PIL Assignment 2
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daniel.oppongggPIL Assignment 2
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daniel.oppongggCommon questions
Powered by AISome jurists might argue for the significant role of customary international law because it is considered a part of common law, which is one of the prime sources of law in Ghana. Since customary international law involves general state practices recognized as legally binding, its principles could potentially complement domestic law, facilitating a harmonious legal environment. However, this view contrasts with the dualist framework of Ghana that requires Parliamentary ratification of international treaties for domestic implementation .
The integration of custom into common law challenges Ghana's dualist legal framework by potentially enabling non-legislated international practices to influence domestic legal rules, potentially bypassing the requirement for Parliamentary ratification. This tension arises as customary international law is part of common law, which could undermine the clear demarcation aimed at preserving national sovereignty and legislative oversight as prescribed by Ghana's Constitution .
The dualist approach necessitates that human rights treaties be ratified by Ghana's Parliament before they hold any legal weight within the country's domestic framework. This ensures that such treaties undergo national scrutiny and align with Ghana's legislative processes, emphasizing the preservation of national sovereignty and preventing the automatic integration of international human rights norms without domestic endorsement .
The phrase "l'état, c'est moi," meaning "I am the state," signifies that in the context of monism, the distinction between the state and its ruler is blurred – the ruler's will is equated with the will of the state. This reflects the monistic view in international law that treaties and international agreements signed by the state automatically become part of domestic law, aligning with the sovereign's immediate will without needing further legislative action .
The concern arises from the historical context of customary international law, which was shaped by practices of European powers that are inconsistent with current values of international law, like conquest and colonialism. Allowing such outdated principles to support a monist view could introduce legal precedence inconsistent with modern standards, potentially disrupting Ghana's dualist structure and undermining the constitutional safeguards for legislative control over international agreements .
The dualist structure supports the sovereignty of the people because it mandates that international treaties undergo a ratification process by Ghana's Parliament before becoming domestically effective. This prevents the executive branch, represented by the president, from unilaterally imposing international treaties on the country's legal order, emphasizing legislative oversight and ensuring democratic processes in international law adoption .
The NPP v Attorney-General (The CIBA Case) illustrates that, according to Ghana's constitution, international treaties are not automatically part of domestic law; they require ratification by Parliament. The case highlighted that international human rights instruments could guide constitutional interpretation, underscoring the constitutional requirement for legislative action before treaties have domestic scope, demonstrating Ghana's commitment to a dualist approach .
Ghana adopts a dualist approach to international law, whereby international treaties signed by the president must be ratified by an Act of Parliament to have domestic effect, as stipulated by the 1992 Constitution Article 75. This approach is grounded in retaining sovereignty by ensuring that international treaties are not self-executing and are subject to legislative approval, which counters a monist viewpoint where international law would automatically integrate into the domestic legal order .
Under Article 40 of Ghana's Constitution, the state is encouraged to align its functions with the principles of the international treaties it is party to, potentially giving international commitments a foundational role in influencing domestic policy and law. Although treaties are not self-executing, this mandate implies an aspiration towards harmonization between international norms and domestic practice, influencing legal and organizational frameworks .
The primary argument is that the customary international law from the 18th and 19th centuries was based on a limited set of practices by a small group of European powers, which included conquest, colonialism, and use of force – practices that are sharply distinct from modern customary international law. Modern customary international law requires both general state practice and opinio juris, which were not considerations before the establishment of entities like the ICJ .