“The Colonial legal heritage of Vanuatu and its - PowerPoint Presentation

Slide1

“The Colonial legal heritage of Vanuatu and its possible implications in terms of fundamental rights”

USP –

PCRN

Conference - 2016Slide2

Presentation content2IntroductionFormulation of the hypothesisThe enabling factor

:

The concept of « 

Patriation

»

Values

informing

this

presentation

Vanuatu - Sources of Law

The ECHR

Facts

about the ECHR

The extraterritorial application of the ECHR (Articles

1 &

56 - The

Al-

Skeini

jurisprudence

)

The

operation

of the concept of SOGA

under

english

law

Definition

of SOGA

The

link

between

SOGA and the ECHR

Vectors

of

transfer

of SOGA via English Law

Requirements

of the application of SOGA via the

reception

vector

The

operation

of French Law

The

Preambule

of the French Constitution

The value of

treaties

(

monist

system –

European

Law – Article 55 of the constitution)

Some

S

uperior

C

ourts

D

ecisions

(Principes Généraux du droit (

Adm

)/ Principes Fondamentaux du droit)

The

link

between

the French Law applicable in Vanuatu and the ECHR

Summary

of Questions to

considerSlide3

Introduction3Formulation of the hypothesisECHR and other fondamental rights

of France /

England

are applicable in

their

former colonies as part of the

legal

heritage

.

The enabling factor: The concept of « 

Patriation

»

The term '

patriation

' was coined in Canada to describe the process of transferring constitutional power from the United Kingdom to Canada

.

At

independence,

overseas legislation was not patriated as it should have been as part of the independence process

.

See Jennifer Corrin & Professor Anthony (Tony)

Angelo.

Values informing

/ governing this presentation

A. Camus – « 

Any

thought

that

refuses

unity

promotes

diversity

and the sole place for

diversity

is

the art

. »

Julien Benda

– « 

promoting

particularism

et

tarnishing

the

universal

,

is

a

sign

of the

clerc’s

great

betrayal

. »Slide4

Vanuatu – Sources of Law4POST-INDEPENDENCESince Independence, on 30 July 1980, the laws of Vanuatu comprise:Constitution of Vanuatu - the supreme law;Acts of Parliament of Vanuatu ;Joint Regulations

(French / English) in

existence on 30 July 1980 - which continue in force

until repealed

by the Vanuatu Parliament ( s. 95(1) Constitution );

British and French laws in existence on 30 July 1980 - including Acts of Parliament

, subsidiary

legislation and English common law and equity, which continue in force

until repealed

by the Vanuatu Parliament ( s. 95(2) Constitution );

Customary laws of Vanuatu ( s. 95(3) Constitution

).

© 1999 Professor Don Paterson, USP

. In PACLIISlide5

The ECHR5Facts about the ECHROn 4 November 1950 the members of the Council of Europe signed the European Convention on Human Rights (ECHR).The Convention came into force in 3 September 1953

Various

Protocols

have been

added

to the convention (1963, 1966, 1985, 1990, 1992, 1994)

The situation of

England

(

Dualist

System)

The

UK was one of the first members of the Council of Europe to ratify the Convention when it passed through Parliament in 1951

.

1966

that the UK granted what is known as "individual petition" - the right to take a case to Strasbourg.

The Human Rights Act 1998 was designed to deal with this situation and allow the British people to seek redress within their own courts.

The situation of France (

Monist

system)

France

Ratified

the Convention 3 May 1974

France

granted what is known as "individual petition" - the right to take a case to

Strasbourg

in 1981Slide6

The ECHR6Extra Territorial application of the ECHR – Is Vanuatu covered by the individual

petition

?

Article

1

of the ECHR

Article

1 simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases,

"jurisdiction" may not be confined to a Contracting State's own national territory

; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in which the State exercises effective control.

The

caveat

of article 56 as

interpreted

by the

Al-

Skeini

jurisprudence

article 56 – a relic of colonial era Europe – provides that a contracting party can elect to extend the application of the convention to “all or any of the territories for whose international relations it is responsible”

by formal notification

and,

for the right of individual petition, by an additional declaration

.

The

UK was required to secure rights and freedoms under the ECHR to those persons detained in UK-operated detention facilities when the UK was acting as an administrative authority (see for example most recently Al-

Skeini

and

ors

. v UK and Al-

Jedda

v UK) since a state should not be able to do abroad what it cannot do at home.

Despite this, the

ECHR ruled that the principles of extra-territorial application developed under article 1 did not trump the plain reading of article 56 which placed the power in the state’s hand to elect to exclude a particular territory from the scope of the ECHR

.Slide7

The operation of English Law7The operation of the concept of SOGA under English LawDefinition of SOGA

Pacific

Order in Council 1893 (UK)35 and then the Western Pacific (Courts) Order 1961 (UK

). No definition.

R v

Ngena

([1983] SILR 1, 6

.) -

Daly CJ defined "general application" as meaning a statute "that regulates conduct or conditions which exist among humanity generally, and in a way applicable to humanity generally

".

Application of SOGA

SOGA are applicable « 

so

far only as the circumstances of any particular territory and its inhabitants ... permit and subject to such qualifications as local circumstances render necessary

’”

The link between SOGA and the

ECHR

Is the ECHR a SOGA?

Uk

ratification 1951,

Individual

petition

1966,

cut

off date 1976

Are the protections

granted

under

the ECHR part of the

norms

that

can

be

used

in Vanuatu and

other

pacific

states court or are

they

inapplicable

given

the

difference

in the

circumstances

? (

Human

Right

Act

1994).Slide8

The operation of English Law8The operation of the concept of SOGA under English LawVectors of transfer of SOGA via English Law (Jennifer Corrin Classification)

Act

of

independance

gave the former

colony

its

legal

system.

Transfering

or

keeping

the

whole

heritage

.

Relevance

for fundamental rights

ECHR

Residual

Paramount

Operation

–

Legislation

specifically

intended

to have

effect

in the colonies. (

Here

Jennifer

does

not

seem

to

include

the SOGA – No

relevance for

fundamental

rights

ECHR)

Incorporation – Local

legislation

incorporate

an

act

– No relevance for

fundamental

rights

ECHR.

Reception

– SOGA –

Relevance for

fundamental

rights

ECHRSlide9

The operation of English Law9The operation of the concept of SOGA under English LawRequirements of the application of SOGA via the reception vector

Each

Act

/

norm

has to

be

tested

to

determine

if

it

is

of General application –

ECHR

should

fall

into

this

category

Requiring

Proof of

general

application and by

whom

?

Challenge possible of the SOGA on the grounds of

its

applicability

to the local situation (one of the exception to SOGA) –

Ideally

little

relevance in the case of ECHR as one

would

imagine

that

the

principles

are not culture

dependant

.

Challenge possible if the SOGA / ECHR

principles

are

excluded

from

applying

by local

legislation

.

Same

as

above

in

term

of relevance

Provisions of the ECHR

can

be

invoked

in Vanuatu Courts?Slide10

The Operation of French Law10The operation of French LawThe Preambule of the French ConstitutionThe value of treaties (monist system – European Law – Article 55 of the constitution

)

The link between the French Law applicable in Vanuatu and the ECHR (French laws in existence on 30 July 1980

applicable in Vanuatu – ECHR ratified in 1974 – Individual petition 1981)

Some superior court decisions (

Principes

Généraux

du droit (

Adm

–

Agnès

Blanco)/

Principes

Fondamentaux

du

droit (Jud))

French

funadmental

rights norms (ECHR included) can

be invoked in Vanuatu Courts?Slide11

Summary of questions raised by this11If the ECHR is not applicable extra

territorially

on

its

own

,

can

we

consider

that

its

values / normative content has

still

been

passed

in relevant

pacific

states

before

the application of the

cut

off dates or the

advent

of the

independance

of

these

states?

English

Laws

Is the ECHR a SOGA

If the ECHR

is

a SOGA

was

it

in force as

such

in

E

ngland

(as in not

beeing

enacted

under

the

Human

Rights

Act

1994)

prior

to

Vanuatu

(1

January

1976) and

other

pacific

states

cut

off dates.

French Law

The ECHR

since

1974 –

Individual

Petition

since

1981

Other

French

Fundamental

norms

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