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Learning from the Judicial Committee of the Privy Council Georgia State University ScholarWorks @ Georgia State University Political Science Dissertations Department of Political Science 5-9-2016 Extraterritorial Courts and States: Learning from the Judicial Committee of the Privy Council Harold Young Georgia State University Follow this and additional works at: https://scholarworks.gsu.edu/political_science_diss Recommended Citation Young, Harold, "Extraterritorial Courts and States: Learning from the Judicial Committee of the Privy Council." Dissertation, Georgia State University, 2016. https://scholarworks.gsu.edu/political_science_diss/40 This Dissertation is brought to you for free and open access by the Department of Political Science at ScholarWorks @ Georgia State University. It has been accepted for inclusion in Political Science Dissertations by an authorized administrator of ScholarWorks @ Georgia State University. For more information, please contact [email protected]. EXTRATERRITORIAL COURTS AND STATES: LEARNING FROM THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL by HAROLD AVNON YOUNG Under the Direction of Amy Steigerwalt, PhD ABSTRACT In 2015, South Africa withdrew from the International Criminal Court asserting United Nation’s Security Council bias in referring only African cases (Strydom October 15, 2015; Duggard 2013) and the United Kingdom reiterated a pledge to withdraw from the European Court of Human Rights, asserting that the court impinges on British sovereignty (Watt 2015). Both are examples of extraterritorial courts which are an important part of regional and global jurisprudence. To contribute to our understanding of the relationship between states and extraterritorial courts, I examine arguably the first and best example of an extraterritorial court, namely the Judicial Committee of the Privy Council (JCPC). Drawing on 50 British Commonwealth states, this dissertation explores the factors influencing the decision to accede to an extraterritorial court and why some states subsequently opt to sever ties. I build on Dahl’s theory (1957) that the nation’s highest court interacts with the governing coalition and, for the most part, serves as an ally and uphold its policies. I argue that that governing coalition wants the final appellate court that they most expect to be an ally and extend this expectation to extraterritorial courts. As a result, the governing coalition looks at the court more critically. States may change or abolish the jurisdiction of the court if it undermines or seems likely to undermine state policy. Examining this phenomenon across the British Commonwealth provides comparative insights into how governing coalitions may view extraterritorial courts. INDEX WORDS: appeals; extraterritorial court; governing coalition; colony; final appellate court; critical juncture; empire; independence, Judicial Committee of the Privy Council; jurisdiction; policy; political environment; state EXTRATERRITORIAL COURTS AND STATES: LEARNING FROM THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL by HAROLD AVNON YOUNG A Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in the College of Arts and Sciences Georgia State University 2016 Copyright by Harold Avnon Young 2016 EXTRATERRITORIAL COURTS AND STATES: LEARNING FROM THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL by HAROLD AVNON YOUNG Committee Chair: Amy Steigerwalt Committee: Robert Howard Susanne Schorpp Electronic Version Approved: Office of Graduate Studies College of Arts and Sciences Georgia State University May 2016 iv DEDICATION I dedicate this dissertation to my parents, Lester and Celia. Their wisdom and love provided the foundation on which my life and this work are built. Also, I dedicate this to my friend and mentor, Susan Terry, for her unwavering support. They all left this world too soon. v ACKNOWLEDGEMENTS I wish to express my sincere thanks to Amy Steigerwalt, the Chair of my Dissertation Committee. I am extremely grateful for her expertise, guidance, patience, and encouragement extended to me. I place on record my gratitude to Robert Howard and Susanne Schorpp, members of my Dissertation Committee, for their valuable contributions. I thank my friends Dr. Precious Hall, Ruth John-Bonnette, and Michael C. Ross. I am indebted to them for their wisdom, patience, and support over the years. I express my sincere gratitude to Dr. Charles O’Conner and Phoebe-Ann Edwards whose insight, support, and guidance are always invaluable. I also thank my sisters, Yvonne Sharman Hyde and Lois Michelle Young, for their support. Finally, I place on record my sense of gratitude to all who, directly or indirectly, have contributed to this venture and offered words of encouragement over the years. vi TABLE OF CONTENTS ACKNOWLEDGEMENTS ......................................................................................................... v LIST OF TABLES AND FIGURES............................................................................................ x 1 INTRODUCTION ............................................................................................................ 1 1.1 Purpose of the Study ................................................................................................ 13 1.2 Summary Outline..................................................................................................... 15 2 The Judicial Committee of the Privy Council (JCPC) ................................................ 18 2.1 Introduction to the JCPC ........................................................................................ 18 2.2 Decolonization and the Persistence of the JCPC .................................................. 22 3 THE JCPC AND THE GOVERNING COALITION: A Theory of the Role of the Final Appellate Court ..................................................................................................... 34 3.1 Introduction.............................................................................................................. 34 3.2 Critical Junctures .................................................................................................... 42 3.2.1 First Critical Juncture: Independence ....................................................... 47 3.2.2 Second Critical Juncture: Post-Independence .......................................... 59 3.3 Competing Explanations? ....................................................................................... 66 3.4 Summary .................................................................................................................. 68 4 THE FINAL APPELLATE COURTS AT INDEPENDENCE .................................. 69 4.1 Introduction.............................................................................................................. 69 4.2 Unit of Analysis and Sample of States ................................................................... 71 vii 4.3 Exploring the Decision to Retain the JCPC at Independence ............................. 73 4.4 Summary and Conclusion ........................................................................................... 100 5 THE JCPC AFTER INDEPENDENCE ..................................................................... 103 5.1 Introduction............................................................................................................ 103 5.2 Unit of Analysis and Sample of States ................................................................. 106 5.3 Severing Ties with the JCPC after Independence .............................................. 107 5.4 Explanatory Variables........................................................................................... 108 5.5 Exploring Changes after Independence............................................................... 115 5.6 Results ..................................................................................................................... 117 5.7 Summary and Conclusion ..................................................................................... 127 6 THE JCPC AND THE GAMBIA, NEW ZEALAND AND THE BAHAMAS ....... 130 6.1 Introduction............................................................................................................ 130 6.2 Tracing the Conditions for Change...................................................................... 140 6.2.1 The Republic of Gambia (The Gambia) .................................................. 140 6.2.2 New Zealand ............................................................................................... 153 6.2.3 The Commonwealth of The Bahamas (The Bahamas) ........................... 165 6.3 Summary and Conclusions ................................................................................... 171 7 CONCLUSIONS ........................................................................................................... 174 7.1 Summary and Major Findings ............................................................................. 174 7.2 Implications ............................................................................................................ 181 viii 7.3 Further Questions and Research Opportunities ................................................. 182 REFERENCES .......................................................................................................................... 188 CASES…………………………………………………………………………………………226 APPENDICES ..........................................................................................................................
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