The Use of International Law by Domestic Tribunals in the Caribbean in Death Penalty Cases

• Author: David S. Berry
• Pages: 103-127

The Use of International Law by

Domestic Tribunals in the Caribbean

in Death Penalty Cases

David S. Berry1

1. Introduction

International law has become increasingly relevant to decision-

making in national courts. It provides judges with access to a vast body

of information and legal material on almost every topic. International

     

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

   

refer to rules of international law, and for what purposes. These latter



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

 

domestic law – the application of the death penalty.

         

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.

1. The views expressed herein are the author’s and are not to be attributed to any state or other entity.

104

Transitions in Caribbean Law

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

  

the extent that a tribunal does otherwise, it undermines the legitimacy



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.

2. Three Theoretical Frameworks

In order to understand the role of international law before a domestic

  

of law must be appreciated. In this regard, international legal writers

usually mention at least two strongly opposing schools of thought,

namely, the monist and dualist schools.2

Expressed in its simplest form, the monist view of the relationship

          

international law and municipal law are seen as part of a single legal

order. Most commonly, monist theories view international law as

sitting at the apex of this order, being a superior set of legal norms from

which national legal orders derive their validity. From this viewpoint,

international law takes precedence over domestic law. The dualist view,

in contrast, suggests that international law and municipal law are two

competing legal orders with, most commonly, the municipal order taking

priority. In some formulations, dualist theorists foresee the possibility

   

cases in which a tribunal is forced to choose between applying a rule of

international law or a rule of domestic law.

A third position is suggested by Sir Gerald Fitzmaurice, who views

international law and municipal law as distinct legal orders, or different

2. See generally, Sir R. Jennings and Sir A. Watts, Oppenheim’s International Law (9th edn, Longman,

London 1996) 52–86; I. Brownlie, Principles of Public International Law (6th edn, OUP, Oxford

2003) 31–53; M. Shaw, International Law (4th edn, CUP, Cambridge 1997) 99–136; P. Malanczuk,

Akehurst’s Modern Introduction to International Law (7th edn, Routledge, London 1997) 63–74. For

a Caribbean analysis see W. Anderson, ‘Treaty Implementation in Caribbean Law and Practice’

(1988) 8 Carib LR 185.