of Law in the Supreme Court of Canada’ (2005) 55 University of Toronto Law Journal 715.

41 Raz (n 41) 196 (quoted in Mendes (n 1) 3).

42 Lord Bingham (n 41) 76.

43 ibid 75.

44 Yong Vui Kong v Public Prosecutor [2015] SGCA 11 (Singapore Court of Appeal (SCA)).

45 [2017] EWHC 3289 (QB) (High Court of England and Wales), although, respectfully, an exception should have been made in respect of customary law—a distinction made by the Supreme Court of Canada in Nevsun Resources Ltd v Araya [2020] SCC 5 (SCC).

46 Mendes (n 1) 5.

47 Mendes (n 1) 10.

48 Winston Anderson, ‘The Role of the Caribbean Court of Justice in Human Rights Adjudication: International Treaty Law Dimensions’ (2011) 21 Journal of Transnational Law and Policy 1; Stephen Vasciannie, ‘Reflections on Customary International Law’ in Winston Anderson (ed), Eminent Caribbean International Law Jurists: The Rule of International Law in the Caribbean (CCJ Academy for Law 2019). See also, Lord Hope in Watson v R (Jamaica) [2004] UKPC 34.

49 This discussion of jus cogens draws heavily from Aristoteles Constantinides, ‘Jus Cogens’ in André Nollkaemper and others (eds), International Law in Domestic Courts: A Casebook (Oxford University Press 2018).

50 Vienna Convention on the Law of Treaties 1969 (VCLT), art 53.

51 The content of jus cogens was left by the International Law Commission (ILC) ‘to be worked out in State practice and in the jurisprudence of international tribunals’ (ILC, ‘Yearbook of the International Law Commission 1966’ (vol 2, United Nations Publication 1966) 248). Further, article 66 of the VCLT provides for judicial determination of disputes concerning jus cogens by the ICJ or arbitration. The ICJ, however, avoided any explicit reference to jus cogens until 2006 (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility Judgment) [2006] ICJ Rep 31 (ICJ) [64].

52 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Chagos Advisory Opinion) (Separate Opinion of Judge Robinson) [2019] ICJ Rep 294 (ICJ) [50]. See also Patrick Robinson, ‘Independence is a Right, not a Gift: Lessons from Resolution 1514 and the Chagos Advisory Opinion’ in Winston Anderson (ed), Eminent Caribbean International Law Jurists: The Rule of International Law in the Caribbean (CCJ Academy for Law 2019).

53 Ian Brownlie, ‘Discussion’ in Antonio Cassese and Joseph Weiler (eds), Change and Stability in International Law-Making (Walter de Gruyter 1988) 110.

54 See Andreas L Paulus, ‘Jus Cogens in a Time of Hegemony and Fragmentation’ (2005) 74 Nordic Journal of International Law 297.

55 Evan J Criddle and Evan Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’ (2009) 34 Yale Journal of International Law 331.

56 ibid 332, stating that:

Positivists’ efforts to link peremptory norms to state consent are unconvincing because they do not explain why a majority of states within the international community may impose legal obligations on a dissenting minority. While natural law theories circumvent this persistent objector problem, they struggle to specify analytical criteria for identifying peremptory norms. Public order theories, which view jus cogens as rules integral to interstate relations and international law’s wider normative agenda, likewise fail to illuminate which particular norms should be deemed peremptory or how jus cogens can be reconciled with state sovereignty.

57 ibid 349ff.

58 See eg Restatement (Third) of Foreign Relations of the United States, as cited in Criddle and Fox-Decent (n 56) 331–332.

59 Chagos Advisory Opinion (n 53) (Separate Opinion of Judge Robinson) [50].

60 Mendes (n 1) 12.

61 [2010] NSWCA 225 (New South Wales Court of Appeal) [164].

62 See eg Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2006] UKHL 26 (United Kingdom (UK) House of Lords (UKHL)).

63 [2015] 2 SLR 1129 (SCA).

64 ibid [35].

65 ibid [38].

66 Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172, 221.

67 ibid 221.

68 Prosecutor v Furundžija (Judgment) (1999) 38 ILM 317 (ICTY).

69 ibid [155]–[157].

70 ibid [155]–[156].

71 Al-Adsani v United Kingdom App no 35763/97 (ECtHR, 21 November 2001).

72 ibid [61].

73 ibid 30–31, Joint Dissenting Opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto, and Vajic [3]–[4]. Judge Loucaides and Judge Ferrari Bravo issued separate dissenting opinions.

74 Judgment of the Nuremberg International Military Tribunal 1946 (n 68) 221.

75 See eg Constitution of Romania 1991 (arts 11, 20), Constitution of the Slovak Republic 1992 (art 11), (note that art 11 of the Slovakian constitution has been repealed and seemingly replaced by art 154c though the articles are not the same) and Constitution of the Czech Republic 1992 (art 10).

76 Philipp Cede, ‘Report on Austria and Germany’ in Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective (Europa Law Publishing 2010) 61.

77 See article X(2) of the Constitution of Bosnia and Herzegovina 1995: ‘No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph’.

78 (1973) 49 SCRA 105 (Philippines Supreme Court) 126.

79 See Anton Burkov, The Impact of the European Convention on Human Rights on Russia Law (ibidem-Verlag 2007) 124–134.

80 Germany v Margellos (Petition for Cassation) (2003) 1 AED 11 (Greek Special Supreme Court); Riveros v Office of the Public Prosecutor M 2333 XLII (2007) (Supreme Court of Argentina (SCAr)).

81 Blake v Argentina 965 F 2d 699 (9th Cir 1992) (United States Court of Appeals (USCA) (9th Circuit)); Suresh v Canada 2002 SCC 1 (SCC).

82 Sarei v Rio Tinto PLC 221 F Supp 2d 1116 (CD Cal 2002) (District Court for the Central District of California); RM v A-G Civil Case 1351 (2002) (Nairobi High Court (NHC)); Germany v Mantelli Case No 14201/2008 (Italian Supreme Court of Cassation (ISCC)); Adhikari v Daoud & Partners 697 F Supp 2d 674 (SD Tex 2009) (District Court for the Southern District of Texas) [29].

83 Judgment No 21-P on the constitutionality of provisions of Russian domestic law establishing the obligation to implement judgments of the European Court of Human Rights, 14th July 2015 (Constitutional Court of the Russian Federation).

84 East German Expropriation Case BVerfGE 112 1 (2004) (Constitutional Court of Germany); Nada v State Secretariat for Economic Affairs BGE 133 II 450 (2007) (Federal Supreme Court of Switzerland).

85 Buell v Mitchell 274 F 3d 337 (6th Cir 2001) (USCA (6th Circuit)).

86 C v Director of Immigration [2008] 2 HKC 165 (Hong Kong Court of First Instance).

87 Some cases have considered the provision in the VCLT that treaties that conflict with jus cogens are invalid. In such cases, the discussion involves claims of conflict with peremptory norms that emerged after the conclusion of the treaties (jus cogens superveniens); see eg Goran U, Foreign judgment execution procedure Case No 1768/1998 (Supreme Court of Spain); East German Expropriation Case (n 86).

88 Junhyun Bae, ‘State Immunity in Civil Proceeding and Jus Cogens Violation’ (Master thesis, University of Helsinki 2019).

89 See subsection 4.3.2 above.

90 Pinochet (Nos. 1, 2 and 3) respectively: [2000] 1 AC 61; [2000] 1 AC 119; [2000] 1 AC 147 (all UKHL).

91 Jack L Goldsmith and Curtis A Bradley, ‘Pinochet and International Human Rights Litigation’ (1999) 97 Michigan Law Review 2129.

92 See Pinochet (No. 3) (n 92) 204–205 (Lord Browne-Wilkinson).

93 128 ILR 658 (ISCC).

94 Jones (n 64).

95 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2004] EWCA Civ 1394 (Court of Appeal of England and Wales).

96 Such as Bouzari v Iran 71 OR (3d) 675 (2004) (Ontario Court of Appeal).

97 Jones (n 64) [45]. The learned Law Lord went on to state, also disapproving of Ferrini, that it was ‘not for a national court to “develop” international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states’ ([63]).

98 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted10 December 1984, entered into force 26 June 1987).

99 At the time that Pinochet was considered by the House of Lords, the UK had not directly incorporated the Torture Convention into domestic law and policy, though a number of the Convention’s provisions were reflected in domestic legislation, most notably in the Human Rights Act 1998 which was enforceable in UK courts.

100 Jones (n 64) [19] (Lord Bingham).

101 ibid [32] (Lord Bingham).

102 ibid [43], [44], [49].

103 (Merits Judgment) [2012] ICJ Rep 99 (ICJ).

104 ibid [83].

105 ibid [91].

106 Case No 32139/2012 (ISCC).

107 P/457/XXXI (1995) (SCAr).

108 ibid [4]–[5].

109 S 1767 XXXVIII (2005) (SCAr).

110 Argentina’s Full Stop Law 1986 and Law of Due Obedience 1987.

111 Case No 16/2005 (2005) (Spanish National Court, Criminal Chamber), reported in (ES 2005) Oxford Reports on International Law in Domestic Courts 136.

112 ibid. Argentina follows a monist approach and therefore the decisions of its courts are not immediately transferable into the dualistic jurisprudence of the Caribbean.

113 [2005] UKHL 71 (UKHL).

114 ibid [34].

115 [2002] UKHL 19 (UKHL) [29], [117].

116 A v Secretary of State (n 112) [34]. It should be noted that the majority ruled that such evidence could be admitted if there was no more than a possibility that the information was obtained by torture: [121] (Lord Hope), [138] (Lord Rodger), [158] (Lord Carswell), [172] (Lord Brown).

117 2020 SCC 5 (SCC).

118 ibid.

119 Abella J (Wagner CJ and Karakatsanis, Gascon and Martin JJ concurring).

120 Nevsun (n 119) [99].

121 ibid [113].

122 Moldaver and Côté J dissented, while Brown and Rowe JJ dissented in part.

123 Nevsun (n 119) [192]–[213].

124 Jorge Tapia Valdéz, ‘Poder constituyente irregular: los límites metajurídicos del poder constituyente originario’ (2008) 6 Estudios Constitucionales 121.

125 Dinah Shelton, ‘Introduction’, in Dinah Shelton (ed), International Law and Domestic Legal System: Incorporation, Transformation, and Persuasion (Oxford University Press 2011) 7.

126 Mark Ellis, ‘Towards a Common Ground Definition of the Rule of Law Incorporating Substantive Principles of Justice’ 72 University of Pittsburgh Law Review 192, 200.

127 ibid 201.

128 Constitution of Kenya 2010, art 2(5). See also Re Zipporah Wambui Mathara Bankruptcy Cause 19 (2010) (NHC) [9].

129 A-G v Joseph [2006] CCJ 3 (AJ) (CCJ). In this case, the CCJ asserted the general rule but went on to hold that state action in relation to an unincorporated treaty had created a legitimate expectation which was legally enforceable.

130 Buvot v Barbuit (1737) Cas Temp Talbot 281 (English Court of the King’s Bench (ECKB)); Triquet v Bath [1746] 97 ER 936 (ECKB); R v Keyn (1876) 2 Ex D 63 (English Court for Crown Cases Reserved); Mortensen v Peters (1906) 8 F J 93 (Scottish High Court of Justiciary).

131 [1939] AC 160 (PC).

132 [1977] AC 373 (PC).

133 ibid 403.

134 ibid 403.

135 ibid 402.

136 James Crawford, Brownlie’s Principle of Public International Law (8th edn, Oxford University Press 2012).

137 Lord Bingham in R v Jones [2006] UKHL 16 (UKHL) [23] agreed with the observations of Franklin Berman (Franklin Berman, ‘Jurisdiction: The State’ in Patrick Capps, Malcolm Evans and Stratos Konstadinides (eds), Asserting Jurisdiction: International and European Legal Perspectives (Hart Publishing 2003) 11), that:

Inasmuch as the reception of customary international law into English Law takes place under common law, and inasmuch as the development of new customary international law remains very much the consequence of international behaviour by the Executive, in which neither the Legislature nor the Courts, nor any other branch of the constitution, need have played any part, it would be odd if the Executive could, by means of that kind, acting in concert with other States, amend or modify specifically the criminal law, with all the consequences that flow for the liberty of the individual and rights of personal property.

138 David Dyzenhaus, Murray Hunt and Michael Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 5, 34.

139 Nevsun (n 119) [20].

140 ibid [99].

141 Joined cases C-402/05 P and C-415/05 P Kadi v Council of the European Union, [2008] ECR I-06351 (European Court of Justice) [282].

142 See subsection 2.1 above.

143 Note the international trusteeship system provided for in chapter XII of the United Nations Charter. See also Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections Judgment) [1992] ICJ Rep 240 (ICJ).

144 Criddle and Fox-Decent (n 56). Cited with approval by a majority in Nevsun (n 119).

145 Criddle and Fox-Decent (n 56) 332.

146 ibid 333.

147 ibid 333.

148 ibid 387.

149 Yaniv Roznai, ‘The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional Amendments’ (2013) 62 International and Comparative Law Quarterly 557.

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Notes on contributors

Justice Winston Anderson

Justice Winston Anderson is a judge of the Caribbean Court of Justice and the Chairman of the CCJ Academy for Law.