Pacific Islands Treaty Series
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Contents
- Categorisation of Pacific countries according to type of Legal System
- Enforceability of International Law
- Legal Systems of the Pacific Islands States
1. Categorisation of Pacific countries according to type of Legal System
(a) British style legal system
Vanuatu, Fiji, Cook Islands, Samoa, Tonga, Tokelau, Nauru, Niue, Papua New Guinea, Kiribati, Tuvalu, Pitcairn Islands and Solomon Islands.
Wallis and Futuna, New Caledonia, French Polynesia.
(C) American Style legal system
Marshall Islands, Palau, Guam, Federated States of Micronesia, American Samoa and the Commonwealth of the Northern Mariana Islands.
2. Enforceability of International Law
Because treaties are instruments normally endorsed by state parties, they are generally considered as the most prominent source of international law. The Vienna Convention on the Law of Treaties 1969 was established to regulate treaty making between state parties as well as state parties and organisations. Under the Vienna Convention on the Law of Treaties 1969, the consent of a state to be bound by a treaty (and therefore for the treaty to apply to the state at an international plane) may be expressed by way of “signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession or by any other means if so agreed”.
However, a different process altogether may be necessary in order for a treaty to be applicable at a domestic level. Unless a treaty accepted by any Pacific Island state is incorporated into the domestic laws (domestication) of the Pacific Island state, the rights and obligations contained in such a treaty are inapplicable and unenforceable domestically in the Pacific Island state concerned.
The Vienna Convention addresses the question of how states accept international obligations arising from treaties but does not regulate how states may bring about the implementation of the treaties at domestic level which they have made applicable to them internationally. This question is left to the Pacific Island states. Accordingly, the question of “how” depends on the legal system in that particular state.
3. Legal Systems of the Pacific Islands States
The Pacific Island legal systems by and large are influenced by British, French and American type legal systems.
Pacific Island states that have a strong British influence in their legal systems generally adopt a dualist approach. Pacific Island states that have a strong American influence in their legal systems generally follow the monist approach.
Under the dualist approach, treaties are part of a separate legal system from that of the domestic law; they do not form part of domestic law directly. Thus, under this approach, a treaty to which a state has expressed its consent to be bound does not become automatically applicable within that state until appropriate national legislation has been enacted to give the treaty the force of law domestically. This is the so-called "act of transformation", which has several ways of occurring. As an example, the treaty rules may be directly incorporated through a drafting technique which gives the force of law to specified provisions of the treaty or indeed the whole treaty, usually scheduled to the transforming Act itself. This is the approach which was inherited by Tonga , Samoa , Fiji and other commonwealth countries from the British practice.
The act of transformation plays an added role where the treaty-making power of the state (eg the power to negotiate and ratify treaties) is vested in a governmental body other than the legislature and there are no constitutional or specific legislature provisions for "democratic participation" in that process (eg parliamentary approval of treaties). Under the dualist approach, a state can express its consent to be bound by a treaty first (ratification) without involving the legislature, thus making the treaty applicable to it internationally, then subsequently involve the legislature when transforming the treaty to make it enforceable domestically.
Under the monist approach, traditionally a legal system of a state is considered to include treaties to which that state has given its consent to be bound. Thus, certain treaties may become directly applicable in that state domestically (self executing) and do not rely on subsequent national legislation to give them the force of law once they have been ratified by the state. Where a treaty is thus considered to be "directly applicable", under this approach, it means that the domestic courts as well as other governmental bodies would look to the treaty language itself as a source of law.
Under the monist approach, the treaty-making process always involves a "democratic participation", such as parliamentary approval of treaties before the state may express its consent to be bound. Thus, a treaty would become directly applicable both at the international plane and at the domestic level, on the critical date of its entry into force for that state, following its ratification, acceptance, approval or accession by the states, in accordance with the relevant final clause of the treaty in question. This is the approach adopted by some former American colonies including Guam, Palau and the Federated States of Micronesia.