Is International Law a Law?

Hello, and welcome to another exciting episode of The Law Lab. Here we unpack and dissect everything legal. Today we'll be looking at public international law. As always, my name has been Aaron Asidu-Entry, and today I'm having a guest to help me for us all to understand what public international law is. As we all know, we have our own municipal laws. We are having the Constitution 1992 to help guide us and regulate the activities in this jurisdiction. And so when people do mention what public international law is, it becomes so problematic for us to appreciate and understand the context and the content of it, to even know the players or the actors in this international space. We have with us Mr. Ben Mahmud Adamu, Chief. Thank you very much. I'm hoping that today we'll be having an exciting conversation. I hope so. To appreciate what public international law is and others. I hope you're doing well. I'm very well. Thank you for having me. Okay. So let's zoom in. Chief, many times when anyone gets to read law or Bachelor of Laws in this country, the person is focused on the laws of that jurisdiction, being it whether it is private or public law. Looking at, let's say, constitutional law, the person is looking at public law. I mean, we are talking about the entire Constitution, the laws relating to what exists or what is inside the Constitution. When we talk of private laws like contract law, law of thought, and others, today all that we are hearing is public international law. When we talk of public international law, what is public international law? And is it even a law? Thank you very much, everyone. Right. So the question of whether or not what public international law really is and whether or not it is important for any student of law to pay attention to public international law when they are already inundated with large volumes of municipal law that they must understand and all of that. I think that the straightforward or simple answer to that question is, yes, public international law remains important for any person who is treating law. I think that now the term global village has become very, very common and popular. In fact, we are in a digitized world. Digitalization and digitizing. Exactly, what digitalization has done for us is that it's brought all of us much closer together than we really were, you know, a few couple of years ago. And so, whereas, whilst we interact with individuals within our local jurisdiction and those that are outside the local jurisdiction, it is important that we have a body of rules that will regulate, you know, how we relate with one another, irrespective of our jurisdiction. One thing that we must note is that municipal law is usually territorial, all right? And so they are valid within the borders of a country or of a nation state, all right? And so if you leave, you know, the shores of Ghana as where we find ourselves, it is not necessarily true that our laws here would necessarily be the same as would apply in other countries like the UK or the US, and so on and so forth. I think there is a little exception in criminal law, looking at Section 54 of the Court Act. When you look at Section 54 and you are dealing with jurisdiction, when you partly commit a crime here, and let's say the other part or the absolution happens in, let's say, another territory. Admittedly, there are a few exceptions to this territorial validity of laws as we may have it. You know, there are some conventions that bind us together, you know, and whatever happens, for example, you know, in international criminal law, what you do in one country may have ripple effects in other countries, and so you may be brought to book. But really, what public international law stands for is, if you break down the term public international law, you can break it down into three words, public, international and law. And if you dissect all of these words, you know, as standalone terms and understand them, then putting them together, the combined effect of their understanding of the three individual terms would give us a good understanding of what public international law is. If you could help us appreciate what, as in you disserting it into three, the public, international and the other law, I think law is popular. Exactly. Everybody understands what law is. I remember my first time in the university, in LLB. We had a legal system class and the lecturer just entered and asked us, what is law? You see everyone giving a definition of what he or she believes is law. He ended up just saying that law is law. But I think what Oliver Wendell Holmes once said, he says that the prophecies of what the court will do, in fact, are nothing more pretentious as what he claims is the law. You know, Oliver Wendell Holmes propounded this bad man theory, if you know the bad man theory very well. He says that a good lawyer is the one who knows the judge. And it is not about knowing the law, it's knowing the judge. And when mostly people talk about a bad man theory, all that people tend to think about is that Charlie going to bribe the judge and others know, you know, getting to know the disposition of the judge, whether the judge is a feminist, polygamous and all of that. So today we want to appreciate what public is, international is, and probably we can add other lawyers so that we get a finer understanding. I mean, I think for everybody to understand, law in very layman terms, or in very simple terms, is just a set of rules that govern how human beings relate with each other. And so if you look at law in that perspective, then public international law will also be a body of rules, of do's and don'ts, what is permissible and what is not permissible in the international state. Now, international from, you know, the dictionary definition would be things which transcend borders, right? So it is not anything that is peculiar to one state per se, but it is international in nature and may be valid in one or more other nations, you know, on God's good earth. All right. So international and that, and on a lighter note, when you see a lot of churches that say they are international in nature, they only mean that they have another branch outside the crown. I remember one of these times, I was going to have lunch with a cameraman and we saw a church that had a, what we call government. And he was saying that, hey, the government in Nairobi, but I told him when it comes to church and religious matters, I am very skeptical. But it was quite interesting that you just clicked. Right. Okay. So when we say international, we mean international in the truest sense of the word, where we mean that it's not just peculiar to one state and different parts of the same state, but it is valid all across the world where it can find its representation in other parts of the world. Public and public in the general sense of the word means that it affects a lot of people. All right. It's not just one institution or one person or a small minute group of people who are affected by it. Public usually gives the sense or connotes a large group of people. All right. Now in public international law, public here stands for nation states. All right. So one country as a republic and other nations is what we refer to as the public sense of international law. So putting all of these three words together, what it tells us is that public international law is really a collection or a body of rules which govern how individual nation states relate with each other in the international plane. Okay. So clearly we have the understanding and a broader understanding of what public international law is. And we are much more conversant with our municipal law. So how do one distinguish between the public international law and that of the municipal law? Thank you very much. And that's a brilliant question. Like I mentioned a little earlier on, we stated that municipal law usually is territorial. All right. Except for a few exceptions where you can hold people responsible for things or actions they've done outside our local jurisdiction. All right. And so if you take the 1992 constitution, for example, article 11 of the 1992 constitution will tell us those laws that would be considered valid within legal jurisprudence. All right. So that it mentions, first of all, the 1992 constitution as being the supreme law of Ghana. They will go on to mention, you know, statutes and acts of parliament. That's another source of law for Ghana. All right. And then there are regulations and orders that, which we generally call subsidiary legislation, which are also, you know, peculiar to the state, the nation Ghana. So for example, when you take CI 96, which regulates elections in Ghana, that seems will not necessarily regulate elections in say Togo or Nigeria, even Burkina Faso, which are very close to Ghana. All right. They too would have their own sets of laws that will regulate elections in those countries. That's true. So municipal law is really state specific. It is peculiar to a certain state. You know, that is very, very distinct and very different from what public international law is. Public international law would be valid irrespective of which jurisdiction you find yourself in. As long as that nation is a party to that treaty or to that international convention, that it spells out the laws for us. So public international law is, for want of a better expression, is valid outside the shores of any one country. All right. It could be bilateral. It could be multilateral. However, municipal law is necessarily valid only in a particular state that passes those laws through its legislation. I have a quick question, but I would want you to first explain what bilateral is and multilateral. And the next question I'll be asking you is that, clearly from your explanation you are giving us, is it the case that public international law is having a bigger scope? I think that is agreed. One needs to understand that. But is it the case that at every point in time when one makes, or when there is a public international law, it supersedes a municipal law? Is that the case? So first, answer the bilateral, multilateral, and whether the public international law supersedes, let's say, when there is a public international law that deals with, say, human rights and how does it fit into a municipal system? Thank you very much. Now, to deal with the first part of your question, what is bilateral and what is multilateral? Bilateral really is a combination of two words, bi and lateral. Bi, as we know from our very elementary Latin, is that it connotes two. All right. So a bilateral... Who did elementary Latin? People are learning in this country. Very elementary because I am Catholic and you know a lot of Latin in our liturgy. I need to either find a wife in the Catholic Church or... There are very many pretty women in the Catholic Church, but that's by the by. So bilateral really means it is an agreement or a law that binds two states, only two nation states together, or regulates the relationship between two states. All right. So for example, as we know, Ghana in times past would sell electricity or would help... No, let's start with a poor example. Let's use Ghana's involvement in Rwanda, where Ghana during the Rwandan genocide in the Rwandan would send its military men to Rwanda to help with peacekeeping and all of that. Whatever agreements that the two states set together to say, because of this agreement you are entering into, I would permit your military men in my country to help with keeping the peace in Rwanda, such an agreement would be what we would call a bilateral agreement. It's between two individual states. Another example would be quite perfect because one might think that it might be the UN or the AU actually authorizing such military forces and others. So if you get us another example on bilateral, it would be very helpful. Let's say Ghana having a bilateral agreement with South Africa that there will be visa free. I believe that that could be a bilateral agreement. And I think in 2018 or 2019 thereabouts, the United States government and the government of Ghana entered into a bilateral agreement where the United States military was to establish a military base in Ghana and use parts of the Kutuka International Airport for movements of its military personnel. That agreement also said that they were supposed to enjoy some privileges and Ghana as a state agreed to those things. And the United States also bound themselves to some obligations in respect of Ghana. So of course, that too is a very recent and a better example of what a bilateral agreement or a bilateral relationship is. On the other hand, a multilateral agreement or a multilateral treaty would be one which has more than one, more than two states that are involved. So for example, the UN Charter, which binds practically a lot of... Think about 196 or 190. Exactly. Nations of the world are bound together in the UN, United Nations Charter and all of that. That is a perfect example of what you call it, a multilateral agreement. Now to the second part of your question with regards what the validity or how international law would be made potent within the municipal law. And I would explain this using... A lot of technical words, potent and others. I mean, potent in the... Potent that it has effects or it can be practiced in the local jurisdiction that we find ourselves. And I would explain that using the Ghanian example, particularly in Article 75 of the 1992 Constitution. It says that when the executive, that is the president, has the power to bind the nation in international agreements. But it goes on a step further and says that those agreements that are entered into by the executive, binding Ghana in some obligations with respect to other nation states, must then be subjected to parliamentary ratification so that it is recognized and given the effect of law within our nation states, Ghana. So that is one example. There are those states also where international law is immediately binding when the agreement is signed between, you know, the executive binds the nation immediately. An example is the United States of America, who do not need any special ratification by Congress or by Senate before international laws are given effect in their countries. So how it takes precedence in the country is nation specific. Okay, so I think in one of the cases, I think it had the MPP's current or incumbent national organizer being part, and one woman, the woman's name comes first. Absolutely, absolutely. That's the case you are referring to, is the case of Banfo and another versus Ateni General. So I think within that case, they actually stated that we have monoist and dualist. Ghana would be the dualist state, and the United States of America would be a monoist state. I think clearly on international agreement, as you rightly mentioned, it spans from Article 73 of the Constitution 1992 to Article 75, as you rightly mentioned. Just to give some brief facts on the Banfo versus Ateni General case, as you have mentioned, because those who are watching us may be wondering what exactly that is and what it has to do with everything that we are talking about. I think that if you'd remember during the presidency of John Ramani Mahama, that is his first term in government, then there was an agreement where the nation, Ghana and the United States entered into an agreement where two Guantanamo Bay convicts were supposed to be resettled. So that would be a bilateral agreement. Exactly, that is a typical example of a bilateral agreement. Were supposed to be relocated to Ghana so that they can now restart their lives after serving their prison term in the U.S., in the Guantanamo Bay prison. Subsequently, when that agreement was made, Banfo and the current MPP... Henry Nanabuachi. He's a lawyer, he's Ghana. They went to court saying that, that agreement constitutes an international agreement and so it must be subjected to parliamentary ratification before Ghana is deemed to have bound itself in that agreement. And the courts, in listening to both arrangements, the defense arguments really was that it was just an exchange of mood verbals and that that did not necessarily constitute an international agreement in the contemplation of Article 75. But we'll get into more details on that case and some other more cases later on when we get the opportunity to treat it all. Or the holding of the court. Right. So the court said that, you know, the form of an international agreement did not necessarily matter. All right. As far as the 1992 constitution was concerned, it did not dictate what format international agreement should be in before they are subjected to parliamentary ratification. And so the court said that, indeed, the GITMO II agreement as entered into by Ghana and the United States constituted an international agreement for which there had to be parliamentary ratification, you know, in the Parliament of Ghana. Right. Thank you. So in my final year at the law school, that is GIMPA Law School, I took a course that is Conflict of Laws. Right. And later realized that it is called Private International Laws. So I was just looking at it. So we have public laws, like the constitutional law, which deals with the generality of the people, like criminal law, the generality of the people. And also we have private laws, like contrast laws. I have an agreement with you or any other person. These are laws that will be governing us privately. So we are having private international law, and we have public international law. How are you able to distinguish between private international law and that of public international law? Thank you very much. I think that from all of our discussions, you know, from the beginning of this video and all of that, we have looked at what public international law is. And I am sure that our viewers have a fair understanding of what public international law, being that it's a body of laws that regulates relationships between party states. Right. Private international law, and if you listen to the two terms or the two terminologies, there's one that is private and one that is public. Private international law does not necessarily have to do with nation states, or it does not have to do with the nation states. Private international law really has to do with when there is a case within the local jurisdiction of a court, but it has some foreign elements in it. How would the courts then treat the foreign elements in that case? And I'll give an example. Let's say that a Ghanaian man, somebody just as brilliant as you are, after your LLB degree, you get the chance to go to Harvard Law School, the prestigious Harvard Law School. And that's what we are aiming at. We want to be Harvard scholars. Fully funded scholarship. Of course. To study a master's degree. Who has the money to pay for Harvard degrees? In Harvard Law. You go there and you find, say, a very beautiful young lady from Australia. I ask you are praying for Harvard to pray for us, because I'm also targeting either Oxford or Cambridge. Amen. A very pretty young woman also gets the same opportunity to come and do a master's program also at Harvard Law School through your study group meetings and discussions of your coursework. You fall in love with this lady. And God be so good. She accepts your marriage proposal and you get married in America. After that, you get a well-paying job, say, in the International Criminal Court or the International Court of Justice in Switzerland or in The Hague. And so you relocate with your wife into The Hague to live life and to work. Two, three or five, ten years after your marriage, you hit some difficulties. And so you have to split up. The international element then there is that you got married in the United States of America. You are now living in The Hague. The loss in where you currently live now may be very different from, you know, loss on divorce in America, where you got married, in Ghana, where you are from, and in Australia, where this lady is from. It becomes more complex when there is an issue, let's say, a child. Exactly. Or there's even property that is supposed to be shared between the two of you who are getting divorced. That would then, for the courts in The Hague, would be the foreign element in a case that they are handling, all right? And so that really connotes what private international law would be. So private international law is not necessarily law that binds different states. It is law that would help resolve matters that the courts are sitting on, which have foreign elements. It could also be between private individuals or private persons, all right? And when you look at persons in the sense of both natural and artificial persons, it could be a contract that the government of Ghana has entered into with, say, Talu Oil or Schlumberger, that are international companies, that really is what private international law means. You are mentioning big companies. You know, when you aspire to big things, you must speak of them as they may be. But please, issue a disclaimer that you just used me as an example. I'm sorry, please. So Aaron is very, very single. I've not said I'm single, too. And neither have I mentioned that I'm in a relationship. Okay, so that was really for explanation purposes to help us to grasp what private international law is. All the characters are fictional and do not necessarily exist. I think it's been an interesting one today. We've actually looked at what international law is, and I've also appreciated the difference between international law and municipal law at a point. We actually looked at how international law actually become potent, as he would say, in the municipal states of several actors of the international scheme or the international space. We also looked at the difference between public international law and private international law. I think in our next episode, I would want us to consider where the sources of this public international law is, because when I pick my constitution, 1992, when I pick the bigger version, the big one, and I go to page 10 or chapter 4, article 11, I know that my sources of law or of the Ghanaian law are clearly provided or stated there. So in our next episode, we'll be looking at the sources of international law, whether even we have one source that we can all move to or the varied sources that we'll be looking at. And so thank you very much, Mahmoud, for coming today. It was a pleasure being here. It's been a good one. Ladies and gentlemen, thank you for being part of this exciting episode. This is The Law Lab. And remember, I've always been saying that do not leave all your matters to God. Take some to your lawyer. Thank you, and see you some other time.