Introduction
International law has become increasingly relevant to decisionÂmaking in national courts. It provides judges with access to a vast body of information and legal material on almost every topic.
International treaties mandate specific rules and standards in most areas of human activity, and the reports of related treaty-bodies illustrate concrete examples of international and national best practices. But national tribunals face several challenges with respect to the use of international law. They often lack familiarity with international legal sources, both in terms of how to access relevant rules and how to assess their value or weight. They also face questions regarding when it is appropriate to refer to rules of international law, and for what purposes. These latter questions are answered by a specific set of common law rules that are the focus of this chapter.This chapter suggests that the traditional common law rules regarding use of international law within the domestic judicial forum are precise, comprehensive and comprehensible. Further, these same rules have been misunderstood (or at least misapplied), by some of the highest judges in the Commonwealth Caribbean. This is clearly demonstrated by the decisions of the Judicial Committee of the Privy Council (hereafter the �Privy Council’ or �Board’) in one of the most difficult areas of Caribbean domestic law - the application of the death penalty.
This chapter addresses this deficiency for the legal community of the Commonwealth Caribbean. It introduces theoretical frameworks for understanding the relationship of international law and municipal law as well as sets out the fundamental common law rules regarding use of international law by domestic courts. It then examines some of the more interesting examples of (mis)application of these rules by the Privy Council and the Caribbean Court of Justice. The decisions of these courts, all involving the death penalty, merit close critical scrutiny.
Most are problematic because they deviate from the common law rules regarding use of international law without providing any juridical foundation. Moreover, many, if not all, of the kinds of progressive developments sought by the Privy Council could have been achieved by using existing common law rights without infringing the rules regarding use of international law in domestic courts. This point is important. In an especially contentious area like capital punishment, courts must not only arrive at the right conclusion, they must do so convincingly, by applying impeccable legal analysis that will convince even the fiercest critics. To the extent that a tribunal does otherwise, it undermines the legitimacy of its own jurisprudence. For this reason, the final sections of the chapter demonstrate a number of ways in which international law can properly be used in domestic courts, including the Caribbean Court of Justice, in compliance with the common law rules.
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