A Brief Look at the Maroon Treaty and the International Law of Treaties
The International Law of Treaties
Pacta sunt servanda, or the principle that agreements are to be respected, even among otherwise sovereign states, is a fundamental tenet of international law. The original justification for the obligatory force of treaties is probably attributable to religious solemnity (the Maroon Treaty, typically, begins, "In the name of God, Amen . . . "). Nowadays, international theory attributes the legally binding nature of treaties to the capacity of sovereign states to bind themselves.
There is virtual unanimity among commentators that treaties merit paramount consideration in deciding disagreements in international law. The Statute of the International Court of Justice (ICJ), a leading forum for the resolution of disputes in international law, lists treaties as the first source to which it turns in resolving those disputes. The ICJ's charter, which has been incorporated into the Charter of the United Nations, states that "the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states." Thus, the ICJ makes any applicable treaty the first factor to be examined in resolving an international disagreement.
Similarly, the Vienna Convention on the Law of Treaties, the so-called Treaty on Treaties, formally codifies the importance of treaty law and provides international guidelines for treaty interpretation. Although the United States is not a signatory to the Vienna Convention, the U.S. State Department as early as 1971 acknowledged that the Vienna Convention constitutes "the authoritative guide to current treaty law and practice." Notwithstanding her refusal to become a signatory to the Convention, the U.S. has frequently brought cases before the ICJ based on alleged violations of the Vienna Convention. Moreover, the State Department's written acknowledgement of the Vienna Convention's preeminence may alone be enough to bind the United States to the terms of the treaty. Former Secretary of State Dean Rusk acknowledged as much when he refused to flip a coin, even in jest, with the Honduran Foreign Minister for possession of the Swan Islands. Great Britain, for its part, is not only a signatory to the Convention, but was instrumental in its drafting. In any case, there is little doubt that the Vienna Convention has passed into customary international law. Accordingly, both the United States and Great Britain are legally bound to accept the international law of treaties. Any violation of that law constitutes a violation of international law and leaves both countries open to acts of retorsion (reprisal, subject to proportionality between countermeasure and offense) by the Maroons.
The Maroon Treaty is Legally Binding
Article 6 of the Vienna Convention states that "[e]very state possesses capacity to conclude treaties." Although the Maroons effectively constitute a state-within-a-state, there does not seem to be a question as to their right to negotiate and conclude treaties. The Maroons have a functioning government which has negotiated their affairs for an extended period, and are a self-defined "people" with a presumptive right to self-determination under jus cogens principles of international law. More importantly, the terms of the British treaty with the Maroons (the Treaty) explicitly presume the Maroons' capacity to conclude binding state treaties. The Treaty provides the Maroons with land and self-government, subject to an alliance with Great Britain. The reciprocal nature of the Treaty is significant since the Maroons' ability to bind themselves to a military alliance with Great Britain must be conditioned on their capacity to make legally binding treaties as a state. (Otherwise, the Maroons would have had no legal obligation to keep their side of the bargain.) Likewise, the Maroons have fulfilled the formalities necessary to make a treaty legally binding under the Vienna Convention. The Treaty was completed by individuals having appropriate powers to bind each state and each state desired to be bound to the terms of the Treaty. Change of government has no effect on a treaty's validity under the Vienna Convention.
Effect of the The Maroon Treaty
A state's obligations to act commensurately with its treaty obligations are deep and broad. The Vienna Convention states that "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Both the binding force of treaties (pacta sunt servanda) and the affirmative obligation of good faith are equally present in customary international law. The duty of good faith is such that a state "is obliged to refrain from acts which would defeat [a treaty's] object and purpose," even if the conduct proposed is not specifically banned by the treaty itself. This responsibility is so broad that it applies even to treaties that have not yet come into force (as with a multilateral treaty that has not obtained the requisite number of signatories).
Significantly, the Vienna Convention further provides that "[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." Even significant inconsistencies with internal law are insufficient justification to allow a state to contravene its treaty obligations. As the Permanent Court of International Justice, a predecessor to the ICJ, stated in 1932 in the Danzig Territories case, "a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force." As Lord McNair, the British representative who helped draft the document that eventually became the Vienna Convention stated: "our Government cannot plead any defect in our municipal law or its administration as an excuse for our failure to discharge an international obligation."
Likewise, a state is obliged to faithfully observe its treaty obligations even if a treaty has no legal force in its own municipal legal system. Barring error, fraud, corruption, coercion, or the violation of a peremptory norm of international law, a state may not invalidate a treaty to which it has consented to be bound. None of these conditions exist with respect to the Treaty between Great Britain and the Maroons. For the reasons stated above, if the Maroon Treaty can be construed to allow the growing of marijuana for whatever reason, the Privy Council's limiting of this right would contravene Great Britain's treaty obligations with respect to the Maroons and constitute a violation of international law.