ASSESSING THE PROPRIETY OF PROF. E.Y. BENNEH’S “COMMON LAW OF MANKIND” THEORY BY FREDERICK AGAAYA ADONGO

It is a desideratum of every system of law that legal personality is ascribed to certain persons, be they natural or artificial persons. The Ghanaian cases of New Patriotic Party v. Attorney General [1997-98] 1 GLR 378 – 461, popularly referred to as the CIBA Case as well as Ghana Bar Association v. Attorney-General [1994-95] GBR 290 are instructive in this stead. Therein, the Supreme Court of Ghana, speaking through Bamford Addo JSC (as she then was), poignantly opined to the effect that the rights and correlative duties conferred by the Constitution can be enjoyed by both natural as well as legal persons (corporations). It therefore behoves on them to defend same through the enforcement procedure in article 2(1) of the Constitution. Essentially, the ratio of the court in relation to legal personality in both cases is that, both natural and legal persons can sue and be sued because the law recognizes them as persons, possessing certain rights and being subject to perform specific duties.

The direction of our enquiry in this piece is to ascertain whether there are any such subjects of international law, possessing rights and responsibilities, and capable of instituting actions in international tribunals. In so doing, we shall look at some of the subjects of international law, namely: States, International Organizations, Transnational Corporations and the Individual. Regarding the individual as an international person, recourse shall be had to a proposition made by Prof. Emmanuel Yaw Benneh which he regards as the “common law of mankind”. This proposition will thereafter be examined critically to determine its veracity or otherwise.

 

THE STATE AS AN INTERNATIONAL PERSON

International law today is replete with a number of entities which have been largely regarded as possessing international legal personality. That notwithstanding, States are still the predominant actors in international law. Treaties, for example, are concluded mainly between States.

This premise leads us to our next point of enquiry regarding what a State is. The term “State”, like all other legal concepts, is not easy to define. Nonetheless, attempts to identify what a State is for purposes of international law leads us to the famous 1933 Montevideo Convention on the Rights and Duties of States which in Article 1 spells out the essential characteristics of a State. The Convention provides that a State, for purposes of the assertion of rights, with the reciprocal performance of duties must possess the following key features.

(a) a permanent population;

(b) a defined territory;

(c) government; and

(d) capacity to enter into relations with other states.

The criteria outlined in the convention have largely been regarded as the criteria based on effectiveness.

In his article STATEHOOD, TERRITORY, RECOGNITION AND INTERNATIONAL LAW, Prof. Emmanuel Yaw Benneh recognizes the need for the concept of statehood to be re-examined in light of modern developments in international law, thereby regarding the conception of statehood by the Montevideo Convention as obsolete. This is in view of certain entities which met the criteria in the Montevideo Convention and were not recognized as States, as well as other entities which did not meet all the requirements of the Convention which were conferred with international personality as States. He cited as examples, Rhodesia, which appeared to satisfy the factual requirements of Statehood, but was nonetheless not recognized as a State by the international community and Guinea-Bissau before Portuguese recognition which was regarded as a State even though it did not appear to satisfy fully the criteria for Statehood based on effectiveness.

He posits that the direction of modern enquiry leads us to the identification of other distinct criteria of statehood. These include the principle of self-determination, the legality of the creation of the State as well as the incidence of grave breaches of human rights in the creation of the State.

As regards self-determination, James Crawford considers the principle of self-determination to be a distinct criterion of statehood. He noted “that where a particular territory is a self-determination unit as defined, no government will be recognized which comes into existence and seeks to control the territory as a State in violation of self-determination.” This principle was succinctly encapsulated in the opinion of Judge Dillard in the Western Sahara case wherein he stated that “the pronouncements of the Court thus indicate, …. that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations. It should be added that the force of these pronouncements is in no way diminished by virtue of the theoretically non-binding character of an advisory opinion…  It is for the people to determine the destiny of the territory and not the territory the destiny of the people.”

The principle of self-determination has gained worldwide acceptance. It is expressed in varying language in a number of international instruments. Notably, Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Proceeding therefrom, it is worth noting that in Ghana today it is no news that repeated attempts have been made by a separationist group, Homeland Study Group Foundation (HSGF), to declare the Western Togoland as an independent State. The critical question worth examining is whether in light of this principle of self-determination, the purported declaration of the Western Togoland as an independent State can lead to its recognition as a State as far as modern international law is concerned.  The simple answer is that international jurisprudence greatly abhors secessionist self-determination. Malcolm Shaw recounts a number of instances whereby purported secession from independent States resulted in the non-recognition of those entities as States. Of particular importance is the case of the former territory of British Somaliland which, being the northern part of the State of Somalia after its independence in 1960, asserted its own independence in 1991. Nonetheless, the Organization of African Unity failed to recognize it as a State.

Regarding the creation of a State and illegality, Benneh argues, from the standpoint of the non-use of force principle in article 2(4) of the United Nations Charter that the “use of force designed to acquire territory is clearly illegal.” Hence, any State, the creation of which is tainted with this illegality shall not be recognized as a State for purposes of international law.

Then again, the learned professor argued that any State which was created as a result of widespread violations of human rights, such as ethnic cleansing, will not be recognized as a State.

It follows from the discussion thus far that any entity that can be lawfully recognized as a State based on the criteria outlined above is deemed to be an international person.

 

OTHER POSSIBLE SUBJECTS IN INTERNATIONAL LAW

Oppenheim opined that since the law of nations is based on the common consent of States and not on individual human beings, States solely and exclusively are subjects of international law. Authors like Malcolm Shaw, Peter Akehurst and others deny the assertion made by Oppenheim, arguing rather that his postulation did not reflect the reality even at the time, as the Holy See, which was obviously not a State, had legal personality in international law.

The emergence of new actors on the international scene during the inter-war period and its aftermath makes one wonder whether such actors can be regarded as international persons.

The International Court of Justice noted in the Reparations case that: “fifty states, representing the vast majority of the members of the international community, have the power, in conformity with international law, to bring into being an entity possessing objective international personality and not merely personality recognized by them alone, together with capacity to bring international claims.”

The court thereby recognized the possibility of personality being ascribed to other actors apart from States. Three of the other possible candidates for admission into the school of international legal personality shall be considered herein.

 

INTERNATIONAL ORGANIZATIONS

The authorities are congruent that treaties establishing International Organizations usually provide that the Organizations shall enjoy in the territories of their member States some degree of legal capacity. A critical example is Article 104 of the United Nations Charter which provides that “the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.” Sadly however, there is no express provision in the Charter conferring international personality on the Organization.

Nonetheless, it has generally been argued that the United Nations has some degree of international personality, in view of Article 43(1) of the Charter of the United Nations which provides that “all Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.”

The argument therefore goes that this power to enter into agreements with member States can exist only if the United Nations has international legal personality. But the matter still remained one of great jurisprudential debate until the International Court of Justice had occasion to proffer an opinion on the matter, in view of Article 34(1) of the Statute of the International Court of Justice which provides to the effect that only States can appear in contentious proceedings before the International Court of Justice.

The Advisory Opinion of the International Court of Justice in the Reparations Case has been notoriously cited as the authority that recognizes international organizations as legal persons. The case was the result of the assassination in Jerusalem of Count Bernadotte, the United Nations Mediator in Palestine and other members of the United Nations Mission to Palestine in 1948. The United Nations contended that Israel had been negligent in failing to prevent or punish the murderers, and wished to make a claim for compensation in International Law. The United Nations therefore sought the advisory opinion of the Court to determine, inter alia, the issue whether the United Nations had the capacity to bring an international claim against the State responsible with the view to obtaining reparation for the damage caused to the Organization and to the victim.

In its opinion, the Court held that the Organization had a large measure of international personality and the capacity to operate on the international plane. The Court in so holding reasoned that the United Nations has such powers as are necessary for the efficient discharge of its functions. It also enjoys the privileges and immunities which is given to foreign diplomats representing States. Lastly, the Court looked at the functions of the United Nations in the maintenance of world peace and security.

The essence of the Reparations Case is that, in the absence of any express provision conferring legal personality on an entity, the court may look out for certain indicia of legal personality as regards functions, privileges and powers. When the entity satisfactorily meets these requirements, then legal personality will be conferred on it.

Based on this, Prof. Benneh has noted that there cannot now be any tenable argument against a submission that the United Nations is an international legal person.

 

TRANSNATIONAL CORPORATIONS

Another possible international person is transnational corporations. The Third US Restatement of Foreign Relations Law, St Paul, 1987, notes that the transnational corporation, although an established feature of international life, ‘has not yet achieved independent status in international law’. A similar view is taken by John O’Brien who noted that the multi-national corporation “does not enjoy international legal personality as such but in some cases it may wield greater economic power than many states.”

Prof. Benneh’s opinion on these corporations is that, there is no doubt that these corporations are powerful, but the question is, are the transactions between these corporations governed by national or international law? He argues that multi-national corporations assume the nationality of the States in which they are found. He therefore concluded that they are not subjects of international law. The leading view has therefore been that these corporations do not enjoy the benefit of international personality, although they are found in more than one State and are sometimes more powerful than some States.

But within the changing structure and character of international law, it may be possible any time soon for these corporations to be given international personality.

 

THE INDIVIDUAL

Rapporteur Huber in the Spanish Zone of Morocco Claims Case remarked that: ‘responsibility is a necessary corollary of a right. All rights of an international character involve international responsibility.’ Hitherto the post-war period, the individual had certain responsibilities towards the international community but had no rights to assert directly under International Law. For instance, individuals who committed certain crimes (e.g piracy jure gentium – piracy against the Law of Nations) were brought to book. Consequently, the individual was not regarded as a subject of international law because rights which, together with responsibilities, forms the basis of capacity, were not available to the individual. Essentially, an individual could assert a right in international law only through his State.

The perplexing question to be asked is whether with the turn of the direction of international law the individual can now be regarded as a subject of international law. The emergence of many Human Rights treaties after the inter-war period such as the United Nations Charter and subsequently the 1948 Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, among others, have made it possible for the individual to assert his rights internationally, save with some restrictions such as the exhaustion of domestic remedies.

In our recent past, it was in the news that Mr. Alfred Woyome appeared before the African Court on Human and Peoples Rights to assert his rights in a case titled Alfred Agbesi Woyome v. Republic of Ghana, Application No. 001/2017. This action was entertained by the Court and determined on its merits, thus confirming the general rule that the individual can now assert his rights directly in an international court, provided all the procedural requirements are complied with.

 

THE “COMMON LAW OF MANKIND” THESIS AND ITS PROPRIETY

Prof. Emmanuel Yaw Benneh had intimated during one of his International Law lectures that the individual is not a full subject of international law because of the concept of the “exhaustion of domestic remedies.”

As Malcom Shaw indicates in his international law book, the exhaustion of domestic or local remedies rule is a method of permitting States to solve their own internal problems in accordance with their own constitutional procedures before accepted international mechanisms can be invoked, and this is well established in general international law.

This principle finds expression in Article 41(c) of the International Covenant on Civil and Political Rights in the following terms: the Human Rights Committee “shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged.”

The African Charter on Human and Peoples Rights also has a similar provision in article 56(5) which provides that “Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission shall be considered if they are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged”

In effect, an international tribunal will decline jurisdiction to hear a claim brought before it by an individual until it is proven that the individual has exhausted all available domestic remedies, unless perhaps there are no such remedies in the domestic legal system or the procedure is unduly delayed. The latter exception is in tandem with William Gladstone’s oft quoted maxim that “justice delayed is justice denied.”

On the basis of this concept, Prof. Benneh argues that the individual is in the “gradual process” of becoming a full international person, and by the time the individual becomes a full subject of international law, international law would have come to an end. This state is what he refers to as the “common law of mankind”.

The observation made by the learned professor is sound, thus necessitating a call to obeisance. In so saying, he was perhaps moved by the fact that when an individual is given the unfettered right to appear directly before an international tribunal, say for instance the International Court of Justice (ICJ), to assert his rights without resort, first of all, to his domestic courts, then there may seem to be no clear distinction between international law and domestic/municipal law. To that extent, his proposition is unimpeachable.

However, with the greatest of respect to the learned professor, his postulation is, to some extent, palpably misleading as far as concerns the existence in perpetuity of international law. Such a monstrous and utterly absurd proposition of law does not fully address the system of international law as it was in its formative years, is now and shall ever be. This is because, inasmuch as the individual may become a full subject of international law in the sense in which he refers to it, international law cannot be extinguished completely because of the element of States as a subject of international law. Thus, if we are to accept Benneh’s postulation as being correct, it begs the question whether one State will readily submit to the jurisdiction of the domestic courts of another State. This is doubtful!

Prof. Benneh’s postulation presupposes that States will appear before domestic courts of other States. For his opinion to be devoid of any absurdities, then it must be possible for States to appear before domestic courts even as the individual appears before international courts. But in the instance of Benneh’s argument, there would only be a one-sided line of action, where individuals appear directly before international tribunals, but States do not appear in contentious proceedings before domestic courts. Thus, international law would still exist to deal with matters between States, even if we are to presume that there can be a time whereby the individual can enforce his rights in an international tribunal as a court of first instance. Therefore, even if we attain the state of the “common law of mankind”, there will still be a clear distinction between domestic and international law.

A number of international transactions have been negotiated and concluded between States. In the treaty regime, it is not uncommon to find postulations in treaties in one or the other formulation, subjecting any likely dispute either to international arbitration or to any court of international justice.

It is out of place, therefore, to suggest that a State will ever willfully submit to the jurisdiction of the domestic courts of another country because of the concept of Sovereignty of States. This is evidenced in the diplomatic immunity enjoyed by foreign diplomats as representatives of their States in other States. The need for the protection of foreign diplomats, as the Vienna Convention on Diplomatic Relations encapsulates, has been given domestic judicial imprimatur in the cases of Armon v. Katz [1976] 2 GLR 115-125 and Kwarteng v. Sackey [1984-86] 1 GLR 141. That evidences the high threshold of importance that the international community places on the concept of sovereignty.

Putting the argument on the basis of sovereignty aside, the need for the existence of international law for length of days unending is that, the world is made up of a number of legal systems. Each domestic legal system varies in some material respects from other legal systems. Even in the common law countries which have similar legal systems, not all principles are immutable and of general application in each of these systems. As such, States may be unwilling to submit to the jurisdiction of other States as a result of the sharply contrasting legal systems.

Hence, States would prefer that their international relations be governed by international law, rather than domestic laws.

Even so, the concept of the “exhaustion of domestic remedies” can never be dispensed with as far as the international protection of human rights is concerned, save that the exceptions to the exhaustion of domestic remedies rule shall continue to apply. Hence, there is even no need to suppose that the individual will ever be able to appear before an international tribunal without exhausting domestic remedies, unless the process in unduly prolonged or there are no such effective remedies in the domestic legal system in question or any subsequent exceptions are developed to deal with any defects of the rule that may be identified.

Many emerging Human Rights treaties have incorporated into the text of those treaties this principle of exhausting local remedies, thus expressing the importance that the international community attaches to the concept. In effect, the individual can never become a full subject in sense in which Prof. Benneh argues. Thus, we will never attain the status of the “common law of mankind” as Benneh envisages.

 

CONCLUSION

Based on the elaborations above, and while differing in thought from Prof. Benneh, I rather propose for his consideration the concept of “latitudinous obsequiousness”. By this concept, supposing the individual becomes a full international person, which is not possible anyway, international law merely submits to the admission of many international persons, thereby broadening the scope of international law. This does not in any way operate to bring an end to international law, or at the very least relegate it to the background.

All in all, it must be sounded that this piece is not meant in any way to disrespect the learned professor. It is only an expression of jurisprudential thought and nothing more!