Article 50 – Incorporation of an International Law, Treaty or Convention into Domestic Law in Trinidad & Tobago
Incorporation of an International Law into Domestic Law
By: Mr. Martin George
Martin Anthony George & Co.
(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)
MAGCO DAILY LEGAL LESSONS
DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.
International law may be thought of as a body of rules established by custom or treaty and typically recognised as binding amongst nations of the world. The English philosopher, Jeremy Bentham, is credited with formulating the concept of international law, and his classic definition of international law as “the body of legal rules, norms and standards applicable between sovereign states and other entities which are recognised as international actors” has stood the test of time and is still relied on today (International Law’, Britannica, www.britannica.com/topic/international-law). In its simplest form, a treaty is a formally concluded, legally binding written agreement between sovereign states and/or international actors, and the process of signing or approving of a treating is known as ‘ratification’.
Domestic law, on the other hand, consists of a body of laws, rules and regulations, and their application is normally limited to a single country or state. In our case, domestic law would comprise the Laws of Trinidad & Tobago. Domestic law may be made in several ways and by several different entities. According to our Constitution, Parliament is the supreme law making body in our Republic of Trinidad and Tobago, responsible for creating primary legislation in the form of statutes known as Acts of Parliament. Along with Parliament, the Supreme Court of Judicature creates and extends the body of law known as ‘common law’ (or case law), by virtue of determining court matters and setting legal precedents. Other law making entities and bodies such as Government Ministers and the Commissioner of Police may be given power by an Act of Parliament to make certain Rules, Regulations and Orders (secondary/subsidiary legislation), and by their very name and designation as (secondary/subsidiary legislation), these laws never take precedence over an Act of Parliament, as the Parliament remains the highest law-making body and creator of domestic law in Trinidad and Tobago.
Once international law is made or a treaty has been ratified and signed on to by a sovereign nation, such as Trinidad and Tobago, it does not automatically become a part of the domestic law of that nation, and must undergo a process known as incorporation for it to become efficacious and valid as part of the Domestic Law of the Nation. As the supreme law making body of Trinidad and Tobago, our Parliament is vested with the responsibility for incorporating international laws, treaties and conventions into our domestic law, and this is generally done by way of creating new statutes or amending existing ones. It is an extensive and all-encompassing process which involves looking at all of your domestic Laws, Statutes and legislation which may be impacted upon by this International Treaty and/or, which may impact upon the International Treaty and making the necessary amendments.
THE PROCESS OF INCORPORATION INTO DOMESTIC LAW
Trinidad and Tobago is a party to various pieces of international law, treaties and conventions such as the International Covenant on Civil and Political Rights (ratified in 1978), the Convention on the Rights of the Child (ratified in 1991), and the Refugee Convention (ratified in 2000). Once these were ratified by Trinidad and Tobago, Parliament was charged with the responsibility of incorporating these pieces of international law into our domestic law, either in whole or in part, by including the entire piece of law or parts of it into a new statute or by amending existing statutes to ensure such incorporation. For example, the Hague Convention on the Civil Aspects of International Child Abduction is incorporated into our International Child Abduction Act Chapter 12:08, where the Schedule to that Act consists of the Convention, with Section 4 of the Act explicitly providing that the provisions of the Convention shall have the force of law in Trinidad and Tobago. Notably, the preamble to this Act provides that it is “An Act to provide for the application in Trinidad and Tobago of the Hague Convention on the Civil Aspects of International Child Abduction and to provide for matters connected with or related thereto”.
Alternatively, Parliament may approve of the principles outlined in an international law or a convention, and instead of incorporating the Law wholesale, Parliament may decide to use those principles as the basis for making new domestic laws or amending existing ones. Depending on the circumstances, this approach may be adopted and can be seen through the incorporation of the principles in the Convention on the Rights of the Child into multiple pieces of domestic primary legislation in Trinidad & Tobago, such as the Children’s Act Chapter 46:01, the Adoption of Children Act Chapter 46:03, and the Family Law (Guardianship of Minors, Domicile and Maintenance) Act Chapter 46:08.
In the United Kingdom, the Human Rights Act 1998, an Act of the UK Parliament, incorporates the European Convention on Human Rights into the UK’s domestic law, and the Act includes in its preamble that it is “An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. Additionally, the UK’s Equality Act 2010 is similar to the HRA 1998, in that it mirrors and implements the major Equal Treatment Directives of the European Union (which the UK was a part of at the time), as well as consolidates several pieces of anti-discrimination legislation into one.
At this juncture, it is important to reiterate that notwithstanding the fact that a state or a country has ratified a piece of international law, a treaty or an International convention, it does not automatically become enforceable as domestic law, unless and until it undergoes the process of incorporation through an Act of Parliament.
THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW
Once ratified and then incorporated into domestic law, international laws, treaties and conventions are normally treated like any other law in Trinidad and Tobago, and they are able to be applied and relied upon by individuals, organisations and other legal and non-legal entities. However, an interesting conundrum may arise where an international law, treaty or convention which has not yet been incorporated into domestic law, is relied upon as the basis for asserting a legal right before your local Courts.
In July 2023, in a Judicial Review and Constitutional claim brought in the High Court by Venezuelan national, Yohan Jesus Rangel Dominguez, who challenged the issue of a Deportation Order made against him, by the Chief Immigration Officer of Trinidad & Tobago. The Court, through the Honourable Justice Frank Seepersad, declared that refugees and asylum seekers in Trinidad & Tobago, could be deported if they contravened local immigration laws, as the Refugee Convention, which as stated above had been ratified by Trinidad and Tobago since 2000, had not yet been incorporated into domestic law, some twenty three years later and thus was not enforceable as part of our Domestic law here in Trinidad & Tobago.. This meant that the Refugee Convention could not be applied in the current circumstances of that case by Venezuelan national, Yohan Jesus Rangel Dominguez due to its non-incorporation into the law of Trinidad and Tobago, with the result being that the provisions of the Immigration Act Chapter 18:01 had to be applied in the absence of domestic law aimed at ensuring that the rights of refugees were respected and protected in line with Trinidad and Tobago’s obligations under the Refugee Convention.
A similar matter was also dealt with by the Court in 2022, and similar observations were also made by Justice Seepersad who had to determine a High Court Application for Judicial Review and Administrative Orders made by four Chinese nationals who had successfully applied for refugee status from the United Nations High Commissioner for Refugees (UNHCR) here in Trinidad and Tobago and had been granted UNHCR certificates. In delivering the Court’s judgment, the Judge noted that there had yet been no incorporation into domestic law of the Refugee Convention, with the only steps being taken to date being the formulation in 2014 of Cabinet’s refugee policy titled “A phased approach towards the establishment of a National Policy to address refugee and asylum matters in the Republic of Trinidad and Tobago”. However, in this instance, the applicants were able to achieve partial success in their claim, as the Court held that the Minister of National Security had unreasonably refused to grant a permit to the applicants for them to remain in Trinidad and Tobago, and the Minister was directed to consider their applications for permits, in light of the Refugee Convention and the 2014 Cabinet policy.
Recently, the very interesting case of the attempt to extradite Mr. Austin Jack Warner to the USA made the headlines once again. Since 2015, a request for Mr. Warner’s extradition to the USA was made by officials in the USA, where Mr. Warner has been charged in the USA, with a variety of offences in relation to his tenure as a FIFA official. The procedure for extradition of an individual from Trinidad and Tobago is governed by a combination of treaties and various pieces of legislation. An extradition treaty between Trinidad and Tobago and the USA was signed in 1996 and ratified by both countries in 1999. The Extradition (Commonwealth and Foreign Countries) Chapter 12:04 provides for the extradition of individuals from Trinidad and Tobago to other Commonwealth countries and to other foreign countries which may be specified by the Minister by virtue of an Order (once there is a treaty in existence). Pursuant to this Act, the Extradition (United States of America) Order 2000 was made by virtue of Legal Notice 58 of 2000, which declared the USA to be a foreign country in the meaning provided by the Act, meaning that individuals could now be extradited from Trinidad and Tobago to the USA, with respect to certain offences.
After an ‘authority to proceed’ (ATP) (with the Extradition) was issued by the Attorney General of T&T, which ATP authorised Mr. Warner’s extradition to the USA, Mr. Warner approached the Court for a Judicial Review of the decision to issue the ATP against him. He was ultimately unsuccessful in the High Court, Court of Appeal and the Privy Council, with the ruling of the Privy Council in 2022 essentially meaning that it was fair and lawful for extradition proceedings against Mr. Warner in Trinidad and Tobago to continue, primarily because of the incorporation into our domestic Law in T&T of the Extradition (United States of America) Order 2000 which was made by virtue of Legal Notice 58 of 2000, and which declared the USA to be a foreign country in the meaning provided by the Act,
Though there are established procedures in place for collaboration between states and nations in relation to International Law, Treaties and Conventions, the reality is that unless and until these International Laws, Treaties and International Conventions are actually incorporated into domestic law in T&T, they remain nice ideas and principles in theory, but with little or no applicability or enforceability domestically.
Article 50 – Incorporation of an International Law, Treaty or Convention into Domestic Law in Trinidad & Tobago
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