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Legislative Techniques Seminar Paper

Legislative Techniques Seminar Paper

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Published by anuepaunit
Implementing the CARIFORUM-EU Economic Partnership Agreement – Legislative Techniques
Mr. Dayantha MENDIS, CFTC Legislative Drafting Consultant, CARICOM Secretariat - EPA Seminar for Legislative Draftpersons
Implementing the CARIFORUM-EU Economic Partnership Agreement – Legislative Techniques
Mr. Dayantha MENDIS, CFTC Legislative Drafting Consultant, CARICOM Secretariat - EPA Seminar for Legislative Draftpersons

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Published by: anuepaunit on Aug 03, 2011
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By Dayantha L. Mendis“International law is increasing in importance as a source of domestic legislation.”
Mark Gobbi – Drafting Techniques for Implementing Treaties in NewZealand, Statute Law Review, 2000.
1. Introduction
The transformation of the Economic Partnership Agreement (EPA) into national legislation is achallenging task in CARIFORUM countries for the following reasons – 
, the EPA runs into more than 1000 pages and it would be virtually impossible to“redraft” or “rephrase” the Articles of the EPA into legislative provisions.
, the EPA mandates member states of the CARIFORUM to ratify and implementseveral WTO Agreements relating to trade and WIPO Agreements relating to intellectual property in addition to the legislative implementation of the provisions relating to trade in goodsand services.
, it would be difficult to incorporate the EPA in its entirety as a Schedule to an Act of Parliament because of its prolixity
, the legislative implementation of the EPA will require the resolution of the difficultiesrelating to policies with respect to sustainable development, poverty reduction, etc.In his book on
Legislative Drafting
, Thornton provides eight valuable practical points in the preparation and drafting of implementing legislation. These are - (1) Declaring the purpose; (2)Identification of the parties to the treaty; (3) Explanatory preamble; (4) Enabling provisions toamend the treaty incorporated in a schedule by subsidiary legislation; (5) Elaboration bysubsidiary legislation; (6) Dealing with inconsistency with other legislation; (7) Inconsistencywith the language of the official text; (8) Terms and expressions of the treaty to have the samemeaning in national legislation.
2. Use of the correct legislative technique
In CARIFORUM countries, various legislative techniques are used in the drafting of implementing legislation. It is proposed to illustrate some of these legislative techniques used bylegislative drafters to ensure compliance with treaty standards.
2Francis Bennion has classified the legislative techniques into direct and indirect methods. Thedirect method involves “re-drafting” or re-phrasing” the concept and the text of the treaty into anAct of Parliament. The indirect method involves the incorporation of a treaty by way of aSchedule to an Act of Parliament and endowing it with the force of law.Thornton outlines four legislative techniques in regard legislation giving effect to treaties.According to Thornton, these four legislative techniques are: (a) the legislation may contain noreference to the treaty; (b) the legislation may refer to the treaty but not set it out in the Act, or may give effect to it by separate substantive provisions without granting the force of law; (c) thelegislation may set out the treaty in a schedule
informationis causa
(reference purposes only); (d)the legislation may set out the treaty in a schedule and endow it or a part of it with the force of law. In assessing the relative merits, Thornton is of the view that methods (a), (b) and (c) willameliorate the “loose language” found in treaties. He is of the same that the last method is moreconducive to achieving the “fundamental objective of uniformity” and compliance with treatystandards.Professor Winston Anderson of the University of the West Indies, now a Judge of the CaribbeanCourt of Justice, has stated that the transformation of treaties into implementing legislation in theCaribbean takes place by re-enactment or by reference. He has said that re-enactment is evidentin relation to treaties establishing maritime law, fisheries, law of the sea, diplomatic immunity,civil aviation, human rights, environment and unification of rules in private international law.However, a close examination of implementing legislation reveals additional legislativetechniques. For the purposes of this paper, it is possible to outline six distinctive legislativetechniques -
1.The legislation may contain no reference to any kind of treaty.
Shipping Act 1994 (Barbados), Fisheries Act 1988 (Jamaica), Exclusive Economic ZoneAct 1991 (Jamaica), Environmental Management Act 1995 (Trinidad and Tobago),Evidence (Proceedings in other Jurisdictions) Act 1975 (UK), Family Law Act 1981(Barbados), Fisheries Act 1993 (Barbados) and Civil Aviation Act 1973 (Jamaica).
The legislation may refer to the treaty but not set it out and may give effect to it byseparate substantive provisions.
CARIPASS Travel Card Act 2011 (Draft), Territorial Sea Act 1971 (Jamaica), TokyoConvention Act 1967 (UK) and the Merchant Shipping (Load Lines) Act 1967 (UK).
3.The legislation may set out the treaty in a schedule only for purposes of informationor reference.
Antarctic Treaty Act 1967 (UK). The advantage is that the treaty is easily accessible tothe statute law users.
4.The legislation may set out the treaty in a schedule and endow it or part of it withthe force of law.
Organization of Eastern States Act 1986 (Antigua and Barbuda), International Sales Act1967 (UK), Consular Relations Act 1968 (UK), Non-Citizens (Registration, Immigrationand Expulsion) (Amendment) Act 1980 (Sierra Leone), Refugee Protocol (1951), ClimateChange Response Act 2002 (New Zealand), Terrorism Suppression Act 2002 (NewZealand). The schedule includes SC Resolution 1373 (2001). Uniformity is likely to beachieved under this method.
5.The legislation may give effect to a treaty without reproducing it in a schedule.
International Transport Convention Act 1983 (UK) and Civil Aviation Act 1985 (SaintChristopher and Nevis), and National Conservation and Environmental Protection Act1996 (Saint Christopher and Nevis).
6.The legislation may empower a Minister to give effect to a treaty by way of subsidiary legislation.
 National Conservation and Environmental Protection Act 1996 (Saint Christopher and Nevis), Shipping Act (Canada), Canada Post Corporation Act (Canada), Marine PollutionPrevention Act 1982 (Sri Lanka), and the Shipping Act 1981 (Barbados) and NationalParks and Wildlife Conservation Act 1975 (Australia).
3. Which legislative technique is more suitable?
It is difficult to state with precision which legislative technique is more suitable to implement theEPA at national level. Sir Henry de Waal, QC, former First Parliamentary Counsel (UK) saidthat the suitability of a particular legislative technique depends to a large extent on the subject-matter of the treaty. As a result, no golden rule can be laid down regarding the desirability of theuse of one technique in preference to another. It is therefore necessary to choose the mostsuitable legislative technique that will help to ensure compliance with the objectives of the EPAhaving regard to its content and complexity.Out of the six legislative techniques outlined above, it seems to me that the most appropriatelegislative technique is to incorporate the EPA by reference without reproducing it as a Scheduleto an Act of Parliament and give effect to some of the provisions of the EPA and other treatiesreferred to therein by way of subsidiary legislation. (Legislative Techniques 5 and 6).

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