Why old cases cannot resurrect an invalid treaty

Nov 13, 2025 Features / Columnists, Peeping Tom

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(Kaieteur News) – One of the most persistent rebuttals to the argument that the 1931 United States–United Kingdom Extradition Treaty does not apply to Guyana is that “the courts have already decided.”

Certain local commentators have been quick to invoke judicial precedent, waving the decision in King v. Director of Prisons as if it were a constitutional exorcism capable of breathing life into a treaty that was never alive in the first place. But law is not magic. Judicial precedent cannot validate a treaty that was never extended to this territory; it can only interpret what already exists.

And therein lies the crux of the issue: before independence, the 1931 Extradition Treaty was never, in my assessment, extended to British Guiana. Without that foundational fact, the entire edifice of “precedent” collapses under its own legal weight.

The defenders of the treaty’s continued validity often rely on King v. Director of Prisons et al. in which the court concluded that Guyana had not repudiated the 1931 treaty and therefore could not rely on the “clean slate” doctrine of international law. The logic was that Guyana, having inherited the treaty from Britain, continued to be bound by it because it had not expressly rejected it. But that reasoning assumes — and this is critical — that the treaty applied to British Guiana before independence. It is built on the premise that the treaty was already in force for the territory and thus could be “saved” by the Savings Law Clause of the 1966 Independence Constitution.

Yet, where is the evidence? The 1931 Treaty was extended to numerous colonies and protectorates — Palestine, Transjordan, Cyprus, and others — through formal exchanges of notes and Orders in Council. British Guiana, however, is absent from every authoritative list of extensions. No Order in Council, no diplomatic note, no declaration names British Guiana. It simply was not there.

If the treaty never applied to British Guiana, then the entire line of reasoning in King and any subsequent affirmations becomes misplaced. Did the court in King ever examined whether the treaty had ever been extended to the colony in the first place. That decision, instead, accepted as a given that it had. But law cannot rest on assumptions.

For a treaty to bind a territory, there must be an express act of extension or application. Under Articles 16 and 17 of the 1931 Treaty itself, the United Kingdom could apply the treaty to any of its colonies or protectorates through formal notification to the United States. Historical records show that this process was used many times. Yet in every documented extension, British Guiana’s name is missing. Or is there some hidden diplomatic note that is archived somewhere that can be produced. If it can, it should be.

Under international law, a treaty applies only where the contracting states expressly agree that it does. A colony was not automatically covered merely because it flew the Union Jack. Unless an Order in Council or exchange of notes explicitly said “British Guiana,” the treaty did not extend here. And if it did not apply to British Guiana, it could not have been “saved” at independence.

That is why arguments invoking “precedent” miss the mark. The so-called precedents, including King, were predicated on a historical inaccuracy — that the treaty was already valid for British Guiana. If the foundation is wrong, the conclusions built upon it cannot stand. Too many legal arguments confuse deference with blind obedience. Precedent is important, but it is not infallible. Courts follow precedent because it promotes stability, not because it guarantees truth. A precedent built on a faulty premise does not become holy scripture; it becomes an error repeated.

History is replete with examples of courts revisiting and overturning earlier rulings when the factual or legal foundations no longer hold. The most famous illustration is Roe v. Wade, the 1973 United States Supreme Court decision that recognized a constitutional right to abortion — overturned half a century later in Dobbs v. Jackson Women’s Health Organization (2022). That reversal shocked many, but it underscored an enduring truth: precedent is not for eternity. Law evolves; understanding deepens; mistakes are corrected.

Even in the Commonwealth, we have seen courts retreat from old authorities when the assumptions underpinning them proved unsound. Precedents must yield when their premises are exposed as flawed. To argue otherwise is to elevate judicial convenience above constitutional principle. Thus, when critics point to King v. Director of Prisons, and to other decisions and say “the matter is settled,” they are ignoring the vital precondition of all legal reasoning — that facts matter. A precedent based on a mistaken factual assumption has persuasive weight only until that assumption is disproven. Once it becomes clear that British Guiana was never included in the list of territories to which the 1931 Treaty was extended, King, and other decisions cease to be binding in any meaningful sense on that issue.

The debate, therefore, is not about whether Guyana rejected the treaty after independence — it is about whether there was ever a treaty to reject. The 1931 Extradition Treaty could not have been “saved” under the Savings Law Clause if it was never part of the colony’s existing law at the moment of independence. The savings clause preserves what exists; it does not resurrect what never was.

That question, of pre-independence applicability, is factual, not doctrinal. And no amount of case law can conjure evidence that does not appear to exist. Judicial precedent may guide interpretation, but it cannot substitute for proof. Unless there is documentary evidence — an Order in Council, an exchange of notes, or an official proclamation — confirming that the 1931 Treaty applied to British Guiana, any claim to its continued validity is an exercise in legal mythology.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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• Extradition Treaty, invalid, Peeping Tom, treaty

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