Treaty making in Caribbean law and practice: the question of parliamentary participation

• Author: Winston Anderson
• Position: Ph D. (Cantab ), Barrister-at-Law; Lecturer in Law, Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 75-115

TREATY MAKING IN CARIBBEAN LAW

AND PRACTICE: THE QUESTION OF

PARLIAMENTARY PARTICIPATION

WINSTON ANDERSON*

1.

INTRODUCTION

Treaties are undoubtedly one of the most important sources of public

international law.1 Accordingly, the law governing their conclusion,

operation and termination is, primarily, international law.2 Even so,

international agreements bear significant implications for national law,

national institutions, and the nationals of

states.

First, giving effect to

treaty obligations often requires passage of implementing legislation;

such legislation then becomes the rule of governance for individual

conduct As the sole repository of the law-making function, Parliament

is necessarily involved in the enactment of legislation that implements

the treaty regime. Secondly, the practical effect of international

agreements is often the imposition of obligations and the conferral of

rights on citizens. In this way treaties restrict or empower individuals to

act in the national as well as international spheres. Thirdly, citizens may

be directly affected by international agreements as, for example, where

human rights are recognized together with the procedural capacity

available to the individual to vindicate those rights;3 or where

Ph

D.

(Cantab), Barrister-at-Law; Lecturer in Law, Faculty of Law, University of the

West Indies, Cave Hill Campus, Barbados.

1 See

e.

g., D.J. Harris, Cases and Materials on International Law (5th edn. 1998),

Ch.2.

2 See especially, The Vienna Convention on the Law Treaties 1969. Text in Basic

Documents

in

International Law (Edition by Ian Brownlie, Third Edition), p.349.

The Convention entered into force 27 January 1980.

See e.g., International Covenant on Economic, Social and Cultural Rights.

International Covenant on Civil and Political Rights and Optional Protocol to the

International Covenant on Civil and Political Rights, 1966, The first covenant

entered into force

on

3 January 1976 and the second on 23 May 1976. Text in Basic

Documents, supra, p.257. See also 6 ILM (1967), 360.

environmental obligations require that

a

particular polluter

pay for

environmental harm caused

by his

actions.

4

Fourthly, treaties frequently

involve considerable financial, administrative

and

technical

commitments

on the

part of the consenting

state.

Such commitments

result in

a

drain on

public

resources and the public

purse.

Fifthly, given

that treaties are the only way in which states may create internationally

binding legal obligations "in a deliberate and conscious manner",5 state

participation

in

treaty making

may be

said

to

represent

the

reflective

effort of a society

at

international law

making.

For these reasons,

the

question

of

state allocation

of

the power

to

make treaties assumes obvious importance. International law recognizes

certain persons,

by

virtue

of

their functions

and

without having

to

produce other authorization,

as

having full treaty making powers. Thus

the Vienna Convention

on

the Law of Treaties 19696 identifies Heads

of State, Heads

of

Government,

and

Ministers

for

Foreign Affairs

as

representing their respective states

for

the purpose

of

performing all acts

relating to

the

conclusion of a treaty. Heads of diplomatic missions

and

representatives accredited by states

to an

international conference

or to

an international organization also have power

to

adopt

the

text

of

agreements concluded

in the

receiving state

or at the

international

conference.7

All of the

officials thus recognized

by the

Vienna

Convention represent

the

executive

but it is

important

to

observe that

the Convention

is

based upon traditional patterns

of

state practice.

Nothing in

the

Convention

prevents the

modification or the reallocation

of

the

treaty making power

by

allowing

for

participation

by

other

elements of government. Indeed, elsewhere, the Convention makes clear

that

it is the

responsibility of each state

to

make

its own

constitutional

arrangements

for

the exercise of

the

treaty making power.

It is

expressly

provided8 that,

in

certain circumstances, non-compliance with

4 See

e.g.

International Convention

on

Civil Liability

of

Oil Pollution Damage,

1969.

Entered into force

on

19 June 1975. Text

in 9

ILM (1970)

45.

5 Martin Dixon, Textbook on International Law (2nd Edition, 1990),

at

p.42.

6

Vienna Convention 1969, supra, Art.7(2).

7

Ibid., as

distinct,

for

example, from

the

power

to

give consent

to be

bound.

8 Ibid.,

Arts.

27 and 46.

municipal law requirements regarding the competence to conclude

treaties, may result in the international invalidity of the agreement.

In the vast majority of democratic countries outside the

Commonwealth, express provision is made for the treaty making

competence. For the most part, the power to conclude treaties is

reserved to the executive but is made subject to constitutional

provisions guaranteeing legislative participation. The rote of the

executive arises largely from its traditional function in policy making in

external affairs. Here, it is essential that the state speaks with one voice,

During the era of absolute monarchy, the monarch was that voice; as

personification of the state, he enjoyed the so-called ius

repraesentationis omnimodae. The undermining of the monarchial

system led to the emergence of the executive as the state organ charged

with the exercise of the treaty making function,

Parliamentary participation, on the other hand, had to

be

justified on

other

grounds.

In this regard, the adoption, in 1789, of the Constitution

of the United States of America, marked an important watershed. Fear

of executive autocracy impelled the founding fathers of the American

constitution to provide for the first time9 that the head of state could not

enter into treaties

alone.

Under Article II, section 2, the President has

power "by and with the advise and consent of the Senate, to make

treaties, provided two-thirds of the Senators present concur." Although

revolutionary, this constitutional provision was not originally intended

to further the principles of representative democracy or of the

sovereignty of the people.10 The requirement for a two-thirds Senate

majority was meant as compensation for excluding the states of the

Union from external affairs. Specifically, "the founders wanted to

9 Luzjus Wildhaber. Treaty Making Power and Constitution: An International and

Comparative Study (Helbing & Lichteiriiahm, 1971), at p.9.

10 Participation by the House of Representatives was excluded precisely because the

"fluctuating and... multitudinous composition of that body" made it unsuitable for

involvement in treaty making," Treaty making was said to require, ''accurate and

comprehensive knowledge of foreign politics; a steady and systematic adherence to

the same views, a nice and uniform sensibility to national character, decision, secrecy,

and despatch [which] are incompatible with the genius of a body so variable and so

numerous": Hamilton in The Federalist No. 75. Quoted in Wildhaber,

ibid,

at p.10.