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

Abstract

International law has become increasingly relevant to decision-making in national courts. It provides judges with access to a vast body of legal material on almost every topic. However 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 or weight. This chapter suggests that the traditional common law rules regarding use of international law within the domestic judicial forum are precise, comprehensive and comprehensible. It explores the possible misapplication of these rules by some of the highest judges in the Commonwealth Caribbean in one of the most controversial areas of jurisprudence - cases dealing with the death penalty. It is argued that many, if not all, of the kinds of progressive developments sought by regional courts, including the Judicial Committee of the Privy Council and the Caribbean Court of Justice could have been achieved without infringing the rules regarding use of international law in domestic courts. The final sections of the chapter suggest 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 existing common law rules.