2013
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Dr. Date-Bah JSC (presiding), considered the Attorney-General’s application for certiorari and prohibition arising from the detention of Argentina’s warship ARA Fragata Libertad at Tema Harbour, ordered by the High Court at the instance of NML Capital Ltd, a judgment creditor on Argentine bonds. Reaffirming Ghana’s dualist approach, the Court held that ITLOS provisional measures and UNCLOS do not bind Ghanaian courts absent legislative incorporation and Article 75 does not domestically incorporate treaties. Accepting issue estoppel from the UK Supreme Court’s decision in NML Capital v Argentina on Argentina’s contractual waiver of sovereign immunity for enforcement in “other courts,” the Court nevertheless applied conflict-of-laws public policy to refuse effect to any waiver regarding military assets. Warships enjoy sovereign immunity, and their seizure risks national security and diplomatic conflict. The High Court’s failure to account for the military nature of the asset and forum public policy was a fundamental error warranting certiorari; prohibition was unnecessary given the Court’s clarifying guidance. Gbaadegbe JSC concurred with a brief procedural note on certiorari practice.
DR. DATE- BAH JSC:
Introductory Analysis of the Relationship between International Law and Ghanaian Municipal Law.
This case raises important issues on the nature of the relationship between international law and municipal law in Ghana. The main purpose of the learned Attorney-General in bringing this application for certiorari and prohibition would seem to be to enable the Republic to comply with the orders of the International Tribunal on the Law of the Sea (hereafter referred to as the “Tribunal”), established under the United Nations Law of the Sea Convention. This circumstance raises the question, quite apart from the other legal issues which arise in this case, whether this court or any other court of Ghana is obliged to enforce the orders of the Tribunal.
Before entering into the full details of the facts of this case, it would thus be worth our while to examine this question of the relationship between international law and municipal law in Ghana. Ghanaian law on this basic question is no different from the usual position of Commonwealth common law jurisdictions. It is that 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 [1939] 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 their tribunals.” However, treaties, even when the particular treaty has been ratified by Parliament, do not alter municipal law until they are incorporated into Ghanaian law by appropriate legislation.
This position of the law is usually referred to as reflecting the “dualist” school of thought, as distinct from the monist approach followed by some other States. Under a dualist approach, orders of the Tribunal cannot be binding on Ghanaian courts, in the absence of legislation making the orders binding on Ghanaian courts. In any case, the orders of the Tribunal given subsequent to the