Juridical and Constitutional Implications of CARICOM Treaty Practice

• Author: Duke Pollard
• Pages: 467-488

JURIDICAL AND CONSTITUTIONAL

IMPLICATIONS OF CARICOM TREATY PRACTICE

Duke Pollard

Introduction

“The centrality of treaties to the interna-

tional legal system requires little empha-

sis. Not only is the treaty a source of law

that the International Court of Justice

(ICJ) is bound to apply under Article 38(1)

(a) of its statute when resolving internation-

al disputes but it is also the medium through

which the vast preponderance of interna-

tional legal intercourse is now conducted.Ӭ

In one submission, treaties are an

important means through which states deal

with one another and a precise method of

regulating relations between states.1 Treaties

regulate important areas of international law,

like the law of the sea2 and environmental

law,3 while they are of utmost importance in

international economic relations,4 international

investments,5 communications6 and human

rights.7 Negotiation and conclusion of treaties

by the executive normally engage the exercise

of prerogative powers at the international

plane in the extremely volatile and sensitive

area of foreign relations which, incidentally,

are not now adjudged to be amenable to

judicial review.8 Consequently, the injudicious

employment of such powers may put the

executive on a collision course with national

assemblies, thereby resulting in complex and

intractable constitutional problems. Treaties

have become the generally acceptable mode

in the unorganised international community

of allocating both tangible and intangible

economic assets and regulating access to

communal resources in every spatial dimension

– land, sea, air, outer and inner space.9 More

importantly, within recent times, municipal

courts in the Commonwealth have placed

tendentious interpretations on treaties such

as to accord them, unwittingly, misconceived

juridical incidence at the municipal plane with

probable negative constitutional implications

for governance based on the rule of law.10

Following the termination of hostilities

in the Second World War, multilateral treaties

conceptualised, negotiated, deliberated and

determined by the victorious allies, became

the vehicles of choice for allocating the shared

resources of the international community and

regulating interstate conduct in economic

activities.11 Since that time, tectonic

developments in science and technology

have operated to intensify and complicate

intercourse in the international community

and to increase reliance by states entities

on international legislation through the

elaboration of treaties. Today, treaties appear

to be the most eff‌icacious means of addressing

issues of international concern which impact

importantly on national life. The emergence of

globalisation and liberalisation, as exemplif‌ied

in the treaty establishing the World Trade

Organisation (WTO), has not only made

international competitiveness the dominant

imperative of national economic survival, but

has also motivated CARICOM states to revise

the constituent instrument of their regional

economic integration initiative in order to

33

CARICOM: POLICY OPTIONS FOR INTERNATIONAL ENGAGEMENT

468 CARICOM: POLICY OPTIONS FOR INTERNATIONAL ENGAGEMENT

468

advance the quality of plurilateral cooperation

on the basis of an appropriate paradigm of

economic development responsive to the new

dispensation.12

Despite the growing importance and

insidious intrusiveness of multilateral treaties

in the domestic affairs of independent states,

especially the small nation state, there is no

verif‌iable occasion on which a CARICOM

state has been summoned before an

international tribunal to account for its breach

of an international treaty obligation. This is

due in large measure to the insignif‌icance of

CARICOM states as political or economic

actors in the wider international community,

their disposition to discharge international

obligations towards third states, and a general

reluctance to litigate disputes among themselves

in competent international tribunals. This

probably also explains the depressingly

cavalier and lackadaisical approach of such

states to the conclusion and implementation

of treaties generally. The numerous claims

on the exiguous f‌inancial resources of many

CARICOM states likewise explain the lack of

resources available for allocation on matters

concerned with the negotiation, elaboration,

adoption, signature, ratif‌ication and

monitoring of treaties. In the result, the treaty

practice of CARICOM States leaves much to

be desired. Moreover, there appears to be an

egregious lack of appreciation concerning the

importance of multilateral treaties and their

potential impact on the quality of governance

in national jurisdictions.13

Consequently, this chapter will attempt

to examine the treaty practice of CARICOM

States as compared to that of advanced

economies and to draw attention to some of

the intransigent problems associated with

multilateral treaties in terms of managing the

entire process, including their elaboration,

adoption, conclusion and implementation. It

is proposed to adopt as the point of departure

of this examination the treaty-practice of the

United Kingdom which, as the dominant

metropole of an earlier colonial era, would

have been expected to guide the conduct

of its CARICOM political progeny in this

particular.

II. CARICOM Treaty Practice

Given the historical role of the United

Kingdom at the centre of many important

activities in the international community,

there can be no doubt that its treaty practice

is likely to harbour many benef‌icial lessons for

CARICOM States and will be employed as the

point of departure for this chapter. The Secretary

of State for Foreign and Commonwealth

Affairs of the United Kingdom has primary

responsibility for concluding treaties and for

the policy aspects of treaties as well as issues

of their form, procedure and international

law implications. The legal advisers of the

Foreign and Commonwealth Off‌ice (FCO),

including those in the Treaty Section thereof,

must be afforded an opportunity, therefore,

to comment on all treaties and to evaluate

their implications for domestic law and

interested departments of government before a

determination is made to sign or ratify them.14

Very often, a determination has to be made

whether the UK should participate in the

negotiation and elaboration of some treaties in

order to ensure, as far as practicable, protection

of British interests in the proposed regimes. In

some rare cases, the FCO has been known to

participate in the deliberation, negotiation

and elaboration of international instruments

without considerable prior discussion with, or

inputs from, other interested departments of

Government. The European Convention on

Human Rights is an excellent case in point.15

The various procedures employed by the

UK in addressing deliberations on treaties

accompanied by their adoption, signature and

ratif‌ication will depend on the nature of the

instrument as a bilateral or multilateral one,

as well as the nationality of the other party or

parties concerned, as the case may be. As a