Delroy Beckford, GUEST COLUMNIST
For now, too much cannot be written about the Shanique Myrie landmark decision because of its implications for domestic law and international legal obligations other than those in the Revised Treaty of Chaguaramas (RTC).
Not surprisingly, not much attention is paid to the implications of the judgment for obligations other than those in the RTC because the case was not about any such obligation being breached.
The Caribbean Court of Justice (CCJ), as is well known, held that there is no need for domestic implementation of community law for it to apply community law, regardless of whether there is any inconsistency with domestic law, or the non-implementation of community law in domestic legislation.
However, the judgment, as crafted, does not mean that there is 'direct effect' in the domestic legal system of CARICOM members.
By 'direct effect' one means, of course, that the obligations of the RTC are self-executing or automatically part of domestic law or that a decision of the CCJ interpreting the RTC is part of the domestic law of CARICOM members.
In its judgment, the court was careful in maintaining the supremacy of the dualist doctrine according to which international obligations, if to be enforceable in domestic law, must be given effect under domestic legislation.
At Paragraph 54 of the judgment, the CCJ states the following:
The court makes two further general observations. Firstly, as indicated earlier, Article 240(1) RTC does not require that member states enact a binding Community decision into domestic law in order to create, at the Community level, legally binding rights and obligations. The states are merely required to give domestic effect to such a decision subject to their own relevant constitutional procedures. If these constitutional procedures require domestic legislation, then the state's legislature must be involved in order to give municipal courts the authority to adjudicate those rights and obligations at the municipal level.
But in lieu of enacting new or amending old legislation, this objective may, in some cases, also be accomplished administratively, or even judicially, in cases where the constitution or the existing domestic legislation leaves room for so doing. In such cases, domestic effect to the state's treaty obligations can, and, given the duties imposed on member states by Articles 9 and 240(2) RTC, must, if possible, be given by the executive or judicial branches of that state.
What may have confused the issue, leading some commentators to the view the CCJ has either endorsed the principle of 'direct effect' or the supremacy of community law, is its holding in Paragraph 51 where it stated that:
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.
By this statement, the court seemingly makes a distinction between international law and community law, whereby the former is subject to the dualist tradition, while the latter is not. This distinction, however, need not have been made any more than one has to distinguish between international obligations, per se enforceable at the international level, and the enforceability of international obligations in domestic courts, assuming that community law means something other than the domestic law of CARICOM members.
The court did not say that dualism is to be abandoned when community law is to be enforced at the domestic level, but, rather, embraced the concept at Paragraph 54 of its judgment.
This position is quite unlike the decision of the European Court of Justice (ECJ) in van Gend & Loos (1963), where it held that the articles of the treaty on the EEC had direct effect and, therefore, gave individuals the right to rely on them before any national court.
And, also, unlike its subsequent decision in Costa v ENEL (1964), which is also credited with the doctrine of the supremacy of EU Community law over national law.
In that decision, the ECJ held that:
By contrast, with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply.
EU LAW SUPREMACY
These two decisions established the supremacy of EU law over national laws and their direct effect in the domestic legal systems of the EU, whereby individual rights were deemed to be automatically conferred and enforceable at the domestic level, whether national law violated the EEC Treaty.
Therefore, as the CCJ decision now stands, individuals claiming a breach of obligations under the RTC must still approach the CCJ to resolve their dispute if the local law is in conflict with community law, or the obligations of the RTC are not yet implemented.
On the basis of the dualist conception, the RTC, as a treaty, would not confer rights to be invoked in a domestic court any more than a bilateral investment treaty between a CARICOM member and non-member in a loose integration arrangement under a plurilateral trading agreement.
In any event, as appealing as the 'direct effect' argument sounds, it is perhaps prudent to limit its practical application to those circumstances whereby there is existing legislation covering the subject matter involved in the litigation at the community level.
Consider, for example, the requirement under Chapter VIII of the RTC that CARICOM members must establish competition authorities to administer anti-competitive business practices. How would a domestic court adjudicate an issue of an alleged abuse of dominance if the domestic competition law is not in place, and the RTC, if reliance is to be placed on the obligations therein, does not indicate whether an affirmative finding is sufficient for a remedy to be obtained?
While the decision of the CCJ is welcome, there are implications regarding how domestic legislation is to be crafted where community law is in conflict with other international obligations.
Here, one may note, in particular,
WTO obligations. The RTC, for example, provides for special and differential treatment for disadvantaged territories in CARICOM, and community obligations would require domestic law to give effect to these provisions, although they may be in conflict with WTO obligations.
For example, Article 150 (3) of the Revised Treaty, which in some respects operates as a special and differential provision, provides that in the case of a disadvantaged country, safeguard measures are not to be applied to their products if the imports of such products do not exceed 20 per cent of the market of the importing member concerned.
But, as is known, safeguard measures are to be applied without discrimination regarding the countries whose imports cause injury to a domestic industry. In this example, if the domestic implementing legislation gives preference to the community obligation, there is the risk of the violation of a WTO obligation.
The pressure for proceeding with 'direct effect' should, therefore, be approached with caution while issues of conflict in RTC and other international obligations are resolved.
Dr Delroy S. Beckford, an attorney-at-law, is adjunct senior lecturer, international trade law, at the Faculty of Law, UWI, Mona, and author of 'Power and Judicial Activism in the WTO: The Appellate Body's Interpretation of Trade Remedy Agreements'. Email feedback to firstname.lastname@example.org and email@example.com.