SESSION 4
THE APPLICATION OF MEAs IN THE INTERNAL LEGAL
ORDER IN COMMON LAW AND CIVIL LAW JURISDICTIONS IN
THE CARIBBEAN REGION
By Dayantha Mendis
BACKGROUND
 Application of MEAs in the internal legal order is necessary for
the implementation process. MEAs cannot achieve their object
or purpose without their application in the internal legal order.
 The application of MEAs in the internal legal order in the
Caribbean Common Law and Civil Law jurisdictions is dependant
on international law theories/doctrines, role played by national
Courts and national constitutional provisions.
1. THEORIES AND DOCTRINES RELATING TO THE
APPLICATION OF MEAs IN THE INTERNAL LEGAL
ORDER
(a)
Theories of Monism and Dualism
 Under the theory of Monism, international law and national
law are considered part of a single system. (Lauterpacht and
Kelson are the chief exponents of this theory).
 Under the theory of Dualism, international law and national
law are considered separate legal orders. (Anzilotti and Tripel
are the chief exponents of this theory.
 In the Caribbean region, Common Law countries such as
Guyana, Barbados, St. Kitts and Nevis, St. Vincent, etc. have
adopted the theory of Dualism in accordance with the British
constitutional practice. The Civil Law countries such as Haiti
and Surinam have adopted the theory of Monism.
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(b)
The Doctrine of Incorporation and Transformation
 The Common Law countries have adopted the theory of
incorporation with respect to customary international law and
the doctrine of transformation in regard to treaty law. In the
Trendex Case, Lord Denning held that customary international
law is part of the Common Law of the UK and treaties have to
be transformed into national legislation to give legal effect.
He cited many cases to illustrate this position.
 In Civil Law countries, the doctrine of incorporation applies
with respect to customary international law and treaty law.
(c)
The Doctrine of Self-Executing and
Non-Self-Executing Treaties
 This doctrine is peculiar to the United States of America. The
criteria for the
application
of the
doctrine
of non-self-
executing treaties are laid down by Professor Burgenthal in
the following manner – (1) The treaty does not create clear
rights
and
duties
and
it
is
merely
goal-oriented
or
programmatic; (2) The treaty requires national legislation for
enforcement; (3) The treaty expresses directly that it is not
self-executing;
(4)
Enforcement
will
involve
political
controversy.
 Some monist States have adopted this doctrine. It needs to
be explored whether Haiti and Surinam have recognized this
doctrine in regard to the application of multilateral treaties in
the internal legal order.
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(d)
The Doctrine of Direct Application
 The doctrine of direct application is associated with regional
economic organizations such as the European Union.
The UK
provides for the reception of such treaties into the domestic
legal order under section 2 of the EEC Act of 1972. This doctrine
has been recognized in Van Gend Loos Case and the De Costa
Case.
 It appears that the OECS countries have adopted the doctrine of
direct application under the Revised Treaty of Basseterre.
2. RELEVANCE OF NATIONAL COURTS IN REGARD TO THE
APPLICATION OF MEAs IN THE INTERNAL LEGAL ORDER
 In Common Law countries of the Caribbean region, the Courts
have applied unincorporated treaties on the basis of the doctrine
of legitimate expectation with respect to human rights.
 It is not clear whether Civil Law countries have adopted the
doctrine of non-self-executing treaties at the national level.
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3. RELEVANCE OF CONSTITUTIONAL PROVISIONS IN REGARD
TO THE APPLICATION OF MEAs IN THE INTERNAL LEGAL
ORDER
 In Common Law countries, the constitutional provisions are
laconic in regard to application of treaties in the internal legal
order.
 In Civil Law countries, there are provisions in regard to
application which will be illustrated by delegates from Surinam
and Haiti.
4. CONCLUDING REMARKS
 The application of treaties in the internal legal order is subject to
many theories and doctrines. This has led to some uncertainty.
In some instances, there is moderate monism and moderate
dualism in regard to the application of treaties in the internal
legal order.
 It is therefore submitted that the application of treaties in the
internal legal order should be regulated, for the sake of certainty,
by incorporating innovative constitutional provisions to resolve
the aforesaid uncertainty.