Justice Sai

Committing Ghana to international agreements: a review of..., A.J.I.C.L. 2021, 29(2),...
Committing Ghana to international agreements: a review of the

roles of Parliament and the President
Justice Srem-Sai
Legislative Comment
African Journal of International and Comparative Law
A.J.I.C.L. 2021, 29(2), 204-222
Subject
Constitutional law
Other related subjects

International law
Keywords
Constitutions; Ghana; Incorporation; Ratification; Separation of powers; Treaties
Legislation cited
Constitution of Ghana 1992 art.75
Convention on the Law of Treaties 1969
*A.J.I.C.L. 204 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 *A.J.I.C.L. 205 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
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,
© 2021 Thomson Reuters. 1

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. *A.J.I.C.L. 206 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
*A.J.I.C.L. 207 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.
Meanwhile, it may be necessary to clarify a very rare but important point. The claim that treaty-making power is exclusively the
executive's does not mean that Parliament may never be involved in the process even if the particular treaty expressly requires
so. There are instances where the treaty itself expressly makes legislative approval a prerequisite for the treaty coming into
force. A typical example of such a treaty is the Heligoland-Zanzibar Treaty between Germany and Britain. This treaty was for
the exchange of Zanzibar from Germany to Britain and Heligoland from Britain to Germany in 1890. The Treaty provides that
"by the provisions set out in the schedule to this Act that, subject to the assent of Parliament, the Sovereignty of the Island
of Heligoland, together with its dependencies, should be ceded to His Majesty the German Emperor.'18 It ought to be noted,
however, that such specific contractual requirements may not in any way be taken to have eroded the general substantive legal
position that the power to commit a state to a treaty or an international agreement is *A.J.I.C.L. 208 exclusively the executive's.
This, one may agree, is because the role of Parliament in such instances flows from the terms of the treaty rather than from
the dualist constitutional framework.
III. TREATY-MAKING PROCESS

Treaties are, perhaps, the most decisive primary source of international law.19 Even though the principles that govern treating-
making are grounded in customary international law, it is the Vienna Convention on the Law of Treaties (VCLT), a body

of codified20 international customary laws on treating-making, that now often serves as a common reference point for the
principles.21 As such, the VCLT is invariably described as "an agreement among nations on the law governing the formation and
operation of treaties, how they should be interpreted, amended and terminated and the rules governing their invalidity'.22 The
VCLT defines a treaty as "an international agreement concluded between states in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation'.23
From the VCLT's scheme, four main steps may be gleaned as the composition of a treaty-making procedure. The steps are
negotiation, adoption, authentication and, lastly, indication of consent to be bound. Admittedly, these steps are very simplified
and are not in any way intended to be authoritative on the matter. Like domestic legislation, international agreements are
a tool for solving practical problems. Therefore treaties are initiated from a need to solve observed practical problems that
transcend national borders. Accordingly, treaty negotiations, most often than not, require some preceding studies, research or
investigations by experts and technocrats in the particular field of interest. The findings of such research are then refined and
consolidated into a draft treaty proposal which is then submitted for negotiation between interested states. Negotiation, thus,
may form a convenient place to begin a discussion on the treaty-making process.
A state negotiates a treaty if it is involved in the "drawing up and adoption of the text of the treaty.'24 Hence negotiation entails
the formal discussions which the representatives of states that intend to adopt a treaty have among themselves over the terms of
the treaty. Like the subject matters that may require a treaty, treaty negotiation vary in extent, nature, duration and, of course,
in respect of the number of states that may participate. While some treaty negotiations involve a few meetings between a few
states within a few days in one place, others could last decades, cross several sessions of international conferences or meetings
at *A.J.I.C.L. 209 different places, and include over a hundred states. For example, the VLCT took 300 meetings of the
International Law Commission at eighteen sessions over a period of seventeen years from 1949 before coming up with 75 draft
articles which the Commission then recommended to the UN General Assembly for further negotiation and adoption. In modern
times, negotiation is not exclusive to the states that intend to adopt the treaty. It is common these days to have NGOs and even
states that do not intend to be a part of the treaty send delegations to observe treaty negotiation sessions. Be that as it may, the
negotiation stage of a treaty is where various stakeholders haggle over having their interests factored into the treaty.
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 signed31 nor required to give a reason for not ratifying.32 "Accession', on *A.J.I.C.L. 210 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.
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 *A.J.I.C.L. 211 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. *A.J.I.C.L. 212 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.
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
Likewise, "it is elementary that international treaty obligations are not binding in domestic law until they have become
incorporated in that way.'45 Indeed, Article 75 is not the first time that the dualist doctrine was codified into Ghana's
constitutional law. The 1969 Constitution,46 the 1981 Provisional National *A.J.I.C.L. 213 Defence Council (Establishment)
Proclamation (PNDCL 42),47 and the 1979 Constitution48 have similar provisions requiring legislative "ratification' of treaties
and international agreements that are executed by the executive branch of government.
ARA Libertad involves the arrest of a warship - ARA Fragata Libertad- belonging to and flying the flag of the Republic of
Argentina. A Ghanaian High Court had ordered the arrest of ARA Libertad at the instance of the judgment creditor, NML
Capital Limited, when the warship entered the territorial waters of Ghana at Tema on 1 October 2012. All attempts by Argentina
(including an application to the Respondent High Court) to get the warship released failed, whereupon Argentina filed a
complaint at the International Tribunal on the Law of the Sea (ITLOS) invoking the United Nations Convention on the Law of
the Sea (UNCLOS). Ghana ratified the UNCLOS on 16 November 1994 after it had signed it on 10 December 1982. Argentina's
application sought, among others, an order directing Ghana to release the vessel. On 15 December 2012, ITLOS prescribed
provisional measures ordering Ghana to unconditionally release the warship pending the determination of the substantive case.49
However, being an order from an international tribunal, the Attorney General could not comply directly with it unless a domestic
court discharged the High Court's arrest order. Consequently, on 19 December 2012, the Attorney General issued a writ invoking
the original jurisdiction of the Supreme Court of Ghana for an order of certiorari to quash the High Court's arrest order. In his
address to the Supreme Court, Ghana's Attorney General argued, among others, that a treaty becomes part of Ghana's domestic
law if it is incorporated by Parliament through Article 75 of Ghana's Constitution. He argued thus:
It will be recalled that incorporation of treaty-based public international law into Ghana law is through Article 75 of the 1992
Constitution which states that an international treaty or agreement becomes effective in Ghana once ratified by Parliament.50
The Attorney General then argued that the UNCLOS, having been ratified by Parliament under Article 75, became a part of
Ghana's domestic law. Interestingly, *A.J.I.C.L. 214 the Attorney General's argument did not find favour with the Supreme
Court. Speaking through Justice Date-Bah, the Court stated as follows:
The 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. 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.51
Three key points may be noted when one takes the Court's statement within the context of the entire decision. First, it appears
that the Court agrees with the principle that an international treaty may not be applied in domestic law unless it is incorporated
by Parliament. Indeed, the Court did state categorically that there is a "need for the legislative incorporation of treaty provisions
into municipal law before domestic courts can apply those provisions'.52 The second point, however, is where the Court seems to
reject the Attorney General's claim that a treaty may be incorporated into domestic law through Article 75(2) of the Constitution.
In fact, the learned Justice describes this claim by the Attorney General as "spectacularly erroneous'.53 Put differently, the Court
did not seem to consider any "one of the two modes indicated' under Article 75(2) as, "of itself', an appropriate process for
"incorporating' international treaty into Ghana's domestic law.
Thirdly, the Court rather suggests, quite curiously, that incorporation may be done "through an Act of Parliament … by
appropriate language, into the municipal law of Ghana'.54 Having explicitly rejected the two modes provided by Article 75(2)
of the Constitution as ways of incorporating a treaty into Ghana's domestic law, while immediately prescribing an incorporation
through an Act of Parliament (knowing particularly that one of the two modes under Article 75(2) is incorporation through an
Act of Parliament), the Honourable Court has succeeded in deploying a 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)?
*A.J.I.C.L. 215 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 *A.J.I.C.L. 216 the medieval period58 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. *A.J.I.C.L. 217 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.
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 *A.J.I.C.L. 218 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.
The combined effect of these principles gives us the first circumstance under which a treaty does not require parliamentary
incorporation into domestic law in order to be effective. This circumstance is where the treaty does not or is not intended to
play a role in the domestic affairs of the state party. This rule derives from the fundamental principle that it is the legislature
(not the executive) which has the power to make laws that apply within a state. The principle was explained in R (Miller) v.
Secretary of State for Exiting the European Union 62 as follows:
The first is that ministers generally enjoy a power freely to enter into and to terminate treaties without recourse to Parliament
… The second feature is that ministers are not normally entitled to exercise any power they might otherwise have if it results
in a change in UK domestic law unless statute, i.e. an Act of Parliament, so provides.63
Similarly, Justice Date-Bah explains the rule in ARA Libertad as follows:
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 of Ghana.64
Thus it seems the authorities converge strongly on the point that the only treaties that require incorporation by Parliament are
those that have the effect of changing domestic law. In other word, treaties that do not affect domestic laws do not require
parliamentary incorporation into domestic law.
How about a treaty norm which, though intended to apply within the state, already exists in the domestic law? Is Parliament
still required to repeat the enactment of such a norm? Perhaps an example may drive home the point: *A.J.I.C.L. 219 Ghana's
Constitution, in Article 29, provides a broad framework for the protection of the rights of persons with disabilities. Further, in
2006, Ghana enacted its Persons with Disabilities Act which details various rights of persons with disabilities and the regime
for ensuring such rights. Subsequently, in 2012, Ghana ratified the UN Convention on the Rights of Persons with Disabilities

(CRPD) and its Optional Protocol in respect of which states parties "undertake to ensure and promote the full realization of
all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of
disability'.65 The question here is whether Ghana's Parliament is still required to explicitly incorporate the full text of the CRPD
into Ghana's laws for the rights of persons with disabilities to apply. The answer - it appears that Parliament does not need to
do so. This is simply so because the rights that the CRPD protect already exist, substantially, in Ghana's domestic law.66 This
scenario thus provides the second circumstance under which a treaty or international agreement may not require incorporation
into domestic law by Parliament (under Article 75 of Ghana's Constitution) for such a treaty to apply in Ghana. Similarly, in
India, a dualist state, treaties only "require enabling legislation or Constitutional and legal amendments in cases where existing
provisions of law and the Constitutions are not in consonance with the obligations arising from the treaty'.67
Another question which often comes up is whether an international treaty becomes completely unenforceable under domestic
law simply because it is not incorporated by Parliament. State practice does not seem to support an affirmative answer. A
cardinal rule of interpretation under the common law is that the law-maker does not intend to violate international law.68 Hence,
in Minister for Immigration and Ethnic Affairs v. Teoh, 69 the Australian High Court held that an executive ratification of a
treaty may create a legitimate expectation that the executive would comply with such a treaty.70 In such a case, the courts are
reluctant to let non-incorporation stand in the way of such legitimate expectations.71 This position of the common law should
be even more *A.J.I.C.L. 220 pronounce in Ghana where the Constitution explicitly requires "all citizens, Parliament, the
President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons'72 to "promote respect
for international law, treaty obligations'.73 Furthermore, Article 73 of Ghana's Constitution requires the government of Ghana
to "conduct its international affairs in consonance with the accepted principles of public international law'. Drawing on these
provisions, Appiagyei-Atua, for instance, argues that these provisions "could be relied on in the interpretation of the Constitution'
thereby giving effect to treaties that the executive has signed but which Parliament has not yet explicitly incorporated into
Ghana's domestic laws.74 With such constitutional provisions, we wish to submit that 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 *A.J.I.C.L. 221 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.
*A.J.I.C.L. 222 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.
BA, LLB, QCL (Ghana), LLM (Cardiff), LLM (Harvard), Lecturer at the Faculty of Law, Ghana Institute of Management and
Public Administration (GIMPA).
Footnotes

1 H. Kelsen, "Sovereignty
and International Law',
48 Georgetown Law
Journal (1960): 627, 628,
where Kelsen notes that
"[i]nternational law obligates
and authorizes the state to
behave in a certain way by
obligating and authorizing
human beings in their capacity
as organs of the state to behave
in this way.'
2 J. Maftei, "Sovereignty in
International Law', 11 (1)
Acta Universitatis Danubius
Journal (2015): 54, 55, where
sovereignty is defined as "that
general feature of the state,
which represents the state
supremacy and independence
of state power in expressing
and achievement of the
governors' will as general will,
compulsory for the whole
society.'
3 W. Blackstone, Commentaries
on the Laws of England,
Book 1, Ch. 7 (1766), where
Blackstone vehemently
disparages the idea of
parliamentary ratification of
treaties. He quipped: "Who
would scruple to enter into
any engagements, that must
afterwards be revised and
ratified by a popular assembly.'
4 See generally C. de
Montesquieu, "Esprit des
Lois', Book XI. c. 6; A.
V. Dicey, Introduction to
the Study of the Law of the
Constitution - 1885 (reprint,
Macmillan, 1915): 217-20.
For discussion of Locke and
Montesquieu's views on the
separation of powers, see B.
Mirkine-Guetzevich, Droit
Constitutionnel International
(Sirey, 1933): 97-9; R.
Hazo, "Montesquieu and the
Separation of Powers', 54 (7)
American Bar Association
Journal (1968): 665.
5 See D. Anzilotti, Corso di
Diritto Internazionale, Vol. I
(1928): p. 51, where Anzilotti,
a proponent of dualism,
explains the separation thus:
"The former are binding by
reason of the principle "pacta
sunt servanda", and cannot
be repealed except as laid
down by international law. The
latter are binding by reason
of the rule which enjoins
obedience to the legislature's
prescriptions and can only
be repealed in the manner
provided by the public law
of the particular community
concerned.' On the other hand,

Hans Kelsen is notable as a

leading proponent of monism
- see H. Kelsen, "Les Rapports
de Système entre le Droit
Interne et le Droit International
Public', 14 Recueil des Cours
de La Haye (1926): p. 230.
6 J. Starke, "Monism and
Dualism in the Theory of
International Law', 17 British
Year Book of International
Law (1936), where Starke
notes at p. 66 that "municipal
law thus becomes a normative
order or particular system
of norms having validity
over certain persons within
a certain defined territorial
area, while international law
is a normative order of wider
validity and operation.'
7 See R. Genet, "La Clause
Tacite de Ratification', 38
Revue Générale de Droit
International Public (1931):
764.
8 Attorney General for Canada
v. Attorney General for
Ontario [1937] AC 326,
347, per Lord Atkin. Also
see Salaman v. S.S. India
[1926] 1 KB 613; J. H.
Rayner (Mincing Lane) Ltd
v. Department of Trade and
Industry [1990] 2 AC 418,
476, where Lord Templeman
states that it is the role of the
government to "negotiate,
conclude, construe, observe,
breach, repudiate or terminate
a treaty'. Also see Jean Jacques
Rousseau, Lettres Ećrites De
La Montagne, Seconde Partie,
Septieème Lettre (1764); P.
Haggenmacher, "Some Hints
on the European Origins of
Legislative Participation in
the Treaty-Making Function',
67 Chicago-Kent Law Review
(1991): 313.
9 Article 75(1), 1992
Constitution.
10 Templeman (The Right
Honourable Lord), "Treaty-
Making and the British
Parliament - Europe', 67
(2) Chicago-Kent Law
Review (1991): 459, where
it was noted that "under
English law the capacity
to negotiate and conclude
treaties falls entirely to the
executive arm of government.
Nominally Parliament plays
no role at all in this process.'
See D. Sloss, The Role of
Domestic Courts in Treaty
Enforcement: A Comparative
Study (Cambridge University
Press, 2009), where a review
of 12 countries including

Australia, Canada, India,

Israel, the United Kingdom
and the United States confirms
the position that treaty-making
is an exclusive executive act.
11 H. Wade, Wade on
Administrative Law (Oxford
University Press, 1961): 13,
where Wade notes that "the
residual prerogative is now
confined to such matters as
… making treaties (though
as such they cannot affect
the rights of subjects).' Also
see generally, Rustomjee v.
The Queen (1876) 2 QBD 69;
Blackburn v. Attorney General
[1971] 2 All ER 1380.
12 This position of treaty-
making power being the
preserve of the executive
branch of government appears
to go beyond the common
law legal tradition. See
generally D. Sloss, The Role
of Domestic Courts in Treaty
Enforcement: A Comparative
Study (Cambridge University
Press, 2014).
13 Blackstone, Commentaries
on the Laws of England
(1765-1769), Book I, Chapter
7, "Of the King's Prerogative'.
14 Miller v. Secretary of State
[2017] UKSC 5, para. 160.
15 [2013-2014] 2 Supreme Court
of Ghana Law Report, 990.
16 No. J1/7/2016, Supreme Court
Judgment of 22 June 2016.
17 Banful & Another v. Attorney
General & Another (Writ No.
J1/7/2016, Supreme Court
Judgment of 22 June 2016),
per Akuffo CJ.
18 This provision, however,
did not go down without an
intense debate in the British
Parliament. See Hansard, Vol.
cccxlvii, p. 764.
19 Article 36, Statute of the
International Court of Justice.
20 Reports of the International
Law Commission, 18th Sess.,
1966, Vol. II, para. 24, at 145,
145.
21 See J. Stanford, "The Vienna
Convention on the Laws of
Treaties', 20 University of
Toronto Law Journal (1970):
18. See also Restatement
(Third) of the Foreign
Relations Law of the United
States (1987), section 102(2).
22 E. Deutsch, "Vienna
Convention on the Law of
Treaties', 47 Notre Dame
Lawyer (1971): 297, 297.
23 Article 2(1)(a), VCLT.
24 Article 2(1)(e), VCLT.
25 Article 9, VCLT.
26 Article 10, VCLT.

27 A. Aust, Modern Treaty Law

and Practice (Cambridge
University Press, 2000): 75.
28 C. Bradley, "Unratified
Treaties, Domestic Politics,
and the U.S. Constitution', 48
(2) Harvard International Law
Journal (2007): 307, 309-13,
where the author gives an
account of a number of treaties
that the United States alone
has signed but has not ratified.
29 Article 11, VCLT.
30 See generally M. Rogoff,
"The International Legal
Obligations of Signatories
to an Unratified Treaty', 32
Maine Law Review (1980):
263. Where, generally, a
distinction was drawn between
signature and ratification, and
the point noted, particularly
at p. 266, that "while at one
time signature played a more
important role in the process
whereby a state assumed treaty
obligations, today the crucial
event is ratification.'
31 A. Aust, Modern Treaty Law
and Practice (Cambridge
University Press, 2000): 83; A.
McNair, The Law of Treaties
(University of Michigan,
1938): 87-8.
32 See: J. Jones, Full Powers
and Ratification (Cambridge
University Press, 1946): 79,
where the author notes that
"the stream of unratified
treaties since 1920 has
established beyond doubt
that the contemporary rule
of practice is that ratification
is discretionary and that no
reasons need be given for
refusing to ratify a treaty.'
33 Article 18(a), VCLT.
34 See Article 24(4), VCLT.
35 See the explanation to Article
24 of the VCLT by J. Sinclair,
representative of the United
Kingdom at the Vienna
Conference, United Nations
Conference on the Law of
Treaties, Summary Records
139 (First Session: Vienna, 26
March - 24 May 1968), UN
Doc. A/CONF. 39/11.
36 Article 93(2), 1992
Constitution.
37 Article 11(7), 1992
Constitution. For explanations
of the process for making
subsidiary legislation see:
Okane & Others v. Electoral
Commission & Attorney
General [2011] SCGLR
1136; Opremreh v. Electoral
Commission & Attorney
General [2011] SCGLR 1159.

38 Article 11(4), 1992

Constitution.
39 See: H. Amankwah,
"Ghanaian Law: Its Evolution
and Interaction with
English Law', 4 (1) Cornell
International Law Journal
(1970): 37, 38, where the
author noted: "The critical
date in the annals of Ghanaian
constitutional and legal history
was July 24, 1874, when the
first local legislature was
established. It was on that date
when English law was first
(officially) introduced into
the Gold Coast, now Ghana.'
However, this view, though
popular, may be a little too
extravagant, noting that 24
July 1874 was only the date
when by a Royal Charter "the
Gold Coast and Lagos were
separated from Sierra Leone
and together constituted a
separate colony under the title
of the Gold Coast Colony.' In
this respect, see F. Bennion,
The Constitutional Law of
Ghana (Butterworths, 1962):
17-19. British jurisdiction
itself dates back to 1843
when the British Settlements
Act 1843 (6 & 7 Vict. c. 13)
and the Foreign Jurisdiction
Act 1843 (6 & 7 Vict. c. 94)
were passed by the British
Parliament to cover the
territories along the Gold
Coast.
40 See S. Asante, "Stare Decisis
in the Supreme Court of
Ghana', 1 University of Ghana
Law Journal (1964): 52,
discussing the relationship
between the decisions of the
newly established republican
Supreme Court under the
1960 Constitution and its
predecessor - the Privy
Council. See also A. Harvey,
"Value Analysis of Ghanaian
Legal Development since
Independence', 1 University of
Ghana Law Journal (1964): 4.
41 Article 11(3), 1992
Constitution.
42 Article 11(2), 1992
Constitution.
Ontario [1937] AC 326, PC.
Ontario [1937] AC 326, 347,
PC.
45 Ashby v. Minister of
Immigration [1981] 1 New
Zealand Law Report, 222, 224,
CA, per Cook J.

46 Article 59 provides: "(1) The

President shall, acting in
accordance with the advice
of the Cabinet, execute or
cause to be executed treaties,
agreements or conventions
in the name of Ghana. (2)
Any treaty, agreement or
convention executed by or
under the authority of the
President which relates to any
matter within the legislative
competence of the National
Assembly shall be subject to
ratification by the National
Assembly (a) by the enactment
of an Act of Parliament; or (b)
by a resolution of the National
Assembly supported by the
votes of not less than one-half
of the members of the National
Assembly.'
47 Section 8(2) provides that:
"The Council shall execute or
cause to be executed treaties,
in the name of Ghana, so
however that such treaties,
shall come into force on
ratification by the Council.'
48 Article 75 of the 1992
Constitution is a verbatim
reproduction of Article 62 of
the 1979 Constitution.
49 See The "Ara Libertad' Case
(Argentina v. Ghana), List
of Cases No. 20 (Provisional
Measures, Order of 15
December 2012): 332, at
p. 350, where the Tribunal
prescribed that "Ghana shall
forthwith and unconditionally
release the frigate ARA
Libertad, shall ensure that
the frigate ARA Libertad, its
Commander and crew are able
to leave the port of Tema and
the maritime areas under the
jurisdiction of Ghana, and
shall ensure that the frigate
ARA Libertad is resupplied to
that end.'
of Ghana Law Report, 990,
1000.
1000.
1001.
1000.
1000.
55 E. Benneh, "The Sources
of Public International Law
and Their Applicability to

the Domestic Law in Ghana',

26 University of Ghana Law
Journal (2013): 67, 70.
56 International Law
Commission, Yearbook of the
International Law Commission
(1966): Vol. 11, p. 197.
57 H. Blix, "The Requirement of
Ratification', 30 British Year
Book of International Law
(1953): 352, 353-7.
58 G. Procacci, "On the Theory
and History of Ratification
in the Law of Agency', 4 Tel
Aviv University Studies in Law
(1978-9): 9
59 W. Seavey, "The Rationale of
Agency', 29 Yale Law Journal
(1920): 859. Thus explaining
Lord Coke's famous maxim
omnis ratihabitio retrotrahitur
et mandato aequiparatu,
in Buron v. Denman 2 Ex.
(1848) 67, 188; I54 ER 450,
459, Parke B notes that "a
subsequent ratification of an
act done as agent is equal to
a prior authority.' See also
Dean and Chapter of Exeter
v. Serle de Lanlarazon, YB
30 Ed. I. (edited by Horwood
in the Rolls Series), 126,
12. Similarly, Bowstead
explains the term as:Where
an act is done in the name
or purportedly on behalf of
a person by another person
purporting to act as his agent,
the person in whose name
or on whose behalf the act is
done may, by ratifying the act,
make it valid and effectual,
[subject to certain provisions]
as if it had been originally
done by his authority, whether
the person doing the act
was an agent exceeding his
authority, or was a person
having no authority to act for
him at all.
60 See, Republic of Ghana,
Treaty Manual: Guidelines
for the Domestic Ratification
of Treaties/Agreements/
Conventions under the
Dualist Approach and for the
Transformation of Treaties
into Nation Legislation
(Accra, 2008): 3. Stating
that "[a]s a dualist state, the
Republic is required to ratify
a treaty internationally and
then proceed to ratify the
treaty, in accordance with the
Constitution. Two steps are
required, the international
intervention followed by the
domestic process in order
to transform the treaty from
international law to domestic
legislation.'

61 M. Mendez, "Constitutional
Review of Treaties: Lessons
for Comparative Constitutional
Design and Practice', 15
(1) International Journal of
Constitutional Law (2017): 84,
94.
62 [2017] UKSC 5, 24 January
2017.
63 R (Miller) v. Secretary of
State for Exiting the European
Union [2017] UKSC 5, 24
January 2017, para. 5.
1003-4.
65 Article 4(1), CRPD.
66 It is worth pointing out,
though, that this claim does
not mean that Ghana has
zero legislative obligations.
Of course, Ghana may take
certain legislative steps to
align the CRPD to its domestic
laws. However, such steps
may not require incorporation
in the sense in which Article
75 of Ghana's Constitutional
on dualism requires.
67 The Union of India, Third
Periodic Report to the Human
Rights Committee, UN Doc.
CCPR/C/76/Add.6, 17 June
1996, para. 8.
68 See W. Blackstone,
Commentaries on the Laws
of England, Vol. 4 (Garland,
1978): 67. In respect of
Australia see Mabo v.
Queensland (No. 2) (1992)
175 CLR 1 at 42, where
Brennan J. said: "The common
law does not necessarily
conform with international
law, but international law is
a legitimate and important
influence on the development
of the common law, especially
when international law
declares the existence of
universal human rights.' See
also in respect of Canada G.
van Ert, "The Admissibility of
International Legal Evidence',
84 Canadian Bar Review
(2005): 31, 37-8, explaining
the doctrine of presumption of
conformity of the common law
to international law.
69 (1995) 128 ALR 353.
70 Also see: Tavita v. Minister of
Immigration [1994] 2 NZLR
257 (New Zealand Court of
Appeal); Thomas v. Baptiste
[1999] 3 WLR 249 (Privy
Counsel of the House of
Lords, United Kingdom.
71 See also: Re Minister for
Immigration and Multicultural
Affairs; Ex Parte Lam [2003]
HCA 6, 100-1. The Supreme

Court of India does not

explicitly rely on the concept
of legitimate expectation but
nonetheless arrives at the
same conclusion. Thus see
Visaka v. State of Rajasthan
[1997] 3 LRC 361, where the
Indian Supreme Court applied
Article 51(c) - which says "the
State shall endeavour to foster
respect for international law
and treaty obligations in the
dealings of organised people
with one another' - to give
meaning to a non-incorporated
treaty obligation.
72 Article 34(1), 1992
Constitution.
73 Article 40(c), 1992
Constitution. Also section
10(1)(c) of Ghana's
Interpretation Act (2009)
makes both ratified and signed
(but unratified) treaties aids to
interpretation.
74 K. Appiagyei-Atua, "Ghana at
50: The Place of International
Human Rights Norms in
the Courts', in H. Mensah-
Bonsu et al., Ghana Law
Since Independence - History,
Development and Prospects
(Publication 179 for Faculty
of Law, University of Ghana,
Legon, 2007): 179, 198.
75 Writ No. J1/7/2016, Supreme
Court Judgment of 22 June
2016, unreported.
76 Banful v. Attorney General
(Writ No. J1/7/2016, Supreme
Court Judgment of 22 June
2016, unreported), p. 13.
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Committing Ghana to international agreements: a review of..., A.J.I.C.L. 2021, 29(2),...

Committing Ghana to international agreements: a review of the

African Journal of International and Comparative Law

A.J.I.C.L. 2021, 29(2), 204-222

Other related subjects

*A.J.I.C.L. 204 I. BACKGROUND

II. TREATY-MAKING POWER

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III. TREATY-MAKING PROCESS

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IV. DOMESTIC LAW-MAKING POWER

V. THE "RATIFICATION' PROBLEM

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VI. WHAT TO INCORPORATE

Similarly, Justice Date-Bah explains the rule in ARA Libertad as follows:

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*A.J.I.C.L. 222 VII. CONCLUSION

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Hans Kelsen is notable as a

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Australia, Canada, India,

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27 A. Aust, Modern Treaty Law

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38 Article 11(4), 1992

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46 Article 59 provides: "(1) The

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the Domestic Law in Ghana',

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Court of India does not

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