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Citation:
Emmanuel Yaw Benneh, The Sources of Public
International Law and Their Applicability to the
Domestic Law in Ghana, 26 U. Ghana L.J. 67, 120
(2013)
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THE SOURCES OF PUBLIC INTERNATIONAL
LAW AND THEIR APPLICABILITY TO
THE DOMESTIC LAW OF GHANA
Emmanuel Yaw Benneh*
INTRODUCTION
Public International law, long ago, in the view of writers, became a
strict term of art "connoting that system of law whose primary
function is to regulate the relations of States with one another".'
Thus defined, public international law is the law that is external to
the State; it does not apply within the State to determine the
relationships between the State and individuals or groups or
between individuals and groups. Present-day public international
law, however, is not limited to interstate relations; it relates to
international organisations and has also the concern for the
individual, in the latter case, as a result of the large increase since
1945 in the number of international human rights instruments
entitling individuals with rights and freedoms and concomitant
obligations on States to refrain from conduct that infringes these
rights and freedoms.2 In contradistinction to public international
law, domestic (or municipal or national) law operates within the
State; it is the law that is internal to the State dealing with the
relationships between individuals or individuals and groups.
Assuming, then, from the foregoing that differences exist between
public international law and domestic law in terms of their
definitions, contexts, and subjects, the immediate questions that
arise are: what is the relationship if any between public
international law and domestic law? Can public international law
be invoked before domestic courts? And does international law
grant individuals rights which can be enforced within the domestic
legal system? This Article will attempt to answer these questions by
examining the applicability of public international law to the
*
1
2
LL.B (Ghana), LL.M, M. LITT. (Camb), Senior Lecturer, Faculty of Law, University of Ghana,
Legon.
Clive Parry, "The Function of Law in the International Community", in Max Sorensen (ed.),
Manual ofPublicInternationalLaw,p. 1.
See Malcolm Shaw, International Law, 5" Edition, 2003, Cambridge University Press, pp.
232=241.
domestic law of Ghana. The approach, first, will be the discussion
of both the sources of public international law and Ghanaian
(municipal) law, and in connection with that, how international
obligations arise for States in the first place. From there, we will
focus on the theory and practice of the relationship between public
international law and municipal (domestic) law. We will then
examine the Ghanaian legal landscape in order to determine how
public international law can fmd application in the domestic law.
From that examination, we will then focus on the decisions
rendered by the Supreme Court of Ghana involving questions as to
the status of public international law in the domestic law of Ghana.
Have the courts applied public international law directly or merely
as interpretative guides?
THE SOURCES OF PUBLIC INTERNATIONAL LAW
Though difficulties surround the meaning of the term "sources" as
used in international law as methods of law creation in the
international community one may identify, impliedly, Article 38 (1)
of the Statute of the International Court of Justice (IC) as
signalizing what the sources of international law are.3 That Article
provides:
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
States;
(b) international custom, as evidence of a general practice
accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of th
various nations, as subsidiary means for the determination of
rules of law.
International Conventions
"International conventions" stipulated in Article 38 (1) (a) are
essentially treaties which are defined in Article 2 of the Vienna
3
Ibid.,pp. 65-119.
Convention on the Law of Treaties of 19694 as "international
agreement (s) concluded between States in written form and
governed by international law". A State does not become a party to a
treaty until it expresses its consent to be bound, and according to
Article 10 of the Convention, this consent could be expressed in a
variety of ways- "signature, exchange of instruments constituting
a treaty, ratification, acceptance, approval or accession, or by any
other means if so agreed".
a. Signature
Traditionally, international law has accepted that signature, or
signing, was a manifestation to be bound to a treaty. Since
sovereignty resided in the monarch, it was a meaningful proposition
to accept that he had the authority to unilaterally bind his nation to
treaties through signature. Today, of course, continuation of the
identification of a monarch or other head of State with the State
itself is no longer a meaningful proposition. Modern State
constitutions have made it clear that sovereignty does not reside
with the monarch or Head of State. It is in this instance that Article 1
(1) of the Constitution of the Fourth Republic of Ghana
(Promulgation) Law, 1992, provides that: "The sovereignty of
Ghana resides in the people of Ghana in whose name and for whose
welfare the powers of government are to be exercised in the manner
and within the limits laid down in this Constitution".
Yet, by Article 12 of the Vienna Convention, consent to be bound by
a treaty may be expressed through a nation's signature of the treaty.
This manner of consent is only admissible when provided for in the
treaty or in the mandate of the representatives. Initialling the text of
a treaty which involves appending the initials of the negotiators at
the bottom of each page or at the end of the treaty, may also
constitute a signature of the treaty when it is established that the
negotiators so agreed. It sometimes happens that a signature is only
of qualified effect. Thus, it may be appended ad referendum, i.e.
subject to confirmation by the representative's State; in which case
the subsequent confirmation constitutes the original signature a full
signature of the treaty; or it may be subject to ratification, in which
case the State's consent to be bound will not be effective until the
4
5
1155U.N.T.S.331.
See Ian Brownlie, PrinciplesofPublic InternationalLaw, 6 Ed. (2003), p. 582.
treaty is later ratified, although even before that the treaty is not
wholly without effect for a signatory State.6
Some treaties are constituted by an exchange of instruments. In
these cases the consent of States to be bound is expressed by the
exchange itself if the instruments so provide or if it is otherwise
agreed by those States that the exchange should have that effect.
b. Ratification
Ratification, under traditional international law, referred to the
monarch's confirmation that his agent had authority in signing a
treaty.7 Today, "ratification" is defined in Article 11 of the Vienna
Convention as "the international act so named whereby a State
establishes on the international plane its consent to be bound by a
treaty". Ratification in this context then is different from
ratification as an internal procedure of approval by Parliament. As
the International Law Commission's Commentary on that article
states: "Parliamentary 'ratification' or 'approval' of a treaty under
municipal law is not, of course, unconnected with 'ratification' on
the international plane, since without the necessary constitutional
authority to perform the international act of ratification may be
lacking. But it remains true that the international and constitutional
ratifications of a treaty are entirely separate procedural acts carried
out on two different planes". 8
Constitutional ratification of a treaty, as we have just indicated, is
an internal procedure of approval by Parliament. Thus, in the case
of Ghana which we discuss in some detail below, the 1992
Constitution in Article 75 (2) requires Parliament to ratify treaties
"executed by or under the authority of the President". Ratification
on the international plane, on the other hand, is carried out by the
deposit of an instrument of ratification of a treaty which requires
that before the deposit, it is necessary for the State to have adopted
all the laws allowing it to implement the provisions of the treaty.
While international ratification, therefore, assumes that signature
may not manifest the consent to be bound to a treaty, the contention,
however, is made that signing does impose certain obligations on
6
See CurtisA. Bradley, "Unratified Treaties, Domestic Politics, and the U.S. Constitution", Vol. 48
No. 2, HarvardInternationalLawJournal,(2007), p.3 0 7 .
7
Ibid. pp.31 3 -3 14 .
8
Yearbook of the InternationalLawCommission, 1966, Vol. 11, p. 197.
the signatory country. This contention is based on Article 18 of the
1969 Vienna Convention, which states that a State that signs a treaty
is "obliged to refrain from acts which would defeat the object and
purpose" of the treaty :"until it shall have made its intention clear
not to become a party to the treaty".. In other words, signature
entails the obligation not to defeat the object and purpose of a treaty
prior to its entry into force, at least until the State has made its
intention clear not to become a party to the treaty. It is generally
accepted that an obligation in good faith to refrain from acts
calculated to frustrate the object of the treaty attaches to a State that
has signed a treaty subject to ratification. On a different level, but
also worthy of note, by the same Vienna Convention, in Article 27, a
State may not "invoke the provisions of its internal law as
justification for its failure to perform a treaty"!
c. Acceptance andapprovaloftreaties
Acceptance and approval mean in each case "the international act
so named whereby a State establishes on the international plane its
consent to be bound by a treaty". The purpose here is to help States
to avoid certain internal difficulties which they might experience if
they had to go through their constitutional procedures for
parliamentary ratification, and is thus often merely a simplified
alternative ratification. Where acceptance or approval follow
signature, their function is closely analogous to that of ratification,
and may express a State's consent to be bound by a treaty under
conditions similar to those which apply to ratification.
d. Accession
Accession is "the international act so named whereby a State
establishes on the international plane its consent to be bound by a
treaty". It is the normal procedure whereby a State which took no part
in the drawing up and adoption of a treaty may become a party to it.
International Custom
"International custom" is defined in Article 38 (1) (b) of the Statute
of the ICJ as "evidence of a general practice accepted as law".
9
The question as to whether Article 27 compels States to grant self-executing character to treaties
or that it establishes an obligation to put treaties over ordinary laws within the national legal
systems is answered below.
71
According to Shaw, it is possible by that definition "to detect two
basic elements in the make-up of a custom. These are the material
facts, that is, the actual behaviour of States, and the psychological
or subjective belief that such behaviour is 'law"'.' This classical
definition appears to be in accord with that which was formulated
by the ICJ in the North Sea ContinentalShelf Cases as follows:
Not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e., the existence of
a subjective element, is implicit in the very notion of the
opiniojuris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a
legal obligation. The frequency, or even habitual character
of the acts, is not in itself enough."
However, this classic formulation which discerns the two elements
has given rise to some difficulty, particularly the subjective
element which involves the delicate and uncertain process of
ascertaining the subjective convictions of state agents.'" The
problem was touched upon in the dissenting opinion of Judge ad
hoc Sorensen in the North Sea ContinentalShelf cases when he did
not find it necessary even to go into this question of opiniojuris.
According to him: "In view of the manner in which international
relations are conducted, there may be numerous cases in which it is
practically impossible for one government to produce conclusive
evidence of the motives which have prompted the action and policy
of other governments"." While some writers follow Judge ad hoc
Sorensen in denying altogether the necessity for the element of
opiniojurisin the creation of custom, others take the position that
the element can only be presumed to exist if a uniform practice is
proven, and this entails providing evidence of the repetition of
precedents. '4 What is argued by these writers, upon an examination
ofthe jurisprudence of the International Court of Justice, is that the
10
11
12
13
14
Malcolm Shaw,InternationalLaw,op.cit. p.70.
ICJReports(1969)p.3,atp.44.
Ibid.pp.80-84.
ICJReports(1969)p.260.
Michel Virally, "The Sources of International Law", in Max Sorensen (ed.), Manual of Public
InternationalLaw,p. 134.
Courtdoes not_"rest content with a presumption" In the view of
Virally, the Court "is concerned less with analysis of mental states
than with the examination and assessment of the facts proved. What
it seeks to determine is whether or not they disclose an effective
exercise by a state of a right, coupled with a recognition by another
state of a corresponding obligation"."
General principles of law
Essentially, the phrase "general principles of law recognized by
civilised nations" is distinguishable from the principles of
international law which connote those rules derived from custom or
treaty. Today, the term "civilized nations" has fallen into desuetude,
and if at all, the phrase can only mean "principles so general as to
apply within all systems of law that have achieved a comparable
state of development". 6 It is coming closer to this meaning that the
International Court has referred to "well-known" or "wellestablished principles" or principles which are "generally
recognised" or "admitted" such as the rule "that no one may be
judge in his own cause",17 orthat the judgement of ajudicial tribunal
is resjudicataand has binding force for the parties to a dispute, 8
Notwithstanding references to these principles by the International
Court, differing opinions exist as to what "general principles" as a
source of international law are. Some legal commentators take the
view that they constitute "a reservoir of principles which an
international judge is authorized by Article 38 to apply in an
international dispute, if their application appears relevant and
appropriate in the different context of inter-state relations".19 This is
a view not shared by others. Humphrey Waldock, for example,
considers that the task of the judge "is never a question of importing
into international law private law institutions 'lock, stock and barrel'
ready-made and fully equipped with a set of rules .....
not the
concrete manifestations of a principle in different national
14 Michel Virally, 'The Sources of I
15 Ibid..
16 Michel Virally, "The Sources of International Law", in Max Sorensen (ed.), Manual ofPublic
InternationalLaw, p.144.
17 Chorzow Factory Case, PCIJ Ser.A, No. 17, p.3 2 .
18 Effects of Awards of Compensation made by the United Nations Administrative Tribunal, ICJ
Reports, 1954, p. 53.
19 HumphreyWaldock, "General Course onPublic International Law", (1962-11)HagueRecueilp.
54.
systems-which are anyhow likely to vary-but the general
concept of law underlying them which ajudge is entitled to apply"."
The former approach may well call for a comparative study
embracing all municipal systems of law in order to determine what
principles are common to them, a task which may prove daunting
simply because judges are not experts on every national legal
system. From that point of view, it is more appealing, as argued by
Humphrey Waldock, that it is the common themes that run through
the many different national legal orders that a judge is required to
apply.
Judicial decisions and teachings of the most highly qualified
publicists
As we have already seen, judicial decisions, and teachings of the
most highly qualified publicists are to be used by the International
Court of Justice as subsidiary means for the determination of rules
of law. As such, they are not autonomous sources but are subsidiary
means, placed as they are not on the same plane as treaties,
international custom and general principles. The judicial decisions
stipulated inArticle 38 are those of the International Court ofJustice
to which reference is made to Article 59 of the Statute of the Court,
that "The decisions of the Court has no binding force except
between the parties and in respect of that particular case".
With respect to the teachings of publicists, which constitute the
other subsidiary means for ascertaining the rules of law, it is
important to note the requirement that such teachings must come
from the various nations or regions of the world. This requirement is
in tune with the other provisions of Article 38 "which link the
formation of international law with the notion of general consent".21
"Non-Article 38 Sources"
a)jus cogens
Within the changing structure and character of international law, a
question also arises whether Article 38 of the Statute of the ICJ is
20 Ibid.
21 Michel Virally, "The Sources of International Law", in Max Sorensen (ed.), Manual of Public
InternationalLaw,p.153.
exhaustive of all the "sources" of international law? On this
question, the widely accepted view is that it does not as
contemporary international law admits of other "sources", namely,
acts and decisions of international organisations, unilateral
declarations, draft articles of the International Law Commission
andjus cogens or peremptory norms of general international law. In
particular, in the current debate, jus cogens has acquired a
significance in the hierarchy of the "sources" of international law,22
As provided in Article 53 of the Vienna Convention on the Law of
Treaties: "[a] treaty is void, if at the time of its conclusion, it
conflicts with a peremptory norm of general international law".
Article 53 then defines jus cogens as ".a peremptory norm of
general international law... accepted and recognised by the
international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character".
Jus cogens then, is different from customary international law.
With the latter, as defined in Article 38 of the Statute of the ICJ, it is
the generality of the practice of States accepted as law that matters.
By contrast,jus cogens requires that a peremptory norm of general
international law be "accepted and recognized by the international
community of States as a whole as a norm" .From this definitional
standpoint, clearly, a higher threshold of "acceptance" and
"recognition" is set forjus cogens. As further explained by Viljoen:
"Peremptory norms largely overlap (are virtually co-existent) with
obligations erga omnes and non-derogable rights. Norms become
peremptory when they have an erga omnes character, that is, when
they impose an obligation owed to the international community as a
whole. Put another way, the breach of peremptory norms gives rise
to obligations erga omnes".23
b) Acts, decisionsandresolutionsofinternationalInstitutions
Within international institutions, such as the United Nations, acts,
decisions and resolutions are taken in pursuance of the powers
conferred on their various organs. The proliferation of these
22 Malcolm Shaw, InternationalLaw,pp. 15-119.
23 Frans Viljoen, InternationalHumanRights Law inAfrica, OxfordUniversityPress, (2007), p. 28.
institutions in recent times, the ever expanding scope of their
activities and their role in international relations, raise a question as
to the legal effects of the acts, decisions and resolutions of these
institutions. This question has been discussed extensively
particularly in relation to the General Assembly of the United
Nations for unlike the Security Council of that organisation which
can bind States with its decisions, 24 the UN Charter contains no
general provision regarding the legal effects of General Assembly
resolutions. But such resolutions incorporating declarations of
rights or principles such as the 1948 Universal Declaration of
Human Rights25 and the 1960 Declaration on the Granting of
Independence to Colonial Territories and Peoples26; or interpreting
the rules or principles of the UN Charter may, if adopted by a
substantial majority verging on unanimity or by acclamation, such
as the 1970 Declaration on Principles of International law
concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations27, lead to the
creation of customary rules or be evidence that it is already formed.
In the Nicaragua Case, the International Court of Justice accepted
that the opinio juris is essential to the creation of customary
international law, and pointed out that:"The opinio juris may,
though with all due caution, be deduced from, inter alia,the attitude
of the Parties [i.e. the US and Nicaragua] and the attitude of States
towards certain General Assembly resolutions, and particularly
resolution 2625.....,28 Further, in its view, "The effect of consent to
the text of such resolutions.... may be understood as an acceptance
of the validity of the rule or set of rules declared by the resolution by
themselves. '29
This tentative approach to the legal validity of General Assembly
resolutions by the Court necessarily leads one to take a more
cautious view of the effects of these resolutions and for that matter
those of other international organisations as well. What seems .
24 This is by virtue of Article 25 of the UN Charter, which provides: "The Members of the United
Nations agree to accept and carry out the decisions of the Security Council in accordance with the
present Charter".
25 General Assembly Resolution 217 (111) of 10 December 1948.
26 GeneralAssembly Resolution 1514 of 14 December 1960.
27 General Assembly Resolution 2625 (XXV) of24 October 1970.
28
29
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), (United
States v. Nicaragua), IC.JReports 1986, p. 14 at pp.99-1 00.
lbid. p.100.
worthy proposition, though, is that acts, resolutions, declarations
voted for by overwhelming majorities and in a consistent manner
may amount to state practice and thus create rights and obligations
for States.
c) Unilateral acts ofStates
A classic formulation of the legal significance of unilateral acts of
States is that made by Virally, as follows:
The principle of the sovereign equality of States precludes a
State from imposing, by its own act alone, obligations upon
others without their consent. But, by the same token, it will
permit the unilateral creation of rights for others, of which
the counterpart will be duties binding upon the actor,
although the beneficiaries of such rights need not exercise
them. In the absence of a rule to the contrary, however, a
unilateral act may be revoked or annulled by the actor. Such
rights as it purports to confer upon third parties will then
become definitive only when the possibility of such
revocation or annulment ceases for some reason, such as
acceptance or exercise of the rights by the parties
interested."
This formulation looks essentially to such unilateral acts from the
point of view of legal obligations. That is, these acts in the form of a
declaration concerning a legal or factual situation may create legal
obligations for the State making the declaration when made with
the intent to be bound as was declared in the Nuclear Test cases."
On another level, various examples of the unilateral acts of States
of a substantial nature, such as declarations, written or oral;
recognition; promise; renunciation; and protest, other than the acts
of other subjects of international law, especially those of
international organisations, including judicial bodies; acts which
are outside the purview of international law (political acts);
wrongful acts and acts which under international law may engage
the international responsibility of States; have been provided,
particularly during discussions on the topic in the International
30 Michel Virally, "The Sources of International Law", in Max Sorensen (ed.), Manual of Public
InternationalLaw,p. 155..
31 Nuclear Tests (Australia v. France, New Zealand v. France, Judgement, ICJ Reports 1974, pp. 2 5 3
and 457.
Law Commission.32 The Commission has also established that in
principle unilateral conduct of States can produce legal effects,
whatever form that unilateral conduct might take. However, no
conclusions have been reached in the Commission on questions
relating to the variety of unilateral acts and their legal effects, the
importance of circumstances in assessing their nature and effects,
their relationship to other obligations of their authors under
international law and the conditions of their revision and
revocability.3
d) Draftarticlesof the InternationalLawCommission
Originating in Article 13 (1)(a) of the United Nations Charter is the
International Law Commission which was established by the
General Assembly in its Resolution 174 (11) of 21 November 1947
and is composed of persons "of recognised competence in
international law". The Commission is tasked with "the promotion
of the progressive development of international law and its
codification" and towards the fulfilment of this function has drafted
several conventions, such as the Laws of the Sea in 1958 and 1982,
Diplomatic Relations in 1961, Consular Relations in 1963, the Law
of Treaties in 1969 and the 1997 Convention on the Law of the NonNavigable Uses of International Watercourses. The question is
whether the drafts prepared by the Commission can be considered
as a source of international law. Some proponents, notably
Lauterpacht, take the view that they may at least ,)eput "in the
category of writings of the more qualified publicists" under Article
38 (!1) (c) of the ICJ Statute.34 Shaw, while recognising this
subordinate function within Article 38, also considers that the
Commission's work may be "part of the whole range of state
practice which can lead to new rules of customary law" and that its
drafts, indeed, may constitute evidence of custom as well as
contribute to the corpus of usages which may create new Law"'
32 See First Report on Unilateral Acts of States by Victor Rodrigues Cedeno, Special Rapporteur,
Document A/CN.4/486, 5 March 1998. See also Eight Report on Unilateral Acts of States by
Victor Rodrigues Cedeno, Special Rapporteur, DocumentA/CN.4/557.26 May 2005.
33 See Official Records of the General Assembly, Sixtieth Session, Supplement No. 10 (A/50/10,
paras.328-331.
34 E. Lauterpacht, ed. InternationalLawBeing the CollectedPapersofHersch Lauterpacht(1970).
Vol. I,p.44 5 .
35 Malcolm Shaw, InternationalLaw,p. 113.
e) "Softlaw"
As is the case with United Nations General Assembly resolutions,
other international instruments such as "Guidelines", "Codes of
Conduct", "General Comments", "Concluding Observations", etc.
are not expressed to be sources of international law within Article
38 of the ICJ Statute. They can best be described, in the opinion of
some writers as "soft law", that is they "are rules of conduct that do
not create legal obligations".36 In this sense, they are to be
distinguished from "hard law", that is, the full-fledged legal rules of
treaties and custom. While formally non-binding, "soft law",
nonetheless, has acquired some legal significance in the system of
international law. The concept is useful, as noted by Harris "to
describe instruments that clearly have an impact in international
relations and that may later harden into custom or become the basis
of a treaty". 31
,
THE SOURCES OF GHANALAW
From the foregoing, we have identified and examined what the
sources of public international law are. In the discussion which
follows, we seek to find out if these sources are also expressed to be
part of the sources of Ghana law.
The laws of Ghana, according to Article 11, clause 1, of the 1992
Constitution of the Republic of Ghana, comprise the following:
(a) this Constitution;
(b) enactments made by or under the authority of the Parliament
established by this Constitution;
(c) any Orders, Rules and Regulations made by any person or
authority under a power conferred by this Constitution;
(d) the existing law; and
(e) the common law.
a) The 1992 Constitution
The 1992 Constitution of Ghana is formally recognised as the
highest source of law in Ghana. This is by virtue of Article 1 (2) of
that Constitution which provides as follows:
36 Frans Viljoen, InternationalHuman Rights Law in Africa, Oxford University Press, (2007) p. 28.
37 D. J. Harris, Cases and Materials on InternationalLaw, 5 Ed. p.65. See also van Hoof,
Rethinking the Sources ofInternationalLaw (1093) pp. 187-189. For criticism of "soft law", see
Sztucki, inFerstkriftHjerner(1990)inD. J. Harris, ibid. pp. 64-65.
T
This Constitution shall be the supreme law of Ghana and
any other law found to be inconsistent with any provision of
this Constitution shall, to the extent of the inconsistency, be
void.
Case law in Ghana has affirmed the fundamental nature and
supremacy of the 1992 Constitution in the Ghanaian jurisdiction.
Thus, in Mensima v. Attorney-General, the Supreme Court of
Ghana, held:
Article 1 (2) of the 1992 Constitution is the bulwark which
not only fortifies the supremacy of the Constitution but also
makes it impossible for any law or provision inconsistent
with the Constitution to be given effect to ........
b) Legislation (Acts ofParliament)
Another major source of law in Ghana is legislation (i.e Acts of
Parliament). The power to make legislation is vested in Parliament
which "can create not only new laws but also alter or repeal existing
laws as well as affect the existence and content of other sources of
law".3 9However, by Article 93 (2) of the Constitution, this power is
exercised in accordance with the provisions of the Constitution. To
buttress this limitation on the power of Parliament are Articles 1 (2)
(set out above) and 2(1) of the Constitution which provides as
follows:
Aperson who alleges that(a) an enactment or anything contained in or done, under
the authority of that or any other enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision
of this Constitution, may bring an action in the Supreme
Court for a declaration to that effect.
The Supreme Court in a number of cases has emphasised the lack of
legislative supremacy of Parliament as indicated by those articles
of the Constitution. In New Patriotic Party v. Attorney-General
(31s"DecemberCase), the Court held, in regard to Article 1 (2), that:
... even though Parliament has the right to legislate, this
right is not without limit, and the right to enact a law that 4
38 [1996-97]SCGLR676atp.71239 E.K. Quansah, The GhanaLegal System, (2011), p.135.
80
June and 31 December should be declared public holidays
cannot be left to linger in the realm of public policy. Such
legislation must be within the parameters of the power
conferred on the legislature, and under Article 1 (2) of the
Constitution, 1992 any law found to be inconsistent with
any provision of the Constitution (the supreme law) shall, to
the extent of such inconsistency, be void.'
Similarly, with regard to Article 21) the Court in Mensima v.
Attorney-Generaldeclared that Regulation 3(1) of the Manufacture
and Sale of Spirits Regulations, 1962, Legislative Instrument 239,
which made it mandatory for an applicant "for the issue of a
distiller's license" to belong to a registered cooperative, was
inconsistent with the letter and spirit of the 1992 Constitution,
particularly the exercise of their fundamental right of freedom of
association guaranteed under the Constitution. In the words of the
Court: "Article 1 (2) contains a built-in repealing mechanism which
automatically comes into play whenever it is found that a law is
inconsistent with the Constitution. It therefore follows that the
submission based on the fact that (regulation 3 (10...of LI 23 9 [has]
not specifically been repealed, and [is] therefore valid,
misconceives the effect and potency of Article 1 (2)
and thereby
41
underrates the supremacy of the 1992 Constitution.,
c) Orders,Rules andRegulations
As stated above, Article 11 of the 1992 Constitution includes as
sources of law any Orders, Rules and Regulations "made by any
person or authority under a power conferred by this Constitution".
As subsidiary legislation (also referred to as "delegated" or
"subordinate" legislation), these Orders, Rules and Regulations are
made by a subordinate body, such as a Minister of State, under the
authority of Parliament or the Constitution usually through the
delegation of the legislative power in a statute. 42ByArticle 11 (7) of
the Constitution, these Orders, Rules and Regulations, to be
effective, must fulfil three requirements which include: (a) their
being laid before Parliament, (b) their being published in the
Gazette on the day they are to be laid before Parliament, and (c)
their coming into force at the expiration of twenty-one sitting days
40 [1993-94]2GLR35at 137-138.
41 Mensima v. Attorney-General,op. cit. p. 7
42 SeeE..K.Quansah,op.cit.,p.143-146.
13
.
jr81
after being so laid before unless Parliament, before the expiration
of the twenty-one days, annuls the Order, Rule or Regulation by the
votes ofnot less than two-thirds of all the members ofParliament.
d) The ExistingLaw
By Article 11 (4) of the 1992 Constitution, the "existing law" is
stated to comprise "the written and unwritten laws of Ghana as they
existed immediately before the coming into force of this
Constitution, and any Act, Decree, Law or statutory instrument
issued or made before that date, which is to come into force on or
after that date". Further, Article 11(5) of the Constitution provides
that the existing law "shall not be affected by the coming into force
"of the Constitution and that by Article 11 (6), it (existing law)
"shall be construed with any modifications, adaptations,
qualifications and exceptions necessary to bring it into conformity
with the provisions of the Constitution".
',41
e) The Common Law
According to Article 11 (2) of the 1992 Constitution, the "the
common law of Ghana" comprises "the rules of law generally
known as the common law, the rules generally known as the
doctrines of equity, and the rules of customary law including those
determined by the Supreme Court of Judicature".' The interpretation
put on the phrase "common law of Ghana" is that it consists of the
received English common law and the doctrines of equity "as
assimilated to the circumstances of Ghana through the years that
justice has been administered according to the English law, and the
and are contained in the body of
customs that have passed the test .....
4
case law on the subject . From that interpretation, the common law
of Ghana acquires a meaning different from the received English
common law.46 Not only does it comprise the received English
common law, it includes as well "customary law".
43
SeeEllisv.Attorney-General[2000] SCGLR24.
44 Section 17 ofthe Interpretation Act, 1960, C. A. 4. since repealed by the Interpretation Act, 2009
(Act 792), provided that: "The common law as comprised in the laws of Ghana, consists, in
addition to the rules of law generally known as the common law, of the rules generally known as
the doctrines of equity and of rules of customary law included in the common law under any
enactment providing for the assimilation ofsuch rules ofcustomary law as are suitable for general
application".
45
N. A. Ollennu, "The Influence ofEnglish Law on WestAfrica", (1961) 5 JournalofAfrican Law,
p. 1 at p.34. Quoted in E.. K. Quansah, op. cit., p.148
46 See E.. K. Quansah, op. cit., pp. 148-152.
Now, as far as "customary law" is concerned, Article 11 (3) of the
Constitution defines it as "the rules of law which by custom are
applicable to particular communities in Ghana". In giving a
meaning to this source of law in Ghana, Section 18 (1) of the
Interpretation Act, 1960," 7 since repealed, defined "customary law
as consisting "of rules of law which by custom are applicable to
particular communities in Ghana, not being rules included in the
common law under any enactment providing for such assimilation
of such rules of customary law as suitable for general application"."
The new Interpretation Act, 2009 (Act 792) has no such definition
of "customary law". However, as noted by Quansah, "the definition
in the 1960 Act has been so time-honoured that it is difficult to
depart from".49
j) Comment on Public InternationalLaw and the Sources of
Ghana Law
Clearly, from the discussion so far, public international law is not
denoted to be one of the sources of Ghana law as prescribed by
Article 11 of the 1992 Constitution of Ghana. What the Constitution
does in Article 40, in Chapter Six enunciating the Directive
Principles of State Policy, is to express how the Government of
Ghana should conduct its international relations, and not the
functioning of its municipal legal order. That Article provides:
In its dealings with other nations, the Government shall(a) promote and protect the interests of Ghana;
(b) seek the establishment of a just and equitable international
and social order;
(c) promote respect for international law, treaty obligations and
the settlement of international disputes by peaceful means;
(d) adhere to the principles enshrined in or as the case may be, the
aims and ideals of(i) the Charter of the United Nations;
(ii) the Charter of the Organisation ofAfrican Unity;
(iii) the Commonwealth;
(iv) the Treaty of the Economic Community of West African
States; and
(v) any other international organisation of which Ghana is a
member.
47
48
49
C.A.4.
See E.. K. Quansah, op. cit., pp. 150-152 for a discussion on the meaning of "customary law"
Ibid., p. 1 50, note 94.
Similarly, under the "International Relations" provisions ofArticle
73 of the Constitution, it is expressed that: "The Government of
Ghana shall conduct its international affairs in consonance with the
accepted principles of public international law and diplomacy in a
manner consistent with the national interest of Ghana". Towards
conducting international relations, treaties are signed for Ghana by
the President and his agents. As a result, any international
obligations that Ghana would incur as a result of signing a treaty
would be triggered by unilateral executive action. However, these
international obligations cannot have effect in the domestic
jurisdiction or form part of Ghanaian law. What is required, as we
shall see shortly, is the ratification or approval by the Parliament of
Ghana either in the form of an Act of Parliament or by resolution to
effect these treaty obligations in Ghanaian law. Meanwhile, it is
worthy of note the decision of the Supreme Court of Ghana in In
The Matter Of An Application To Invoke The Supervisory
JurisdictionOf The Supreme CourtArticles 88 (6) And 132 Of The
1992 Constitution, Rule 61 Of The Supreme Court Rules, 1996
(C.116)50 which held:
Neither of these two constitutional principles [i.e.
Articles 40 and 73 of the 1992 Constitution] is to be
interpreted as altering the dualist stance of
Ghanaian law. They do not authorize the courts to
enforce treaty provisions that change rights and
obligations in the municipal law of Ghana without
legislative backing. If the law were otherwise, it
would give the Executive an opportunity to bypass
Parliament in changing the rights and obligations of
citizens and residents in Ghana.51
Examining the significance of these provisions in his article on the
place of international human rights norms in the courts of Ghana.
Dr. Appiagyei-Atua concedes too that unlike other constitutiol.,
such as that of South Africa, the Constitution of Ghana contains no
specific provisions on the use of international law as an
50
See Civil Motion No. JS/10/2013: In the Matter of An Application to Invoke the Supervisory
Jurisdiction of the Supreme Court. Articles 88(6) and 132 ofthe 1992 Constitution, Rule 61 ofthe
Supreme Court Rules 1996 (C.I. 16); The Republic vs. High Court. Commercial DivisionAccra.
Ex Parte; Attome General (Applicant), NML Capital Ltd (0 Interested Party): The Republic of
Argentina (2' Interested Party), 20 June, 2013. Coram: Date-Bah, Dotse, Yeboah, Gbadegbe,
AkambaJJSCs.
51 Ibid. p. 7. See below for discussion of the case.
"interpretative guide".52 However, he contends that a "contextual
analysis" of those provisions will yield a similar result. Here, Dr.
Appiagyei-Atua relies on Article 34, Clause 1, of the Constitution
which provides that the Directive Principles "shall guide all
citizens, Parliament, the President, the Judiciary, the Council of
State, the Cabinet, political parties and other bodies and persons in
applying or interpreting this Constitution or any other law and in
taking and implementing any policy decisions, for the
establishment of ajust and free society". If, as further contended by
that writer, the Directive Principles "could be relied on in the
interpretation of the Constitution .......
then it could also be used in
the interpretation of international law". 3 Dr. Appiagyei-Atua finds
support from other sources including what he conceives of as treaty
sources and the emerging jurispradence of the Supreme Court of
Ghana to buttress his arguments. 4
Essentially, the views of Dr. Appiagyei-Atua on international
human rights norms are largely in support of the plea for the
application of those norms in the domestic courts of Ghana.
However, even as an interpretative guide, it should be noted that the
courts in Ghana have a very well developed system of rules of
interpretation. And arguably, before referring to norms of
international law as an aid to interpretation, the courts will have
regard to known rules of interpretation, which provide a complete
basis for interpretation.5 This appeared to have been the motivation
of Atuguba JSC when, commenting on whether a claim for
diplomatic immunity from legal proceedings overrides the
constitutional right of an accused person to fair trial under Article
19 (2) (g) of the 1992 Constitution of the Republic of Ghana in
Tsatsu Tsikata v. The Republic,56 discussed hereunder, said: "I do
not pretend to know International Law. But whatever it is, I do not
think that the matter of mischief or purposive rule of construction
can be excluded from it". 7 The learned Judge's apprehensions,
notwithstanding, recent decisions of the Supreme Court which we
examine in this article also show that the Court has not disregarded
52 K. Appiagyei-Atua, "Ghana at 50:The Place of International Human Rights Norms in the
Courts", in GhanaLaw Since Independence-History,Development andProspects, Publication
for Faculty of Law, University of Ghana, Legon (2007), p. 179 at p. 198.
53 Ibid. P.199.
54 See infra
55 See in this connection, Asare v.Attorney-General/2003-2004]2 SCGLR 823 where the Supreme
Court examined the broad parameters of constitutional and statutory interpretation.
56 [2011]1SCGLR1.
57 Ibid.,pp.9-10.
completely the possibility of norms of international human rights
law being used in respect of human rights when it comes to
interpreting statutes. But, before that examination, our attention
will be given to how international law can find application in
Ghanaian law without it having been expressly provided, and this
merits a discussion of the relationship between international law
and municipal (domestic) law.
THE RELATIONSHIP BETWEEN PUBLIC
INTERNATIONAL LAW AND DOMESTIC LAW:
GENERAL DISCUSSION
Theory
The discussion on the relationship between international law and
domestic law has so far centred on the two theories-monism and
dualism.58 Monism or the monist approach stresses the unitary
concept of law and views international law and domestic law as an
"integral part of the same system". By this approach, international
law automatically becomes part of domestic law; treaties, for
instance, have full legal effect in the domestic legal order without
any legislative action. Some monists even proffer the view that
should international law conflict with domestic law, the former
should prevail. 9 By contrast, dualism or the dualist approach posits
that public international law has no influence on national law as
such and the content of a rule of international law becomes part of
national or domestic law only when it is incorporated or
transformed into national law. This view is further amplified by
Akehurst's words: "International law as such can confer no rights
cognisable in the municipal courts. It is only insofar as the rules of
international law are recognised as included in the rules of
municipal law that they are allowed in municipal courts to give rise
to rights and obligations".6O
In his discussion on the relationship, Fitzmaurice argues that the
"monist-dualist controversy is unreal, artificial and strictly beside
57 Ibid.,pp. 9-10
58 See Malcolm Shaw, InternationalLaw, op. cit. pp. 121-124, discussing these two theories. See
also Richard Frimpong Oppong, "Re-Imagining International Law: An Examination of Recent
Trends in the Reception of International Law into National Legal Systems in Africa", Vol. 30
Fordham InternationalLaw Journal,p.296.
59 Ibid. p.122.
60 James Atkins, Baron Atkins in M. Akehurst, Modern Introduction to InternationalLaw, Harper
Collins, London, p. 45.
the point, because it assumes something that has to exist for there to
be any controversy at all-and which in fact does not
exist-namely a common field in which the two legal orders under
discussion both simultaneously have their spheres ofactivity".6
From the point of view of other writers, the question of the
relationship between public international law and municipal law
can only be properly determined by the status accorded public
international law by a particular domestic legal system.62
There is a sense, in our view too, in which the theoretical debate flies
in the face of practice because the formal questions raised in the
relationship tend to be answered by state practice and what view of
international law the national courts will take. In the words of
Danfred Titus:
It is the judge who will have to give effect to rules of
international law which are contrary to domestic law
or not, i.e. to determine the self-executory nature of
the provisions. Whether the judge will give effect to
these rules will depend on the constitutional order
itself and on the approach of the judge to the
relationship between the international legal order
and the national legal order. This approach will be
largely determined by the attitude of the particular
State and the subsequent legislation arising from
such attitude.63
Practice
Different approaches and practices exist with regard to the
applicability of public international law to national legal orders. As
regards customary international law, the English approach is to
apply that law as part of the common law. The approach dates back
to the eighteenth century when Lord Talbot in 1737 stated in Buvot
v. Barbuit:"the law of nations in its full extent was part of the law of
61 G. Fitzmaurice, "The General Principles ofInternational Law Considered from the Standpoint of
the Rule of Law", (1957-11) 92 HagueRecuei, p.5 atp. 70.
62 See Karl J. Partsch, "International Law and Municipal Law", Encyclopedia of Public
InternationalLaw,Vol. 10, pp. 238-257.
63 Danfred J. Titus, The Applicability of the InternationalHuman Rights Norms to the South African
Legal System-Vith Specific Reference to the Role of the Judiciary, 1993, T. M. C. Asser
Instituut, The Hague, p. 7 .
87
England .... that the law of nations was to be collected from the
practice of different nations and the authority of writers". 4 This rule
has gone through several transformations over the years, but in
essence, the rule is an acknowledgement that as customary
international law is decisive of the propriety of the conduct of
England in its external relations, that law is necessarily local to
itself, and is, therefore, something to be applied as such by its
tribunals as part of the common law of England.65
In contradistinction tq customary international law, the English
practice in relation to the place of treaties in the domestic law is
conditioned by a balance of power between the executive and the
legislature. In Maclain Watson v. Department of Trade and
Industry,the English House of Lords, through Lord Oliver held:
As a matter of the constitutional law of the United
Kingdom, the royal prerogative whilst it embraces
the making of treaties does not extend to altering the
law or conferring rights on individuals or depriving
individuals of rights which they enjoy in domestic
law without the intervention of Parliament. Treaties,
as it is sometimes expressed, are not self-executing.
Quite simply, a treaty is not part of English law
unless and until it has been incorporated into the law
by legislation.66
Other jurisdictions have followed this practice. The Appellate
Division through Lord Atkin held in the Canadian case ofAttorneyGeneralforCanadav. Attorney-GeneralforOntariothat:
The question is not how is the obligation formed,
that is the function of the executive, but how is the
obligation to be performed; and that depends upon
the authority of the competent legislature or
legislatures ....... It will be essential to keep in mind
the distinction between (1) the formation, and (2)
the performance, of the obligations constituted by a
treaty, using that word as comprising any agreement
between two or more sovereign States. Within the
64 (1737) Cases t.
Talbot 281.
65 See, Malcolm Shaw, International Law, op.cit. pp. discussing acceptance of customary
international rules as part and parcel of the common law ofEngland through a line of cases.
66 (1989)3ALL.ER523,531;81ILRpp..671,684.
British Empire there is a well-established rule that
the making of a treaty is an executive act, while the
performance of its obligations, if they entail
alteration of the existing domestic law, requires
legislative action.67
Also, in South Africa, the Appellate Division through Lord Steyn
held in PanAmerican WorldAirways Incorporatedv. SA Fireand
Accident InsuranceCo. Ltd that:
In this country the conclusion of a treaty, convention
or agreement by the South African government with
any other government is an executive and not a
legislative act. As a general rule, the provisions of an
international instrument so concluded, are not
embodied in our law except by legislative
process.. .In the absence of any enactment giving
[its] relevant provisions the force of law, [it] cannot
affect the rights of the subject.6"
In the Federal Republic of Nigeria, this so-called dualistapproach
was given recognition in Chief Gani Fawehinmiv. GeneralSani
Abacha (The Head ofState andCommander-in-Chiefof Nigeria)
when the Court of Appeal, per Ignatius Chukwudu Pats-Acholonu,
J.C.A. considered that:
The most portent determinant in theory and practice
of assimilation and incorporation.... is the adoption
and incorporation and enforceability of it into the
municipal lex civilis..... Where there is no
enactment to give effect to the spirit of a treaty
notwithstanding its adoption and recognition, and
due regard by a sovereign government, it cannot be
justiciable in a municipal court.69
As regards the so-called monist States, following French
constitutional law, international law forms an 'automatic" part of
national law, meaning that municipal courts have to apply directly
treaties ratified without any adoption of laws by the legislature.
Under Article 53 of the 1958 Constitution of France, for example,
67 (1937)AC 326,347.
68 [1965](3)SA150Aatpp.161C-161D.
69 [199619 Nigerian Weekly Law Reports 711 at756
89
there is no requirement of legislative intervention and treaties take
effect automatically in the national legal order. Moreover, treaties
ratified have supremacy and prevalence over domestic law, with the
exception of the constitution which is the supreme law of the land.
Thus, by Article 55 of the French Constitution, it is provided that:
"Treaties and or agreements duly ratified or approved prevail over
Acts of Parliament, subject, in regard to each agreement or treaty, to
its application by the other party". Similarly, the.2000 Rwandan
Constitution grants a superior place to treaties. By Article 190 of
that Constitution: "Upon their publication in the official gazette,
international treaties and agreements which have been conclusively
adopted in accordance with the provisions of law shall be more
binding than organic laws and ordinary laws except in the case of
non-compliance by one of the parties".7 °
With the foregoing overview of the sources of international law and
the theory and practice ofthe relationship between international law
and municipal law, the question now is to address the applicability
of international law to the domestic law of Ghana. Are treaties to be
explicitly incorporated or transformed by an Act of Parliament
before they become part of the national law of Ghana? What of
customary international law?
THE RELATIONSHIP BETWEEN PUBLIC
INTERNATIONAL LAW AND DOMESTIC LAW:
GHANAIAN PRACTICE
Treaties in the Domestic Law of Ghana
The question of the place of treaties in the domestic law of Ghana is
answered by the provisions of the 1992 Ghana Constitution which
inArticle 75 states:
1. The President may execute or cause to be executed treaties,
agreements and conventions in the name of Ghana.
2. A treaty, agreement or convention executed by or under the
authority ofthe President shall be subject to ratification by
(a)
Act of Parliament; or
(b) A resolution of Parliament supported by the votes of
more than one half ofall the members of Parliament.
70
See, also Article 98 of the 2001 Senegalese Constitution: "Treaties or agreements duly ratified
shall, upon their publication, have an authority superior to that ofthe laws, subject, for each treaty
and agreement, to its application by the otherparty".
90
>
Under this Article, the President makes or executes treaties but
legislative ratification is required of these treaties before they can
have effect in the domestic jurisdiction or form part of Ghanaian
law. Therefore, whilst the Constitution has assigned the treatymaking power to the Executive, there is the requirement of
ratification of treaties by Parliament because the Executive does
not legislate and since treaties are not self-executing, then a certain
amount of transformation effected by legislative intervention is
required to give treaties domestic effect. This dualist approach to
treaties which as we have said earlier is conditioned by a balance of
power between the executive and the legislature is taken from
English law. To sunimarise, on the question, therefore, of
transforming treaties into Ghanaian municipal law, it is under the
dictates of the Ghanaian Constitution, that there are the two
methods:
1. the provisions of a treaty, convention or
protocol may be embodied in the text of an Act
of Parliament; or
2. the treaty, convention or protocol may be
adopted in the form of a resolution by
Parliament supported by the votes of more than
one-half of all the Members of Parliament.
This means that the contents of treaties, conventions, protocols and
other international agreements become part of the national law only
when they are transformed or incorporated into national law.71 That
was the view held by the Court of Appeal of Ghana when in Armon
v. Katz, Apaloo J. as he then was, found that by reason of Section 1
of the Diplomatic Immunities Act, 1962, of Ghana, Article 32 (1)
and (2) of the Vienna Convention on Diplomatic Relations "has
statutory force in this country" This was also the view which was
strongly put across by Ampiah JSC in New Patriotic Party v.
Attorney-General(CIBA Case)when he stated:
The laws of Ghana are as set out in article 11(1) of
the Constitution. The Constitution is the Supreme
Law of Ghana. Consequently, laws, municipal or
71 See Guidelines for the Domestic Ratification of Treaties/Agreements/Conventions under the
Dualist Approach and for the Transformation of Treaties into National Legislation, in Republic of
Ghana TreatyManual,pp.3-6.
72 [1976]2GLR115at123,CA
otherwise which are found to be inconsistent with
the Constitution cannot be binding on the State
whatever their nature. Internationallaws, including
intraAfrican enactments, are not binding on Ghana
until such laws have been adopted or ratifiedby the
municipallaws. 3
Again, in In The Matter Of An Application To Invoke The
Supervisory JurisdictionOf The Supreme CourtArticles 88 (6) And
132 OfThe 1992 Constitution,Rule 61 Of The Supreme CourtRules,
1996 (C.116), the Supreme Court of Ghana, through Date-Bah, JSC,
(Presiding) held:
The mere fact that a treaty has been ratified by
Parliament through one of the two modes indicated
(in Article 75) .... does not, of itself, mean that it is
incorporated into Ghanaian law. A treaty may come
into force and regulate the rights and obligations of
the State on the international plane, without
changing rights and obligations under municipal
law. Where the mode of ratification adopted is
through an Act of Parliament, that Act may
incorporate the treaty, by appropriate language into
the municipal law of Ghana.74
International Custom in the Domestic Law of Ghana
International custom, as defined inArticle 38, paragraph 1 (b) of the
Statute of the International Court of Justice, is the generality of the
practice of States accepted as law. It means therefore that the
practices of States as furnished, for instance, by national legislation
and decisions of national courts are critical for establishing
international custom. In that sense it may be more apt to speak -_
state practices evidencing custom. A State necessarily becomes
bound by a rule of customary international law because it practices
the rule itself.
Now, unlike treaties, international custom as a source of
international law has no explicit place in the domestic law of Ghana
73
74
[1996-97] SCGLR729 761.
Op. cit. p. 4 .
under the provisions of the 1992 Ghana Constitution. Rather, what
is prescribed occurs in Article 11 of that Constitution which
mentions "customary law" as one of the sources of Ghana law.
"Customary law" here is defined to be "the rules of law which by
custom are applicable to particular communities in Ghana". 5
Even so, the possibility of customary international law becoming
part of the national law of Ghana, as argued by Appiagyei-Atua, is
opened up through "common law adoption".76 This argument is
based on Article 11 which defines the common law to "comprise the
rules of law generally known as the common law, the rules
generally known as the doctrines of equity and the rules of
customary law including those determined by the Superior Court of
Judicature". Since customary international law formed part of the
English common law, so the argument goes, then, it can be applied
directly by the courts. This argument further finds support in the
judgement given by the Supreme Court of Ghana in In The Matter
QfAn Application To Invoke The Supervisory JurisdictionOf The
Supreme CourtArticles 88 (6) And 132 Of The 1992 Constitution,
Rule 61 Of The Supreme Court Rules, 1996 (C.116), where DateBah, JSC, (Presiding) held:
......customary international law is part of Ghanaian
law, incorporated by the weight of common law
case law (for instance, Triquet v. Bath (1764), 3
Burr. 1478 (Court of King's Bench) and per Lord
Denning in Trendtex Trading Corporation v. Central
Bank of Nigeria [1977] QB 529 (Court of Appeal],
in Chung Chi Cheung v. The King [1039] AC 160,
the Judicial Committee of the Privy Council,
speaking through Lord Atkin, stated this common
law position as follows (at p. 168): "The courts
acknowledge the existence of a body of rules which
nations accept among themselves. On any judicial
issue they seek to ascertain what the relevant rule is,
and having found it, they will treat it as incorporated
into the domestic law, so far as it is not inconsistent
with rules enacted
by statutes or finally declared by
77
,
tribunals.
their
75 See, supra.
76 See K. Appiagyei-Atua, "Ghana at 50:The Place of International Human Rights Norms in the
Courts", in Ghana Law Since Independence-History,Development and Prospects, op. cit.
p. 1 8 3 .
77 Op. cit. p. 2.
In relation to this argument, it is important to note that the Supreme
Court Ordinance, Ordinance No. 4 of 187678 established the
Supreme Court of the Gold Coast (now Ghana) and vested it with
the jurisdiction in both the common law and equity. That was by
virtue of Section 14 of the Ordinance which, provided that: "The
common law, the doctrines of equity, and the statutes of general
application which were in force in England at the date when the
Colony obtained a local legislature, that is to say, on the 24 ' day of
July 1874, shall be in force within the jurisdiction of the Court".
However, by Section 17 of the Ordinance, this body of English law
applied "so far only as the limits of local jurisdiction and local
circumstances permit, and subject to any existing or future
Ordinances of the Colonial Legislature ......
The extent to which these two provisions have contributed to the
development of the common law of Ghana has been debated
extensively elsewhere and it is not the purpose to enter that debate
here.79 Yet, as we have seen when discussing "the common law of
Ghana" as one of the sources of law in Ghana, the Ghana common
law, in the view of a significant body of authority, has acquired a
status and meaning different from the received English common
law. That being so, only the received common law of England as at
1874 would be binding on the courts of Ghana to apply. Beyond that
date customary international rules as part and parcel of the common
law of England which to-day is applied by the Courts of England
may only be referred to by Ghanaian courts merely for their
persuasive quality. But, here, too, it is worthy of note that no
decision of the Ghanaian courts exists which has adopted this
approach.
Jus cogens as a "source" of International Law in the Domestic
Law of Ghana
Despite the growing importance of jus cogens in the international
legal order, it is noticeable that no decision has been rendered in the
Ghanaian courts applying it in the domestic law of Ghana. In Tsatsu
Tsikata v. The Republic,"° when the issue of jus cogens came up.
78
The full title of the Ordinance is: "An Ordinance for the Constitution of a Supreme Court, and for
other purposes relating to the Administration of Justice". The Ordinance was enacted on 31
March 1876 and came into effect on 4 April 1877. For a discussion on the Ordinance, see E.K.
Quansah, op. cit. pp. 56-59.
79 E.K. Quansah op. cit. p.59, note 41, draws attention to how "[t] his provision has been subjected
to numerous academic andjudicial discussions" and then cites many authoritative works.
80 [2011] 1 SCGLR
Sophia, Adinyira JSC responded to this issue:
The right to fair trial has been described in
international law asjus cogens, a peremptory norm
of general international law which is defined under
article 53 of the Vienna Convention on the Law of
Treaties as: "A norm accepted and recognized by the
international community of States as a whole as a
norm from which no derogation is permitted and
which can be modified only by a subsequent norm of
general international law having the same
character". Some other examples of jus cogens
norms are genocide, crimes against humanity and
slavery. Similarly, diplomatic immunities and
privileges accorded to diplomatic agents and
international organizations as provided by articles
22, 23, 24, and 27-40 of the Vienna Convention are
also assented to and recognized and adopted by the
international communities of States of which Ghana
is no exception". 81
Proceeding, then, to examine the relationship between Ghanaian
municipal law and international law, the learned judge stated:
Signing a treaty imposes a moral obligation on the
State not to do anything that would deviate from the
object and purpose of the treaty. A State becomes
legally bound to a treaty after ratification,
accession, acceptance, approval or signature when
the treaty so stipulates ....
In fulfilment of its
international obligations, Ghana has incorporated
into its domestic laws the Vienna Convention on
Diplomatic Relations. This domestic statute is the
Diplomatic Relations Act, 1962 (Act 148). These
provisions on diplomatic immunities and privileges
of the Vienna Convention as contained in the First
Schedule of Act 148, therefore have the full force of
law in our courts.82
From these pronouncements, it is not clear what status the learned
judge givesjus cogens beyond examining the application of treaties
to the municipal law of Ghana. Any such application ofjus cogens
81 Ibid.,p. 21-22.
82 Ibid., p. 22.
would, of course, be a source of great controversy since there exists
no status for this source of international law in the Ghanaian
constitutional order. It is perhaps anticipating this controversy that
one writer has proffered the view that "where it is manifestly clear
from external evidential sources that a particular practice by the
government is in clear violation of international legal norms, such
jus cogens or erga omnes norms, the Constitution will have to be
amended to reflect the generally accepted international law
position"." This, of course, only reinforces the view that this source
of international law, has no direct effect in the municipal law of
Ghana
THE APPROACH OF THE GHANAIAN JUDICIARY TO
THE QUESTION OF THE APPLICATION OF PUBLIC
INTERNATIONAL LAW IN THE DOMESTIC LAW OF
GHANA-SOME RECENT DECISIONS
This section will examine recent decisions of Ghanaian courts
where the question of the relationship of international law to
municipal law has been raised. The critical question that has come
to the fore from these decisions concerns the enforceability of
international instruments in the municipal legal order. The question
here is whether the courts have been guided by an approach that
draws a distinction, in the words of Viljoen "between judicial
reliance on an international treaty as a basis of a remedy, or
adjudication" in a domestic court ('direct enforcement'), and the use
of international agreements as an aid to interpretation of domestic
constitutions or ordinary laws ('interpretative guidance)?".84
85
New Patriotic Partyv. Inspector-General of Police
Since Ghana gained independence in 1957, though it has fallen on
the Supreme Court to render decisions in cases relating to the matter
of "human rights", human rights cases decided by the Ghanaian
courts have chiefly possessed a domestic character in the sense that
the solution of the questions involved have usually or frequently
been determined by reference to the constitutional law of Ghana. In
that solution, the Supreme Court has not, therefore, invoked
83 K. Appiagyei-Atua, "Ghana at 50:The Place of International Human Rights Norms in the
Courts", in Ghana Law Since Independence-History,Development and Prospects,op. cit. p.
203.
4
84 Frans Vi en, InternationaiHumanRights Law in Africa, Oxford University Press, (2007), p. 5 .
85
[1993-1994] GLRp.459.
international human rights norms either based on treaty or custom
orjus cogens.16 An interesting situation arose, however, in the New
PatrioticParty v. Inspector-Generalof Police Case where one of
the judges of the Supreme Court, Archer CJ, tested the propriety of
a legislative measure by reference to international human rights
norms.
The facts of the case were that the New Patriotic Party, a registered
political party in Ghana, brought an action against the Inspector
General of Police of Ghana for a declaration that Sections 7, 8, 12
(a) and 13 of the Public Order Decree, 1972 (NRCD 68) which
required, inter alia that a permit or the consent of the Minister for
the Interior or a police officer be obtained before citizens could
embark on a public demonstration or procession or celebration of a
custom were inconsistent with the letter and spirit of Article 21 (1)
(d) of the 1992 Ghana Constitution, which granted the citizen the
freedom of assembly, and were therefore void and unenforceable.
For the defence, it was submitted that Sections 7, 8, 12 (c) and 13 of
NRCD 68 constituted reasonable restrictions as were required by
Article 21 of the Constitution and that the said sections were in
accord with the spirit ofthe Constitution.
The Supreme Court, in a unanimous decision, found Sections 7 and
8 to be in violation of the Ghanaian Constitution. In the leading
judgment ofHayfron-Benjamin, JSC, the Court stated that:
In construing Article 21 (1) (d) and (4) of the
Constitution, 1992 therefore, it is clear that (1) the
concept of consent or permit as prerequisites for the
enjoyment of the fundamental human right to
assemble, process or demonstrate is outside the
purview. Sections 7 and 8 of NRCD 68 are
consequently patently inconsistent with the letter
and spirit of the provisions of Article 21 (1) (d) of
the Constitution, 1992 and are unconstitutional,
void and unenforceable, and (2) some restrictions as
are provided for by Article 21 (4) of the
Constitution, 1992 may be necessary from time to
time and upon proper occasion. But the right to
86 See K. Appiagyei-Atua, "Ghana at 50:The Place of International Human Rights Norms in the
Courts", in Ghana Law Since Independence-History, Development and Prospects, op. cit.
pp. 1 88-195.
assemble, process or demonstrate cannot be denied.
The sections of NRCD 68 which formed the basis of
the plaintiffs writ were ex facie unconstitutional,
void and unenforceable.87
Archer CJ, in additional remarks, touched upon the question of the
applicability of international human rights instruments by the
courts in Ghana in the following passages contained in his
reasoning. According to him:
Article 21 of our Constitution, 1992 guarantees
freedom of assembly, including freedom to take part
in processions and demonstrations. This provision is
in consonance with similar provisions in the United
Nations Charter on Human Rights although Ghana
was not a signatory in 1948 because it was a British
colony at the time. The Organisation of African
Unity has produced an African Charter on Human
and Peoples' Rights, Article 71 of which reads:
"Every individual shall have the right to assembly
freely with others. The exercise of this right shall be
subject only to necessary restriction provided for by
law in particular those enacted in the interest of
national security, the safety, health, ethnics and
rights and freedoms of others.88
Archer J. further commented:
Ghana is a signatory to this African Charter, and
member states of the Organisation of African Unity
and parties to the Charter are expected to recognise
the rights, duties and freedoms enshrined in the
Charter and to undertake to adopt legislative or other
measures to give effect to the rights and duties. I do
not think that the fact that Ghana has not passed
specific legislation to give effect to the Charter
means the Charter cannot be relied upon. On the
contrary, Article 21 of our Constitution, 1992 has
recognised the right of assembly mentioned in
Article 71 Of the Charter.
87 [1993-1994] GLRop.cit.p.509.
88 Ibid. p.4 66 .
It follows that Section 7 of the Public Order Decree,
1972 (NRCD 68) is not only inconsistent with
Article 21 (1) (d) of our Constitution, 1992 but is
also in contravention of Article 71 of the African
Charter on Human and Peoples' Rights adopted by
the Assembly of African Heads of State and
Government.89
These statements of Archer JSC have been viewed as "marking a
trend [which] should be adopted by the Courts" in human rights
cases. Dr. Appiagyei-Atua, supporting the learned judge, argues as
follows:
While Archer did not go further to explain why
Ghana should be bound by the UDHR, it has been
argued above that the UDHR can be considered as
part of the laws of Ghana. That should be Ghana's
approach to customary international law... 90
Again, in support of Archer on the place of unratified treaties in the
domestic law of Ghana, Atua argues as follows:
Unlike Nigeria and other African countries, Ghana
has not transformed the African Charter into local
laws. Yet, Archer's position is right. In fact, the
Charter could be considered as having attained the
status of a regional customary norm, having been
ratified by all African States. The Charter also stands
out as one of the cited regional human rights
instruments 91...
Archer's pronouncements and the support given him by AppiagyeiAtua may be criticized on numerous grounds. First, there appears a
certain confusion surrounding the status of what Archer refers to as
"the United Nations Charter on Human Rights" but which in fact is
the Universal Declaration of Human Rights (UDHR) adopted by
the United Nations General Assembly in 1948. Archer's position
that that instrument was subject to signature, therefore, is wrong
89 Ibid.
90
See K. Appiagyei-Atua, "Ghana at 50:The Place of International Human Rights Norms in the
Courts", in Ghana Law Since Independence-History,Development and Prospects, op. cit.
p. 1 9 6 .
91
Ibid.
since a resolution of the General Assembly does not require
signature as a treaty does. Moving away from the mistaken
characterization of the UDHR by Archer, Appiagyei-Atua's
arguments appear to be premised and dependent on the status of the
UDHR that the UDHR having acquired the status of customary
international law can also be considered as part of the national laws
of Ghana. 92 Granted that the UDHR has now assumed the character
of customary international law, and there is substantial support for
that proposition, that does not suggest that that law necessarily has a
status in the internal legal order of Ghana. That Article 21 of the
1992 Ghana Constitution is in consonance with the UDHR is
merely indicative of the state practice of Ghana, which together
with the practices of other States, forms the basis of international
custom in the conception of Article 38 of the Statute of the
International Court of Justice.
New Patriotic Party v. Attorney-General (CIBA CASE) 93
Opposing the approach adopted by Justice Archer in New Patriotic
Partyv. InspectorGeneralofPolice,we have the approach adopted
by Ampiah JSC in the New PatrioticParty v. Attorney-General.
According to him:
The laws of Ghana are as set out in Article 11 (1) of
the Constitution. The Constitution is the supreme
law of Ghana. Consequently, laws, municipal or
otherwise which are found to be inconsistent with
the Constitution cannot be binding on the State
whatever their nature. International laws, including
intra African enactments, are not binding on Ghana
until such laws have been adopted or ratified by the
municipal laws..."
Justice Ampiah would even go further when quoting Article 73 6.
the 1992 Ghana Constitution that the Government of Ghana shall
"conduct its international affairs in consonance with the accepted
principles of public international law and diplomacy in a manner
consistent with the national interest of Ghana", he suggests that:
"This is a principle of public international law which recognises the
92 Ibid.
93 [1996-97] SCGLR729.
94 Ibid.p. 761.
100
sovereignty of States as a prerequisite for international relationship
and law".95
In order words, for Justice Ampiah, unlike Justice Archer, the 1992
Ghana Constitution mandates that international treaties need to be
transformed through the specified act of ratification by the
Parliament of Ghana before they can become part of the domestic
law of Ghana and enforced as such by the courts.
In the instant case, the New Patriotic Party registered as a body
corporate, brought an action in the Supreme Court under Article 2
(1) of the 1992 Constitution for a declaration, inter alia, that the
Council of Indigenous Business Association Law (PNDCL 312)
was inconsistent with and in contravention of certain provisions of
the Constitution and that to the extent of such inconsistency, the said
PNDCL 312 was avoid. The plaintiff and the defendant together
filed a memorandum of agreed issues which set out certain matters
for determination in the suit. Among these matters were:
. .. . . . .. .. .. ...
.. .
(4) whether or not the United Nations Universal Declaration
of Human Rights and the African Charter on Human an
Peoples' Rights are binding on the State signatories,
including Ghana; and if so,
(5) whether or not Ghanaian municipal law can overrule the
provisions of the said international instruments, and if so,
(6) to what extent are the said Declaration and Charter
binding on Ghana.
In his submission, the defendant contended that the provisions of
Article 37 (3) of the 1992 Constitution, which states that in the
exercise of its duties under Article 37 (2) the State must be guided
by certain relevant international instruments, that unless those
instruments have been ratified so as to become part of the municipal
law, they would not be applicable. This submission, however, was
not accepted by Bamford-Addo JSC, in majority, who held:
The dictates of the Constitution, the Supreme Law,
cannot be superseded by any municipal law.. and,
therefore whether or not the said instruments have
been ratified by Ghana under Article 75, the
95
Ibid.
provisions of Article 37 (3) must be applied by the
courts in their interpretative duties.96
In other words, for Bamford-Addo JSC, it did not matter whether
human rights treaties have been ratified by Ghana; the obligations
contained in Article 37 (2) that "the State shall be guided by
international human rights instruments which recognise and apply
particular categories of basic human rights to development
processes", provided a guide to the interpretation oftreatieswhether
ratified or not. It would appear that this was also the position taken
by Archer CJ in New PatrioticPartyv. Inspector GeneralofPolice,
when he held:
The Court could not ignore the fact that the
attainment and enjoyment of fundamental rights had
become prime instruments of international
relations. The struggles, exploits and demands of
oppressed peoples in Africa, America and elsewhere
provided helpful examples to guide the
interpretation of the fundamental rights provisions
of the Constitution.97
Having regard to the excerpts set out by Ampiah JSC and BamfordAddo JSC in the instant case, it would thus appear that it was the
former who dealt directly with the issues raised by the contesting
parties in their memorandum. It would obviously be difficult to
support the proposition that unratified treaties can be directly
enforced by the courts given the explicit terms in which Article 75
of the 1992 Constitution is couched. On the other hand, there
appears some authority for the proposition that the principles of
those international instruments can be enforced only if they fit
constitutional provisions. This was the position of Atuguba JSC in
the instant case when he held:
As to the enforceability of international instruments
relating to fundamental human rights, I think that
the matter can easily be resolved by recourse to
Article 33 (5) which provides that: "The rights,
duties, declarations and guarantees relating to the
96 Ibidpp. 747-748.
97 Quoted inAtua, "Ghana at 50:The Place of International Human Rights Norms in the Courts", in
GhanaLaw Since Independence-History,DevelopmentandProspects,op. cit. p. 199.
102
fundamental human rights, specifically mentioned
in this Chapter shall not be regarded as excluding
others not specifically mentioned which are
considered to be inherent in democracy and
intended to secure the freedom and dignity of man".
It cannot be contended that the principles of those
instruments do not fit into this provision, and they
are therefore to that extent enforceable.98
The views of Atuguba JSC underscore the legal dilemma faced in
human rights cases where judges are called upon to apply
international instruments despite the fact that those instruments
have not been incorporated into Ghanaian law by legislation. His
argument, to dispel any doubt, is to apply those that fit into Article
33 (5) of the Constitution. The question, however, is,why should
those international instruments be invoked in the first place if the
rights, freedoms, and duties in question are already embedded in
constitutional provisions? Could it be that such instruments are
invoked merely because they amplify existing constitutional
provisions? Or is it the case that the Ghanaian courts would be
prepared to look to these instruments as aids to interpretation? The
emerging view, according to Appiagyei-Atua, relying on Adjei
Ampofo v. Attorney-General is that the courts would be more
inclined to use those instruments as interpretative guides.9 9
Adj ei Ampofo v. Attorney-General1 °0
In Adjei Ampofo v. Attorney-General,the plaintiff sued, invoking
the original jurisdiction of the Supreme Court, that a provision in a
section of the Criminal Code of Ghana was void for contravening
the well-known international and constitutional law doctrines,
namely, void-for-vagueness and void-for-over-breadth doctrines,
which were applicable in Ghana, and that even though those
doctrines have not been expressly provided for in the Ghana
Constitution of 1992, they were inherent in all democratic
constitutions such as the Ghana Constitution. The plaintiff also
argued, inter alia, that the provisions of Article 33 (5) of the 1992
Constitution enjoined the Court not only to consider the written
98
99
[1996-97] SCGLR 729 at p.788.
See See K. Appiagyei-Atua, "Ghana at 50:The Place of International Human Rights Norms in the
Courts", in Ghana Law Since Independence-History,Development and Prospects, op. cit.
p.196.
100 [2003-2004] SCGLR41 1.
103
letter of the Constitution but its spirit as well. In response, the
defendant Attorney-General raised a preliminary objection,
contending that the Supreme Court had no jurisdiction to entertain
the plaintiffs claims under the Constitution.
Taking account of the provisions of Article 33 (5) of the
Constitution, Sophia Akuffo, JSC, in upholding the preliminary
objection raised by the defendant, stated:
The reference to 'others' referred to in Article 33 (5)
could only apply to those rights and freedoms that
have crystallised into widely or generally accepted
rights, duties, declarations and guarantees through
treaties, conventions, international or regional
accords, norms and usages. One may venture as an
example, the right of women to reproductive health,
which forms part of the 1995 Beijing Declaration
and Platform for Action, to which Ghana is a
signatory. Clause (5) of Article 33 is certainly not
intended to elevate to the status of rights, duties,
declarations or guarantees, doctrines such as those
relied upon by the plaintiff, which are merely, but
admittedly widely accepted, tools for the
construction of deeds and statutes. 1 '
Justice Akuffo, then, concluded:
Had the plaintiff specified any particular right, duty,
declaration or guarantee of the nature mentioned
above that has, in his view, been contravened by
section 179 A (3) (a), or with which it is not in
consonance, then we may have been clothed with
the requisite jurisdiction to interpret and/or enforce
the same by measuring the said section against it, in
which event we would have been at liberty to draw
on either or both of the doctrines to aid us in the
102
process.
Two critical questions arise from these passages. First is, what is the
source of those "others" as stated in that article? Secondly, how do
101 Ibid. pp.418-419.
102 Ibid. p. 4 19.
104
we apply those "others" ifthey are treaties? To the first question, it is
stated in the instant case that "others" therein used applies "to those
rights and freedoms that have crystallised into widely or generally
accepted rights, duties, declarations and guarantees through
treaties, conventions, international or regional accords, norms and
usages". This would indicate that although rights and freedoms may
be embodied in treaties, they only meet the criterion for acceptance
if it can be shown that they have become "generally accepted".
When a principle or practice becomes generally accepted and there
is evidence of it having been accepted as law, then, in the words of
Article 38 of the Statute of the International Court of Justice, it
becomes "international custom". Another approach is that yielded
by Article 38 of the Vienna Convention on the Law of Treaties. By
that article, a rule set forth in a treaty may become "binding on a
third State as a customary rule of international law, recognised as
such". Here, too, the phrase "others" may indicate treaty norms that
have crystallized into customary rules of international law.
To the second question, how do we apply those "others" if they are
treaties? Here, as treaties are not directly self-executing in the
municipal sphere, a certain amount of transformation is required to
give treaties domestic effect. This is where the legislature plays its
part as this formal process of transformation is effected, under
Article 75 of the 1992 Ghana Constitution, by legislative
intervention.
The judgement of Akuffo JSC clearly did not answer those two
questions. What, however, comes out of those passages is that the
Supreme Court of Ghana, rather than enforcing directly unratified
treaties and declarations, will rather open the possibility of norms of
international law being used as aids to interpretation in respect of
human rights when it comes to interpreting statutes. What the Court
has not done, which would otherwise be a source of great
controversy, is to interpret the phrase "others" referred to in Article
33 (5) as rules of customary international law which would be
recognised as having been incorporated into Ghanaian law.
Tsatsu Tsikata v. The Republic0 3
In this case, the appellant, Mr. Tsatsu Tsikata, one time the Chief
Executive Officer of Ghana National Petroleum Corporation
103 [2011]1SCGLR 1.
105
(GNPC) stood trial before the High Court (Fast Track Division) on
three counts of wilfully causing financial loss to the State contrary
to Section 179A (3)(a) of the Criminal Offences Act, 1960 (Act 29),
and on one count for intentionally misapplying public property
contrary to section 1 (c) of the Public Properties Act, 1977 (SMCD
140). In the course of the trial, the appellant sought and obtained a
subpoenaby order of the trial judge directed at the Country Director
of the International Finance Corporation (IFC) to appear before the
court and produce documents on Valley Farm Project promoted by
the African Project Development Facility. Pursuant to the issue of
the subpoena but before its service, Counsel for the IFC appeared
before the trial court and objected to the issuance of the subpoena on
the basis that the Country Director enjoyed diplomatic immunity
from legal proceedings which he did not intend to waive. The trial
judge upheld the claim of diplomatic immunity and rescinded the
subpoena directed at the Country Director of the IFC. A fresh
application was made to the Court this time to direct the IFC itself,
as an institution, for the same purpose, that is, to order the IFC to
testify and produce information regarding the role in the transaction
in respect of which criminal charges had been brought against the
accused. Counsel for the IFC raised the same objection that the IFC
also had immunity from legal proceedings. This objection was also
upheld. The Court ofAppeal affirmed the ruling by the High Court.
On appeal to the Supreme Court, form the ruling of the Court of
Appeal, Counsel for the Appellant contended that in failing to order
the Country Director of the IFC to appear for the defence, the trial
judge had failed to recognize and enforce the fundamental human
right of the accused, that is, the appellant, under the mandatory
provision in Article 19 (2)(g) of the 1992 Constitution, to obtain in
attendance and carry out the examination of its witnesses to testify
on the same conditions as those applicable to witnesses called by the
prosecution. Counsel for the appellant thus submitted that even if
there was a right of the IFC Country Director to immunity from tL
judicial process in Ghana conferred by statute that would be
subordinate to the fundamental human rights conferred by the
Constitution which could not be derogated from by statute.
The Supreme Court, in a majority decision, held that the Court of
Appeal did not err in affirming the decision of the trial court in
rescinding the subpoenawhich the trial judge had earlier issued. In
dismissing the appeal, the Supreme Court took the view that the
Country Director of IFC enjoyed diplomatic immunity under
Section 8 of the International Bank, Fund and Finance Corporation
106
(Immunities and Exchange Contracts) Order, 1958 (L.N..9)1°4 and
therefore having indicated to the court through counsel that he did
not intend to waive such immunity, he was not a compellable
witness. The Court, however, held that the IFC itself had no
immunity and therefore the appeal on this ground was upheld.
In her majority judgement, Sophia Adinyira JSC, articulated certain
positions on the relationship between municipal law and international
law and how far the courts in Ghana can invoke international and
regional human rights norms in deciding human rights issues, and
these require critical examination. According to her:
The appellant's constitutional right to call any
witness of his own choice to testify on his behalf
under article 19 (2)(g) of the 1992 Constitution is
not absolute but limited to the rights and privileges
of that witness as required under article 12 (2) of the
The Country Director of the
same Constitution .....
IFC is not a compellable witness under both our
domestic and international laws by virtue of his
diplomatic immunity... .Once the Country Director
of the IFC has declared his intention through
counsel that he did not intend to waive his immunity,
his claim of right to immunity has to be respected
and that should override the corresponding right of
the appellant to compel him to be his witness by the
issue of a subpoena. In addition, there is the balance
of public interest to be considered as required by the
proviso to article (12)(2).105
Examining the significance of the "international law: and
"international relations" provision of the 1992 Constitution and
their proper application, the learned Judge stated as well:
Ghana as a member of the United Nations is a
signatory to major international conventions,
treaties, protocols and agreements including the
Vienna Convention on Diplomatic Relations.
Incorporated into domestic statute, is the Diplomatic
104 Sec. 8 of the Order provides: "All governors, directors, alternates, officers and employees of the
Corporation shall be immune from legal process with respect to acts performed by them in their
official capacity".
105 Ibid.,pp. 26-27.
107
Relations Act, 1962 (Act 148) and is therefore
obliged to keep to her commitments. And the
Government of Ghana is also obliged under article
73 of the 1992 Constitution: "[t]o conduct its
international affairs in consonance with the accepted
principles ofpublic international law and diplomacy
in a manner consistent with the national interest of
Ghana" ..... The Ghana Judiciary as the arm of
government entrusted under the 1992 Constitution
with the responsibility to administer justice is
obliged to apply international norms in the
administration ofjustice. This court, by recognizing
the claim to immunity by the Country Director of the
IFC is thereby affirming an internationally
acceptable norm of diplomatic relationships among
States and international organizations which has
been incorporated into our domestic laws, vis., The
Diplomatic Relations Act, 1962 (Act 148). This court
ought to promote respect for International Law and
treaty obligations ..... [S]uch an approach is in the
national interest. This is one area where the court in
balancing the interest of an individual as against the
national or public interest should allow public
interest to prevail.'06
The approach by the learned Judge to "apply international norms in
the administration ofjustice" is fraught with some difficulties. First,
as recognized by the learned Judge herself, Ghana is a dualist State.
This means that in conducting international relations, treaties are
signed for Ghana by the President and his agents. As a result, any
international obligations that Ghana would incur as a result of
signing a treaty would be triggered by unilateral executive action.
However, these international obligations cannot have effect in the
domestic jurisdiction or form part of Ghanaian law. What is
required under Article 75 of the 1992 Constitution, as we have
already said, is the ratification or approval by the Parliament of
Ghana either in the form of an Act of Parliament or by resolution to
effect these treaty obligations in Ghanaian law. Second, besides
missing the point about the dualism of the 1992 Constitution, it can
also be seriously contended that the learned Judge erred in
106 Ibid.,pp.27-28.
108
construing the domestic statute, that is, the Diplomatic Relations
Act, 1962 (Act 148) "incorporating" the Vienna Convention on
Diplomatic Relations, so to override the constitutional right of the
appellant. In our view the position which merits attraction and
provides a solid basis for examining the relationship between
Ghanaian municipal law and international law was that put forward
by Atuguba JSC, in his dissenting opinion, when he stated:
The attitude of the 1992 Constitution towards
international law and its proper application is clearly
stated in article 40 of the Constitution in chapter 6
dealing with The Directive Principles of State
Policy ...... But the core principle is in article 73 .... To
ensure that the national interest is paramount, salus
populi suprema lex, article 75 incorporates the
dualist principle.... All these reflect our national
history and aspirations ....Clearly these provisions
are designed to prevent the effects of the overconcentration of the President on foreign or
international policy to the detriment of the national
interest ..... and the Ghanaian experience reflected in
the constitutional provisions, ie, articles 40, 73 and
75 of the Constitution, 1992 is hereby vindicated and
strengthened. And the welfare of the people of
Ghana in the democratic and modern sense is the
grundnorm of Ghanaian law as stated in article 1 (1)
as follows: "..The Sovereignty of Ghana resides in
the people of Ghana in whose name andfor whose
welfare thepowers ofgovernment are to be exercised
in the manner and within the limits laid down in the
Constitution".107
In other words, for Atuguba JSC, the principle that the Government
of Ghana "shall conduct its international affairs in consonance with
the accepted principles of public international law and diplomacy in
a manner consistent with the national interest of Ghana" in Article
73 is only expressive of how relationships with other States should
be conducted and does not rank above nor should it be interpreted to
oustArticle 75 incorporating the dualist principle.
107 Ibid., pp. 18-20.
109
Delmas America Africa Line Inc v. Kisko Products Ghana Ltd o°
Unlike the "human rights" cases which we have examined above,
the Delmas case arose from the judgment of the Court of Appeal,
given on 26 June 2003, affirming, subject to some variations, the
judgment of the Fast Track High Court, Accra, given on 14 February
2002, upholding the plaintiffs-respondents claim for general
damages for breach of contract or duty, and/or for negligence in and
about the carriage of goods by sea.
The facts of the case arose from the plaintiffs-respondents' claim
that they contracted with the defendants under a bill of lading for the
carriage by sea of their goods. The plaintiffs-respondents further
claimed that when their container arrived at the destination port (i.e.
Tema in Ghana) and was opened, they discovered that a substantial
part of the goods did not arrive at all, and of those that arrived, most
were damaged. The plaintiffs-respondents' contention was that it
was the defendants duty to exercise reasonable care in the loading,
carriage and discharge of their said goods and that the defendants
breached that duty. They, therefore, sued for damages both for the
damaged goods and also for the non-delivery of the others. The
defendants denied liability for the damage allegedly caused to the
plaintiffs-respondents goods or for the alleged non-delivery.
The Supreme Court affirmed the decisions both of the court and the
Court ofAppeal in holding the defendant-appellants, the carriers, as
responsible for the damaged goods as well as the non-delivery of
same. Justice Ocran, in a separate judgement, found it necessary to
speak to the possibility of direct enforcement of an unratified treaty
when he invoked Article 18 of the 1969 Vienna Convention on the
Law of Treaties in the instant case. In his view:
Quite apart from the common law basis for the
damages sought, I must draw the attention of the
parties to the United Nations Convention on the
Carriage of Goods by Sea (1978) [the so-called
"Hamburg Rules:, which was signed by Ghana on
31 March 1978, but not yet ratified. Even though not
yet ratified and thus not technically part of the body
of law enforced within our legal system, its contents
108 [2005-2006] SCGLR 75.
110
are highly relevant in view of Article 18 of the
Vienna Convention on the Law of Treaties, to which
Ghana is a contracting state.'°9
Then, quoting Article 18 of the 1969 Vienna Convention and
Articles 2 and 5 ofthe "Hamburg Rules", Justice Ocran concluded:
It seems clear from the above that the basis of this
suit, and the nature of the relief sought by the
plaintiffs-respondents, are very much within the
purview of the United Nations Convention on the
Carriage of Goods by Sea (1978).1" °
From the above, it is far from clear from the learned judge's
reasoning why a State which has not yet ratified a treaty must, in
accordance with Article 18 of the Vienna Convention on the Law of
Treaties, nonetheless comply with it, or, at least that the contents of
such a treaty be said to be "highly relevant", since he also states that
unratified treaties are "not technically part of the body of law
enforced within our legal system". Article 18 of the 1969 Vienna
Convention headed "Obligation not to defeat the object and
purpose of a treaty prior to its entry into force ....", states: "A State is
obliged to refrain from acts which would defeat the object and
purpose of a treaty when: (a) it has signed the treaty or has
exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or (b) it has
expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not
unduly delayed".
As such, Article 18 can only be an international obligation based on
signing a treaty prior to ratification. This obligation is a limited one
which cannot be understood as giving binding character to the
substantive obligations of the treaty, because that would contradict
the importance that the Vienna Convention attaches to State
consent. Furthermore, to suggest that this international obligation
can be applied by the Ghanaian courts directly without ratification
by Parliament poses a major constitutional issue. Article 75 of the
109 Ibid. pp.95-96.
110 Ibid.p.97.
111
1992 Constitution of Ghana, as we have seen, specifies a process
which requires that a "treaty, agreement or convention executed by
or under the authority of the President shall be subject to
ratification ...." This provision is part of the Constitution's checks
and balances: "The handthat signs is not the hand that delivers". In
other words, the President executes or signs treaties but ratification
by Parliament is required before they can have effect in the
domestic jurisdiction.
In The Matter of an Application to Invoke the Supervisory
Jurisdiction of the Supreme Court Articles 88 (6) And 132 of the
1992 Constitution, Rule 61 of the Supreme Court Rules, 1996
(C. 116) 111
This case involved an application exparte to the Ghana High Court
of Justice (Commercial Division) for an order of interlocutory
injunction restrainingthe movement of the Libertadand its interim
preservation."2 The application was made by a private entity, NML
Capital Ltd, against The Republic of Argentina. Briefly, in 1994,
Argentina entered into a Fiscal Agency Agreement (FAA) with the
Bankers Trust Company, a New York banking corporation. Under
the Agreement, Argentina had issued securities and bonds for
purchase by the public. NML Capital purchased two series of the
bonds. In 2001, Argentina defaulted on her public debt to the tune of
$80 billion, including the bonds issued under the Agreement.
Thereupon, NML Capital sued Argentina to recover the sums due it
and obtained judgement in the United States District Court for the
Southern District of New York. The Defendant, Argentina, did not
settle the debt.
On the 15th of May, 2005, the Plaintiff, NML Capital, commenced
an action in the English High Court suing on the simple debt
obligation imposed on Argentina, the Defendant by the New York
111 See, Civil Motion No. JS/10/2013: In the Matter of An Application to Invoke the Supervisory
Jurisdiction of the Supreme Court. Articles 88(6) and 132 of the 1992 Constitution, Rule 61 of the
Supreme Court Rules 1996 (C.I. 16); The Republic vs. High Court, Commercial Division, Accra,
Ex Parte Attorney General (Applicant), NML Capital Ltd (1 Interested Party) The Republic of
Argentina (2" Interested Party), 20t June, 2013. Coram: Date-Bah, Dotse, Yeboah, Gbadegbe,
Akamba JJSCs. Much of what is written about this case derives from a joint paper titled "The
Doctrine of Sovereign Immunity In Internal Law: The Case of the Libertad" written by the present
author and Mr. George A. Sarpong, Legal Practitioner and Consultant, immediate Past Director,
Ghana School of Law and presented at the Ninth Maritime Law Seminar For Judges of the
Superior Courts of Judicature,Accra, 12 October 2013.
112 Suit No. RPC/343/12, High Court of Justice, Commercial Division, Accra, Coram Justice
RichardAdjei-Frimpong dated 11 "October, 2012.
112
Judgment. The Defendant raised an objection to the suit in the U. K.
High Court on the ground that it enjoyed state immunity under
English law and that the English Court had no jurisdiction to
entertain the matter. The matter went before the Supreme Court of
the United Kingdom which held that the Defendant did not enjoy
state immunity and that the English Court had jurisdiction to
entertain the suit.
In the subsequent proceedings in the English High Court, the
Defendant submitted to Judgment and the Court made a consent
Order against the Defendant and in favour of the Plaintiff for the
payment of the principal sum and interest. The Defendant did not
pay any part of the sum awarded.
Thereafter, on or about 1 st October, 2012, when the vessel Libertad
entered Ghana's territorial waters and docked at the Port of Tema,
NML Capital commenced a suit claiming various sums and
obtained in the High Court an Ex-Parte Limited Order of
Interlocutory Injunction in effect restraining the movement from
the port of Tema, the vessel and the interim preservation of same. It
is this order Argentina sought to set aside. NML opposed the
Application.
Essentially then, NML Capital sought to enforce against the State of
Argentina, Judgment obtained from an American Court that had
received an endorsement from the Highest Court in the United
Kingdom.
In the High Court of Ghana, two issues ofjurisdictional nature were
raised in the determination of the Application, namely:
a. That the Court could not enforce a Judgment obtained from a
United States Court on grounds that under the applicable law
on the matter, the United States is not listed as one of the states
recognized by Ghana for the purpose of reciprocal
enforcement of Judgments; and
b. That the Defendant is a sovereign state entitled to immunity
from the Court's processes.
On the first issue raised, the Court judged "that the common law
regime which permits the filing of a fresh action founded on a
foreign judgment for purposes of enforcement is still applicable in
Ghana. Under English law where specific statutory provisions are
available for registration of foreign judgments for reciprocal
enforcement, there is still the avenue outside the statutes to
113
maintain a cause of action to enforce foreign judgments. The
rationale behind that avenue is that the foreign Judgment creates an
enforceable contract between the parties which can found an action
at common law."
On the issue of immunity in (b) above, it was argued on behalf of the
Defendant that being a sovereign state, it was immune from the
Court's processes. Reliance was placed on the United Nations
Convention on Jurisdictional Immunities of States and their
Property, 2004; and the United Nations Convention on the Law of
the Sea (UNCLOS).
In reaction, Plaintiff contended that the immunities the State of
Argentina and the vessel enjoyed were waived by the State of
Argentina under and by virtue of the Fiscal Agency Agreement
(FAA) that governed the bond transaction.
The trial judge, His Lordship Adjei-Frimpong, on the basis of the
FAA and the decision of the English Supreme Court held that the
Defendant had, in clear terms, waived the immunity attributed to the
Argentina War Vessel Libertad through the mode of contract which
mode is recognized by the rules of international law.
Meanwhile, on 30 October 2012, Argentina, pursuant to the
decision of the Ghana High Court, instituted dispute settlement
proceedings against Ghana under UNCLOS for the release of the
Argentine vessel. Accordingly, acting under Article 287 of the
Convention, Argentina resorted to the International Tribunal for the
Law of the Sea (ITLOS), the appropriate international forum for
redress, for the Tribunal to constitute an Arbitral Tribunal to declare
that the seizure of the warship violated "the international obligation
of respecting the immunities from jurisdiction and execution
enjoyed by such vessel pursuant to Article 32 of UNCLOS and
Article 3 of the 1926 Convention for the Unification of Certain
Rules concerning the Immunity of State-owned Vessels as well as
pursuant to well-established general or customary international law
rules in this regard".
Subsequently, on 14 November 2012, Argentina submitted a
request for the prescription of provisional measures under article
290, paragraph 5ofIUNCLOS to the Tribunal."3
In its Order of 15 December 2012, the Tribunal held that it had
jurisdiction to make interim orders, and held that "in accordance
with general international law, a warship enjoys immunity" and that
"any act which prevents by force a warship from discharging its
mission and duties is a source of conflict that may endanger friendly
relations among States".
The Tribunal stated that "under the circumstances of the present
case, pursuant to article 290, paragraph 5, of the Convention, the
urgency of the situation requires the prescription by the Tribunal of
provisional measures that will ensure full compliance with the
applicable rules of international law, thus preserving the respective
rights of the Parties".
Pending the decision of the Arbitral Tribunal" 4; ITLOS directed
Ghana forthwith, and unconditionally, to release the Libertad, to
ensure that it's Commander and crew are able to leave the port of
Tema and the maritime areas under the jurisdiction of Ghana, and
also to ensure that it is resupplied to that end."5
Interestingly, before the Tribunal, Ghana had pleaded that as a
matter of its constitutional law and practice, the executive arm of
Government fully respected the independence of the Ghanaian
Judiciary and as such was "unable to interfere with the work of the
113 The Convention provides for compulsory third-party disputes settlement mechanism for disputes
concerning the interpretation or application of the Convention. To this purpose, the parties to a
dispute may choose from different procedures that the Convention makes available to them
(International Tribunal for the Law of the Sea, International Court of Justice or arbitration).Both
Ghana and Argentina are States Parties to the Convention. They have however not accepted the
same procedure for the settlement of disputes. The Convention provides that, in such cases, the
parties to a dispute are deemed to have accepted arbitration in accordance with Annex VII to the
Convention. The setting up of an arbitral tribunal may take some time and pending the
constitution of such arbitral tribunal, any party to the dispute may, under the conditions set by the
Convention, request ITLOS to prescribe provisional measures according to article 290,
paragraph 5, of the Convention. The Tribunal may prescribe provisional measures if it considers
that prima facie the arbitral tribunal to be constituted prima facie would have jurisdiction and that
the urgency of the situation so requires.
114 Argentina and Ghana, on Friday 27 September 2013 signed a settlement agreement at the
Permanent Court of Arbitration, in The Hague, The Netherlands, bringing an end to the dispute
between the two countries. Under the settlement, Argentina agreed to discontinue the arbitration
it initiated and dropped all financial claims against Ghana. See: Ministry ofInformation, "Ghana,
Argentina end dispute over sized Ship";www.ghanaweb.com/Ghanahomepage/artikel.php.
115 See ITLOS/Press 188 of 15 December, 2012.
115
Ghanaian Courts" nor was it "within the powers of the Government
to compel the Ghanaian courts to do anything". This plea was
rejected by the Tribunal which held that a "State cannot take shelter
behind a decision of any of its organs as an excuse for not
implementing its international legal obligations". As was forcefully
put by Judge Lucky, in his Separate Opinion:
The Government of Ghana's defence based on the
rule of law and the separation of powers, enshrined
in its Constitution, does not legally absolve it from
its State responsibility in international law. General
international law specifies that a State may not use
its internal laws, including its Constitution, as a
shield to circumvent its international obligations".
Subsequent to the decision of ITLOS, the Honourable AttorneyGeneral of Ghana in an effort to ensure Ghana's compliance with
International Law, sought to have the High Court decision quashed
before the Supreme Court by an Order of Certiorari. He argued that
the Libertad enjoyed sovereign immunity in both international law
and domestic law, and that UNCLOS is incorporated into Ghanaian
law by Article 75 of the 1992 Constitution.
While characterizing that argument that UNCLOS is incorporated
into Ghanaian law by Article 75 of the 1992 Constitution as "a
spectacularly erroneous proposition of law", the Supreme Court
then proceeded with an analysis of Article 75. In his Judgment,
Justice Dr. Date- Bah (Presiding) held:
The mere fact that a treaty has been ratified by
Parliament through one of the two modes indicated
(in Article 75) .... does not, of itself, mean that it is
incorporated into Ghanaian law. A treaty may come
into force and regulate the rights and obligations of
the State on the international plane, without
changing rights and obligations under municipal
law. Where the mode of ratification adopted is
through an Act of Parliament, that Act may
incorporate the treaty, by appropriate language into
the municipal law of Ghana."1 6
116 Op.cit.p.4.
116
Obviously, the Attorney-General was in error. Article 75 provides a
constitutional basis for the invocation of the rules of Public
International Law in Ghanaian jurisprudence. It does not provide
the substantive basis for dealing with the subject of immunity of
warships. Curiously, the Honourable Attorney General did not
canvass before the Court the relevant provisions of UNCLOS; and
the Maritime Zone (Delimitation) Act, 1986 (PNDCL 159) which
sought to implement UNCLOS in Ghanaian domestic
jurisprudence. Even so, the Supreme Court upheld the immunity of
the Argentine vessel, but decided the matter on grounds of public
policy and not on the basis of conventional norms and national
obligations assumed by Ghana as a party to UNCLOS." 7 In the
words of Date-Bah JSC:
In sum, what has been said is that although the 2nd
Interested Party waived its immunity through the
contractual waiver clause, that waiver of immunity
is not binding on the Ghanaian Courts, in so far as it
relates to a military asset. Customary international
law permits sovereign states to decide whether to
accord a wider immunity in their municipal law than
required under international law. There is thus no
obligation in municipal law to recognize waivers of
sovereign State immunity in all circumstances,
except those required by public international law.
The learned trial Judge, who was not bound by any
previously decided Ghanaian case on this issue,
made a fundamentally and patently wrong decision
by holding that the 2nd interested Party's contractual
waiver of immunity, in so far it related to the seizure
of a military asset, should be given effect to. The
Courts of Ghana ought not to promote conditions
leading to possible military conflict, when they
have the judicial discretion to follow an alternative
path. This public policy consideration persuades us
that waiver of sovereign State immunity over
military assets should not be recognized under
117 Public Policy is that principle of law which holds that no subject can lawfully do that which has a
tendency to be injurious to the public or against the public good which may be termed the policy
of the law or public policy in relation to the law: Egerton vs. Brownlow (Eml) (1853) G H.L Cas 1,
atp. 196.
117
Ghanaian common law. Thus though we accept the
issue of estoppel raised by NML Capital Ltd v
Republic of Argentina (supra) to the effect that
Argentina has effectively waived its immunity by
contract before Courts such as this Court in relation
to the enforcement of the Judgment debt in issue in
this case, we are saying that this waiver ofimmunity
has no effect in relation to military assets in Ghana,
for the public policy reasons canvassed above.
With this clarification of the law by this Court, there
should be no need for any order of prohibition to be
issued. All lower Courts are obliged to follow and
apply the law as clarified in this case. There should
accordingly be no further seizures of military assets
of sovereign states by Ghanaian Courts in execution
of foreign Judgments, even if the sovereign
concerned has waived its immunity.118
This case, as with Tsatsu Tsikata v. The Republic raised interesting
issues of the relationship between public international law and
domestic law. Indeed, it afforded the opportunity for the Supreme
Court to apply Ghanaian law incorporating the obligations assumed
by Ghana as a party to UNCLOS to determine the issue of the
sovereign immunity ofthe Argentine warship. This it did not do, but
rather decided the matter on grounds of public policy. However, the
public policy option adopted in arriving at the decision could be
problematic. " 9 As has been observed elsewhere; public policy is an
unruly horse which may carry its rider he knows not where.12 ° In
other words, public policy is fraught with uncertainty and/or
unpredictability as to its scope, nature and/or extent.
CONCLUSION
In the light of the foregoing discussion, the conclusion that
singularly stands out is that international law is not part of Ghana
118 See Civil Motion No. JS/10/2013, supra, n. 19, at p.4.
119 Public Policy is that principle oflaw which holds that no subject can lawfully do that which has a
tendency to be injurious to the public or against the public good which may be termed the policy
of the law or public policy in relation to the law: Egerton vs. Brownlow (Eml) (1853) G H.L Cas 1,
atp.196.
120 Richardson vs. Mellish (1824), 2 Bing. 229 at p.252. On these, see Cheshire & Fifoot, The Law of
Contract, 5tEd (Butterworth & Co., 1960) at pp. 278.
118
law which can be enforced directly by the courts. It is this
conclusion that was also reached by Ampiah JSC in the New
Patriotic Party v. Attorney-General Case when he stated: "The
laws of Ghana are as set out inArticle 11 (1) of the Constitution. The
Constitution is the supreme law of Ghana. Consequently, laws,
municipal or otherwise which are found to be inconsistent with the
Constitution cannot be binding on the State whatever their nature.
International laws, including intra African enactments, are not
binding on Ghana until such laws have been adopted or ratified by
the municipal laws". To appreciate further this conclusion, we need
to draw a distinction between treaties and customary international
law. Certainly, Ampiah's position relates to the place of treaties in
the domestic law of Ghana and he is correct in his view that
parliamentary ratification of these treaties is required before they
can have effect in the domestic jurisdiction. Such ratification is
effected in the form either of an Act of Parliament or resolution and
it is these that become technically part of the body of law enforced
within the legal system. A somewhat different position exists in the
United States where treaties are incorporated automatically in the
domestic law. This is by virtue of Article VI of the US Constitution
which, provides that: "The Constitution, and the Laws of the United
States which shall be made in pursuance thereof, and all Treaties
made, or which shall be made, under the authority of the United
States shall be the Supreme Law of the land, and the judges in every
State shall be bound thereby, and anything in the Constitution or
Laws of any State to the contrary notwithstanding".
Notwithstanding these different positions on the place of treaties in
the domestic laws of the US and Ghana, any invocation of Article
27 of the Vienna Convention on the Law of Treaties which
expresses that States cannot excuse the non-fulfilment of their
international obligations upon their domestic law, to justify the
application directly of treaties in the Ghanaian national legal order
and also argue the superiority of this source of international law
over the constitution or domestic laws would be a major source of
controversy. Firstly, Article 27 does not deal with the operation of
international law on domestic law nor, does it, for that matter, say
anything about how national legal systems should define the
incorporation of international law into national law. Secondly,
nothing in Article 27 shows that it establishes an obligation to put
treaties over constitutions, or even ordinary laws within the
national legal systems of States parties to the Vienna Convention.
Indeed, the Convention's travauxpreparatoireindicate that Article
27 was not intended to obligate States to grant primacy to
119
international law over domestic law in the sphere of national law. To
the contrary, the travaux indicate that in adopting Article 27, States
merely reiterated a rule in international law that, international law
has preference over domestic law in the sphere of international law
(i.e. treaty law). The International Law Commission indicated that
much in its Report to the UN General Assembly at the TwentyNinth Session when it also stated emphatically that: "article
27 ..... pertains more to the regime of international responsibility
than to the law of treaties, 121In effect what the Commission did was
to "confirm a fundamental rule of the law of state responsibility
which signifies that a State cannot escape its responsibility on the
internationalplane by referring to its domestic legal situation'2 2 .
But, it did not report that Article123 27 sought to grant a supraconstitutional hierarchy to treaties.
As far as customary international law is concerned, the 1992
Constitution of Ghana also does not expressly provide for this as
one of the sources of Ghana law. This is unlike the Constitution of
South Africa which, in Section 232, provides that: "Customary
international law is law in the Republic unless it is inconsistent with
the Constitution or an Act of Parliament". Yet, as we have discussed,
customary international law may be applied in Ghana through
"common law adoption" with the caveat that only the received
common law of England as at 1874 would be binding on the courts
of Ghana to apply
Finally, we conclude that glancing back at other statements made by
the Supreme Court, in particular, "human rights cases", one is led to
observe the increasing attention being paid by the Court to
questions of international law. That, of course, must not lead to the
conclusion that international law operates directly in the municipal
legal order. Rather, those cases open the possibility of norms of
international law being used as aids to interpretation in respect of
human rights and other cases when it comes to interpreting the
Constitution or statutes.
121 See Yearbook ofthe InternationalLawCommission, 1977, Vol. 11, Part Two, p. 11 9,para. See also
Oliver Dorr and Kirsten Schmalenbach (eds.), Vienna Convention on the Law of Treaties (2012)
pp., 453 -4 73 .
122 Oliver Dorr and Kirsten Schmalenbach (eds.),, Ibid., pp. 454-455. It is this same rule which is
captured under Article 111 of the International Law Commission's Draft Articles on
Responsibility of States for Internationally Wrongful Acts, "[t}he characterisation of an act of a
State as internationally wrongful is governed by international law. Such characterisation is not
affected by the characterisation of the same act as lawful by internal law". Report of the
InternationalLawCommission to the GeneralAssembly,56 U. N. GAOR Supp. (No. 10) at 1,UN
Doc.A/56/10 (2001).
123 Emphasis added.
120