Potential Use of International Law by Caribbean Courts
This chapter has illustrated that the common law rules regarding use of international law in the domestic forum are clear, comprehensive, and comprehensible. The unfortunate mischief that has arisen in our regional jurisprudence on the death penalty is that these rules have been stretched to the point of seeming incoherence.
This is where advocates and judges of the Commonwealth Caribbean can serve a key role in both re-articulating these common law rules with clarity and precision as part of an indigenous jurisprudence and in developing and reapplying these rules in a manner that suits our regional reality. As seen in the brief discussion of the judgment of Wit J in the case of AG v Joseph, alternative visions can be found in our region regarding the role that international law can have in domestic legal systems.Two further developments might lead to an expanded role for international law in our domestic legal systems. The first arises out of the very nature of the Caribbean Court of Justice. The CCJ, like all Commonwealth Caribbean courts, has the capacity to apply the common law rules regarding use of international law in its appellate jurisdiction. It has clear scope to further interpret and apply these rules in all of its appellate cases. But the Court also has a treaty-interpreting role under its original jurisdiction. This role is unlikely to require the Court to use these common law rules, precisely because it will be acting as an international, treaty-applying body. In such cases, the question will not be whether the Court can interpret and apply the relevant treaty, as it most certainly can, but whether there has been a breach of the international legal obligation.
But it must be remembered that the Court’s original jurisdiction also encompasses referrals from national courts.[557] This referral process allows a national judge to ask, and to have answered by the CCJ, questions related to the Revised Treaty; it also preserves the right of the national judge to ultimately decide the case.
In this context, when answering a referral application from a national court, it is likely that the CCJ may wish to offer guidance to the national judge on not only the nature of the relevant obligation at the Community level (the referral question), but also on its status in the national law as an incorporated treaty obligation (whether fully, partially, or imperfectly incorporated). The Court may even wish to advise the national judge on the status of an unincorporated treaty obligation.[558] In addition, the judges of the CCJ should have a much greater understanding of the sources and rules of international law as a result of the requirements for the composition of the Court.[559] It is likely that this richer understanding of international law may influence all of the decisions of the Court.Finally, all Commonwealth Caribbean judges have an opportunity to clarify or develop one area of the common law related to the use of international law in the domestic sphere, namely, understanding which statutes can �transform’ treaty obligations. It is well accepted that Parliament may make enactments which either directly or indirectly incorporate treaty obligations. But can pre-existing statutes also be read to perform a treaty-transformation role?
As a matter of statutory interpretation, it is well established that ambiguous pre-existing legislation, even if making no reference to the treaty and enacted before the state became a party to a treaty, may be interpreted in light of the treaty. Further, such eminent writers as Bennion have stated that treaties may be looked to generally for the purposes of statutory interpretation, even in cases where the legislation is clear.[560] Thus, it may be permissible to interpret any statute, whether ambiguous or clear, whether enacted subsequent to or prior to the state assuming treaty obligations, in light of the treaty.
But can we go further and argue that particular pre-existing statutes have actually become incorporating acts, thus giving rise to a stronger interpretive role for the treaty in question? Such an argument can be founded on direct and objectively verifiable state actions.
States, both at the domestic level (in parliamentary debates) and at the international level (in official written or oral submissions to international treatyÂmonitoring bodies), frequently indicate that a particular treaty to which they are parties, although not incorporated by any specifically-enacted law, is nevertheless being implemented by means of a pre-existing statute. Before these treaty bodies, such statements are made in direct response to questions about the state’s compliance with a particular treaty obligation and specify that a pre-existing national statute, or the Constitution itself, implements and fulfils the (otherwise unincorporated) treaty obligation. In such circumstances, the state may be estopped at the international level from subsequently denying the transforming role of the statute it relies upon. But what consequence might such action have for a domestic court? Can a national judge find a pre-existing statute to have become, through state action, an incorporating act? It would appear to be possible to make such a judicial determination simply by construing the current legislative intent for the statute, which in most cases will be â€?always speaking,’ when such statements have been made in Parliament. In such a case, Parliament itself will be aiding the court in establishing legislative intention. However, it will be more difficult to infer legislative intent from executive conduct before international treaty bodies. Allowing the executive to perform such a role would be inconsistent with the doctrine of separation of powers and the authority of Parliament to make domestic law. Nevertheless, it may be possible to ascribe such an incorporating role to a statute if the interpretive context as a whole supports such a position, since the crucial role of a judge when examining any statute is to â€?arrive at an informed interpretation’ of its meaning.[561] In any event, even if the statute cannot be read as an incorporating act, a judge will still be entitled to interpret it in light of the state’s treaty obligations, under the general rules of statutory interpretation described above.Why argue for such a broad approach to transformation? It would entitle a domestic judge to interpret all domestic laws which have been relied upon by the state to provide evidence of compliance with treaty obligations as transforming laws, and thus enable speedy and authoritative interpretive access to the treaty obligations those laws are supposed to transform. Importantly, this idea of broad transformation would not fall foul of the common law rules regarding reference to international law in domestic courts because it would maintain the distinction between the domestic and international spheres. Because the statute would be transforming an international obligation, it would make it part of domestic law, and therefore avoid the problems entailed in bringing international law in through the back door. The treaty would remain external to the domestic legal system and would not itself give rise to binding rights or obligations at the national level. Rather, the scope of the domestic legislation which is deemed to implement international legal obligations is expanded. For this reason, such an approach is superior to that of legitimate expectation as set out in AG v Joseph,[562] since the doctrine of legitimate expectation has the effect of allowing an individual to use an international process, one not part of domestic law. In contrast, a broad view of transformation would change the nature of the international process into a domestic one, by transforming it.
Such an approach is not unfair to the states of the Commonwealth Caribbean. It simply takes states at their word: if they choose to implement an international legal obligation by means of a pre-existing statute and communicate this to the world, their own judges should be entitled to refer to the relevant treaty for the purposes of interpreting that same statute. In doing so a judge would help his or her state to uphold its international legal obligations, including its obligation to perform treaties to which it is a party in good faith, and to implement treaty obligations in its domestic law where required.[563] This latter rule of domestic implementation is frequently embodied in treaties,[564] and is complemented by the fundamental rule that a state cannot invoke provisions of its domestic law (or failure to enact such provisions) as an excuse for non-performance of its treaty obligations.[565]
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