St. Augustine Legal Affairs (STALA) Issue 2

CONTROVERSIAL CORNER The Effect of International Law on the Implementation of the Death Penalty By Miguel Vasquez “The traditional rules regarding the effect of unincorporated treaties on domestic law have been thrown out the door in the Commonwealth Caribbean. Both the Caribbean Court of Justice (hereinafter CCJ), and Judicial Committee of the Privy Council (hereinafter PC) has not only brought international law ‘through the back door,’ but allowed it to determine the legality of capital punishment more generally. When the recent decisions of the Inter-American Court of Human Rights (hereinafter IACHR) are added to the mix, no Caribbean state will ever be able to implement the death penalty again. The general rule in the Commonwealth Caribbean is that treaties have no legal effect in domestic law until incorporated by an Act of Parliament. In Thomas v Baptiste [2000] 2 AC 1, the majority stressed the importance that international conventions do not alter domestic law unless they are incorporated. Further, most Caribbean Constitutions with the exception of Antigua and Barbuda, do not address the ratification of treaties. However, two basic theories have emerged, where some States have adopted a dualist view which assumes that international law and municipal law are two separate legal systems which exist independently of each other. The second theory, called the monist view, has a unitary perception of international and municipal law as forming part of the same legal order. Treaties are defined in Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties (hereinafter VCLT) as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments whatever is particular designation.’ strument is highly relevant because it has strong persuasive authority to the interpretation of these constitutional provisions, thus skewing the scales in favour of a more ]\

St. Augustine Legal Affairs (STALA) Issue 2 | Page 10