Treaty implementation in Caribbean law and practice

• Author: Winston Anderson
• Position: Ph.D. (Cantab): Attorney & Bartister-at-Law
• Pages: 185-211

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.