Resuscitating a dying community

IN our view, the major significance of the decision issued on Friday, October 4, by the Caribbean Court of Justice in Shanique Myrie v The State of Barbados might not be found in its clear subjugation of Barbadian domestic law to community law in respect of the freedom of CARICOM nationals to travel within the region; nor, indeed, in its factual finding that the evidence of Ms Myrie was to be preferred to that of the local officers. It should be found rather, we submit, in the fact that a seemingly moribund regional Community, one whose obituary has often been prepared and sometimes read by various commentators, has been seemingly given the kiss of life by an institution that was established with “exclusive jurisdiction to deliver advisory opinions concerning the interpretation and application of the [Revised] Treaty [of Chaguaramas]”, the constituent instrument of CARICOM.

What is even more remarkable in this context is that the Court itself is not listed among the principal organs of the Community. Yet, in last week’s decision, it struck the most telling blow so far for regional unity; one more significant in its import than anything else that might have been effected by the multifarious, turgidly worded communiqués and conference decisions over the past years.

Those of us who had despaired of the lofty ideals of regionalism so authoritatively expressed in the Revised Treaty ever becoming accepted practice must have offered up a silent prayer of thanks when the Court pronounced that “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” (emphasis added).

This aspect of jurisprudence had already been presaged in a New Zealand Court of Appeal decision where New Zealand had argued that its state authorities were entitled to ignore certain international obligations that New Zealand had voluntarily assumed. The court then, as did the CCJ on Friday, would have none of it, dismissing this submission as “an unattractive argument, apparently implying that New Zealand’s accession to the international instruments has been at least partly window dressing…”

The point is that these international commitments serve to bind the state to their fulfilment, even though as between the states themselves, given the notoriously lax enforcement of international obligation, there has been hitherto little incentive to comply with freely assumed obligations. As the calypsonian Chalkdust reminded us in “Sea Water and Sand”, the Heads of Government “meeting regularly, /drawing up all kind of treaty/ and when they drink their whisky/[the] treaty dead already…”

Whether this attitude indeed existed among some or all of the member states is now arguably irrelevant after last Friday’s judgment. We are, of course, mindful that a Conference Decision may yet reverse the judgment of the court , if the Heads of Government are so inclined. But we doubt the likelihood of this. Not only would such an initiative declare to all and sundry that the spirit of regionalism is indeed dead, but it would also vindicate the long-held view that the concept of national sovereignty remains paramount in each of these islands.

The recent judgment serves to advance the mutual aspiration so clearly articulated in Article 45 of the Revised Treaty: “Member States commit themselves to the goal of free movement within the Community”. There should have been no doubt by anyone as to what this was intended to mean for the region.