- Information
- AI Chat
J. Srem-Sai - International law and Domestic law in Common Wealth Countries, a case study
Constitutional law (111)
Recommended for you
Preview text
Abstract
ChooseTop of pageAbstract <<I.BACKGROUNDII-MAKING POWERIII-MAKING PROCESSIV LAW-MAKING PO...V ‘RATIFICATION’ PROB...VI TO INCORPORATEVII
Choose
Ghana, a dualist state within the broader common law legal tradition, is confronted with the issue on the roles of parliament and the president in making and implementing treaties. This challenge is affecting the country's relationship with other states and international organizations. The purpose of this article is to assist in clarifying Ghana's constitutional law and practice position on the relationship between the country's treaty obligations and its domestic law. The article will also point out some challenges with the jurisprudence of Ghana's Supreme Court on the issue.
ChooseTop of pageAbstractI <<II-MAKING POWERIII-MAKING PROCESSIV LAW-MAKING PO...V ‘RATIFICATION’ PROB...VI TO INCORPORATEVII
Choose
I. BACKGROUND
International law began, primarily, as a means of regulating the relationship between sovereigns. In this context, ‘sovereign’ (Latin, superanus) refers to that person (rather than the state he rules), 1 who has the relatively absolute authority to represent and bind a sovereign state to other sovereign states. 2 From this background, it is conceivable that the crystallisation of domestic law of states pre-dates the crystallisation of international law rules. Nonetheless, the claim that the crystallisation of the international law rules on sovereignty far pre-dates the domestic law concept of constitutionalism (at least in the modern sense) is a powerful one to make. 3 In particular, the concept of separation of powers – a leading pillar of constitutionalism – is a relatively recent development compared to the international law principles on sovereignty. 4
While the developments in the area of constitutionalism have significantly changed the internal frameworks of how state power is divided, allocated and regulated, the rules on sovereignty under international law, on the other hand, have hardly changed. International law still deals directly with only one (not more) branch of the governments of states – the executive branch. The variance in these changes has given rise to the question – how should international law flow into domestic law? The answer to this question lies along two theories – monism and dualism. While the legal traditions that adopt monism subject domestic law to international law (thereby allowing international law an unimpeded flow into domestic law), those that adopt dualism subject international law, or at least a certain aspect of it, to domestic law (thereby creating an obstruction to the flow of international law into domestic law). It is within this background framework, we think, that Article 75 of Ghana's 1992 Constitution should be conceptualised and discussed. Indeed, the monism–dualism bifurcation itself goes deeper into the contentious foundational question whether domestic law and international law are separate legal systems. 5 That contention notwithstanding, this article will assume as true the claim that the two systems are separate, not least because it is this claim that sustains the dualist theory of international law. 6
ChooseTop of pageAbstractI.BACKGROUNDII-MAKING POWER <<III-MAKING PROCESSIV LAW-MAKING PO...V ‘RATIFICATION’ PROB...VI TO INCORPORATEVII
Choose
II. TREATY-MAKING POWER
The emergence of the doctrine of separation of powers has seen the state's sovereign power, which hitherto vested in one single person – the monarch – broken up and shared between different branches of government. This change in the organic structure of domestic legal systems has seen the emergence of the executive, the legislature and the judiciary branches of government, each playing distinct though interrelated and interdependent roles. That notwithstanding, one thing remains unchanged – the power of the executive branch of government to conduct the state's foreign affairs and to make international law (particularly, treaty law) in respect of the state. It is, therefore, an established international law rule, 7 or at least within the common law legal tradition, that ‘the making of a treaty is an executive act’. 8 This principle is also the beginning point of the jurisprudence behind Article 75 of the Constitution. Article 75 regulates the relationship between international law and domestic law. It opens by stating that the ‘President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.’ 9 This provision, to be upfront with the matter, brings Ghana in line with the common law legal tradition on the issue.
Further, throughout the common law world, the executive branch of government not only has the power to commit the state to treaties and other international agreements, it also does not share this power with any of the other branches of government. 10 Under English law, for instance, the power still remains one of the prerogatives of the Crown's government (the executive). 11 Though many common law countries may not have prerogative powers in exactly the same form as the English constitution, the substantive position that treaty- making powers are exclusive to the executive branch of government seems to have seeped deeply into the laws of the former colonies. 12 The policy reason for allocating the treaty-making power to the executive branch exclusively is said to be the need for single-mindedness and speed, which may not be guaranteed when two or more potentially disunited branches of government share the power. Blackstone explains thus:
This is wisely placed in a single hand ... for the sake of unanimity, strength, and despatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government; and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. 13
This policy reason would, three centuries on, be reaffirmed by the UK Supreme Court, where it was noted that the ‘value of unanimity, strength and dispatch in the conduct of foreign affairs are as evident in the 21st century as they were in the 18th.’ 14
It is worth noting from this point that Ghana does not differ from the other common law nations in respect of the principles regulating the relationship between domestic law and international law. This claim finds support from Ghana's Supreme Court in The Republic v. High Court (Commercial Division) Accra (Ex Parte Attorney General; Interested Parties: NML Capital Limited & the Republic of Argentina) (hereinafter known as the ‘ARA Libertad’), 15 where Justice Date-Bah, speaking for the Court, stated that:
Ghanaian law on this basic question [of the relationship between international law and municipal law] is no different from the usual position of Commonwealth common law jurisdictions.
Similarly, in Banful v. Attorney General, 16 Ghana's Supreme Court maintained that a treaty or an international agreement comes into existence where ‘the Government of Ghana binds the Republic of Ghana to certain obligations in relation to another country or group of countries’. 17 This case involves the determination of the role of Ghana's Parliament in treaty-making. Embedded in the statement, again, is the acknowledgment that the power to commit Ghana to a treaty vests exclusively in the executive. Put inversely, one may say that neither Parliament nor the judiciary has a role to play in conducting the foreign affairs of Ghana.
The next step after negotiation is adoption. Adoption is the formal acceptance of the terms and text of the treaty by the negotiating states. Depending on the parties' preference, adoption may either be by a unanimous decision or by the decision of a specified majority of the negotiating states. 25 Authentication, on the other hand, is the indication (usually by the signatures of the authorised representatives of the negotiating states) that the text of the treaty is ‘authentic and definite’. 26 Adoption or authentication is also referred to as ‘signing’ (in contradistinction to ‘ratification’). A treaty, however, does not bind a state merely because the state has signed (adopted and authenticated) it. 27 International law is replete with treaties that are waiting to bind its signatories. 28 For a treaty to bind a state, that state, after signing, must express its consent to be bound. Consent to be bound may be expressed by ‘signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed’. 29 Of utmost relevance here, however, are ‘ratification’ and ‘accession’ not least because the meaning of ‘ratification,’ in particular, plays a fundamental role in grasping the essence of this article.
Ratification is when a state confirms that it is legally bound by the treaty it has already signed. 30 Ratification is usually done, in the case of multilateral treaties, by depositing an instrument of ratification at the treaty depository or, in respect of bilateral treaties, by communicating same to the other state party. However, ratification is discretionary – a state is neither bound to ratify a treaty it has signed 31 nor required to give a reason for not ratifying. 32 ‘Accession’, on the other hand, occurs where a state, which was not part of the treaty negotiation, later expresses consent to be bound by it. Signing a treaty and not ratifying it, however, does not mean that the state is free to do as it pleases vis-à-vis the terms of the treaty. A state which signs a treaty which it is yet to ratify is ‘obliged to refrain from acts which would defeat the object and purpose of a treaty ... until it shall have made its intention clear not to become a party to the treaty.’ 33 Acts which will defeat the object and purpose of the treaty include acts that may thwart the procedural requirements of the treaty. 34 Such procedural requirements relate to the provisions ‘dealing with the processes of ratification, accession, acceptance, approval, the functions of the depositary and reservations’. 35 Hence it may be argued that a state which, for instance, fails to submit a treaty it has signed to its legislature for consideration for incorporation (where domestic incorporation is required) has engaged in an act which defeats the purpose of such a treaty.
It is most important here to make the point that ratification is an organic part of the treaty-making process in respect of which, as we have noted, the executive branch of government has exclusive power. Further, one would notice that ratification in this sense, forming an organic part of the series of treaty-making steps (like negotiation, adoption and authentication), occurs exclusively on the international plane, and not at the domestic law level.
ChooseTop of pageAbstractI.BACKGROUNDII-MAKING POWERIII-MAKING PROCESSIV LAW-MAKING PO... <<V ‘RATIFICATION’ PROB...VI TO INCORPORATEVII
Choose
IV. DOMESTIC LAW-MAKING POWER
A key consequence of constitutionalism, particularly the separation of powers, is the divestiture of the power to make domestic law from the absolute monarch and the investiture of that power in the legislative branch of government. While the power to make treaties and conduct the international affairs of the state vests, primarily, in the executive, it is the legislature which has the primary power to make laws that apply within the state. In Ghana, too, this is true: ‘The legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.’ 36 In line with this, the Constitution provides the sources of domestic laws and the procedure for making such laws. Article 11(1) of Ghana's Constitution lists the principal sources of law in Ghana. ‘Principal’ is used here advisedly to qualify the Article 11 sources of law. This is to underscore the point that there may be other sources of law in other parts of the Constitution which are not, at least explicitly, listed under Article 11(1). The principal sources of law include the Constitution and the Acts of Parliament. It also includes subsidiary legislation such as legislative instruments, constitutional instruments and all other orders, rules or regulations which may become law when laid in Parliament ‘unless Parliament, before the expiration of
twenty-one days, annuls [them] by the votes of not less than two-thirds of all the members of Parliament’). 37 The rest of the principal sources are the ‘existing law’ and the ‘common law of Ghana’ (CLG).
The existing laws are, basically, all ‘the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution’ 38 except where such laws are a part of the CLG. Thus the laws made by or under the governments of the Provisional National Defence Council (PNDC Laws), the Third Republic, the Armed Forces Revolutionary Council (AFRC Decrees), the First and Second Supreme Military Councils (SMC I & II Decrees), the National Redemption Council (NRC Decrees), the Second Republic, the National Liberation Council (NLC Decrees), the First Republic and the Colonial Ordinances (at least dating from 24 July 1874) 39 that were in force immediately before 7 January 1993, and which are not expressly or by necessary implication inconsistent with the Constitution, are a part of the existing law. The CLG, on the other hand, has four components. The first two are the common law of England and Wales and the rules of equity which were part of the laws of Ghana immediately before 1 July 1960, when Ghana broke off from the jurisdiction of the Privy Council of the Judicial Committee of the House of Lords of England. 40 The third and fourth components of the CLG are the rules of customary law (defined as those rules which ‘by custom are applicable to particular communities in Ghana)’ 41 and the rules that are determined by the Superior Courts of Judicature. 42
As noted above, however, Article 11 of the Constitution, we contend, does not provide an exhaustive list of all the sources of law in Ghana. Of particular note is a resolution made by Parliament under Article 75(2)(b) of the Constitution. Such resolutions are not specifically categorised as a particular source of law. However, one thing is clear – they are not Acts of Parliament (since laws made Article 75(2)(a), its sister provision, are categorised as Acts of Parliament), neither do they necessarily fall under the Article 11(1)(c) category of ‘Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution.’ Accordingly, we wish to submit that resolutions that are passed under Article 75(2)(b) of the Constitution may be a distinct source of law in Ghana, unique not just in nature and mode of making, but also, perhaps, in respect of status or ranking.
ChooseTop of pageAbstractI.BACKGROUNDII-MAKING POWERIII-MAKING PROCESSIV LAW-MAKING PO...V ‘RATIFICATION’ PROB... <<VI TO INCORPORATEVII
Choose
V. THE ‘RATIFICATION’ PROBLEM
Meanwhile, ‘ratification’ seems to pose a challenge to the interpretation and application of Article 75(2) of Ghana's Constitution. This challenge may be noticed in the decision of the Supreme Court in ARA Libertad. Article 75(2) of the Constitution provides as follows:
A treaty, agreement or convention executed by or under the authority of the 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 of all the members of Parliament.
This provision follows immediately after Article 75(1) which says that ‘the President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.’ Taken as a whole, Article 75 of the Constitution codifies the inherited English law position on dualism – that a treaty may not apply in domestic law unless it is incorporated into it by the legislative branch of government. Thus, in Attorney-General for Canada v. Attorney-General for Ontario, 43 Lord Atkin stated the dualist doctrine as follows:
It is well established that while the making of a treaty is an Executive act, the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. The stipulations of a treaty duly ratified by the Executive do not, by virtue of the treaty alone, have the force of law. 44
cloud of confusion over the meaning and effect of Article 75(2). In this cloud of confusion, however, one thing seems quite visible – the Court makes a distinction between an Act of Parliament enacted under Article 75(2) as ‘ratification’ of a treaty and, on the other hand, an Act of Parliament which, according to the Court, ‘incorporates’ a treaty into Ghana's domestic laws. Perhaps this accounts for why the Court considers ‘ratification’ within the context of Article 75(2) of the Constitution as not a means of incorporating a treaty into Ghana's domestic law. The question that then sums up the cloud of confusion is: what does the Court consider as ‘ratification’ under Article 75(2)?
Two meanings of ratification readily come up as an answer within the context. The first and most obvious is ‘ratification’ as used within the international treaty-making context, namely a state's confirmation (usually by depositing an instrument of ratification at the treaty depository or communicating same to the other parties) that it is legally bound by a treaty it has signed. We have very little reason to doubt that the Court relied on this meaning in its decision. Thus when it says that ‘[t]he mere fact that a treaty has been ratified by Parliament through one of the two modes indicated [in Article 75(2)] does not, of itself, mean that it is incorporated into Ghanaian law’, the honourable Court probably meant that the mere fact that Parliament has confirmed that Ghana is legally bound by a treaty, does not, of itself, mean that the treaty is incorporated into Ghana's domestic laws. And when it went on immediately to say further that ‘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’, the honourable Court, again, meant, probably, that where Parliament uses an Act (rather than a resolution) to confirm to the international community that Ghana is legally bound by a treaty, that Act may incorporate the treaty, by appropriate language, into the municipal law of Ghana.
If this understanding of the Court's reasoning is accurate then, respectfully, we find the position of the Court a significant departure from the purpose of Article 75(2) of the Constitution read as a whole. As explained above, ‘ratification’ under the VCLT is an organic step in the treaty-making procedure which is exclusively reserved for the executive branch of governments. It is not the province of the legislative branch of a government to commit a state to a treaty or an international agreement or otherwise conduct the foreign affairs of a state. Our contention, however, is that ‘ratification’ as used in Article 75(2) of Ghana's Constitution bears an entirely different meaning from that which the word carries under the treaty-making legal regime. As noted by Benneh, ‘ratification in this context then is different from ratification as an internal procedure of approval by Parliament.’ 55 This bifurcation was also strongly noted by the International Law Commission when it stated that ‘ratification’ in this sense and ‘ratification’ in the sense of parliamentary approval under domestic law, though not unrelated concepts, are ‘entirely separate procedural acts carried out on two different planes’. 56
While both senses of ‘ratification’ derive from the same source – the canon law agency function of the word (Latin, ratificacio or ratihabitio) – the meaning of the word under international treaty law has varied significantly over time. 57 Article 75(2) of Ghana's Constitution, on the other hand, seems to retain much of the pristine canon law agency meaning of the word as it pertains through the medieval period 58 to modern English law. 59 We submit, respectfully, that it is in the canon law agency sense that ‘ratification’ is used under Article 75(2) of Ghana's Constitution. This may be seen from the following matrix. First, the President is vested with the power under Article 75(1) of the Constitution to commit Ghana to treaties and international agreements; he or she is not vested with the power to make domestic laws for Ghana. Second, Parliament, is vested with the power under Article 93(1) of the Constitution to legislate domestic law. Parliament does not have the power to bind Ghana to a treaty or an international agreement. Therefore, third, a treaty made by or under the authority of the President (the agent), which is meant to change domestic law, cannot become a part of Ghana's domestic laws unless Parliament (the principal) ratifies it (by incorporation). Subsequently, the means by which the principal (Parliament) may undertake such ratification is by one of the two modes indicated in Article 75(2) of the Constitution. Indeed, this view seems more representative not only of the practice throughout the common law tradition but also of Ghana's practice as stated in Ghana's 2009 Treaty Manual. 60 This necessarily makes the proposition in ARA Libertad inconsistent and irreconcilable with the common law position that treaty-making power is exclusively the executive's.
One may notice immediately that the agency meaning of ‘ratification’ under Article 75(2) decisively dissolves the cloud of confusion that was deployed by ARA Libertad. It achieves this in two ways. First, it reverses the incongruous outcome of ARA Libertad. Indeed, a meaning of ‘ratification’ which seeks to give a role to Parliament to kick into force a treaty on the international plane (after such a treaty has been signed by the executive) appears alien to international law. In a study conduct on whether such a practice exists, Mendez found none. Though there is evidence of practices and constitutional systems in which the ‘parliamentary role goes well beyond simply voting yes or no to a purely executive negotiated agreement over which they have had no previous say’, Mendez notes, however, that such expanded parliamentary role should not ‘be mistaken for actual input into the content of treaty-making’. 61 Further, interpreting Article 75(2) of the Constitution to give a role to Parliament in the treaty- making process (as suggested in ARA Libertad) would result in duplicity. This duplicity arises from the situation where Parliament would first go through the Article 75(2) procedure to consider and ratify (as in confirm Ghana's agreement to be bound) the treaty and, then, again, go through a separate consideration to incorporate the same treaty. Thirdly, the ARA Libertad meaning also imposes the impracticable requirement that every single international agreement that the President executes or causes to be executed must be given Parliamentary approval in order to be effective. Meanwhile, the second way in which the agency meaning of ratification dissolves the cloud of confusion that ARA Libertad created is reinstating the established common law principles that treaty- making power and the conduct of the state's foreign affairs are exclusively the executive's.
From this point on, one ought to draw a line between three meanings of ratification. The first – executive ratification – is an indication by the executive to the international community that the state has consented to be bound by a treaty. This, as explained earlier, is also ratification in the treaty-making sense. The second – parliamentary ratification – entails Parliament's explicit incorporation of a treaty into domestic law. This is also the same as ratification in the agency sense. There is, however, a third one which we may call ‘unconventional ratification’. Unconventional ratification connotes the proposition in ARA Libertad that Parliament has the power under Article 75(2) to indicate to the international community either directly or through the executive Ghana's agreement to be bound by a treaty which has been signed by the executive. Accordingly, this meaning of ratification is unconventional, much so because it alters the traditional position that it is exclusively the province of the executive to conduct the foreign affairs of a state and commit it to treaties and international agreements. This trifurcation takes us to the other related challenge that attends the Supreme Court's jurisprudence on Article 75 of Ghana's Constitution – whether every international treaty that the executive executes requires parliamentary ratification. Before that, however, we wish to urge the Supreme Court of Ghana, strongly, to consider rooting out the unconventional meaning of ratification from its jurisprudence at the earliest opportunity.
ChooseTop of pageAbstractI.BACKGROUNDII-MAKING POWERIII-MAKING PROCESSIV LAW-MAKING PO...V ‘RATIFICATION’ PROB...VI TO INCORPORATE <<VII
Choose
VI. WHAT TO INCORPORATE
Do all treaties executed by or under the authority of the President of Ghana require ratification by Parliament under Article 75(2)? The answer to this question requires a much closer look at what dualism entails. That a state is dualist entails two primary incidents. The first incident is that a treaty executed by the state creates rights and obligations for that state under international law. The second incident is that such a treaty does not change a state's domestic law or become a part of it. But treaties or international agreements perform many functions. While the functions of some treaties are limited to the international plane with absolutely no role to play in states parties' internal affairs, other treaties are meant to and become meaningful only if they play a role in the internal affairs of states parties and affect domestic law. Human rights treaties are a typical example of treaties that are intended to function within states and thereby affect domestic laws. Human rights treaties often require extensive domestic actions in the form of legislation and, even, sometimes, constitutional amendments. For such treaties to apply in the domestic law of dualist states, they must be explicitly incorporated by Parliament into domestic law.
a treaty or an international agreement is not inoperative in Ghana merely because it is not explicitly incorporated into Ghana's law by Parliament.
However, it appears that the above rules did not have an influence on the posture of Ghana's Supreme Court when the question – whether all treaties executed by or under the authority of the President of Ghana require ratification by Parliamentary – came before it in Banful v. Attorney General. 75 In that case, the President had entered into an agreement with the United States government to receive into Ghana for two years two Yemeni citizens – Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Sahli Al-Duhby. The two gentlemen together with many others had been detained by the United States authorities in Guantanamo Bay, Cuba, for several years without trial on suspicion of various terrorism offences. As it turned out, the agreement was not taken through the Article 75(2) parliamentary ratification process. Upon the news that the two gentlemen were already in the country, the plaintiffs issued a writ invoking the original jurisdiction of the Supreme Court, seeking, among others, a declaration that the agreement, not having been ratified by Parliament under Article 75(2) of the Constitution, was void and of no effect. The Attorney General opposed the relief primarily on the grounds that not all kinds of international agreements require (and, particularly, that the agreement in question is not the kind of agreement that requires) parliamentary ratification under Article 75(2). In respect of the issue whether all treaties, conventions or international agreements require parliamentary ratification, the majority of the Court, speaking through Akuffo CJ (Atuguba JSC dissenting) held as follows:
It is also clear that the instruments referred to relate to Ghana's international relations with other countries or group of countries and the Article [75(2) of the Constitution] requires that such instruments must be ratified by Parliament. The Constitution makes no mention of any formal distinctions that are dependent on the formality with which such an instrument is formatted or brought into being. 76
The Court, on the basis that Article 75(2) does not expressly distinguish between international agreements, went on to declare the agreement between Ghana and the United States unconstitutional and thus ineffective. Decisive though this holding of the Supreme Court of Ghana may be, we submit that it is painfully terse, distressed and woefully inadequate in a number of ways. Primarily, the holding stimulates two possible meanings, one of which is very immediate to the context and the other quite remote from it.
The first and immediate meaning that the holding stimulates is that every treaty executed by or under the authority of the President, irrespective of whether it has the effect of changing domestic law, requires an Article 75(2) parliamentary action. But even with this meaning, there is a further challenge. This challenge derives from the Court's troubled and imprecise jurisprudence on the meaning and effect of ‘ratification’ in Article 75(2) of the Constitution. As noted from the discussion on ARA Libertad, the Supreme Court left us in a dilemma on the effect of the parliamentary action required under Article 75(2). That is, whether the parliamentary action it pointed to is either by way of parliamentary ratification (incorporation into domestic law) or by way of unconventional parliamentary ratification (that is an indication to the other parties that Ghana has agreed to be legally bound). Whichever way, the Court, regrettably, did not provide a direction on this important question.
The second possible meaning that may be ascribed to the Court's holding is that only a treaty that has the effect of changing domestic law requires parliamentary action. This second meaning is very much in line with the known dualist practice and, though not expressly mentioned by the Court, may ordinarily be taken as necessarily implied in the holding. Nonetheless, this second meaning is quite remote from the context of the case. The remoteness may be due to two reasons. The first reason is that the agreement in question in Banful neither changed, purports to change nor was alleged by the plaintiff to have changed a domestic law. Were that the case, the second meaning could have been readily implied into the holding. The second reason for saying that the second meaning is remote is quite straightforward – the Court didn't give it that meaning. Thus having failed to speak to that principle under circumstances where the tenor of the Attorney General's argument made it imperative that that Court did, one may be entitled to conclude that the Court did not intend that meaning to apply – more so when the holding was summarily and expressly dismissive of the argument that not all treaties require incorporation into domestic law. Be that as it may, even if the second possible meaning is adopted as implied in the Court's
holding, the Court's failure to clear the ARA Libertad confusion would still make the holding inadequate nonetheless.
ChooseTop of pageAbstractI.BACKGROUNDII-MAKING POWERIII-MAKING PROCESSIV LAW-MAKING PO...V ‘RATIFICATION’ PROB...VI TO INCORPORATEVII <<
Choose
VII. CONCLUSION
As the world keeps growing smaller with states becoming more interconnected and the formation of international relationships swifter, treaties have become the principal and the most practicable means of regulating the relationship between states inter se and between states and international organisations. This has resulted in a situation where the line between matters that are exclusively international and those that are exclusively domestic is fast becoming blurrier. This development has, further, led to the situation where domestic courts are frequently called upon to settle disputes touching on the interpretation and application of treaties and other international agreements involving the state. Under such circumstances, domestic courts, particularly those within the common law legal tradition, can no longer remain insular. To be outward-looking, however, is also to embrace the principles that guide the relationship between domestic law and international law, particularly treaty norms. The courts of Ghana are not excused from this requirement. In this article, we set out to review the jurisprudence of Ghana's Supreme Court on Article 75 of the country's Constitution with the broad aim of clarifying Ghana's constitutional law and practice position on the relationship between the country's treaty rights and obligations and its domestic law.
Even though the Supreme Court of Ghana has admitted and maintained that Article 75 of the Constitution codifies the common law rules on the relationship between domestic law and international law, we have found that the Court has not been forthcoming or entirely exact in interpreting and applying Article 75 to sufficiently reflect the common law position on the issue. Two instances in the Court's workflow confirm this claim. The first was in ARA Libertad, where the Court was depressingly unclear on the meaning and effect of ‘ratification’ in Article 75(2) of Ghana's Constitution. The second instance was in Banful, where the Court held, contrary to the well-established rule at common law that a treaty does not require parliamentary incorporation unless its effect is to change domestic law, that every treaty executed by the President must be ratified by Parliament in order to become effective. Quite apart from highlighting these difficult spots in the Court's jurisprudence, this work draws attention to the location (in Ghana's Constitution) of the power to make domestic laws for Ghana and how such laws are made. It also describes how treaties are made and who has the power under Ghana's Constitution to commit the country to a treaty. The clarifications here are fundamental to resolving the more complex future problems on the relationship between domestic law and international law.
J. Srem-Sai - International law and Domestic law in Common Wealth Countries, a case study
Course: Constitutional law (111)
- Discover more from:
![Mensima v Attorney-General 9 [1996-97] SCGLR 676 (Case Brief)](https://d20ohkaloyme4g.cloudfront.net/img/document_thumbnails/348d1ac0bf51fcf8eb6c0d9316207f5f/thumb_300_425.png)