ABDUL RAHMAN OSUMANU GIWAH v BABA LADI
| Jurisdiction | Ghana |
| Judge | Akamba JJSC,Date-Bah Jsc,Yeboah,Gbadegbe,Dotse |
| Date | 20 June 2013 |
| Court | Supreme Court (Ghana) |
Ghana, Supreme Court.
(Date-Bah Jsc, President; Dotse, Yeboah, Gbadegbe and Akamba JJSC)
Relationship of international law and municipal law Treaties Effect United Nations Convention on the Law of the Sea, 1982 (UNCLOS) International Tribunal for the Law of the Sea established by UNCLOS Orders of Tribunal Whether Ghanaian courts obliged to enforce orders of Tribunal Doctrine of incorporation Article 75 of Ghanaian Constitution 1992 Whether incorporating UNCLOS into Ghanaian law Ghana's international obligations under UNCLOS Means of remedying any breaches Whether orders of Tribunal valid basis for grant of certiorari
State immunity Jurisdictional immunity Warships Commercial transactions Enforcement of foreign judgments Interpretation of waiver clause in contract Foreign judgment finding that Argentina had contractually waived its sovereign immunity Whether Ghanaian courts obliged to enforce foreign judgment State's sovereign right to waive contractually its sovereign immunity Ghanaian court ordering seizure of Argentinian warship Military nature of asset of foreign sovereign Significance Whether foreign warship immune from detention Public policy considerations Peace and security of Ghana Clarification of common law of Ghana Whether order of Ghanaian court to attach military vessel fundamentally erroneous decision Whether valid basis for grant of certiorari The law of Ghana
Summary:2The facts:On 19 December 2012 the applicant, the Attorney-General,3 applied for orders of certoriari and prohibition4 against the Ghanaian High Court, which had ordered the detention of the Argentinian warship ARA Libertad, and had refused to set aside that order, on 2 and 11 October 2012 respectively. The judge held that the High Court had jurisdiction to arrest the Argentinian warship since the Republic of Argentina had contractually waived its sovereign immunity.
On 29 October 2012 Argentina submitted its dispute with Ghana over the detention of the Libertad to arbitration under Annex VII of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). Pending the decision of that arbitration tribunal, Argentina requested the prescription of provisional measures from the International Tribunal for the Law of the Sea (the Tribunal).5 The release of the ARA Libertad was ordered by the Tribunal on 15 December 2012 (156 ILR 000).
In applying for the certoriari and prohibition orders, the applicant sought to enable Ghana to comply with its international obligations, in particular the Tribunal's order. He argued that the High Court had erred in international law by finding that the immunity of warships could be waived, maintaining that UNCLOS was incorporated into Ghanaian law by Article 75 of the 1992 Constitution.6 The applicant also asserted that the High Court had wrongly assumed jurisdiction by interpreting incorrectly a clause by which Argentina had purportedly waived its sovereign immunity. In a supplementary statement, the applicant also argued that the seizure of foreign military assets could be regulated by Ghanaian law.7
Held:The application for an order of certiorari was granted. The application for an order of prohibition was denied.
(1) As in other Commonwealth common law jurisdictions, customary international law was part of Ghanaian law. Treaties, however, had to be incorporated into Ghanaian law by appropriate legislation. Under this dualist approach, orders of the Tribunal were not binding on Ghanaian courts unless incorporated by Ghanaian legislation. They were not a valid basis for the grant of certiorari, which served to remedy errors of a lower court and was not intended to be a tool of diplomacy (pp. 2435).
(2) Article 75 of the 1992 Constitution did not incorporate UNCLOS into Ghanaian law. Treaty ratification, of itself, did not imply incorporation. A treaty could enter into force and regulate a State's rights and obligations
on the international plane without changing rights and obligations on the municipal plane. A treaty ratified by an Act of Parliament could be incorporated, by appropriate language, into the municipal law of Ghana. Neither had UNCLOS been incorporated by the constitution in force at the time of UNCLOS's ratification. UNCLOS provisions had only been incorporated to a limited extent in the Maritime Zones (Delimitation) Act 1986 (pp. 2456)(3) The basic Commonwealth common law approach, that domestic courts could only apply domestically incorporated treaty provisions, was unaltered by the constitutional principles contained in Articles 40 and 73 of the 1992 Constitution.8 The Executive could otherwise bypass Parliament. Accordingly, the way in which the Government should seek to remedy any breach of Ghana's obligations under UNCLOS was by proposing legislation to Parliament (pp. 2468).
(4) Although most UNCLOS provisions had not been incorporated into Ghanaian law, those UNCLOS provisions that had become customary international law through State practice were to be given effect in Ghanaian law as part of the common law of Ghana (p. 249).
(5) A State could irrevocably waive immunity by express contract in advance. According to the waiver provision in the Fiscal Agency Agreement concluded by Argentina and the terms of the relevant Argentine bonds, Argentina had waived its sovereign immunity before the specified courts as well as before other courts, which included the High Court of Ghana (pp. 2523).
(6) In NML Capital Limited v. ArgentinaINTL9 the United Kingdom Supreme Court had held that Argentina had waived its immunity from the jurisdiction of the English court, which was also one of the other courts. The Ghanaian High Court judge was entitled to recognize this foreign judgment and to apply the principle of res judicata to the waiver issue, thus estopping Argentina from relitigating the same issue. The requirements had been satisfied: the foreign court was of competent jurisdiction, its decision was final and conclusive, and the issue attracting estoppel was on the merits. The independence of Ghanaian courts was thus subject to the received common law rules in the conflict of laws relating to foreign judgments (pp. 25360).
(7) Nevertheless, Ghana was not obliged to give effect to this decision regarding Argentina's waiver of immunity. The courts of Ghana were not required to enforce or recognize a right arising under the law of another State where to do so would conflict with the fundamental public policy of the law of Ghana. To allow the enforcement of a foreign judgment against a warship would be subversive of the peace and security of Ghana, because of the risk which such action posed to the relations between Ghana and other States (pp. 2601).
(8) Under customary international law warships were covered by sovereign immunity in foreign ports. The International Court of Justice case Jurisdictional Immunities (Germany v. Italy: Greece intervening) confirmed the general principle of a State's sovereign immunity in another State's court. Although State practice had excepted commercial acts, other sovereign acts remained immune. Since the sovereign immunity of a warship was an incident of sovereign immunity it was capable of being waived. The issue was whether that sovereignty was effectively waived (pp. 2613).
(9) Although a Ghanaian court was permitted to make new law where no precedent existed, the High Court judge had made a fundamentally erroneous decision for which the remedy of certiorari should be available. He should have refused to accept a waiver of sovereign immunity over a warship so as not to endanger Ghana's peace and security. Customary international law did not prohibit municipal law from expanding the scope of immunity beyond what international law required. There was no obligation in municipal law to recognize waivers of sovereign State immunity in all circumstances except those required by public international law. The common law of Ghana had thus been clarified; a waiver of immunity did not bind Ghanaian courts insofar as it related to military assets for public policy reasons (pp. 2638).
(10) There were to be no further seizures of military assets of sovereign States by Ghanaian courts in execution of foreign judgments even if the sovereign State had waived its immunity (p. 268).
Per Gbadegbe JSC: An application should have been made for each of the High Court orders rather than the one application for both orders, since they warranted different considerations (pp. 26870).
The following is the text of the judgment of the Supreme Court, delivered by Date-Bah JSC:
INTRODUCTORY ANALYSIS OF THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND GHANAIAN MUNICIPAL LAW
This case raises important issues on the nature of the relationship between international law and municipal law in Ghana. The main purpose of the learned Attorney-General in bringing this application for certiorari and prohibition would seem to be to enable the Republic to comply with the orders of the International Tribunal on the Law of the Sea (hereafter referred to as the Tribunal), established under the United Nations Law of the Sea Convention. This circumstance raises the question, quite apart from the other legal issues which arise in this case, whether this court or any other court of Ghana is obliged to enforce the orders of the Tribunal.
Before entering into the full details of the facts of this case, it would thus be worth our while to examine this question of the relationship between international law and municipal law in Ghana. Ghanaian law on this basic question is no different from the usual position of Commonwealth common law jurisdictions. It is that customary international law is part of Ghanaian law; incorporated by the weight of common law case law (for instance, Triquet v. BathENR(1764) 3 Burr. 1478 (Court of King's Bench) and per Lord...
To continue reading
Request your trial