St. Augustine Legal Affairs (STALA) Issue 2 | Page 11

made mandatory capital punishment permissible. Further, the PC held in paragraph 25 of their judgment that
even if Barbados’ mandatory death penalty violated international obligations, it would have no binding effect unless transformed into domestic law. Although Barbados
had ratified the American Convention on Human Rights which
provided for an individual right to petition, it was not
incorporated into domestic law. However, the PC opted
against an exclusively monist view and opined that unincorporated treaties can be used to interpret municipal law
which is ambiguous.

ifestly implying that domestic law must conform to international obligations, and constitutional limitations are
no excuse for failure to comply with treaty obligations.
Despite holding this, the Court claimed that capital punishment is not per se incompatible with or prohibited by
the Convention.

The fine distinctions drawn in Boyce and analogous cases create a danger that they will be interpreted to mean
that Commonwealth Caribbean States now have directly
enforceable treaty obligations which citizens can claim by
pursing remedies before international bodies. This begs
“the courts are not only sub- the daunting question: can Caribbean States now be detly bringing international law fined as monist States?

through the back door, they are
On another note, the continued existence of the mansending the death penalty out datory death penalty have been faced with several other
the other way”
dilemmas. One of the most difficult predicaments is unThe matter was then referred to the CCJ in AG v Joseph
and Boyce (2006) CCJ Appeal No CV 2 of 2006 where,
interestingly enough, Justices De la Bastide and Sauders held
that the prisoners had a legitimate expectation that they
would be allowed a reasonable time within which to await
the report of the Inter-American Commission to support
their case for commutation. For the State to attempt to
execute the prisoners without giving them first that opportunity was a denial of their right to the protection of
the law. Despite the CCJ’s warning that the Boyce decision should not be seen as opening up avenues for the
wholesale domestic enforcement of unincorporated treaties, the extent of this legitimate expectation principle,
which can and has already been applied to other treaties,
makes it a dangerous avenue for expansion.

questionably the Pratt and Morgan principle, where a
delay in excess of five years would constitute ‘cruel and
inhuman punishment’ contrary to the Constitution of
Jamaica. States, in attempting to avoid the international
treaty process, were effectively trying to avoid the problem of undue delay in administering justice identified in
Pratt and Morgan. They could only do this by preventing the lengthy process of petitions to international bodies, a process which they could not expedite as they had
no control over it.

Moreover, Article 18 of the VCLT requires States to refrain from acts which would defeat the object and purpose of a treaty when it is signed unto the treaty, or has
expressed its consent to be bound. Additionally, Article
18 in conjunction with Article 26 of the VCLT, which
requires bound States to perform treaties in which they
Finally, when the State was brought before the IACHR, are bound in good faith, constitutes what could be conthe Court held that all treaties to which a state is a par- sidered as a legally binding obligation of the State to acty, whether incorporated or unincorporated, are binding quiesce to the terms of the treaty.
upon that State at international law. The crux of the IACHR’s decision was that mandatory capital punishment Although the Courts have argued that the Inter-American
is prohibited by the Convention, and section 26 of the Convention is not aimed at removing the death penalty,
Constitution of Barbados must be repealed b