Treaty implementation in Caribbean law and practice

AuthorWinston Anderson
PositionPh.D. (Cantab): Attorney & Bartister-at-Law
Pages185-211
TREATY IMPLEMENTATION
IN CARIBBEAN LAW AND
PRACTICE
WINSTON
ANDERSON*
INTRODUCTION
A well-known feature of the British legal system is the doctrine of 'dualism'.
Treaties never have direct application in national law unless and until 'trans-
formed' by Act of Parliament.1 The necessity for legislative implementation is
generally justified upon the constitutional ground of parliamentary monopoly
on internal law-making powers. According to Lord Atkin in Attorney-General
for Canada v. Attorney-General for Ontario:2 "within the British Empire there
is a well established rule that the making of a treaty is an executive act, while
the performance of
its
obligations, if they entail alteration of existing domestic
law, requires legislative action." More recently, Lord Oliver of Aylmerron
reaffirmed in Madame Watson v. Department of
Trade
3
that, "as a matter of
constitutional law
.
. , the Royal Prerogative, whilst it embraces the making of
treaties, does not extend to altering the law or conferring rights upon individu-
als or depriving individuals of rights which they enjoy in domestic law without
intervention of Parliament."
Ph.D. (Cantab): Attorney & Bartister-at-Law. Lecturer in the Faculry of Law, University of
the
West
ladies, with special interest in international law (public and private) and environmental law
(international and Caribbean),
1The Parlment
Belge
(1878-79) 4 P.D. 129; Mann, 44 Trans.
Grot.
Sac.
29 (1958-59): John H.
Jackson, "Status of Treat its in Domestic Legal Systems: A Polity Analysis", 86 A.J.I.L. 310 (1992).
Note, however, the rule in
Post
Office
v.
Estuary Radio
[1968] 2 Q.B. 740, esp. at pp,755-756, that
the conclusion of a treaty within the legislative competence of the executive has automatic legislative
effect in national law.
2 [1937] A.C. 326, at p. 347.
3 [1989] 3 All E.R. 523, at pp. 544-545
(H.L.).
British dualism has often been unfavorably contrasted with the 'monism'
of continental European nations. In these countries, the legislature's partici-
pation in treaty making makes treaty conclusion
a
legislative act and the treaty
becomes directly applicable in domestic law. The Netherlands provides the
extreme example. Treaties are directly applicable and deemed superior to all
internal laws, including the Constitution;" they prevail over both prior and
subsequent legislative or constitutional
acts.5
Similar versions of monism exist
in other countries in
Europe.6
The United States occupies the middle ground. All treaties duly concluded
by the President with the advice and consent of the Senate become part of the
law of the land. However, some of these treaties may be regarded as self-exe-
cuting, in which case they will be directly applicable by the Courts; others may
be found to be non-self-executing, in which event they will require legislative
intervention before having full application in domestic law.7 A treaty that is
directly applicable has the same status as a federal statute Although "subject
to the Constitution", it supersedes a prior act of Congress; however, it may be
repealed by a later federal statute provided this intention is clearly expressed
by Congress.8 Also, treaties prevail over prior and subsequent State laws and
constitutions.9
4 The Dutch Constitution of 1953 as amended in 1956 provides that certain treaties are directly
applicable and deemed superior to all Laws, including constitutional norms. See Jackson, supra, n.l.
5
Ibid.
6
See,
e.g., the 1958 French Constitution and the Russian Constitution of 1993. See generally, Peter
Malanctuk, Akehurst's Modern Introduction to International Law 7th edn.(Routledge, 1997) at p. 66.
7 See Foster Elam v. Neilsvn 27 U.S. (2 Pec) 253 (1829); Luzius WildHaber,
Treaty
Making Power and
Constitution: An International and Comparative Study (1971), at p. 196; T. Buergenthal,
"Self-Executing and Non-Self-Executing Treaties in National and International Law", RdC 235
(1992-IV),303-400.
8 Cooke v. United States
288
U.S. 102(1933). Luzius Wildhaber, supra n.7 at p. 196 records the facts
as follows:
In 1930, the British vessel Mazel Tou, having a speed not exceeding ten miles an hour, was seized
by the United States Coast Guard for smuggling intoxicating liquors, at a distance of about 11.5
miles from the American coast. Section 581 of the Tariff Act of 1930 -a re-enactment in identical
language of section 531 of the Tariff Act of 1922 - made unlawful the transport of intoxicating
liquors within a distance of twelve miles of the American coast, while the treaty of 1924 between
Great Britain and the United States provided instead for a distance from die coast which could
be traversed in one hour by a vessel. The Court had no hesitation in holding that the treaty
abrogated the Act of 1922. Invoking the legislative history, the constant executive practice since
1924,
and the desire not to modify a treaty unless Congress clearly inrended such modification,
the Court then found that the re-enactment of the Tariff Act in 1930 had not suspended the
treaty. Indeed, if a subsequent Act of Congress may supersede a prior treaty - as the Supreme
Court has often held it may
there is no reason why the reverse should not be true.
9 See Luzius Wildhaber, supra n.7, at pp.
280-281.

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