Organisation of Eastern Caribbean States v Barbara Vargas

• Jurisdiction: St Lucia
• Judge: Ventose JA [AG.]
• Judgment Date: 07 March 2024
• Neutral Citation: LC 2024 CA 4
• Docket Number: SLUHCVAP2020/0027
• Court: Court of Appeal (Saint Lucia)

BETWEEN:

[1] Organisation of Eastern Caribbean States

Appellant

[2] Maxine Alexander Nestor

Second Defendant

and

Barbara Vargas

Respondent

Before:

The Hon. Mde. Vicki-Ann Ellis Justice of Appeal

The Hon. Mde. Esco L. Henry Justice of Appeal [Ag.]

The Hon. Mr. Eddy D. Ventose Justice of Appeal [Ag.]

SLUHCVAP2020/0027

FORMERLY SLUHCVAP2018/0012

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Interlocutory Appeal — Immunity from suit or legal process — Whether the OECS enjoys immunity from suit or legal process in Saint Lucia — International Obligations — Article 21 of the Revised Treaty of Basseterre establishing the Organisation of Eastern Caribbean States Economic Union 2010 — Organisation of Eastern Caribbean States Act — The Vienna Convention on Diplomatic Relations — The International Organisations and Overseas Countries (Immunities and Privileges) Act — The Secretariat Agreement — Whether the trial judge erred in law and/or misdirected himself when he failed to adequately apply the presumption in law that requires the OECS Act to be interpreted and applied in a manner that does not infringe Saint Lucia's international obligations under the Revised Treaty and the Secretariat Agreement — Legitimate Expectation — Whether a legitimate expectation arises that the OECS would be granted immunity from suit — Whether the trial judge erred in law or misdirected himself when he concluded that the appellant was to be likened to a corporation — Customary International Law — Whether there exists a rule of customary international law that could confer immunity on an international organisation such as the OECS — Service — Whether the trial judge erred in law when he concluded that there was no need to consider whether service was properly effected on the appellant

The issues in this case arose from proceedings in which the respondent claimed against the Organisation of Eastern Caribbean States (“the OECS” or “the appellant”) and Ms. Maxine Nestor, the second defendant, damages for breach of a consulting contract and defamation. The claim was never served on Ms. Nestor, so the matter proceeded only against the OECS. After being served with the claim form, and filing an acknowledgement of service on 9 ^th May 2017, the appellant filed on 24 ^th May 2017, an application seeking a declaration that the court had no jurisdiction to try the claim against the appellant (the “Jurisdiction Application”). In that application, the appellant's main contention was that the OECS is an international organisation established under the Revised Treaty of Basseterre establishing the Organisation of Eastern Caribbean States Economic Union 2010 (the “ Revised Treaty”) and is immune from every form of legal process in Saint Lucia. The Jurisdiction Application came on for hearing before Smith J on 8 ^th December 2017 who, with the agreement of counsel for the parties, decided the Jurisdiction Application on the papers and gave his written judgment on 5 ^th March 2018 in which he held that the OECS does not enjoy immunity from suit or legal process in Saint Lucia.

Being dissatisfied with the decision of the judge, the appellant, on 8 ^th May 2018, filed a notice of appeal to this Court on the following grounds: (1) that the trial judge erred in law and/or misdirected himself when he held that the appellant does not enjoy immunity from suit or legal process in Saint Lucia; (2) that the trial judge erred in law and/or misdirected himself when he failed to adequately apply the presumption in law that requires the Organisation of Eastern Caribbean States Act (the “ OECS Act”) to be interpreted and applied in a manner that does not infringe Saint Lucia's international obligations under the Revised Treaty and the Agreement between The Government of St. Lucia, The Government of Antigua and Barbuda and The Organisation of Eastern Caribbean States regarding The Secretariat of the Organisation (the “ Secretariat Agreement”); (3) that the trial judge erred in law or misdirected himself when he concluded that the appellant was to be likened to a corporation which meant that the appellant enjoyed separate legal personality from that of the Director General of the OECS; and (4) that the trial judge erred in law when he concluded that there was no need to consider whether service was properly effected on the appellant.

Held: dismissing the appeal, affirming the decision of the learned trial judge and ordering that costs in the appeal be costs in the cause, that:

• 1. An international organisation can only have immunity that has been expressly granted to it by domestic legislation. Article 21 of the Revised Treaty does not expressly provide the OECS with immunity from any form of legal process. Moreover, none of the articles of the Revised Treaty can implicitly be read, even with the most generous interpretation, as providing any such immunity as the appellant contends. The statement in Article 21.3 of the Revised Treaty that the OECS shall be represented by the Director-General in the exercise of its legal personality simply means that the Director-General is the person who shall exercise the powers and rights of the OECS. The immunity granted to the Director-General is not specifically spelt out in Article 21 but arises by virtue of Article 21.4 since the Director-General is one of the members of the OECS Commission whose immunity and privileges is the same as those of members of a diplomatic mission under the Vienna Convention on Diplomatic Relations (“ VCDR”). The OECS, as the umbrella organisation, cannot derive immunity, in its capacity as an international organisation in Saint Lucia, from the immunity granted by the Revised Treaty to a member of one of the five (5) organs through which the OECS is to carry out its functions under the Revised Treaty.

  Article 21 of the Revised Treaty of Basseterre establishing the Organisation of Eastern Caribbean States Economic Union 2010 applied; The Vienna Convention on Diplomatic Relations (adopted 18 ^th April 1961, in force 24 ^th April 1964, United Nations Treaty Series, vol. 500, p. 95) applied.

• 2. Although the Parliament of Saint Lucia enacted the International Organisation and Overseas Countries (Immunities and Privileges) Act (the “ International Organisations Act”) to enable international organisations to be granted immunities and privileges by order of the Governor General, no such order has been made by the Governor General granting any immunities and privileges to the OECS. The only conclusion one can reasonably draw from this absence is the intention of the Parliament of Saint Lucia not to provide the OECS with immunity from any form of legal process. Consequently, the OECS has not been granted immunity from suit or legal process under either: (a) the Revised Treaty, the VCDR and the OECS Act; or (b) any other domestic legislation, including the International Organisations Act.

  The International Organisation and Overseas Countries (Immunities and Privileges) Act, Chapter 10.07 of the Revised Laws of Saint Lucia 2021 applied; The Organisation of Eastern Caribbean States Act, Chapter 10.07 of the Revised Laws of Saint Lucia 2021 applied.

• 3. The Secretariat Agreement has no relevance in determining the scope of any immunity that may be enjoyed by the OECS under the Revised Treaty which forms part of the laws of Saint Lucia. Moreover, since the Revised Treaty neither expressly nor impliedly provides the OECS with immunity from any form of legal process, the Secretariat Agreement cannot be marshalled by the appellant in aid of its argument for immunity for the OECS that is not provided for under the Revised Treaty.

  The Agreement between T he Government of St. Lucia, The Government of Antigua and Barbuda and The Organisation of Eastern Caribbean States regarding The Secretariat of the Organisation applied.

• 4. The first aspect of establishing a legitimate expectation is to identify a “promise” or “representation” that is made by a public authority which is “clear, unambiguous and devoid of relevant qualification”. The appellant fails on this hurdle because the OECS has not shown any “representation” or “promise” made by the representatives of the state of Saint Lucia concerning any immunity to be granted to the OECS. A legitimate expectation is not necessary since such legitimate expectations arise when legal rights end. Ratification alone of an international treaty (for example, the ratification by Saint Lucia of the Secretariat Agreement) would be insufficient to create a legitimate expectation. To create such an expectation, more would be needed, for example, positive statements by the representatives of the state of Saint Lucia or an established practice by Saint Lucia of recognising immunity from all forms of the legal process for the OECS.

  United Policyholders Group and others v Attorney General of Trinidad and Tobago [2016] 1 WLR 3383 applied.

• 5. At present there is no rule of customary international law that confers immunity on international organisations. The exclusion of the OECS from the scope of Article 21 of the Revised Treaty militates against the contention of the appellant that such immunity can be established by customary international law. Additionally, the existence of section 3(2)(a) of the International Organisation (Immunities and Privileges) Act by which the OECS could be granted immunity from suit and legal process by order of the Governor General suggests that the grant of any such immunity in Saint Lucia requires action by the Governor General rather than recognition by this Court of a rule of customary international law relating to immunity of international organisations.

  Article 21 of the Revised Treaty of Basseterre establishing the Organisation of Eastern Caribbean States Economic Union 2010 considered; Section 3 of United Nations and Specialised Agencies (Privileges and Immunities) Act Chapter 10.08 Revised Laws of...