THE REVISED TREATY: A
NEWFRAMEWORK FOR ENVIRONMENT
AND NATURAL RESOURCES
MANAGEMENT IN THE CSME ZONE
By
Mark D. Griffith,
B.A (Hons.) Ph.D.; LLB (Hons.) LLM;
MCIArb.
OUTLINE

A NEW LEGAL ORDER

CORE ENVIRONMENTAL PRINCIPLES

AN INCOMPLETE LEGAL AND INSTITUTIONAL FRAMEWORK

ACCESS TO THE COURT

INVESTMENT AND MEAs
STREAMS OF ENVIRONMENTAL LAW
1. International Environmental Law

Caribbean Community Environmental Law
Sub-set: Caribbean Community Law
2. National Environmental Law
THE BASIS FOR THE PROPOSITION
The Revised Treaty provides a new framework for
Environment and Natural Resources Management in
the CSME Zone.
What are the Principles of Environmental Law which
underpins the RT which provide the basis for the
development of a corpus of law called the Caribbean
Community Environmental Law.
A NEW LEGAL FRAMEWORK
“by signing and ratifying the RT and
conferring on the Court ipso facto a
compulsory and exclusive jurisdiction to hear
and determine disputes concerning the
interpretation and application of the RT, the
Member States transformed the erstwhile
voluntary arrangements in CARICOM into
a rule-based system, thus creating and
accepting a regional system under the
rule of law.. “
TCL v The Caribbean Community [2009] CCJ 2 (OJ)
THE BASIS OF THE RULE BASED
SYSTEM
“... the regional legal system brings with it
legal certainty and protection of rights of
states and individuals alike, but at the
same time of necessity it creates legal
accountability”.
TCL v The Caribbean Community [2009] CCJ 4
PRODUCTION INTEGRATION POLICY
FRAMEWORKS

Community Industrial Policy (CIP) (Articles
51-55, RT)

Community Agricultural Policy (CAP)
(Articles 56-61, RT)
A THIRD DIMENSION
“…
a third dimension—the protection of human, animal and
plant life or heath and the sustainable management and
utilisation of the Community’s natural resources—can be
carved out, incorporating elements from both the CIP and the
CAP” Griffith and Oderson, 2009
COMPONENTS OF THE THIRD DIMENSION
“This dimension includes, but not limited to, environmental
protection; natural resources management, including forests and
oceans; land management and rural development; biodiversity and
intellectual property elements of biodiversity; sustainable tourism
development and a range of environmental measures including
standards and technical regulations. It also includes the use of the
general exceptions, by Member States, pursuant to Article 226.RT, to
justify RT inconsistent measures, but only if such measures do not
constitute arbitrary or unjustifiable discrimination between Member
States where like conditions prevail, or a disguised restriction on trade
within the Community. It also includes the range of environmental
related activities, pursuant to Article 111.1.(d).RT, which could
benefit from subsidies, under certain circumstances”. Griffith and
Oderson, 2009
CONFIRMATION
Caribbean Community Environmental Policy
and Natural Resources Policy Framework
CORE ENVIRONMENTAL PRINCIPLES
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Sustainability and environmental protection;
Precautionary principle;
Polluters pay principle (PPP)
Prevention
Source principle
Co-operation
Protection of the rights of indigenous peoples
Non-discrimination.
SUSTAINABILITY

“promote the development, management and conservation of
the forest resources in Member States on a sustainable basis,”
Article 61.RT

“the efficient management and sustainable exploitation of the
Region’s natural resources, including forest and the living
resources of the economic exclusive zone,” Article 56.(1).(f). RT

“effective measures to assist Member States in the
management of natural resources in support of the
transformation and sustainable development of the agricultural
sector” Article 58.(1).RT
SUSTAINABILITY
1.The Parties reaffirm that the objective of sustainable development is to be
applied and integrated at every level of their economic partnership,……
especially the general commitment to reducing and eventually eradicating
poverty in a way that is consistent with the objectives of sustainable
development.
2.The Parties understand this objective to apply in the case of the present
Economic Partnership Agreement as a commitment that:
(a) the application of this Agreement shall fully take into account the human,
cultural, economic, social, health and environmental best interests of
their respective population and of future generations;
(b) decision-taking methods embrace the fundamental principles of
ownership, participation and dialogue.
3. As a result of Parties agree to work cooperatively towards the realization of
a sustainable development centred on the human person, who is the main
beneficiary of development.. [Emphasis added] Article 3.CARIFORUM/EU EPA
ENVIRONMENTAL PROTECTION INCLUDING THE
PROTECTION OF HUMAN, ANIMAL OR PLANT LIFE
“…the effective management of the soil, air and
all water resources, the exclusive economic
zone and all other maritime areas under the
national jurisdiction of the Member States,”
Article 58.2.(a).RT
ENVIRONMENTAL PROTECTION INCLUDING THE
PROTECTION OF HUMAN, ANIMAL OR PLANT LIFE
1. The policies of the Community shall be implemented in a
manner that ensures the prudent and rational management
of the resources of Member States. In particular, the
Community shall promote measures to ensure:
(a) the preservation, protection and improvement of the
quality of the environment;
(b) the protection of the life and health of humans, animals
and plants;
(c) the adoption of initiatives at the Community level to address
regional environmental problems. [Emphasis added].
CREATION OF AN ENABLING ENVIRONMENT
FOR THE FURTHER GROWTH ON THE ENVIRONMENTAL
INDUSTRY IN THE CSME ZONE
LEGAL AND INSTITUTIONAL STRUCTURE INCOMPLETE

CARICOM COMMISSION [COMMISSIONER FOR ENVIRONMENT]
[legislative, administrative, executive and judicial powers and be supra-national in character, be
independent and selected on the basis of competence, expertise and experience]

LEGAL MEANS FOR TRANSLATING DECISIONS INTO COMMUNITY LAWSECONDARY LEGISLATION
[regulations, directives and decisions]

COMMUNITY OWN RESOURCES
ACCESS TO THE COURT

Advisory Opinion
When a dispute arises which requires clarification on the interpretation
and application of the provisions of the RT, the Community has at its
disposal, pursuant to Article 212.RT, a powerful mechanism, in the
form of the “Advisory Opinion”; for which, the CCJ have exclusive
jurisdiction to deliver, at the request of the Member States parties to a
dispute or the Community. This mechanism can be used by the
Community to propel the integration process forward. However, there
seem to be a high degree of reluctance on the part of the Community
to use this mechanism in the interests of the Community. Griffith and
Oderson, 2009
NATIONAL COURTS OR TRIBUNALS

National courts or tribunals of a Member State have
the power to make referrals to the Court under
Article 214.RT.

For the purpose of Chapter Nine of the RT on
“Dispute Resolution” under which Article 214.RT
appears, “national courts” includes the Eastern
Caribbean Supreme Court.
PRINCIPLE: NECESSITY

Where an issue whose resolution involves a
question concerning the interpretation or
application of RT, the court concerned, shall
if it considers that a decision on the question
is necessary to enable it to deliver judgment,
refer the question to the CCJ for the
determination before delivering judgment.
PRESONS NATURAL OR
JURIDICAL

The expression “persons, natural or juridical,
of a Contracting Party” as employed in Article
222.RT does not means nationals of a
Contracting Party as defined in Article
32(5)(a) of the RT.
TCL and TCL Guyana Inc. v The State of Co-operative Republic of
Guyana [2009] CCJ 1 (OJ) at [28].
SPECIAL LEAVE

Special leave is available to private
entities to allow them to appear in
proceeding before the CCJ, however they
must situate themselves within the
meaning of “persons, natural or juridical”
as defined in Article 222.RT.
ESTABLISHMENT OF AN ARGUABLE CASE :Re:
Article 222 (a) and (b)

It is sufficient for the applicant merely to
make out an arguable case that each of
these two conditions mandated by Article
222(a) and 222(b).RT can or will be
satisfied at the substantive hearing.
Trinidad Cement Limited TCL Guyana Incorporated v The State of
the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) at
[33]
QUALIFIED ACCESS

“persons, legal and juridical” of a Contraction
Party have qualified access the Court, in their
own right. It is therefore sufficient for an
entity to be incorporated or registered in a
Contracting Party to come within this
meaning.
Trinidad Cement Limited and TCL Guyana Incorporated v The State of the
Co-operative Republic of Guyana [2009] CCJ 1 (OJ) at [20]
INVESTMENT AND ENVIRONMENTAL PROTECTION
1. Parties agree not to encourage trade or foreign direct investment
to enhance or maintain a competitive advantage by:
(a) lowering the level of protection by provided by domestic
environmental and public health legislation;
(b) derogating from, or failing to apply such legislation.
2. The Parties and the Signatory CARIFORUM States commit to not
adopting or applying regional or national trade or investmentrelated legislation or other related administrative measures as the
case may be in a way which has the effect of frustrating
measures intended to benefit, protect or conserve the
environment or natural resources or to protect public health.
[Emphasis added], Article 188.CARIFORUM/EU EPA which
RESPONSIBILITY OF THE INVESTOR

Investors do not manage or operate their
investments in a manner that circumvents
international environmental or labour
obligations arising from agreements to
which the EC Party and the Signatory
CARIFORUM States are parties.
THANK YOU
THANK YOU
FOR
YOUR
ATTENTION