LEGISLATIVE TECHNIQUES FOR THE IMPLEMENTATION OF THE ECONOMIC PARTNERSHIP AGREEMENT (EPA)

By Dayantha L. Mendis International law is increasing in importance as a source of domestic legislation.

Mark Gobbi Drafting Techniques for Implementing Treaties in New Zealand, Statute Law Review, 2000.

1. Introduction
The transformation of the Economic Partnership Agreement (EPA) into national legislation is a challenging task in CARIFORUM countries for the following reasons Firtstly, 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. Secondly, the EPA mandates member states of the CARIFORUM to ratify and implement several 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 goods and services. Thirdly, it would be difficult to incorporate the EPA in its entirety as a Schedule to an Act of Parliament because of its prolixity Fourthly, the legislative implementation of the EPA will require the resolution of the difficulties relating 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 to amend the treaty incorporated in a schedule by subsidiary legislation; (5) Elaboration by subsidiary legislation; (6) Dealing with inconsistency with other legislation; (7) Inconsistency with the language of the official text; (8) Terms and expressions of the treaty to have the same meaning 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 by legislative drafters to ensure compliance with treaty standards.

Francis Bennion has classified the legislative techniques into direct and indirect methods. The direct method involves re-drafting or re-phrasing the concept and the text of the treaty into an Act of Parliament. The indirect method involves the incorporation of a treaty by way of a Schedule 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 no reference 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) the legislation 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) will ameliorate the loose language found in treaties. He is of the same that the last method is more conducive to achieving the fundamental objective of uniformity and compliance with treaty standards. Professor Winston Anderson of the University of the West Indies, now a Judge of the Caribbean Court of Justice, has stated that the transformation of treaties into implementing legislation in the Caribbean takes place by re-enactment or by reference. He has said that re-enactment is evident in 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 legislative techniques. For the purposes of this paper, it is possible to outline six distinctive legislative techniques 1. The legislation may contain no reference to any kind of treaty. Shipping Act 1994 (Barbados), Fisheries Act 1988 (Jamaica), Exclusive Economic Zone Act 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).
2. The legislation may refer to the treaty but not set it out and may give effect to it by

separate substantive provisions. CARIPASS Travel Card Act 2011 (Draft), Territorial Sea Act 1971 (Jamaica), Tokyo Convention 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 information or reference. Antarctic Treaty Act 1967 (UK). The advantage is that the treaty is easily accessible to the statute law users. 4. The legislation may set out the treaty in a schedule and endow it or part of it with the force of law. Organization of Eastern States Act 1986 (Antigua and Barbuda), International Sales Act 1967 (UK), Consular Relations Act 1968 (UK), Non-Citizens (Registration, Immigration and Expulsion) (Amendment) Act 1980 (Sierra Leone), Refugee Protocol (1951), Climate Change Response Act 2002 (New Zealand), Terrorism Suppression Act 2002 (New Zealand). The schedule includes SC Resolution 1373 (2001). Uniformity is likely to be achieved 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 (Saint Christopher and Nevis), and National Conservation and Environmental Protection Act 1996 (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 Pollution Prevention Act 1982 (Sri Lanka), and the Shipping Act 1981 (Barbados) and National Parks 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 the EPA at national level. Sir Henry de Waal, QC, former First Parliamentary Counsel (UK) said that the suitability of a particular legislative technique depends to a large extent on the subjectmatter of the treaty. As a result, no golden rule can be laid down regarding the desirability of the use of one technique in preference to another. It is therefore necessary to choose the most suitable legislative technique that will help to ensure compliance with the objectives of the EPA having regard to its content and complexity. Out of the six legislative techniques outlined above, it seems to me that the most appropriate legislative technique is to incorporate the EPA by reference without reproducing it as a Schedule to an Act of Parliament and give effect to some of the provisions of the EPA and other treaties referred to therein by way of subsidiary legislation. (Legislative Techniques 5 and 6).

4 In this context, one may question whether it is legally possible to incorporate a treaty by reference, without reproducing the treaty by way of a schedule to an Act of Parliament. In the International Transport Conventions Act 1983 (UK), the provisions of the Convention Concerning International Carriage by Rail are not reproduced in the schedule, but it is provided in section 1(3) of the aforesaid Act as follows: (3) The provisions having the force of law by virtue of this section are (a) the provisions of the Convention as presented to Parliament in April 1982 and set out in Command 8535; and (b) as respects Annexes I, II and III to Appendix B to the Convention, the provisions referred to in that Command Paper; and judicial notice shall be taken of those provisions as if they were contained in this Act. [emphasis added] In this regard, it is interesting to note that Professor Elmer Dreidger in his book on Composition of Legislation (1973) has said that it is possible to incorporate material other than statutes by reference Material other than statutes may be incorporated by reference . . . . Referential legislation of this character presents problems . . . . The reader-layman, judge or lawyer must go elsewhere to find the law, and how can he be sure that he has a correct or authentic text? The second problem is whether the Statute incorporates the material as it exists the day the statute is passed or as it is amended from time to time?

In small states of the Caribbean, it is virtually impossible to reproduce treaties which are prolix in a schedule, due to printing difficulties. As a result, the legislative practice of incorporating the provisions of a treaty by reference serves an useful purpose and be justified in certain circumstances. 3. Concluding Remarks The drafting of implementing legislation in relation to the EPA is a difficult exercise, as such implementing legislation requires on the one hand uniformity with treaty provisions and on the other hand certainty. When the provisions of the EPA are re-phrased or re-drafted in order to attain certainty, it is always possible that uniformity may be lost on the anvil of the draftsmans table. The combination of uniformity and certainty cannot be easily attained in drafting complex implementing legislation relating to the EPA. The fulfillment of this task, as Justice Frankfurter said: could only be achieved by entrusting this kind of work only to those who are equal to its demands.