Sources of International Law

Hello and welcome to another exciting episode of The Law Lab Here we dissect and unpack everything legal My name is Eron Asidu Enchi your favorite host I suppose And today I’m joined once again by Mr Ben Mahmud Atamu to help us I think in the previous episode were examining public international law specifically the introductory section He actually helped us understand what public international law is and also enabled us to distinguish it from municipal law and private international law I think we reviewed a few cases including Banfo and Henry Nanabuachi We noted that Henry Nanabuachi is the current MPP's national organizer opposition to the Attorney General and Minister of Interior Foreign Affairs Foreign Affairs got it That's correct Alright so today we all know that when you select your 1992 Constitution if you choose the larger version you go to page 10 or Chapter 4 As you can see in Article 11 it outlines the sources of law in Ghana—namely the domestic laws of Ghana Now today what we want to examine is whether there are sources of public international law and if so whether we have a defined source of public international law That's exactly what Mr Ben Mahmud is here to help us with So today we're examining the sources of international law Yes Do we actually have a settled source of public international law Or are we merely assuming that there is a particular source of public international law Exactly Thank you very much everyone And I must say I'm delighted to be back with you all today To continue the series we began in public international law Very well Now to the question you have asked Yes there is a discernible source of international law or the sources of international law to which the International Court of Justice would ordinarily turn when resolving a dispute before it Now the International Court of Justice was established by the United Nations in one of its resolutions to serve as the judicial body responsible for resolving disputes between nations or conflicts within the international community So disputes between Ghana and Togo Yes But this one we can just settle in Togo We can sit around the table have a few small glasses of gin and put it all behind us Yes we can But there are certain disputes that would have to go beyond arbitration and require a court to make specific rulings I believe a clear example is Ghana and I refer to the sharing of the Mediterranean border Exactly And many other disputes that courts can resolve Additionally the UN established the ICJ When I say the ICJ I mean the International Court of Justice established the ICJ to also advise the United Nations on legal matters as they may occasionally refer to it for review And so regarding sources of international law Our reference would be the statutes of the International Court of Justice So the UN established the ICJ The ICJ also has statutes Exactly Okay I believe our system also has the rules set by the court committee that issues all regulations and orders I recall in 2012 when we had this election petition It traveled for approximately eight months into 2013 I believe it wasn't until around August that a decision was made In 2020 Justice Inin Chief Justice at the time clearly stated this together with the rules of the court committee We're not spending more than two months resolving disputes over the presidential election so I believe the same applies to the ICJ—very similar Thus the statutes of the International Court of Justice are what establish the court's own framework and authority Therefore the ICJ grants the courts the powers they possess to resolve disputes and advise the UN as we previously mentioned And in establishing the courts the United Nations provided them with a set of guidelines to consider when ruling on cases brought before them It is the statutes that will be used to identify the sources of international law which will be crucial for us So essentially what you're saying is that the UN established the ICJ the International Court of Justice which defined the statutes stating that whenever there is an international dispute Refer to that statute when ruling on the matter Exactly So the statutes granted the ICJ the powers it holds and everything else For lack of a better phrase the terms of reference outlining the responsibilities they hold as a court A scope of work Exactly Sure Now Article 38 of the Statutes of the International Court of Justice outlines the sources of law that it has recognized or those sources of law which they have agreed will influence the decisions they make going forward And thus Article 38 of the Statutes of the International Court of Justice shall read as follows The court whose function is to decide disputes submitted to it in accordance with international law shall apply and it gives the following: A international conventions whether general or particular establishing rules expressly recognized by the disputing states This is generally what we refer to as treaties And later when we delve into subsequent episodes I'm confident we'll have the chance to discuss these sources of law in great detail The second paragraph or paragraph B would then go on to state that ernational custom as evidence of a general practice accepted as law Thus the court is reaffirming that international customary law serves as another crucial source of law for the ICJ The third paragraph will state that the general principles of law recognized by civilized nations may not necessarily be codified laws but rather principles or maxims of law which are generally recognized worldwide as binding or persuasive authority for judges in resolving disputes brought before them And last but not least it is subject to the provisions of Article 59 judicial decisions and the teachings of the most eminent publicists Among the various nations the use of precedent serves as a subsidiary means for determining legal rules In simple terms this means that previous court decisions themselves would be binding on You know future cases that the courts will need to resolve Once again the courts will be guided by the works of scholars such as Malcolm Shaw Damroth and a few others Those who might influence their decisions The court should consider one of my former law school classmates His name is Divine Saluk We call him the IGP Inspector General of Petitions That gentleman has countless petitions Even as we speak it's as though he carries petitions in his pocket All he needs to do is edit it and add a few names I think we'll be returning to the last paragraph so that when you explain it You consider whether it is binding or not and so do others Just for educational purposes you've been referring to paragraphs and other elements Remember that in our first edition That was actually discussing how to interpret the Constitution—reading it from articles down to clauses and paragraphs The same approach applies to this situation So Article 38 Clause 1 Paragraph A Paragraph B Paragraph C and then you proceed Remember what I told you—that when you'reading an act— It begins with sections and subsections and you proceed in the same order But with the ICJ statute just as we see in the Constitution We begin with the article then move to the clause then to the paragraph The same principle applies to this situation as well Now Mahmoud we've learned in various law schools in different courses on constitutional law and legal systems at when you examine the sources of law they are arranged in a hierarchy in the sense that Article 11 of the 1992 Constitution establishes tha You essentially have five sources of law: the Constitution Acts of Parliament subsidiary legislation existing laws and the common law of Ghana I keep emphasizing Ghana so that we understand we are not dealing with the basic common law because when we refer to Ghana's common law we are actually referring to three distinct elements First the familiar common law you're aware of You also examine the principles and rules of equity as well as customary law Together these three elements constitute the common law of Ghana We are stating that whenever the Constitution is referenced or a constitutional provision applies it supersedes any other law as clearly established in Article 1 Clause 2 of the Constitution Thus the Constitution shall be the supreme law of the land and any other law found to be inconsistent with it shall to the extent of the inconsistency be void Are we seeing similar effects of the Constitution in the ICJ Statute where whenever there are for instance these sources of international law—treaties customary international law— general principles of law recognized by civilized nations as well as judicial decisions and works by highly qualified publicists is this system structured hierarchically or is it hierarchical in nature thank you very much There is no simple answer to the question you've asked If you examine the statutes of the ICJ as we have they do not explicitly state the sources of law ave been arranged in no particular order However I believe that when you examine the specifics of what all these elements represent we would come to realize that treaties and international agreements are voluntarily entered into And that is the freedom of contract It allows the parties the freedom to decide what they wish to be bound by and what they do not It stands to reason that treaties and international agreements would hold some form of supremacy especially when they address or pertain to disputes It would follow then that if you have voluntarily committed yourself to these provisions of the treaty you should be bound by them And so I would think that treaties would have to be the top priority or the highest source of international law In contract law there is this case It is Corte v Noga The court examines implied custom within an agreement by considering how people actually behave Then the court would infer well under this agreement depending on the custom or trade you're involved in we will incorporate that law or custom into your agreement what you're attempting to convey to us is tha when there is a custom even if it is recognized in a disputed matter and there is a treaty addressing that disputed matter the court will consider the treaty Ahead of the customary international law right Yes absolutely that's precisely the case I'm making It only applies in situations where there is no existing treaty which the disputing states are parties to which refers to the issue they are both contesting in court then the courts would have to set that aside and other sources of international law We noted that one of these sources is international customary law The caveat regarding international customary law is that paragraph B of Article 38 Clause 1 would go on to state that this serves as evidence of a general practice accepted as law It is not just any international custom that courts will consider it must have attained or received recognition as law between the parties so that the parties the states that carry them out are no longer acting out of custom but out of legal obligation and we'll delve into those specifics Certainly I’d prefer that we carefully select each one individually treating treaties with the utmost respect But just as you're examining customary international law I just remembered something I was taught in constitutional law when were studying the evolution of constitutions—I believe our lecturer when examining the case of Angu versus Ata It was actually mentioned that certain customary activities must become notorious before being referenced in court Other jurists actually opposed such developments originating in the courts but the courts must take judicial notice of them thereby granting them notoriety Clearly the first source of international law we must examine and understand is due to the principle of freedom to contract for you know that this principle because of its foundational role shapes the very basis of international agreements That is why we say consideration need not be adequate what you accept as consideration should not be subject to judicial evaluation And so if you freely enter into an agreement en clearly that treaty or agreement should take precedence since that is what you've accepted So that concludes the discussion on treaties and customary international law I believe that when examining customary international law we must consider the scope or degree to which a particular practice has achieved such widespread recognition and acceptance that it is deemed legally binding by the court And it has been acknowledged When I was studying customary international law one example that stood out to me was the red carpet we lay out for heads of state When they arrive at the court I just asked myself if there's no red carpet being laid would that constitute a breach of international law I believe that would perfectly align with customary international law The third form or source of international law as stated in Article 38.1(c) of the Statute of the International Court of Justice namely the general principles of law recognized by civilized nations but which country is not civilized Good question So what Article 38 1c is actually referring to is this: before there were codified constitutions and laws and all that ere were those things that governed human behavior or daily life without necessarily carrying the force of law as law evolved and written statutes and constitutions emerged These principles form the foundation of the laws that have been enacted Principles such as natural justice ensuring everyone has the right to be heard—or at least given the opportunity to be heard—in their own case and all of those things Principles such as pacta sunt servanda that anyone who enters into a contract must fulfill their obligations which they have genuinely accepted I think that would even affect the boys —those who enter into agreements with ladies to propose to them Is that really a contract That’s a matter for discussion I think it's affecting you You'll be dealing with a lot of suits I'm sure that's an interesting topic to discuss I have a friend there—he's called Darlington Quarantine Engine I think when it comes to such situations We would need his expertise A highly qualified publicist to defend him That guy's trouble incarnate We need an inspector general for petitions Divine salute Tell him that guy can file a petition I think he deserves a statue at the GEMPA Law Faculty For the number of petitions and advocacy efforts he has led Divine Salute He is contributing to the development of law He says we are overcoming the law Together we overcome the law General principles of law These widely recognized principles which as I mentioned earlier form the foundation of legal systems across nation states are also principles that courts will take into account when they are making decisions or determinations on matters that have been brought before them I think the last one we'll be looking at and probably in our next episode We'll go through each source of law one by one so you can explain them in detail Moving on to judicial decisions when you look at our system when you examine the state government You have a matter before the court It has been resolved Due to the principle of stare decisis precedent if the same issue or similar facts arise again There is a dispute between AMA and KUFI it is going to be applicable Are these judicial rulings or is that even what we're discussing Is it the same case that the principle of stare decisis is being applied in judicial decisions Right Okay Again there isn't a straightforward answer I believe what we must understand in judicial decisions is that some are binding while others carry persuasive weight It is not binding but it would influence the courts in reaching their decision Now when there is a case between two parties which in a prior matter had been decided by the court such a decision would be binding In the example you provided for instance If a case between state AMA and state KUFI had been settled three four or five years ago there is now a new issue at hand The facts are very similar to those In that new case between state KUFI and state AMA with the same parties involved it would be binding However if it is state KOJO and state SEYAO subsequently the prior ruling between state KUFI and state AMA will not necessarily be binding but would only have persuasive effect meaning that the court is not bound to follow the decision made there but it has the capability to influence what decision they make in that matter In this international law common law countries will be disadvantaged because they rely on precedent and thus will frequently cite extensive precedent Civil law jurisdictions will have a certain advantage because they are considering but as we noted if the case carries persuasive weight it can significantly strengthen your arguments It can only strengthen the arguments But when it comes to precedent you're compelling the court to accept it unless they strictly adhere to the three rules I think when we examine our judicial precedent case and when we explain it you' ll understand that in common law countries you'required to follow precedent However there are three circumstances where this does not apply In any of the three you can actually depart from precedent as it is the judge's role to distinguish between the facts and the case was decided based on inquiry Where an inquiry is made we are stating that the judge either failed to consider a particular material fact or failed to apply a specific law which would have altered the outcome of the case And the third circumstance is when there is a changed circumstance We are living in a Gen Z era a digitized digital era In 1992 there was no TikTok Today we have TikTok So there are changed circumstances that judges may consider when deciding not to follow precedent Mahmoud I think it's been an exciting one running us through Article 38.1 specifically on the sources of international law I believe that in our next episode Please take your time to walk us through these sources of law one by one so we can fully appreciate them Thank you very much ladies and gentlemen This has been The Law Lab We've examined the sources of law Remember I've always been saying don't bring every issue to God—take some to your lawyer Thank you so much and see you in our next episode